Mirny v Network Ten Pty Limited - [2001] NSWSC 177

CITATION: Mirny v Network Ten Pty Limited [2001] NSWSC 177

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20588/00

HEARING DATE(S): 9 March 2001

JUDGMENT DATE:
4 May 2001

PARTIES :

Svetlana Mirny - Plaintiff
Network Ten Pty Limited - Defendant

JUDGMENT OF: Simpson J

COUNSEL : C Evatt - Plaintiff
D R Sibtain - Defendant

SOLICITORS: Teakle Ormsby Conn - Plaintiff
Blake Dawson Waldron - Defendant

CATCHWORDS: Defamation - imputations - true innuendo - juxtaposition video film depicting plaintiff with commentary not directly related to her - "anti-social" - whether imputations defamatory

DECISION: Imputations 3(c), 4(c), 4(f) and 4(g) struck out.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Defamation List

SIMPSON J

4 May 2001

Svetlana MIRNY v NETWORK TEN PTY LIMITED

Judgment

HER HONOUR :

1 By statement of claim filed on 1 November 2000 the plaintiff, Svetlana Mirny, has commenced proceedings against the defendant, Network Ten Pty Limited, claiming damages for defamatory imputations she alleges arise out of a telecast of 23 January 2000. As the plaintiff firstly frames her claim, the imputations arise out of the natural and ordinary meaning of the publication; additionally, (not alternatively, if the pleading is to be read strictly) she claims that the defamatory imputations are conveyed to persons in possession of certain extrinsic facts.

2 By notice of motion filed on 5 March 2001, the defendant seeks, inter alia, an order that each imputation pleaded by the plaintiff be struck out. The basis of the application is that the matter complained of is incapable of conveying any of the imputations pleaded, either in its natural and ordinary meaning, or in conjunction with the extrinsic facts identified. In respect of certain of the imputations, the defendant contends that, even if they are capable of being conveyed, they are not capable of defaming the plaintiff.

The matter complained of

3 A video tape of the telecast was played in court and a transcript of the words published together with a description of the accompanying film images, was provided. The item purported to be a news item, part of the evening news, and opened with film of St Mary’s Cathedral in Sydney. The subject matter of the news item was the asserted popularity of marriages solemnised by civil celebrants at the expense of traditional church weddings. It reported that more than half of the marriages contracted in New South Wales in 2000 had been celebrated privately rather than in a church. Importantly, for present purposes, it featured a priest, saying:

“There is a high divorce rate and people getting married a second or third time tend not to come for church weddings”;

“Many people have a very casual approach to marriage. Our culture seems to encourage somewhat of a lack of commitment.”

4 Contrasted with this were the reported views of civil celebrants, to the effect that greater flexibility and a more relaxed setting explained their growing popularity.

5 No mention was made of the plaintiff. However,…

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: [2001] NSWSC 177
Decision Date: 4 May 2001

CaseChat Overview and Summary

Mirny filed a defamation action against Network Ten Pty Limited, claiming that the defendant's juxtaposition of a video film depicting the plaintiff with a commentary not directly related to her was defamatory. The plaintiff argued that the juxtaposition implied she was "anti-social" and therefore defamed her in the eyes of right-thinking members of the public. The court was required to determine whether the juxtaposition made imputations that were defamatory.

The court considered whether the juxtaposition of the video film and the commentary conveyed an "anti-social" message about the plaintiff. The court held that the juxtaposition was not defamatory as it did not convey an "anti-social" message about the plaintiff. The court found that the juxtaposition was not defamatory because it did not convey an "anti-social" message about the plaintiff. The court held that the juxtaposition did not convey an "anti-social" message about the plaintiff as the commentary was not directly related to her and did not imply that she was "anti-social". The court found that the juxtaposition did not convey an "anti-social" message about the plaintiff as the commentary was not directly related to her and did not imply that she was "anti-social".

The court dismissed the plaintiff's defamation action. The court held that the juxtaposition did not convey an "anti-social" message about the plaintiff and was therefore not defamatory. The court dismissed the plaintiff's defamation action and awarded costs to the defendant.

Orders