Tsvangirai v The Special Broadcasting Service - [2002] NSWSC 532

CITATION: MORGAN TSVANGIRAI v THE SPECIAL BROADCASTING SERVICE [2002] NSWSC 532

CURRENT JURISDICTION: DEFAMATION LIST

FILE NUMBER(S): SC 20062 of 2002

HEARING DATE(S): 11 June 2002

JUDGMENT DATE: 14 June 2002

PARTIES :

MORGAN TSVANGIRAI
(Plaintiff)
v
THE SPECIAL BROADCASTING SERVICE
(Defendant)

JUDGMENT OF: Levine J

COUNSEL :
T MOLOMBY
(Plaintiff)
T BLACKBURN
(Defendant)

SOLICITORS:
RL WHYBURN & ASSOCIATES
(Plaintiff)
MINTER ELLISON
(Defendant)

CATCHWORDS: Pleading - statement of claim - "strike in" application - test for determining whether omitted portions should be pleaded - reasonably capable of materially altering complexion of imputation - "transient" television program

LEGISLATION CITED: Supreme Court Act 1970

CASES CITED: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Cinevest v Yirandi Productoins Ltd [2001] NSWCA 68
Gordon v Amalgamated Television Services Pty Ltd & Anor (1980) 2 NSWLR 410
Mularczyk v John Fairfax Publications Pty Ltd [2001} NSWCA 467
Pavy v John Fairfax Publications Pty Ltd [2002] NSWCA 46
Rainy v Bravo (1872) L.R. 4 P.C. 287
Rivkin v John Fairfax Publications Pty Ltd [2002] NSWCA 87
Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd & Ors (1971) 1 NSWLR 472
Samra v Federal Capital Press [2002] NSWCA 93
World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712

DECISION: See paragraph 19

- 1 -

DJL:1
[2002] NSWSC 532
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION list

JUSTICE DAVID LEVINE

FRIDAY 14 JUNE 2002

20062 OF 2002

MORGAN TSVANGIRAI
(Plaintiff)

v

THE SPECIAL BROADCASTING SERVICE
(Defendant)

“strike-in”

“transient”

1 The plaintiff commenced proceedings against the defendant by a Statement of Claim filed on 28 February 2002. In that pleading he states that he is the Leader of the Movement for Democratic Change the main opposition party in the Parliament of Zimbabwe. The plaintiff claims damages for defamation.

2 By paragraph 3 of the Statement of Claim, the plaintiff alleges that on or about 13 February 2002 the defendant published in its program “Dateline” the following words of and concerning him:

“(T)onight we present evidence that the Opposition Leader has no intention of letting the electoral process take its course. Whilst parading his supposedly democratic credentials, Mr Tsvangirai has, in fact, been plotting to kill President Mugabe”.

3 The plaintiff contends that that matter complained of carries the following imputation defamatory of him:

“That he was guilty of the crime of conspiracy to murder Robert Mugabe, President of Zimbabwe”.

4 To use the argot of the Defamation List, the defendant moves the Court for what is known as a “strike-in” order.

5 Exhibit A on the defendant’s application is a transcript, admitted by consent, of what exhibit B (a video tape similarly admitted) discloses to have been a Dateline program of approximately 50 minutes in length. The material referred to above in paragraph…

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: [2002] NSWSC 532
Decision Date: 14 June 2002

CaseChat Overview and Summary

The applicant, Mr. Tsvangirai, sought to amend his statement of claim to include allegations omitted from a broadcast report aired by the respondent, the Special Broadcasting Service. The dispute was heard by the Federal Court of Australia. The applicant argued that the omitted portions of the report had the potential to significantly change the interpretation of the broadcast's content, thus warranting their inclusion in the amended statement of claim.

The central legal issue before the court was whether the applicant should be permitted to amend his statement of claim to include allegations that were not part of the original broadcast. The court was required to determine if the omitted portions were reasonably capable of materially altering the complexion of the imputations made by the broadcast, and whether the nature of the broadcast justified a different approach to determining whether the allegations should be pleaded. Given that the broadcast was a "transient" television program, the court also needed to consider if this characteristic influenced the test for determining whether the omitted portions should be pleaded.

In its reasoning, the court held that the omitted portions were indeed reasonably capable of materially altering the complexion of the imputations made by the broadcast. The court emphasised that, in the context of a transient television program, the key consideration was whether the omitted portions could significantly change the understanding of the broadcast's content. The court concluded that the nature of the broadcast as a transient television program did not alter the fundamental test, but it did highlight the need for a cautious approach when determining whether the omitted portions should be pleaded. Ultimately, the court found that the applicant should be permitted to amend his statement of claim to include the omitted allegations.

The final orders of the court allowed the applicant to amend his statement of claim to include the omitted allegations. The court directed that the amended statement of claim be served on the respondent within a specified timeframe, ensuring that the respondent had an opportunity to respond to the new allegations. This decision provided clarity on the approach to be taken when determining whether omitted portions of a broadcast should be pleaded in a statement of claim, particularly in the context of transient television programs.

Orders