Dawson v Harbour Radio Pty Ltd

[2017] NSWSC 124

Supreme Court

New South Wales

Medium Neutral Citation:	Dawson v Harbour Radio Pty Ltd [2017] NSWSC 124
Hearing dates:	10 February 2017
Decision date:	10 February 2017
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Orders as sought in short minutes
Catchwords:	DEFAMATION – requirement of specificity of imputations – where broadcast more amenable to specific imputations – imputations struck out with leave to replead
Cases Cited:	Dank v Whittaker (No 1) [2013] NSWSC 1062 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Category:	Procedural and other rulings
Parties:	Karen Dawson (first plaintiff) Leonie Finster (second plaintiff) Harbour Radio Pty Ltd (first defendant) Ray Hadley (second defendant) Elizabeth Brown (third defendant)
Representation:	Counsel: C Dibb, J Zmood (plaintiffs) B Burke (solicitor for the first and second defendants) S Chrysanthou (third defendant)   Solicitors: Mitry Lawyers (plaintiffs) Banki Haddock Fiora (first and second defendants) Broadbeach Law Group (third defendant)
File Number(s):	2016/368723

Judgment

1. HER HONOUR: These are proceedings for defamation commenced by Ms Karen Dawson against Harbour Radio Pty Limited arising out of the broadcast of a segment on the Ray Hadley show. The proceedings came before the court for the first listing last Friday. On that occasion there was an argument brought forward by the third defendant, who was interviewed by Mr Hadley in the relevant segment of the broadcast, contending that the proceedings as against her should be dismissed on the grounds that she could not be held to be liable as a publisher of the whole of the matter complained of, based on the principles considered by me in Dank v Whittaker (No 1) [2013] NSWSC 1062 and later decisions.

2. The argument was stood over part-heard abiding the production of a document which the parties apprehended may shed light on that issue. Having seen that document, the third defendant now withdraws the application. Only one issue remains to be determined for the purposes of the first listing and that is an objection taken to the form of imputation 6(iii) in the Statement of Claim, which is that “the first plaintiff manipulated the inquiry" (imputation 7(iii) is in the same form in relation to the second plaintiff). Although the inquiry in question is not identified in that imputation, it is specified in the first imputation as being the Special Commission of Inquiry into the Greyhound Racing Industry in New South Wales.

3. It was argued on behalf of the defendants that the imputation in that form is insufficiently precise and fails to meet the requirement of specificity explained in the decision of the Court of Appeal in ABC v Drummoyne (1990) 21 NSWLR 135.

4. Ms Chrysanthou submitted that the broadcast reveals a significantly more specific meaning of the contention of manipulation of the proceedings, namely, that expert witnesses who gave evidence before the inquiry were, in effect, a self-selecting group who put themselves forward as the appropriate experts for the purpose of manipulating a particular outcome, knowing what evidence they would give.

5. In my view the objection is made good. The decision in Drummoyne acknowledges that an imputation can almost always be formulated with greater or lesser specificity and that an objection based on want of precision must always be determined according to the circumstances of the individual case. I am persuaded in this case that greater specificity can be provided based on the content of the matter complained of. For those reasons imputations 6(iii) and 7(iii) are struck out with leave to replead.

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