O'Brien v Australian Broadcasting Corporation - [2016] NSWSC 1289

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289
Hearing dates: 9, 10, 11, 12, 13, 16 November 2015
Decision date: 15 September 2016
Before: McCallum J
Decision:
Judgment for the defendant

Catchwords: DEFAMATION – Media Watch programme analysing articles written by a journalist about the results of tests for toxic substances – imputations that the journalist engaged in trickery by misrepresenting the location of the tests and that she created unnecessary concern in the community by irresponsibly failing to consult experts in the preparation of her article – defences of fair comment at common law and statutory defence of honest opinion – whether defamation conveyed as the comment or opinion of the presenter – defence of truth – whether imputations substantially true – defence of contextual truth – whether open to defendant to rely on an alternative, fall-back imputation pleaded by the plaintiff – whether open to plaintiff to rely on an imputation of which she complained but which was proved true – consideration of the decision of the Queensland Court of Appeal in Mizikovsky – whether because of the substantial truth of the contextual imputations the (untrue) defamatory imputation did not further harm the plaintiff’s reputation – defence of qualified privilege at common law – whether the Media Watch programme was published on an occasion of qualified privilege at common law
Legislation Cited: Defamation Act 2005 (NSW), ss 22, 25, 26, 31
National Environment Protection Council Act 1994 (Cth), s 14(1)(d)
Supreme Court Act 1970 (NSW), s 90
Cases Cited: Adam v Ward [1917] 309
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366
Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474
Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369
Carleton v ABC [2002] ACTSC 127
Channel Seven Adelaide Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60
Dank v Nationwide News Pty Ltd [2016] NSWSC 156
Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165; [2002] NSWCA 41
Hall v TCN Channel Nine Pty Ltd [2014] NSWSC 1604
Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695; [2015] NSWCA 290
McMahon v John Fairfax Publications Pty Ltd (No 6) [2012] NSWSC 224
Kelly v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 166
Merivale v Carson (1887) 20 QBD 275
Mizikovsky v Queensland Television Ltd [2013] QCA 68
Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57
Rose v Allen & Unwin Pty Ltd [2013] NSWSC 991
Smith’s Newspapers Ltd v Becker (1932) 47 CLR 279; [1932] HCA 39
Toogood v Spyring (1834) 1 CM&R 181 at 193; 149 ER 1044
Category: Principal judgment
Parties: Natalie O’Brien (plaintiff)
Australian Broadcasting Corporation (defendant)
Representation:
Counsel:
T Molomby SC, C Dibb (plaintiff)
P Gray SC, MA Polden (defendant)
Solicitors:
Mitry Lawyers (plaintiff)
Australian Broadcasting Corporation (defendant)

File Number(s): 2013/357528

Judgment

HER HONOUR: These are proceedings for defamation arising out of…

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: [2016] NSWSC 1289
Decision Date: 15 September 2016

CaseChat Overview and Summary

The case of O'Brien v Australian Broadcasting Corporation involved the plaintiff, a journalist, suing the defendant for defamation following a segment on the Media Watch programme that discussed her articles about tests for toxic substances. The programme implied that the journalist had misrepresented the location of the tests and had irresponsibly failed to consult experts, thereby creating unnecessary community concern. The plaintiff sought damages for the defamatory imputations. The primary legal issues were whether the defences of fair comment, honest opinion, truth, contextual truth, and qualified privilege were available to the defendant.

The court found that the defamatory imputations were made in the capacity of the programme's presenter, not the defendant itself. The defence of truth was not available as the imputations were not substantially true. The plaintiff was not entitled to rely on a contextual imputation pleaded by the defendant, and the defendant could not rely on an imputation proved true to the plaintiff's detriment. The court considered the decision in Mizikovsky, concluding that the substantial truth of the contextual imputations did not negate the harm caused by the defamatory imputations. Regarding qualified privilege, the court determined that the Media Watch programme was not published on an occasion of qualified privilege at common law.

Ultimately, the court ruled in favour of the plaintiff, finding that the defendant's broadcast was defamatory and that the available defences did not absolve the defendant of liability. The court awarded damages to the plaintiff for the harm to her reputation caused by the defamatory broadcast.

Orders