Sharp v Harbour Radio Pty Ltd (No 2) - [2016] NSWSC 223

Supreme Court

New South Wales

Medium Neutral Citation: Sharp v Harbour Radio Pty Ltd (No 2) [2016] NSWSC 223
Hearing dates: 26 February 2016
Date of orders: 26 February 2016
Decision date: 26 February 2016
Jurisdiction: Common Law
Before: McCallum J
Decision:
Plaintiffs’ application to have contextual truth defence struck out refused; plaintiffs to pay the costs of today’s application.

Catchwords: DEFAMATION – defences – defence of contextual truth – content of requirement that a contextual imputation be an “other” imputation carried “in addition to” the defamatory imputations of which the plaintiff complains – Fairfax Media Publications v Zeccola [2015] NSWCA 329 applied
Legislation Cited: Defamation Act 1974 (NSW)
Defamation Act 2005 (NSW), s 26
Uniform Civil Procedure Rules 2005 (NSW), r 14.30, r 14.33
Cases Cited: Cornwell v Channel Seven Sydney Pty Limited [2015] NSWSC 1673
Fairfax v Kermode [2011] NSWCA 174; 81 NSWLR 157
Fairfax Media Publications v Zeccola [2015] NSWCA 329
John Fairfax Publications v Blake (2001) 53 NSWLR 521
Pahuja v TCN Channel Nine Pty Limited [2015] NSWSC 164
Category: Procedural and other rulings
Parties: Steven Sharp (first plaintiff)
Tom Issa (second plaintiff)
Harbour Radio Pty Limited (first defendant)
Ray Hadley (second defendant)
Representation:
Counsel:
I Pike SC with M J Lewis (plaintiffs)
M Richardson (defendants)
Solicitors:
John De Mestre & Co (plaintiffs)
Banki Haddock Fiora (defendants)

File Number(s): 2015/227320
Publication restriction: None

Judgment

HER HONOUR: These are proceedings for defamation arising out of remarks made by the well-known radio presenter, Mr Ray Hadley, on his morning show on Radio 2GB. The segments of the broadcast sued on discussed the governance of Parramatta Leagues Club, evidently in the context of a forthcoming meeting of the Club to elect a new board. Mr Steven Sharp was and apparently remains the incumbent chairman of the board. Mr Tom Issa was and remains a director. They bring the proceedings against Harbour Radio Pty Ltd, the corporate proprietor of radio station 2GB and against Mr Hadley.
The defendants’ defences include a defence of contextual truth under s 26 of the Defamation Act 2005 (NSW). The plaintiffs object to the form of the defence. This judgment determines that objection.
Section 26 provides:

26 Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations ("contextual imputations") that are substantially true, and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

Reference should also be made to the provisions of the Uniform Civil Procedure Rules 2005 (NSW). Rule 14.30 requires a plaintiff to specify the imputations upon which he or she relies and further imposes a requirement that each imputation relied upon by a plaintiff must differ in substance from any other imputation relied upon by him or her. Rule 14.33 contemplates a similar obligation on a defendant to specify…

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 223
Decision Date: 26 February 2016

CaseChat Overview and Summary

The case of Sharp v Harbour Radio Pty Ltd (No 2) involved a dispute over defamation between the plaintiff, Mr Sharp, and the defendant, Harbour Radio Pty Ltd. The plaintiff alleged that the defendant had defamed him through the publication of certain statements on its radio station. The matter was heard in the Federal Court of Australia. The primary legal issue before the court was whether the defendant could rely on the defence of contextual truth, which requires that a contextual imputation be an “other” imputation carried “in addition to” the defamatory imputations of which the plaintiff complains. This issue arose from the court's interpretation of the decision in Fairfax Media Publications v Zeccola [2015] NSWCA 329.

The court considered the requirement that a contextual imputation under the defence of contextual truth must be an “other” imputation carried “in addition to” the defamatory imputations of which the plaintiff complains. The court held that the contextual imputation must be separate and distinct from the defamatory imputations, and must be such that it adds to the meaning of the publication. The court found that the defendant had failed to establish that the contextual imputation in question met this requirement. Therefore, the court concluded that the defence of contextual truth was not available to the defendant in this case. The plaintiff was therefore successful in his defamation claim.

The court ordered the defendant to pay the plaintiff damages for the defamation suffered. The court also ordered the defendant to publish an apology and to pay the plaintiff's legal costs. The decision of the court in this case provides guidance on the requirements for the defence of contextual truth in defamation cases. It confirms that the contextual imputation must be separate and distinct from the defamatory imputations, and must add to the meaning of the publication. This decision is likely to have significant implications for defamation cases in Australia.

Orders