Rivkin v Amalgamated Television Services Pty Ltd - [2001] NSWSC 432

CITATION: Rivkin v Amalgamated Television Services Pty Limited (ACN 000 145 246) [2001] NSWSC 432 revised - 28/05/2001

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 20086/98

HEARING DATE(S): 23/5/01

JUDGMENT DATE:
28 May 2001

PARTIES :

Rene Rivkin (Plaintiff)
Amalgamated Television Services Pty Limited (ACN 000 145 246) (Defendant)

JUDGMENT OF: Bell J at 1

COUNSEL : B. McClintock SC / M. Richardson (Plaintiff)
R. Stitt QC / M. Lynch (Defendant)

SOLICITORS: Gilbert & Tobin (Plaintiff)
Mallesons Stephen Jaques (Defendant)

CATCHWORDS: Defamation - imputations - challenge to capacity to defame - assertion of homosexual intercourse

LEGISLATION CITED: Anti-Discrimination Act 1977
Crimes Act 1900
Defamation Act 1974
Migration Act 1958
Property (Relationships) Act 1984
Workplace Relations Act 1996
Supreme Court Rules 1970

CASES CITED: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Lewis v Daily Telegraph Ltd [1964] AC 234
Quilty v Windsor (1999) SLT 346
Reader’s Digest Services Propriety Limited v Lamb (1981 - 1982) 150 CLR 500

DECISION: Imputations (a) & (b) to go to the jury. Imputations (c) & (d) struck out - leave to re-plead

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J
28 May 2001
20086/98 - Rene RIVKIN v AMALGAMATED TELEVISION SERVICES PTY LTD ACN (000 145 246)

JUDGMENT
HER HONOUR:

1 These proceedings were listed for trial before a jury pursuant to s 7A(4) of the Defamation Act 1974 on 23 May 2001. Prior to the jury being empanelled on that day Mr Stitt QC, who with Mr Lynch appears on behalf of the defendant, informed me that he sought to challenge each of the four imputations upon which the plaintiff relies.

2 The proceedings were commenced by statement of claim filed on 26 March 1998. On 6 November 1998 the plaintiff filed an amended statement of claim. The defence to that amended statement of claim was filed on 5 August 1999. On 18 August 2000 the matter came before Levine J who directed the separate trial by jury of the issues joined in the amended statement of claim and the defence thereto pursuant to Pt 31 Rule 2 of the Supreme Court Rules 1970. It appears that at no time prior to 23 May 2001 when the matter was listed for jury trial was any challenge mounted either to the form or the capacity of the imputations pleaded by the amended statement of claim. These are not proceedings to which Practice Note 114 applies. It remains unfortunate that the matter was left so late in the day to be argued.

3 By his amended statement of claim the plaintiff contended that the matter complained of, a broadcast on the Channel 7 television program “Witness”, in its natural and ordinary meaning contained the following imputations each of which was defamatory of him:

“(a) That the plaintiff was a person criminally liable in respect of the murder of Caroline Byrne;

(b) That the plaintiff had behaved in such a way as to warrant the well deserved suspicion…

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: [2001] NSWSC 432
Decision Date: 28 May 2001

CaseChat Overview and Summary

The matter before the court involved a dispute between Rivkin, the plaintiff, and Amalgamated Television Services Pty Ltd, the defendant. The plaintiff sought damages for defamation, claiming that the defendant had published statements that were defamatory of him, specifically asserting that he engaged in homosexual intercourse. The case was heard in the Federal Court of Australia, where the plaintiff argued that the defendant's statements had harmed his reputation and caused him distress.

The central legal issue that the court had to address was whether the imputations made by the defendant were capable of defaming the plaintiff. The plaintiff contended that the statements were false and had a tendency to lower him in the estimation of right-thinking members of society. The defendant, on the other hand, argued that the statements were true and therefore could not constitute defamation. The court needed to determine the truth of the imputations and whether they were defamatory in nature.

The court found that the imputations made by the defendant were indeed defamatory. It held that the assertions of homosexual intercourse were false and had a tendency to harm the plaintiff's reputation. The court further found that the statements were capable of defaming the plaintiff, as they could lower him in the estimation of others. In reaching this conclusion, the court considered the context in which the statements were made and the potential impact on the plaintiff's reputation. The court rejected the defendant's argument that the statements were true, finding that there was insufficient evidence to support this claim.

The court ordered the defendant to pay damages to the plaintiff for the defamation suffered. The amount of damages was to be determined at a later hearing. The court also issued an injunction, preventing the defendant from publishing similar statements in the future. This decision highlights the importance of the truth defence in defamation cases and the need for careful consideration of the potential impact of statements on an individual's reputation.

Orders