Packer v Australian Broadcasting Corporation [2002] NSWSC 1030

New South Wales Supreme Court

CITATION : Packer v Australian Broadcasting Corporation [2002] NSWSC 1030 FILE NUMBER(S) : SC 20350/97 HEARING DATE(S) : 10/10/02, 11/10/02 JUDGMENT DATE : 5 November 2002

PARTIES : Kerry Francis Bullmore PACKER v AUSTRALIAN BROADCASTING CORPORATION JUDGMENT OF : Cripps AJ

COUNSEL : Plaintiff- Mr B McClintock SC Defendant - Mr T K Tobin QC & Mr N A Nichols SOLICITORS : Plaintiff- Gilbert & Tobin Solicitors Defendant- Mr Stephen Collins, ABC Legal CATCHWORDS : Defamation - contextual imputations - whether capable of arising - if so whether capable of attracting the defence under s16 of the Defamation Act 1974 Casino Control Act 1992 LEGISLATION CITED : Defamation Act 1974 Listing Rules of the Australian Stock Exchange. Robinson v Laws & Anor (Unreported, QLDCA, 6 April 2001) CASES CITED : David Syme & Co v Blake (2001) 53 NSWLR 541 General Steel Industry Inc v Commissioner for Railways 112 CLR 125 DECISION : Defences 9(a), 10(a), 11(a) and 12(a) be struck out. The application is otherwise dismissed. The plaintiff to pay the defendant's costs of the Motion.

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

CRIPPS AJ

5 NOVEMBER 2002

20350/97

Kerry Francis Bullmore PACKER –v –AUSTRALIAN BROADCASTING CORPORATION

JUDGMENT 1 HIS HONOUR: On the 7 April 1997, the Australian Broadcasting Commission (ABC) (the defendant), published a "Four Corners" television broadcast entitled "The Power of Packer". The broadcast was repeated on 8 April 1997. 2 The program lasted approximately forty minutes. It was presented in three segments directed to three separate topics. Each segment focused on the conduct of the plaintiff and/or the Consolidated Press Holdings (CPH) a company he was said to control and persons over whom it was said he exerted influence with respect to those topics. 3 I have seen the "Four Corners" program and for self-evident reasons I do not propose to set out verbatim a transcript. The first segment, which lasted approximately thirty minutes, dealt with, inter alia, attempts by the plaintiff to obtain a licence under the Casino Control Act 1992, for the Darling Harbour Casino. There were allegations concerning the influence the plaintiff had over certain politicians and, of relevance to the present application, there were allegations concerning the production in New South Wales of a confidential file kept by the Louisiana Police. 4 There were two syndicates competing for the licence – CPH and Circus Circus (an American Company having gambling interests throughout US) and Leighton Holding Limited and Showboat (a Louisiana company having gambling interests in that state). The file contained allegations of a suspicious connection between Showboat and the mafia. It was stated that its removal from a safe in Louisiana amounted to a serious breach of confidentiality. The segment also referred to other efforts by the plaintiff and/or CPH directed to ensuring that the Showboat-Leighton syndicate would not succeed in obtaining a licence. Included in it was a statement that the plaintiff and CPH had employed investigators to "dig up the dirt" on Showboat. Reference was made to a television interview given by Mr James Packer concerning a conversation he had with a Minister of the Crown of New South Wales directed to the application of CPH-Circus Circus. 5 The second segment lasted for approximately ten minutes and was concerned with the commercial relationship between CPH and ANI, in the context of the acquisition by a European company owned by CPH by a company half owned by ANI. Of relevance is the circumstance that reference was made to payments of money "agreed to by Kerry Packer" to members of the ANI board prior to the board's decision to authorise the purchase of the company owned by CPH, which ultimately resulted in ANI loosing a large sum of money. 6 The third segment, which lasted a little over five minutes, was concerned with attempts by the plaintiff and/or CPH to gain control of the Fairfax group of companies. The program included the plaintiff arguing vigorously with members of a Senate Inquiry. 7 Shortly after publication, the plaintiff commenced proceedings, alleging the program conveyed certain imputations, each of which were defamatory of him. 8 The imputations alleged were: a. that the plaintiff had permitted employees of a company, which he controlled to commit a serious breach of the criminal law of Louisiana by illegally obtaining a confidential report from Louisiana police;