New South Wales Court of Appeal CITATION : RADIO 2UE SYDNEY PTY LTD & ANOR v GOLDSWORTHY [2000] NSWCA 130 FILE NUMBER(S) : CA 40456/99 HEARING DATE(S) : 8 May 2000 JUDGMENT DATE : 23 May 2000 PARTIES : RADIO 2UE SYDNEY PTY LTD & ANOR v ALLAN JOHN GOLDSWORTHY JUDGMENT OF : Mason P at 1; Sheller JA at 10; Stein JA at 11 LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT CL 20133/95 FILE NUMBER(S) : LOWER COURT Dunford J JUDICIAL OFFICER : COUNSEL : B R McClintock SC (Claimants) S M Littlemore QC/T Molomby (Opponent) SOLICITORS : Bush Burke & Co (Claimants) Gells (Opponent) CATCHWORDS : Defamation - proper material for comment - barrister's life not per se a matter of public interest - rational relationship between the material relied upon by the defendant and the imputation relied upon by the plaintiff - Pt 3 Div 7 Defamation Act 1974. (ND) DECISION : Leave refused - Summons dismissed with costs THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40456/99 MASON P SHELLER JA STEIN JA Tuesday 23 May 2000 RADIO 2UE SYDNEY PTY LTD & ANOR v GOLDSWORTHY JUDGMENT 1 MASON P: The claimants failed to make good a defence of comment referable to imputation (d) (that the opponent was a heartless person) because: 1. it was found to be a statement of fact (Judgment of Dunford J, par 24); 2. it did not relate to a matter of public interest, because it was not confined to the opponent's conduct in the committal proceedings (par 26); and 3. it was not "based on" the facts relied upon by the claimants, ie the material in the broadcast. Dunford J held that the imputation was not an opinion which might reasonably be based on material relating only to the committal proceedings. There was "no reasonable connection between [the opponent's] conduct as a barrister in the committal and the description of his general character as heartless, and so there was no proper material for comment in relation to the imputation that he was a heartless person generally, which was the imputation found by the jury" (par 27). 2 The claimants must show an arguable case of error at each step to have a prospect of vacating the verdict. 3 I agree with the learned trial judge on each point, although I hesitate before describing the challenge to (1) as unarguable. 4 However, the challenges to (2) and (3) have insufficient prospects of success to merit the grant of leave to appeal. 5 As to (2), I reject the submission that it was sufficient that the putative comment arose out of the conduct of legal proceedings. Every detail of a barrister's life does not become a matter of public interest simply because the barrister appears in court in significant legal proceedings. 6 As to (3), the claimants reminded the Court that the limits of criticism are exceedingly wide and that it is not the function of the tribunal of fact to sit in judgment upon the conclusions drawn by a defendant from the identified underlying material. There remains, however a requirement that any comment be "based on" the "proper material". 7 In David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346, differing views were expressed by Glass JA (at 354-6) and Priestley JA (at 360) as to whether the common law as modified by Pt 3 Div 7 of the Defamation Act 1974 continues to embody the requirement that the comment is one that an honest person might hold on the basis of the designated material. Samuels JA did not address that issue, nor did the Privy Council that reversed the Court of Appeal on different grounds (see Lloyd v David Syme & Co Ltd [1986] AC 350). 8 This area of disagreement is not relevant to the present case. Both Glass JA (at 358) and Priestley JA (at 360) were at one in holding that it was necessary to show what Priestley JA described as a "rational relationship" between the material relied upon by the defendant and the imputation relied upon by the plaintiff. The submission by the claimants that a defendant's honesty is the only relevant limit must be rejected. I would reject as unarguable the submission that the defendant is the sole judge of how far or wide he or she can jump from the chosen springboard of underlying material. 9 I would refuse leave and dismiss the Summons with costs. 10 SHELLER JA: I agree with Mason P. 11 STEIN JA: I agree with Mason P. ************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.