Parnell v Harbour Radio Pty Ltd - [2018] NSWDC 123

District Court

New South Wales

Medium Neutral Citation: Parnell v Harbour Radio Pty Ltd [2018] NSWDC 123
Hearing dates: 14 May 2018
Date of orders: 14 May 2018
Decision date: 15 May 2018
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Grant leave to the defendant to file a Further Amended Defence in court to include a defence under s 26 Defamation Act 2005 (NSW), subject to the following provisos: (a) The plaintiff is entitled to “plead back” the contextual imputations set out in paragraph 8(e) of the Defence; (b) The defendant’s present intention to reclaim the proposed new imputations, if proved true, may be argued at the trial (as to which see Fairfax Digital Australia and New Zealand Pty Ltd v Kazal [2018] NSWCA 77) but is not the subject of any expressed ruling or exception by the court.
(2) The plaintiff’s Further Amended Statement of Claim pleading back the said imputations is to be filed by 4:00pm Wednesday 16 May 2018.
(3) Note the parties agreed that the defence of honest opinion pursuant to s 31 Defamation Act 2005 (NSW) must be pleaded to the publications and not the imputations.
(4) Plaintiff’s application for the defendant to “identify the expression of opinion relied upon in each broadcast” is dismissed.
(5) Costs of the application reserved to the trial judge.
(6) Matter stood over to the Defamation List on Thursday 17 May 2018.

Catchwords: TORT – defamation – defence of honest opinion – obligation to provide particulars of the defence – whether a defendant is obliged to identify the expression of opinion relied upon in each of the publications sued upon
Legislation Cited: Defamation Act 1974 (NSW)
Defamation Act 2005 (NSW), ss 26 and 31
Cases Cited: Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245
Cunningham-Howie v F W Dimbleby & Sons Ltd [1951] 1 KB 360
Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695
Kazal v Fairfax Media Publications Pty Ltd [2017] NSWSC 44
O'Brien v Australian Broadcasting Corporation [2017] NSWCA 338
O'Brien v Australian Broadcasting Corporation [2016] NSWSC 1289
Prowse v Harbour Radio Pty Ltd [2016] NSWSC 57
Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448
Sims v Wran [1984] 1 NSWLR 317
Tabbaa v Nine Network Pty Ltd (No 10) [2018] NSWSC 468
Texts Cited: R. E. Brown, Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States), Second Edition (formerly The Law of Defamation in Canada) (2nd ed., Thomson Reuters, Canada)
Category: Procedural and other rulings
Parties: Plaintiff: Jeff Parnell
Defendant: Harbour Radio Pty Ltd
Representation:
Counsel:
Plaintiff: Mr C A Evatt / Mr R Rasmussen
Defendant: Mr M Richardson
Solicitors:
Plaintiff: Schofield King Lawyers
Defendant: Banki Haddock Fiora

File Number(s): 2016/255812
Publication restriction: None

Judgment

These are proceedings for defamation which are set down for hearing as a jury trial for 10 days commencing on 23 July 2018. The plaintiff brings three applications:

Leave to “plead back” the contextual imputations pleaded by the defendant…

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: [2018] NSWDC 123
Decision Date: 15 May 2018

CaseChat Overview and Summary

Parnell sought damages for defamation against Harbour Radio, alleging defamatory imputations in broadcasts made by the latter. The dispute came before the court on Parnell’s application for Harbour Radio to identify the expression of opinion relied upon in each broadcast, and Harbour Radio’s application for leave to amend its defence to include a defence under section 26 of the Defamation Act 2005 (NSW). The court was required to decide whether a defendant is obliged to identify the expression of opinion relied upon in each of the publications sued upon, and whether Harbour Radio was entitled to amend its defence to include a defence under section 26 of the Defamation Act 2005 (NSW).

The court found that there was no obligation on a defendant to identify the expression of opinion relied upon in each of the publications sued upon. The court held that the obligation to provide particulars of the defence is not as onerous as requiring a defendant to identify the expression of opinion relied upon in each of the publications sued upon. The court further found that the defence of honest opinion pursuant to section 31 of the Defamation Act 2005 (NSW) must be pleaded to the publications and not the imputations. The court also found that Harbour Radio was entitled to amend its defence to include a defence under section 26 of the Defamation Act 2005 (NSW), subject to the proviso that Parnell was entitled to “plead back” the contextual imputations set out in paragraph 8(e) of the Defence.

