Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: O’Brien v Australian Broadcasting Corporation [2017] NSWCA 338 Hearing dates: 1 May 2017; last submissions 26 May 2017. Decision date: 18 December 2017 Before: McColl JA at [1],
Macfarlan JA at [210],
Leeming JA at [227]Decision: Appeal dismissed with costs
Catchwords: DEFAMATION – defences – fair comment at common law – where journalist plaintiff wrote articles published in The Sun Herald reporting cover-up of discovery of toxic substances at levels above health limits on land used by children as a playground – where articles illustrated by photographs of children in playground – where no tests conducted in playground area – where no discovery of such toxic substances on nearby land – where articles criticised by Media Watch programme – where plaintiff pleaded imputations of trickery and irresponsible journalism – whether Media Watch opinion based on proper material for comment
DEFAMATION – defences – honest opinion – s 31, Defamation Act 2005 (NSW)
DEFAMATION – defences – justification – whether imputations of trickery and irresponsible journalism substantially true – s 25, Defamation Act 2005 (NSW)
DEFAMATION – defences – contextual truth – whether plaintiff’s reputation not further harmed by her defamatory imputations because of substantial truth of contextual imputations – s 26, Defamation Act 2005 (NSW)Legislation Cited: Defamation Act 2005 (NSW)
Defamation Act 2005 (Qld)
Evidence Act 1995 (NSW)Cases Cited: Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 43; [2001] NSWCA 322
Born Brands Pty Ltd v Nine Network Australia Pty Ltd (2014) 88 NSWLR 421; [2014] NSWCA 369
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60
Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232
Derry v Peek (1889) 14 App Cas 337
Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174
Fairfax Media Publications Pty Ltd v Zeccola (2015) 91 NSWLR 341; [2015] NSWCA 329
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524
Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90
John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541; [2001] NSWCA 434
Magill v Magill (2006) 226 CLR 551; [2006] HCA 51
Mizikovsky v Queensland Television Ltd [2014] 1 Qd R 197; [2013] QCA 68
Nationwide News Pty Ltd v Weatherup [2017] QCA 70
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66
Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309; [1993] HCA 64
Reader’s Digest Services Pty Limited v Lamb (1982) 150 CLR 500; [1982] HCA 4
Webb v Bloch (1928) 41 CLR 331; [1928] HCA 50Category: Principal judgment Parties: Natalie O’Brien (Appellant)
Australian Broadcasting Corporation (Respondent)Representation: Counsel:
K Smark SC; C…
Keep reading for free
Create a free CaseChat account to read O'Brien v Australian Broadcasting Corporation and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2017] NSWCA 338
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the *Media Watch* program's opinions were based on proper material for comment, and whether the imputations pleaded by the plaintiff were substantially true or whether her reputation was not further harmed due to the substantial truth of contextual imputations. The court was required to determine the applicability and success of the various defences raised by the ABC in response to the defamation claim.
The Court of Appeal analysed the evidence concerning the journalist's articles and the *Media Watch* program. It considered the nature of the alleged toxic substances, the testing conducted, and the location of the land in question relative to the playground. The court examined the elements of each defence, particularly the requirement for honest opinion to be based on true facts and for justification to prove the substantial truth of the imputations. The court also considered the concept of contextual truth, assessing whether other imputations made by the *Media Watch* program were substantially true and whether these contextual imputations would have already caused the harm alleged by the plaintiff. The court ultimately found that the defence of honest opinion was not established, as the opinion expressed was not based on true facts. However, the court found that the defence of contextual truth was established, as the plaintiff's reputation was not further harmed by the imputations of trickery and irresponsible journalism because of the substantial truth of other imputations made by the *Media Watch* program.
The Court of Appeal allowed the appeal in part, setting aside the judgment of the trial judge and entering judgment for the defendant, the Australian Broadcasting Corporation.
Orders
Orders of the court
- paragraph 209
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.