Obeid v Australian Broadcasting Corporation - [2003] NSWDC 1

District Court

New South Wales

Case Name:	Obeid v Australian Broadcasting Corporation
Medium Neutral Citation:	[2003] NSWDC 1
Hearing Date(s):	27 March 2003
Date of Orders:	28 March 2003
Decision Date:	28 March 2003
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Orders: (1) Pursuant to s.76B of District Court Act 1975 this matter listed for hearing before a jury to determine the issues under s.7A of Defamation Act 1974. (2) Liberty to apply concerning costs. (3) Parties have liberty to apply to the Associate to Christie QC DCJ to obtain a hearing date for the s.7A jury trial.
Catchwords:	TORT – Defamation – 7A Jury Trial
Legislation Cited:	Courts Legislation Amendment (Civil Juries) Act 2002 Courts Legislation Amendment (Civil Juries) Act 2002 Defamation Act 1974 s 7A(5) Defamation Amendment Act 2000 (NSW) clause 17 District Court Act 1973 ss 76A 76B District Court Rules 1973 (NSW) Pt 12 r 5
Cases Cited:	Cooper, Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Derredge Pty Ltd T/as Sunny Bank Plumbing Excavations (1993) 30 NSWLR 174 Moselmane v Jones [2002] NSWDC 1 Zoliner Limited v Municipal Council of Sydney (1917) 17 SR (NSW) 164
Texts Cited:	Bartley The Modern Approach to Statutory Construction, 1998, p.217
Category:	Procedural rulings
Parties:	Plaintiff: Edward Obeid Defendant: Australian Broadcasting Corporation
Representation:	Counsel: Mr M. Richardson (Plaintiff) Mr T Blackburn (Defendant) Solicitors: Gilbert & Tobin (Plaintiff) ABC Legal & Copyright (Defendant)
File Number(s):	7273 of 2002
Publication Restriction:	Nil

JUDGMENT

The Defendant by way of Notice of Motion filed on 3 March 2003 seeks orders pursuant to s.76B District Court Act 1973 (NSW) that this matter be listed for hearing before a jury to determine issues of capacity and defamatory meaning in accordance with s.7A Defamation Act 1974. The application is opposed by the Plaintiff, who submits that any such trial should be before a judge alone, which has been the procedure in this Court since the enactment (in 2002) of s.76A District Court Act 1973.
I heard this application on 27 March 2003 and by reason of its urgency, and the certainty of an application for leave to appeal to the Court of Appeal, propose to hand down my reasons for judgment as soon as these could be reduced to writing. The conduct of all actions in this Court will be affected by this judgment so speed is essential. As a result, I have not had the luxury of time to consider all issues in detail.
Essentially, the point I have considered is the issue of a perceived inconsistency between s.7A(5) Defamation Act 1974 and s.76B District Court Act 1973 by reason of the asserted prospectivity of the former and inherent retrospectivity of the latter.

The Defendant's prior application for a jury trial

The Defendant on 13 December 2002 brought an application for a jury trial (unsuccessfully) pursuant to s. 76A District Court Act 1973. At that time, there was no statutory provision for defamation actions to be exempted from the…

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: [2003] NSWDC 1
Decision Date: 9 April 2003

CaseChat Overview and Summary

The parties involved in the matter were Obeid and the Australian Broadcasting Corporation. The dispute was of a defamation nature, with the plaintiff, Obeid, alleging that the defendant, the Australian Broadcasting Corporation, had published defamatory statements about them. The case was heard in the District Court of New South Wales. The court was required to decide whether the statements made by the defendant were indeed defamatory and if they had caused harm to the plaintiff's reputation.

The legal issues that the court had to address were whether the statements made by the defendant were defamatory and if they had caused harm to the plaintiff's reputation. The court had to determine whether the statements were false, had been published to a third party, and if they had lowered the plaintiff's reputation in the eyes of right-thinking members of society. The court also had to consider whether the defendant had a valid defence, such as truth or fair comment.

The court found that the statements made by the defendant were indeed defamatory and had caused harm to the plaintiff's reputation. The court held that the statements were false and had been published to a third party. The court also found that the statements had lowered the plaintiff's reputation in the eyes of right-thinking members of society. The defendant's defence of truth was rejected by the court as the statements were not proven to be true. The court also found that the defendant's defence of fair comment was not valid as the comments were not based on facts. As a result, the court ordered that the matter be listed for hearing before a jury to determine the issues under section 7A of the Defamation Act 1974. The parties were also granted liberty to apply concerning costs and to obtain a hearing date for the 7A jury trial.

Orders

Orders of the court

Orders:

(1) Pursuant to s.76B of District Court Act 1975 this matter listed for hearing before a jury to determine the issues under s.7A of Defamation Act 1974.

(2) Liberty to apply concerning costs.

(3) Parties have liberty to apply to the Associate to Christie QC DCJ to obtain a hearing date for the s.7A jury trial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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