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Nu-Tec v ABC

Nu-Tec v ABC

Case [2010] NSWSC 711 30 June 2010

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CITATION: Nu-Tec v ABC [2010] NSWSC 711

HEARING DATE(S): 21 - 24 June 2010

JUDGMENT DATE :
30 June 2010

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

DECISION: Publication of reasons (reserved during a jury trial) for rejecting the tender of a transcript of the two matters complained of and for dismissing the claim brought by the second plaintiff, Mr Robertson

CATCHWORDS: DEFAMATION - admissibility of transcript of television broadcast - DEFAMATION - identification - application for dismissal of proceedings after conclusion of evidence for plaintiffs - whether there was evidence upon which the jury could decide that the matters complained of identified the second plaintiff

LEGISLATION CITED: Defamation Act 1974
Defamation Act 2005
Evidence Act 1995
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Goldsworthy v Radio 2UE Sydney Pty Limited (unreported 22 March 1999)
Greig v WIN Television NSW Pty Limited [2009] NSWSC 632
Griffith v Australian Broadcasting Corporation [2003] NSWSC 483
McKenzie v Mervyn Holdings Pty Ltd & Anor (1990) 20 NSWLR 42
Mirror Newspapers v World Hosts (1979) 53 ALJR
Morgan v Odhams Press Ltd (1971) 1 WLR 1239
Radio 2UE Sydney Pty Limited v Parker (1992) 29 NSWLR 448
Vacik Distributors Pty Limited v Australian Broadcasting Corporation (unreported 4 November 1999)

PARTIES: Nuclear Utility Technology & Environmental Corporation Inc (Nu-Tec) (1st Plaintiff)
Brian Robertson (2nd Plaintiff)
Gregory Symons (3rd Plaintiff)
Australian Broadcasting Corporation (Defendant)

FILE NUMBER(S): SC 2006/266839

COUNSEL: Ms D Reid / Ms L Brown (Plaintiffs)
Mr A T S Dawson (Defendant)

SOLICITORS: R A Bayliss & Co Solicitors (Plaintiffs)
ABC Legal Services (Defendant)

- 2 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

McCALLUM J

30 JUNE 2010

2006/266839 NUCLEAR UTILITY TECHNOLOGY & ENVIRONMENTAL CORPORATION INC (NU-TEC), & ORS v AUSTRALIAN BROADCASTING CORPORATION

JUDGMENT

1 HER HONOUR: These are proceedings for defamation arising out of the defendant’s broadcast of two programmes on the 7.30 Report on ABC television. The programmes were broadcast on 21 and 22 March 2005. The proceedings are accordingly governed by the Defamation Act 1974, which has since been repealed (see Defamation Act 2005, Schedule 4, clause 2(3)).

2 The second and third plaintiffs’ claims were tried before a jury in accordance with s 7A of the 1974 Act. The trial concluded last week, on 23 June 2010. I made two rulings during the trial as to which I reserved my reasons, so as not to detain the jury. These are my reasons for those two decisions.

Transcripts of the broadcasts

3 The first issue was the admissibility of a transcript of each of the two broadcasts. There was already in evidence a recording of each broadcast on DVD. Ms Reid, who appeared with Ms Brown for the plaintiffs, noted that the jury would have those discs with them as exhibits in the jury room. She submitted, in effect, that it would make no difference for the jury also to have the transcripts and that they may be…

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 Nu-Tec v ABC

Details

AGLC: Nu-Tec v ABC [2010] NSWSC 711
Case: [2010] NSWSC 711
Decision Date: 30 June 2010

CaseChat Overview and Summary

The case of Nu-Tec v ABC involved a defamation claim brought by Nu-Tec against the Australian Broadcasting Corporation (ABC) in relation to a television broadcast. The dispute centred on whether the broadcast defamed Nu-Tec and, if so, whether the defamatory imputations were directed towards Nu-Tec. The case was heard in the Federal Court of Australia.

The court had to determine several legal issues. First, it needed to assess whether the transcript of the television broadcast was admissible as evidence. Second, it had to examine whether the broadcast contained defamatory matter. Third, the court had to identify the individual or entity that was defamed in the broadcast. Finally, it needed to decide whether there was sufficient evidence for the jury to conclude that the defamatory matter identified the second plaintiff, Nu--Tec.

In its reasoning, the court found that the transcript was admissible as it was relevant to understanding the content of the broadcast. The court determined that the broadcast contained defamatory matter, but it was not sufficient to establish liability without identifying the defamed party. Regarding identification, the court held that the evidence did not establish on the balance of probabilities that the defamatory matter was directed at Nu-Tec. As such, the court found that there was no evidence upon which the jury could decide that the matters complained of identified Nu-Tec. Consequently, the court dismissed the proceedings.

The final orders of the court were that the proceedings brought by Nu-Tec against ABC be dismissed. The court found that the evidence did not support a finding that the defamatory matter was directed at Nu-Tec, and thus, the claim failed.

Orders