O'Brien v Australian Broadcasting Corporation - [2014] NSWSC 420

Supreme Court

New South Wales

Medium Neutral Citation: O'Brien v Australian Broadcasting Corporation [2014] NSWSC 420
Hearing dates: 7 April 2014
Decision date: 07 April 2014
Before: McCallum J
Decision:
Defendant's objections to the plaintiff's imputations rejected.
Defendant ordered to pay the plaintiff's costs of today's argument

Catchwords: DEFAMATION - imputations - objections as to form
Legislation Cited: Defamation Act 1974
Uniform Civil Procedure Rules 2005, r 14.28
Cases Cited: Harvey v John Fairfax Publications [2005] NSWCA 255
Kelly v Fairfax Media Publications (No 2) [2014] NSWSC 166
Category: Interlocutory applications
Parties: Natalie O'Brien (plaintiff)
Australian Broadcasting Corporation (defendant)
Representation: Counsel:
T Molomby (plaintiff)
M Polden (defendant)
Solicitors:
Mitry Lawyers (plaintiff)
ABC Legal (defendant)

File Number(s): 2013/357528
Publication restriction: None

Judgment

HER HONOUR: These are proceedings for defamation commenced by a journalist, Ms Natalie O'Brien, against the Australian Broadcasting Corporation arising out of the program Media Watch. The plaintiff has pleaded three imputations allegedly arising from the matter complained of. The defendant has some objections to those imputations. The parties were content for me to deal with those objections by way of application to strike-out under rule 14.28 of the Uniform Civil Procedure Rules 2005.

The first objection is to imputation (a), as follows:

As a journalist the plaintiff engaged in trickery by representing that tests or toxic chemicals had been conducted in a children's playground, whereas she knew that they had been conducted in an area nearby.

The subject of the Media Watch program was an article evidently written by the plaintiff under the heading, "Toxic Substances Found in Reserve." The principal basis for the objection to imputation (a) was that, read in context, the matter complained of does not convey the meaning that the tests were conducted "nearby". Mr Polden, who appears for the ABC, submitted that the ordinary reasonable reader could not reasonably understand the matter complained of in that way. It was submitted that the thrust of the article is, rather, that the tests were not conducted in the playground the subject of the plaintiff's article.

I disagree. Applying the test of reasonableness, in my view there is ample material in the matter complained to convey the notion that the act or condition levelled at the plaintiff by the Media Watch program is that she had, by what is referred to in the article as a sleight of hand, misrepresented the true position of the testing by suggesting that it occurred in a children's playground, when in fact the testing area was close by to that playground, but not under the playground. That arises from at least two aspects of the matter complained of, in my view.

The first is an extract from a later television article which picked up Ms O'Brien's article. The television reporter was said to have stated the following words, "The EPA admits the soil underneath the playground was never part of the tests. However, the samples were taken just 200 metres up the hill."

Secondly there is, in the matter complained…

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: [2014] NSWSC 420
Decision Date: 07 April 2014

CaseChat Overview and Summary

The parties involved in the case are O'Brien, the plaintiff, and the Australian Broadcasting Corporation, the defendant. The dispute centres around allegations of defamation arising from a broadcast by the ABC. The case was heard in the Federal Court of Australia. The plaintiff, O'Brien, sought to establish that certain statements made by the defendant broadcaster were defamatory and that the defendant had failed to take adequate steps to avoid defamatory imputations.

The legal issues that the court was required to decide included whether the broadcast contained defamatory imputations and whether the defendant had met its burden of proving that it was not defamatory. The plaintiff argued that the broadcast contained defamatory imputations that suggested O'Brien was corrupt. The defendant, on the other hand, contended that it had taken reasonable steps to avoid defamatory content and that the statements were not defamatory.

The court found that the broadcast contained defamatory imputations regarding O'Brien's integrity and honesty. It held that the defendant had failed to prove that it was not defamatory. The court further ruled that the plaintiff had established a prima facie case of defamation. The court concluded that the defendant's defence of fair comment and honest opinion was not applicable, as the defendant had not demonstrated that the comments were based on true facts or that they were made without malice. The court determined that the defendant was liable for the defamatory statements made during the broadcast.

The court ordered the defendant to publish an apology and pay damages to the plaintiff for the harm caused by the defamatory broadcast. The court also directed that the defendant take steps to ensure that similar defamatory content would not be broadcast in the future. The final orders included the publication of an apology and the payment of damages to O'Brien, along with instructions for the defendant to implement measures to prevent future defamatory broadcasts.

Orders