BOND CORPORATION HOLDINGS LTD v AUSTRALIAN BROADCASTING COMMISSION [1989] NSWCA 22

BOND CORPORATION HOLDINGS LID v_ AUSTRALIAN BROADCASTING COMMISSION

SUPREME COURT OF NEW SOUTH WALES

KIRBY P, SAMUELS and MEAGHER JJA 10 April 1989, 28 June 1989

[1989] NSWCA 22

DEFAMATION — innuendo — imputations — judge orders that the matter complained of is not reasonably capable of supporting any of the imputations pleaded — decides that the imputations will not go to the jury — current affairs news programme — reference to investigations into Australian investments of ex-President of Republic of Korea — investments allegedly secured by corrupt and unlawful means — application for assistance of Australian authorities to trace investments in Australia — remark that "the Bond Corporation is known to be paying close attention to the Korean investigation" — whether supports imputation of a reasonable suspicion that it assisted in the investment in Australia of funds known to be gained unlawfully — or that it was involved in unlawful business deals — held: (Samuels and Meagher JJA; Kirby P dissenting) (Dismissing appeal, by leave, from David Hunt J) The reference to the appellant in its context was not capable of giving rise in a reasonable listener to the imputations pleaded — the imputations were therefore properly withdrawn from the jury. Lewis and Ors v Daily Telegraph Ltd and Ors [1964] AC 274; (1963) 1 QB 340, 374 and Mirror Newspapers Limited v Harrison (1982) 149 CLR. 293 applied; Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260; Anderson v Mirror Newspapers Ltd (1986) 6 NSWLR 99 discussed. JURY — defamation trials — respective functions of judge and — circumstances in which a judge may withdraw from the decision of a jury imputations which are not capable of reasonably carrying the meaning alleged by the plaintiff. PRACTICE AND PROCEDURE — defamation — withdrawal of imputations from jury — test to be applied — whether the ordinary reasonable reader of the newspaper report or listener or viewer would draw the inferences alleged in the imputations pleaded — discussion by members of the Court (Kirby P dissenting) of the history of defamation trials and of the respective functions of judge and jury. Hepburn v TCN Channel 9 Pty Ltd [1983] 2 NSWLR 696 considered. Defamation Act 1958, s6. Defamation Act 1974, s4, s6, s11, s23, s50, s53. Supreme Court Act 1970, s103. Supreme Court Rules Pt31 r2.