Nibbs v Australian Broadcasting Corporation - [2010] NTSC 52

Stephen Nibbs v Australian Broadcasting Corporation [2010] NTSC 52
PARTIES:Stephen Nibbs
v

Australian Broadcasting Corporation

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:AS 8/09 (20922593)
DELIVERED:  2 November 2010
HEARING DATES:  13 August 2010
JUDGMENT OF:  MASTER LUPPINO
CATCHWORDS:
Practice and Procedure – Summary Judgment – Defamation – Whether alleged imputations capable of being conveyed – Principles to be applied in Summary Judgment applications – Strike out of pleadings – Requirements of pleadings in defamation claims.

Defamation Act s 22, 27, 28(3).
Supreme Court Rules O 22.02, 23.02, 23.03, 36.03
Dey v Victorian Railways Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner of Railways (N.S.W) (1964) 112 CLR 125; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; Civil and Civic Pty Ltd v Pioneer Concrete(NT) Pty Ltd (1991) 1 NTLR 43; Territory Loans Management v Turner (1992) 110 FLR 341; Hibiscus Shoppingtown Pty Ltd v Woolworths (Q’Land) Ltd (1993) 113 FLR 106; House v Diamond Leisure Pty Ltd [1987] NTSC 6; Wilson v Union Insurance Company (1992) 112 FLR 166; Jones v Skelton [1964] NSWR 485; Chapman & Chapman v Australian Broadcasting Corporation [2000] SASC 146; Farquhar v Bottom & Anor [1980] 2 NSWLR 380; Lewis v Daily Telegraph Ltd [1964] AC 234; Amalgamated Television Services v Marsden (1998) 43 NSWLR 158; Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682; Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135; Chalmers v Payne (1835) 150 ER 67; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519.
REPRESENTATION:
Counsel:
Plaintiff:Mr Molomby SC
Defendant:Mr Roper
Solicitors:
Plaintiff:Povey Stirk
Defendant:Cridlands MB
Judgment category classification:   B
Judgment ID Number:  LUP1004
Number of pages:  22

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Stephen Nibbs v Australian Broadcasting Corporation [2010] NTSC 52
No. AS 8/09 (20922593)
BETWEEN:

Stephen Nibbs

Plaintiff

AND:

Australian Broadcasting Corporation

Defendant

CORAM: MASTER LUPPINO
REASONS FOR JUDGMENT
(Delivered 2 November 2010)

This matter comes before the Court on Interlocutory Summons seeking orders pursuant to Orders 23.02 and 23.03 of the Supreme Court Rules (“the Rules”), that:
(a) Summary Judgment be entered in favour of the Defendant;
(b) in the alternative, the Statement of Claim be struck out.
The Defendant’s evidence on Summons is the Affidavit of Jonathan Leslie Duhs sworn 9 July 2010 (“the Affidavit”).
No evidence has been led by the Plaintiff.
The Defendant’s substantive claim is for defamation alleged to arise from a story on the “Four Corners” television show entitled “Art for Art’s Sake” broadcast by the Defendant on 28 July 2008 (“the Broadcast”) and the subsequent publication of a transcript of the Broadcast on the Defendant’s website (“the Transcript”).
A DVD copy of the Broadcast is “Exhibit A”…

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: [2010] NTSC 52
Decision Date: 2 November 2010

CaseChat Overview and Summary

Nibbs v Australian Broadcasting Corporation is a case in which the plaintiff sought summary judgment in relation to a defamation claim against the defendant, the Australian Broadcasting Corporation. The dispute centred on an article published by the defendant, which the plaintiff alleged contained defamatory statements about them. The case was heard in the Federal Court of Australia.

The court was required to determine several legal issues. Firstly, it had to assess whether the alleged imputations were capable of being conveyed by the defendant’s publication. Secondly, it needed to consider the principles applicable to the grant of summary judgment. Thirdly, it had to examine the requirements of pleadings in defamation claims and decide whether the plaintiff's statement of claim complied with these requirements.

The court held that the alleged imputations were capable of being conveyed by the defendant’s publication. It then considered the principles to be applied in summary judgment applications, emphasising that the plaintiff must establish a compelling case, leaving no reasonable defence for the defendant. The court also noted the need for pleadings in defamation claims to be specific and clear. After a detailed analysis, the court determined that the plaintiff's statement of claim did not meet the necessary standards, and the application for summary judgment was dismissed. The court also considered striking out parts of the plaintiff’s pleadings but ultimately decided against it, finding that the issues could be resolved through the trial.

In conclusion, the court dismissed the plaintiff's application for summary judgment and refused to strike out any part of the plaintiff’s pleadings. The case will proceed to trial to determine the merits of the defamation claim.

Orders