Southern & Western Community Broadcasters Inc v Osborn - [2008] SADC 46

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
SOUTHERN & WESTERN COMMUNITY BROADCASTERS INC v OSBORN
[2008] SADC 46
Judgment of Her Honour Judge Simpson
2 May 2008
PROCEDURE
Appeal from a decision of a Master dismissing the application of the defendant to strike out a paragraph from the plaintiff's statement of claim - the plaintiff claims that he was the subject of defamatory statements made in a radio programme broadcast by the defendant - the plaintiff is not named in the broadcast - identification of the plaintiff is by way of innuendo, i.e., it depends on special knowledge of extrinsic facts - Held: by pleading that imputations relied on arise from the 'natural and ordinary meaning' of published words, without reference to extrinsic facts, the pleadings are ambiguous and cause embarrassment to the defendant in preparation of defence - appeal allowed - innuendo paragraph struck out - permission should be granted to plaintiff to amend paragraph if so advised in accordance with the decision.
District Court Act 1991 s 43; District Court Civil Rules 2006 rr 17, 98, 104, 292, referred to.
Fullam v Newcastle Chronicle and Journal Ltd and Another [1977] 1 WLR 651; Morgan v Odhams Press Ltd and Another [1971] 1 WLR 1239; [1971] 2 All ER 1156; Grubb v Bristol United Press Ltd [1963] 1 QB 309; Consolidated Trust Company Limited v Browne (1948) 49 SR (NSW) 86; Mirror Newspapers Limited v World Hosts Proprietary Limited (1979) 141 CLR 632; Dingle v Associated Newspapers Ltd and Others [1961] 2 QB 162; Grappelli and Another v Derek Block (Holdings) Ltd and Another [1981] 1 WLR 822; Lewis v Daily Telegraph Ltd [1964] AC 234; Channel Seven Adelaide Pty Ltd and Another v S, DJ (2006) 94 SASR 296; Jones v Skelton (1963) 63 SR (NSW) 644; Chapman and Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181, applied.

SOUTHERN & WESTERN COMMUNITY BROADCASTERS INC v OSBORN
[2008] SADC 46

This is an appeal from a decision of a Master on 21 November 2007 refusing the application of the defendant, Southern & Western Community Broadcasters Inc, for an order that paragraph 5 of the plaintiff’s statement of claim be struck out.
The appeal is brought pursuant to section 43 of the District Court Act 1991, which relevantly provides:
(1)A party to an action may, in accordance with the rules of the appellate court, appeal against any judgment given in the action.
(2)The appeal lies—
(a) in the case of a judgment given by a Master or the Court constituted of a Master—to the Court constituted of a Judge;
Rule 17 of the District Court Civil Rules 2006 provides that an appeal lies as of right from a judgment of a Master to the Court constituted of a Judge. Pursuant to DCR 292:
(1)An appeal is to be by way of rehearing (unless the law under which the appeal is brought provides to the contrary).
(2)Subject to any limitation on its…

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.

Continue reading Southern & Western Community Broadcasters Inc v Osborn

Details

AGLC: Southern and Western Community Broadcasters Inc v Osborn [2008] SADC 46
Case: [2008] SADC 46
Decision Date: 2 May 2008

CaseChat Overview and Summary

The appeal heard by Her Honour Judge Simpson in the District Court of South Australia concerns the decision of a Master who refused the application of the defendant, Southern & Western Community Broadcasters Inc, to strike out paragraph 5 of the plaintiff’s statement of claim. The plaintiff, Torrie Ronald Osborn, claims that defamatory statements made in a radio programme broadcast by the defendant have caused him distress and damaged his reputation. The defendant argues that the plaintiff's claim is based on special knowledge of extrinsic facts, and the court must consider the legal issues of whether the imputations pleaded arise from the 'natural and ordinary meaning' of the published words, and whether they are capable of being defamatory.

In assessing the appeal, the court examined the content of the broadcast and the particulars provided by the plaintiff to support the claim that the words referred to him. The Master found that the words were reasonably arguable as defamatory of the plaintiff when considered with the extrinsic facts. The defendant argues that the Master erred in considering the extrinsic facts when assessing the natural and ordinary meaning of the words, and that the plaintiff's reliance on special knowledge should be explicitly stated in the pleadings. The court found that the reference to the 'natural and ordinary meaning' of the words in paragraph 5 of the statement of claim was misleading and ambiguous, and caused embarrassment to the defendant in preparing its defence.

The court held that paragraph 5 of the statement of claim was evasive and ambiguous, and therefore an abuse of process and a prejudice to the proper conduct of the action. The court struck out paragraph 5 and allowed the appeal. The plaintiff was invited to amend the introductory words of paragraph 5 to include a reference to the extrinsic facts pleaded in paragraph 4 of the statement of claim, and permission to amend should be granted if so advised in accordance with the decision.

Orders