Mitchell v Channel Seven Sydney - [2009] NSWSC 1051

CITATION: MITCHELL V CHANNEL SEVEN SYDNEY [2009] NSWSC 1051

HEARING DATE(S): 25 September 2009

JUDGMENT DATE :
2 October 2009

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

DECISION: (1) That the plaintiffs have leave to file an amended statement of claim in accordance with these reasons within 14 days.
(2) I will hear the parties as to costs.

LEGISLATION CITED: Defamation Act 2005
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52
Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763
Singleton v Ffrench (1986) 5 NSWLR 425

PARTIES: Geoffrey Mitchell (1st Plaintiff)
Li Hua Qian (2nd Plaintiff)
Willemdra Pty Limited trading as Pets at Peace Bendigo (3rd Plaintiff)
Channel Seven Sydney Pty Limited (1st Defendant)
Seven Network (Operations) Limited (2nd Defendant)
Jonathon Creek (3rd Defendant)

FILE NUMBER(S): SC 20337/09

COUNSEL: Ms S T Chrysanthou/Mr P A Maddigan (Plaintiffs)
Mr K P Smark SC (Defendants)

SOLICITORS: Kalantzis Lawyers (Plaintiffs)
Mallesons Stephen Jaques (Defendants)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

2 OCTOBER 2009

20337/09 GEOFFREY MITCHELL v CHANNEL SEVEN SYDNEY PTY LIMITED

JUDGMENT

1 HER HONOUR: This is an action for defamation arising out of a report broadcast on the “Today Tonight” television program on Channel Seven. The plaintiffs have sued on three different versions of the report broadcast on separate dates in 2008.

2 There was some confusion as to the nature of the application before me. It was referred to in the submissions for the plaintiffs as an application for the determination of a separate question pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005. That may have been a reference to a different issue (subsequently resolved by the parties). It was not an accurate description of the application before me.

3 The proceedings were commenced by Statement of Claim filed on 21 July 2009. The defendants wrote to the plaintiffs objecting that some of the defamatory meanings sought to be relied upon by the plaintiffs in that pleading were not reasonably capable of being conveyed by the matters complained of. In addition, it was contended that some of them were bad in form. The matter was referred to me with the leave of the Defamation List Judge to hear and determine those objections, in accordance with the procedure contemplated in Practice Note SC CL 4 (the Practice Note refers to Part 67 Rule 12A of the Supreme Court Rules, which has now been repealed, but the practice of giving early notice of objections to imputations is still routinely followed in the Defamation List).

4 Following further correspondence between the parties, however, the plaintiffs served a proposed amended statement of claim seeking to sue on a fourth broadcast and making small changes to the defamatory meanings first pleaded. The defendants then provided a consolidated outline of their remaining objections…

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.

Continue reading Mitchell v Channel Seven Sydney

Details

AGLC: Mitchell v Channel Seven Sydney [2009] NSWSC 1051
Case: [2009] NSWSC 1051
Decision Date: 2 October 2009

CaseChat Overview and Summary

This case arose from an action for defamation against Channel Seven Sydney Pty Limited, Seven Network (Operations) Limited, and Jonathon Creek. The plaintiffs, Geoffrey Mitchell, Li Hua Qian, and Willemdra Pty Limited trading as Pets at Peace Bendigo, sought to sue on three separate broadcasts of the "Today Tonight" program in 2008. The defendants objected to certain defamatory meanings in the plaintiffs' Statement of Claim, arguing they were not reasonably capable of being conveyed by the matter complained of and were bad in form. The court considered the objections and the implications for whether the defamation proceedings should be tried by a jury.

The court was required to determine whether the defamatory meanings as pleaded were reasonably capable of being conveyed by the matter complained of and whether any imputations were bad in form. The test for whether a defamatory meaning was reasonably capable of being conveyed was whether the ordinary reasonable viewer would understand the imputation from the matter complained of. An imputation was bad in form if it had a tendency to cause prejudice or embarrassment in the proceedings.

The court found that some of the defamatory meanings pleaded by the plaintiffs were reasonably capable of being conveyed by the matter complained of. However, some imputations were deemed to be bad in form. For instance, the term "assaulted" in one imputation was held to be problematic as it was capable of having different meanings. The court also found that some imputations were imprecise or rhetorical and therefore should not go to the jury. The plaintiffs were granted leave to amend their Statement of Claim to address these issues.

The court granted the plaintiffs leave to file an amended Statement of Claim within 14 days, addressing the issues identified. The court will hear the parties as to costs.

Orders