Waites v Macquarie Radio Network Ltd - [2006] NSWSC 507

CITATION: Robert Waites & Anor v Macquarie Radio Network Ltd [2006] NSWSC 507

HEARING DATE(S): 24.05.06

JUDGMENT DATE :
30 May 2006

JUDGMENT OF: Nicholas J

DECISION: para 26

CATCHWORDS: DEFAMATION – statement of claim – multiple publications – defendant’s strike in application – separate radio talk-back programmes – whether plaintiffs should plead both programmes as one publication – UCPR r 14.28

CASES CITED: Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107
Buckingham v Murray (1825) 2 Car. & P. 46, 172 ER 22
Burrows v Knightley (1987) 10 NSWLR 651
Gordon v Amalgamated Television Services Pty Ltd (1980) 2 NSWLR 410
Plato Films Ltd v Speidel [1961] AC 1090
Phelps v Nationwide News Pty Ltd & Anor [2001] NSWSC 130
Kyle Sandilands v Channel Seven Sydney Pty Ltd [2005] NSWSC 1250
The Age Corporation Ltd v Beran [2005] NSWCA 289

PARTIES: Robert Waites - first plaintiff
Susan Waites - second plaintiff
Macquarie Radio Network Ltd - defendant

FILE NUMBER(S): SC 20425/05

COUNSEL: R Potter - plaintiffs
M Lynch - defendant

SOLICITORS: Phillips Fox - plaintiffs
Banki Haddock Fiora - defendant

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

Nicholas J

30 May 2006

20425/05 Robert Waites & Anor v Macquarie Radio Network Ltd

JUDGMENT

1 His Honour: The defendant seeks an order that the plaintiffs be directed to include as part of the publication presently pleaded consisting of matter from a radio programme presented by Mr Alan Jones additional matter from the later radio programme presented by Mr Ray Hadley. In the jargon of practitioners in the Defamation List the defendant’s application is often described as a “strike in” application. In substance the application is made under r 14.28 for an order that the amended statement of claim be struck out on the ground that it is unfair and embarrassing to have omitted matter which forms part of the publication sued upon which was capable of being understood by the ordinary reasonable listener as materially altering or qualifying the complexion of the imputations.

2 The first plaintiff at all material times was an Assistant Commissioner of Police. The second plaintiff was at all material times a staff officer within the New South Wales police force, and the wife of the first plaintiff.

3 By their amended statement of claim the plaintiffs claim damages against the defendant arising out of the publication on 22 August 2005 on radio station 2GB of matter from its Alan Jones programme (the Jones programme). It was a talk-back programme in which members of the public participated by telephone.

4 The plaintiffs have pleaded as one publication six items from the Jones programme the first of which was broadcast at about 6.18am and the last at about 9.35am. Each item was between about 2-3 minutes duration. The intervals between each varied considerably, e.g., 4 minutes between the first and second; 24 minutes between the third and fourth; 84 minutes between the fifth and sixth. It is common ground…

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: [2006] NSWSC 507
Decision Date: 30 May 2006

CaseChat Overview and Summary

In the matter of Waites v Macquarie Radio Network Ltd, the plaintiffs sought to bring a defamation action against the defendant, who operated several radio stations. The plaintiffs alleged that they were defamed by statements made on two separate radio talk-back programmes. The central issue before the court was whether the plaintiffs should be required to plead both programmes as a single publication or if they could treat each programme as a separate publication. The court had to determine the appropriate interpretation of UCPR rule 14.28 in this context.

The court considered whether the two radio talk-back programmes constituted a single publication or separate publications for the purposes of the defamation claim. The plaintiffs argued that the programmes should be treated as one publication because they were broadcast on the same network and were part of the same overall broadcast. Conversely, the defendant contended that each programme should be treated as a separate publication, which would increase the period within which the defamation action could be brought. The court needed to assess the applicability of UCPR rule 14.28, which provides for the treatment of multiple publications in defamation cases.

In reaching its decision, the court examined the nature of the publications and the relationship between them. It found that the two radio talk-back programmes were distinct and separate broadcasts, each with its own audience and context. The court held that the plaintiffs should treat each programme as a separate publication for the purposes of the defamation action. This interpretation aligned with the broader principles of defamation law, which recognises that each publication can give rise to separate causes of action. Consequently, the court allowed the defendant's strike in application, dismissing the plaintiffs' claim to the extent that it sought to treat the programmes as a single publication.

Orders