The court granted leave to Harbour Radio to file a Further Amended Defence in court to include a defence under section 26 of the Defamation Act 2005 (NSW), subject to the proviso that Parnell is entitled to “plead back” the contextual imputations set out in paragraph 8(e) of the Defence. The court dismissed Parnell’s application for Harbour Radio to “identify the expression of opinion relied upon in each broadcast”. The costs of the application were reserved to the trial judge, and the matter was stood over to the Defamation List on Thursday 17 May 2018.

Orders

Orders of the court

(1) Grant leave to the defendant to file a Further Amended Defence in court to include a defence under s 26 Defamation Act 2005 (NSW), subject to the following provisos: (a) The plaintiff is entitled to “plead back” the contextual imputations set out in paragraph 8(e) of the Defence; (b) The defendant’s present intention to reclaim the proposed new imputations, if proved true, may be argued at the trial (as to which see Fairfax Digital Australia and New Zealand Pty Ltd v Kazal [2018] NSWCA 77) but is not the subject of any expressed ruling or exception by the court.

(2) The plaintiff’s Further Amended Statement of Claim pleading back the said imputations is to be filed by 4:00pm Wednesday 16 May 2018.

(3) Note the parties agreed that the defence of honest opinion pursuant to s 31 Defamation Act 2005 (NSW) must be pleaded to the publications and not the imputations.

(4) Plaintiff’s application for the defendant to “identify the expression of opinion relied upon in each broadcast” is dismissed.

(5) Costs of the application reserved to the trial judge.

(6) Matter stood over to the Defamation List on Thursday 17 May 2018.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Parnell v Harbour Radio Pty Ltd [2018] NSWDC 123
Hearing dates:	14 May 2018
Date of orders:	14 May 2018
Decision date:	15 May 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Grant leave to the defendant to file a Further Amended Defence in court to include a defence under s 26 Defamation Act 2005 (NSW), subject to the following provisos: (a) The plaintiff is entitled to “plead back” the contextual imputations set out in paragraph 8(e) of the Defence; (b) The defendant’s present intention to reclaim the proposed new imputations, if proved true, may be argued at the trial (as to which see Fairfax Digital Australia and New Zealand Pty Ltd v Kazal [2018] NSWCA 77) but is not the subject of any expressed ruling or exception by the court. (2) The plaintiff’s Further Amended Statement of Claim pleading back the said imputations is to be filed by 4:00pm Wednesday 16 May 2018. (3) Note the parties agreed that the defence of honest opinion pursuant to s 31 Defamation Act 2005 (NSW) must be pleaded to the publications and not the imputations. (4) Plaintiff’s application for the defendant to “identify the expression of opinion relied upon in each broadcast” is dismissed. (5) Costs of the application reserved to the trial judge. (6) Matter stood over to the Defamation List on Thursday 17 May 2018.
Catchwords:	TORT – defamation – defence of honest opinion – obligation to provide particulars of the defence – whether a defendant is obliged to identify the expression of opinion relied upon in each of the publications sued upon
Legislation Cited:	Defamation Act 1974 (NSW) Defamation Act 2005 (NSW), ss 26 and 31
Cases Cited:	Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 Cunningham-Howie v F W Dimbleby & Sons Ltd [1951] 1 KB 360 Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695 Kazal v Fairfax Media Publications Pty Ltd [2017] NSWSC 44 O'Brien v Australian Broadcasting Corporation [2017] NSWCA 338 O'Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 Prowse v Harbour Radio Pty Ltd [2016] NSWSC 57 Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 Sims v Wran [1984] 1 NSWLR 317 Tabbaa v Nine Network Pty Ltd (No 10) [2018] NSWSC 468
Texts Cited:	R. E. Brown, Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States), Second Edition (formerly The Law of Defamation in Canada) (2nd ed., Thomson Reuters, Canada)
Category:	Procedural and other rulings
Parties:	Plaintiff: Jeff Parnell Defendant: Harbour Radio Pty Ltd
Representation:	Counsel: Plaintiff: Mr C A Evatt / Mr R Rasmussen Defendant: Mr M Richardson Solicitors: Plaintiff: Schofield King Lawyers Defendant: Banki Haddock Fiora
File Number(s):	2016/255812
Publication restriction:	None