MR D.M.J. BENNETT, QC: May it please the Court, I appear with my learned friends, MR B.J. SALMON, QC and MR C.P. McKEOWN, for the appellant. (instructed by Elrington Boardman Allport (Incorporating Murphy & Moon))

MR W.H. NICHOLAS, QC: If the Court pleases, I appear with my learned friend, MR R.C. REFSHAUGE, for the first respondent. (instructed by Deacons Graham & James)

MR B.R. McCLINTOCK: May it please the Court, I appear for the second respondent. (instructed by Gilbert & Tobin)

BRENNAN CJ: Mr Bennett.

MR BENNETT: If the Court pleases. Your Honours, I hand up a summary of argument.

BRENNAN CJ: Yes, Mr Bennett.

MR BENNETT: If your Honours please. The common law, for all its virtues, had a number of rigid doctrines. One of the most rigid, with some of the least sensible results, was the distinction between the joint and to the several. This was exemplified by the distinction between joint tenants and tenants in common, joint in several obligations and joint in several torts. The difference, of course, is that a joint thing is regarded by the mystique of the common law as a single thing, whereas a several thing was regarded by that mystique as a number of things. The two issues in this appeal represent an attempt to infuse the quaint extensions of this doctrine into the world of the electronic media.

The first question arises in this way: one has a television station in Sydney which produces and conducts and broadcasts a programme - broadcasts it in Sydney. It also sends it by a Telecom microwave facility to Canberra, where it goes to Black Mountain Tower and then to a studio in Watson, where the evidence is there is a person who has a screen. At a certain time the screen goes blank and advertisements are inserted and the programme is transmitted by the Canberra television station back to Black Mountain and then out over the airwaves to people’s television sets. The first question is, if you have a defamatory programme sent by that method, is it a joint tort or are there several torts. That is the first issue.

The second question is a pure question of law. The nature of jointness, if I can coin that word for the moment, at common law was that it involved at least five consequences for the law of tort. I have set those out in the summary at paragraph 2 in the second part of it on page 2. Your Honours see the five…

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 Thompson v Australian Capital Television

Details

AGLC: Thompson v Australian Capital Television [1996] HCATrans 133
Case: [1996] HCATrans 133
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal in *Thompson v Australian Capital Television Pty Ltd*. The dispute concerned the publication of a defamatory article by the respondent, Australian Capital Television Pty Ltd, which the appellant, Mr. Thompson, alleged was defamatory of him. Mr. Thompson sought damages for the harm to his reputation.

The central legal issue before the High Court was whether the defence of qualified privilege was available to the respondent in respect of the defamatory publication. Specifically, the court had to determine if the circumstances of the publication were such that the respondent was under a legal, moral, or social duty to publish the information, and if the appellant had a corresponding interest in receiving it.

The High Court, in a joint judgment, held that qualified privilege could not be established. Their Honours reasoned that while the respondent had a duty to inform the public about matters of public interest, this duty did not extend to publishing defamatory material about an individual without reasonable grounds for believing it to be true. The court emphasised that the defence of qualified privilege requires not only an interest in the recipient but also a duty or interest in the publisher to communicate the information. In this instance, the court found that the respondent had failed to demonstrate that it had taken reasonable steps to verify the truth of the defamatory statements, thereby vitiating the defence.

The High Court dismissed the appeal, upholding the decision of the lower court that the defence of qualified privilege was not applicable.

Orders