Tingle & Anor v Harbour Radio P/L & Anor [No 3] [1999] NSWSC 415

New South Wales Supreme Court CITATION : Tingle & Anor v Harbour Radio P/L & Anor [No 3] [1999] NSWSC 415

CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 21262/95 HEARING DATE(S) : 27/04/99, 28/04/99, 29/04/99 JUDGMENT DATE : 29 April 1999

John Tingle (1 Pl) PARTIES : The Shooters Party Limited (2 Pl) Harbour Radio Pty Limited t/as 2GB New Plus 873 (1 Def) Ron Casey (2 Def) JUDGMENT OF : Kirby J

T D Blackburn (1 Pl) COUNSEL : No appearance (2 Pl) B R McClintock SC/R Lancaster (Defs) SOLICITORS : Barker Gosling (1 Pl & 2 Pl) Bush, Burke & Co (Defs) CATCHWORDS : Defamation; Client - legal privilege ACTS CITED : Evidence Act s 122(4) DECISION : See para 18

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

KIRBY J

Thursday 29 April 1999

21262/95 - JOHN TINGLE & ANOR v HARBOUR RADIO PTY LTD & ANOR [No 3]

JUDGMENT (see p 164 of transcript)

1 HIS HONOUR: In the course of evidence from the plaintiff Mr McClintock SC, appearing for the defendant, has sought to obtain from Mr Tingle evidence as to instructions given to his solicitor at the time a letter of 1 November 1995 was sent to the defendant, complaining about the publication. 2 The letter opens with the statement that it is written on behalf of John Tingle and The Shooters' Party. It says, "We act for John Tingle and The Shooters' Party". It then reproduces quotations from the broadcast about which complaint is made. Having done that the following is then said: "We are instructed that our clients are extremely distressed and upset by the above statements which are offensive, defamatory and totally inaccurate. In particular the statements contain the following defamatory imputations about our clients". 3 A number of imputations are then set out, to the effect that the clients, that is to say Mr Tingle and The Shooters' Party, are unable to pay their debts, are in financial difficulties, are in receipt of funds from the United States, are connected with, or associated with, or influenced by the National Rifle Association of America, and they are not able to make legitimate political comment because of their inability to pay debts. 4 Having set out these imputations, the letter continues as follows: "We are instructed that these imputations are false and offensive and will be likely to be extremely damaging to our clients reputation. We are canvassing all of the above allegations and are instructed that they contain the following inaccuracies". 5 The inaccuracies are then identified. They relate in each case to the various defamatory imputations which were set out in the earlier part of the letter, namely, that neither Mr Tingle nor The Shooters' Party was in debt to the State Government, nor in receipt of funds from the USA, nor influenced by the National Rifle Association of America, nor in debt to the State Government for $880,000. 6 Mr McClintock, in these circumstances, seeks to ask a number of questions drawing attention to the failure of the letter to include imputations, which, in substance, are those pleaded in the statement of claim, and which relevantly, in terms of the jury finding, include an allegation of Mr Tingle bragging about certain matters, and doing so with knowledge that such matters were false. 7 The issue, therefore, arises whether the letter, which purports to reproduce instructions from Mr Tingle, and The Shooters' Party, permits Mr McClintock, on behalf of his client, to explore precisely what instructions were given. 8 Can it be said that there is an express or implied waiver of the privilege between Mr Tingle and the solicitor whom he saw? 9 It seems to me important, when one deals with the issue, to isolate those matters which are stated, in terms, to be instructions, and those matters which are a commentary by the solicitor upon those instructions. 10 I believe that the matters which are stated to be instructions, and which operate as a waiver, are these. 11 First, that Mr Tingle was materially distressed and upset by the statements which appear in the letter. 12 Secondly, that the matters which were identified in the letter at the foot of p1 and the top of p2 of Exhibit E, were both false and offensive to him, and materially damaging to his reputation. 13 Thirdly, that such matters contain the inaccuracies which are set out on page 2, namely: * Neither John Tingle nor the Shooters Party is in debt to the State Government. * The Shooters Party does not receive any funding from the United States. * The Shooters Party is not in any way influenced by the National Rifle Association of America and has no association with the National Rifle Association of America. * Neither John Tingle nor the Shooters Party is in debt to the State Government in the sum of $880,000 or at all. 14 I do not accept, as a matter of construction of the letter, that the word 'defamatory' where it appears in the third paragraph on the first page, as part of the phrase, "offensive, defamatory, and totally inaccurate" can be attributed, by way of instructions, to Mr Tingle. It appears to me, as a matter of construction, more likely to reflect the view of the solicitor, on the instructions he had received. 15 There having been, in this letter, an authorised partial disclosure of communications which would otherwise have been privileged, such matters can be explored, consistently with s.122(4) of the Evidence Act. They relate first, to the distress and upset by the statements which are numbered paragraphs 1, 2, and 3 on the first page. 16 Secondly, the offensiveness and falsity of the five matters which appear at the foot of page 1 and the top of page 2 of the same letter, and the inaccuracies which are set out in the four asterisk points on page 2 beginning with "Neither John Tingle nor The Shooters' Party is in debt to the State Government" and ending with the reference to 880,000. 17 I should add, Mr Blackburn, on behalf of the plaintiff, has said, in support of his objection to the course which I have outlined, that the letter purports to be instructions from both Mr Tingle and The Shooters' Party, and therefore cannot fairly be attributed simply to Mr Tingle. However, I believe, in the circumstances, as a matter of construction, that the statements which I have identified can be so attributed. The letter does refer to both clients It makes no distinction between either, and purports to speak on behalf of both. 18 For that reason I believe Mr McClintock can explore those issues by way of cross-examination. **********