Tingle v Harbour Radio P/L [No 5]

[1999] NSWSC 717

CITATION:	Tingle & Anor v Harbour Radio P/L & Anor [No 5] [1999] NSWSC 717
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	21262/95
HEARING DATE(S):	27/04/99, 28/04/99, 29/04/99, 30/04/99, 20/05/99, 31/05/99, 03/06/99
JUDGMENT DATE:	3 June 1999
PARTIES :	John Tingle (1 Pl) The Shooters Party Limited (2 Pl) Harbour Radio Pty Limited T/as 2GB New Plus 873 (1 Def) Ron Casey (2 Def)
JUDGMENT OF:	Kirby J

COUNSEL :	T D Blackburn (1 Pl) No appearance (2 Pl) B R McClintock SC/R Lancaster (Defs)
SOLICITORS:	Barker Gosling (1 PL & 2 Pl) Bush, Burke & Co (Defs)
CATCHWORDS:	Defamation; Appn for Stay of Proceedings
DECISION:	Stay refused

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

KIRBY J

Thursday 3 June 1999

21262/95 - JOHN TINGLE & ANOR v HARBOUR RADIO PTY LTD & ANOR [No 5]

JUDGMENT (Re Application for Stay of Proceedings)

1   HIS HONOUR: In this matter application has been made by the defendants for a stay of proceedings. The defendants intend to appeal against the judgment which was announced on 20 May against both defendants jointly and severally in the sum of $75,000, plus costs. Mr McClintock SC, appearing for the defendants, has identified three grounds which he anticipates will be included in the notice of appeal, which has not yet been filed.

2   First, that the imputation (a), which was found by the jury to arise, and to be defamatory of the plaintiff, was not capable of being conveyed by the material which was published. The second ground is that the amount awarded to the plaintiff, namely, $75,000 was manifestly excessive. The third ground relates to one of three aspects of aggravated damages which was identified in the course of the judgment, namely, the questions put by counsel to the plaintiff in the course of cross-examination, which suggested that he was lying in respect of two matters. The first was that the plaintiff believed, upon hearing the broadcast, that it accused him of lying and, second, that it accused him of bragging. I found, for the reasons I stated, that those questions did aggravate the damages. The amount awarded reflected in part that fact.

3   Mr Blackburn, who appears for the plaintiff, suggests that none of these grounds is strong.

4   For my part I believe they are arguable. Certainly the case of the capacity issue, for the reasons I stated at the time, it seemed to me that there were arguments each way although ultimately I believed, in the case of that imputation and, indeed, of the companion imputation (b), that they did arise.

5   So far as the amount of the verdict is concerned my attention has been drawn to the history of other litigation, where amounts considerably in excess of the sum awarded to Mr Tingle were awarded to a plaintiff, only to find that the judgment was set aside on appeal, and there are now difficulties in repaying that sum.

6   However, there is no suggestion in this case that Mr Tingle is otherwise than a man of substance, and, in any event, the amount awarded was not, in relative terms, as large, or so large as may give rise to any reasonable apprehension that Mr Tingle did not have the capacity to repay it. No such suggestion has been made to me. Mr Tingle is a person who is a member of Parliament, and has been for some years, and a person who has no doubt accumulated assets in the usual way, he having been employed for many years, as set out in the judgment.

7   On balance, it seems to me that no basis has been identified which satisfies me that a stay of proceedings is appropriate in this case, though the grounds, as I have said, are arguable. I do not believe that, as far as I am able to judge, the grounds are strong in the sense that there was some issue of law that was unique, and in respect of which there was no authority, such that an appellate court could well decide the matter either way. For those reasons I refuse the stay.

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Last Modified: 06/30/2000