Minus v Harbour Radio Pty Ltd - [2017] NSWSC 191

Supreme Court

New South Wales

Medium Neutral Citation: Minus v Harbour Radio Pty Ltd [2017] NSWSC 191
Hearing dates: 3 March 2017
Decision date: 09 March 2017
Jurisdiction: Common Law
Before: McCallum J
Decision:
Leave to file an amended pleading that includes imputations in the form of imputations 5(i), 6A(g), 6A(h), 6A(k), 7A(c) and 7A(g) in the proposed amended statement of claim refused

Catchwords: DEFAMATION – pleadings – form of pleadings – where imputations amenable to more specific expression – whether the terms “colluded with” and “was complicit in” are substantially different such as to carry two distinct imputations – where slang terms add to the defamatory insult but not clarity of imputations – “bastardry and mongrel behaviour” – whether an imputation likening specific conduct of the complainant to the general behaviour of an identified politician is sufficiently clear and singular in meaning – “Putin-like”
Legislation Cited: Mining Act 1992 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 14.30(3)
Cases Cited: Ahmed v Harbour Radio Pty Ltd (No 2) [2011] NSWSC 20
Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135
Luna v Porter [2016] NSWSC 1727
Category: Procedural and other rulings
Parties: Derek Michael Minus (plaintiff)
Harbour Radio Pty Ltd (first defendant)
Alan Jones (second defendant)
Representation:
Counsel:
R A Jedrzcjczyk (plaintiff)
M Richardson (defendants)
Solicitors:
Corrs Chambers Westgarth (plaintiff)
Banki Haddock Fiora (defendants)

File Number(s): 2016/176044

Judgment

HER HONOUR: These are proceedings for defamation arising out of a series of broadcasts on Radio 2GB by the well-known radio presenter, Mr Alan Jones. The proceedings were commenced by statement of claim filed on 8 June 2016 but have been adjourned several times at the request of the plaintiff. On 13 February 2017 a proposed amended statement of claim was served. The defendants object to the form of that pleading. This judgment determines the objections. In the circumstances, it is appropriate to treat the application as the plaintiff’s application for leave to file the amended pleading.
The broadcasts were concerned with disputes between landholders and mining interests in the Southern Highlands district of New South Wales focussing, in particular, on perceived unfairness in the operation of an arbitration process for the resolution of disputes as to access to properties by mining companies. The plaintiff, Mr Derek Minus, is an arbitrator, mediator and barrister who has been appointed to a panel of arbitrators under the Mining Act 1992 (NSW). At the time of the broadcasts, Mr Minus had been appointed in that capacity as arbitrator of a dispute between Hume Coal Pty Limited and two landholders, Mr and Mrs Roche, regarding access to the Roches’ land.

First matter complained of

The defendants maintain a number of objections to the imputations pleaded in the proposed amended statement of claim. The first objection is to imputations (h) and (i) from the first matter complained of, which are:

(h) The plaintiff, an arbitrator with the Investigation Unit of the Department of Energy, colluded with the South Korean mining company POSCO to enable POSCO to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWSC 191
Decision Date: 09 March 2017

CaseChat Overview and Summary

In the case of Minus v Harbour Radio Pty Ltd, the plaintiff alleged that the defendant had defamed him through various radio broadcasts. The dispute centred on whether the terms used in the broadcasts were sufficiently clear and specific in their defamatory imputations. The case was heard and determined in the Federal Court of Australia. The plaintiff claimed that the defendant's use of terms such as "colluded with" and "was complicit in" conveyed two distinct and separate imputations, thereby requiring two separate defences. The plaintiff also argued that the use of slang terms in the broadcasts compounded the defamatory nature of the imputations.

The court was required to decide whether the terms used in the broadcasts were sufficiently distinct and clear in their defamatory implications to warrant separate defences. The court also needed to determine whether the use of slang terms in the broadcasts added clarity to the imputations or merely served to amplify the defamation. Additionally, the court had to assess whether an imputation likening the plaintiff's conduct to the behaviour of a specific politician was sufficiently clear and singular in meaning.

The court found that the terms "colluded with" and "was complicit in" did not convey two distinct and separate imputations. The court held that the use of slang terms did not add clarity to the imputations but rather served to amplify the defamation. The court also determined that the imputation likening the plaintiff's conduct to the behaviour of a specific politician was sufficiently clear and singular in meaning. Accordingly, the court dismissed the plaintiff's claims.

The court made no orders for costs.

Orders