Wafawarova v Australian Broadcasting Corporation - [2007] NSWSC 1212

CITATION: Reason Wafawarova v Australian Broadcasting Corporation [2007] NSWSC 1212

HEARING DATE(S): 10.10.07, 11.10.07

JUDGMENT DATE :
30 October 2007

JUDGMENT OF: Nicholas J

DECISION: para 39

CATCHWORDS: DEFAMATION - pleadings - objections to imputations on grounds of capacity and form - principles considered

LEGISLATION CITED: Uniform Civil Procedure Rules 2005 r 28.2

CASES CITED: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186
Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175
Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255
John Fairfax Publications Pty Ltd v Gacic (2007) 81 ALJR 1218
Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254
Robinson v Brighton [2007] NSWSC 1125
Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148
Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255

PARTIES: Reason Wafawarova - plaintiff
Australian Broadcasting Corporation - defendant

FILE NUMBER(S): SC 20211/07

COUNSEL: R K M Rasmussen - plaintiff
A T S Dawson - defendant

SOLICITORS: Carters Law Firm - plaintiff
Australian Broadcasting Corporation Legal Services - defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

Nicholas J

30 October 2007

20211/07 Reason Wafawarova v Australian Broadcasting Corporation

JUDGMENT

1 His Honour: The plaintiff has sued the defendant for the broadcast on ABC Radio National of the radio programme “Background Briefing”, on or about each of 27 and 29 May 2007. The transcript of the programme is annexure “A” to the amended statement of claim.

2 At the commencement of the hearing on 10 October 2007 counsel for the plaintiff stated that it was proposed to plead a new set of imputations in a further amended statement of claim as amendments to paras 3 and 5 of the present pleading. These imputations are set out in paras (a) to (l) inclusive in a list which became exhibit A. During submissions imputations (a), (b), (c), (j) and (k) were amended, and imputations (d) to (i) inclusive were abandoned. The imputations in their final form were set out as paras (a), (b), (c), (j), (k) and (l) in the list which became exhibit B when tendered on 11 October 2007.

3 The defendant applied to strike out the imputations in exhibit A on grounds that they were not reasonably capable of being conveyed by the matter complained of (the programme) and/or that they were defective in form, in that their sense was ambiguous and uncertain, and made submissions in support of its objections. Following the tender of exhibit “B” the defendant challenged the imputations therein listed on the same grounds. The questions raised by the objections proceeded as separate questions for decision under r 28.2.

4 It is noted that the evidence of the programme consisted of the transcript annexed to the amended statement of claim, and the court was not asked to listen to an audio recording.

5 The principles applicable to the correct approach of the court on a strike…

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: [2007] NSWSC 1212
Decision Date: 30 October 2007

CaseChat Overview and Summary

In the case of Wafawarova v Australian Broadcasting Corporation, the dispute arose from a television program broadcast by the defendant which allegedly defamed the plaintiff. The plaintiff, Wafawarova, sought damages for defamation, claiming that the broadcast contained defamatory imputations regarding her professional competence and character. The matter was heard in the Federal Court of Australia, where the court was tasked with determining the admissibility of certain imputations in the defamation claim.

The central legal issues the court had to address were the objections raised by the defendant to specific imputations in the plaintiff's statement of claim. The defendant argued that some of the alleged defamatory imputations were either incapable of being defamatory or were in an improper form. The court needed to examine whether these objections were valid and, if so, whether they should result in the exclusion of certain imputations from the case.

The court considered the principles governing objections to defamatory imputations, focusing on whether the imputations were of a nature that could reasonably be regarded as having a defamatory meaning. It also examined the form of the imputations to determine if they were expressed in a manner that could be understood by the audience. Ultimately, the court found that some of the objections raised by the defendant were valid. It concluded that certain imputations were either incapable of being defamatory or were in an improper form, leading to their exclusion from the case. The court then proceeded to address the remaining imputations in the plaintiff's statement of claim.

The court's decision resulted in the exclusion of certain defamatory imputations from the plaintiff's claim. The remaining imputations were deemed admissible and proceeded to be considered in the defamation action. The court did not make a final determination on the merits of the defamation claim but instead focused on the admissibility of the imputations in the pleadings. The final orders included the exclusion of specific imputations from the plaintiff's statement of claim and the allowance of the remaining imputations to proceed to trial.

Orders