Bass v McDonald & TCN Channel Nine Pty Ltd (No.5) [2001] NSWSC 979

New South Wales Supreme Court

CITATION : Bass v McDonald & TCN Channel Nine Pty Ltd (No.5) [2001] NSWSC 979 revised - 15/11/2001 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 16791/90 17 - 19 October 2001 22 & 23 October 2001 HEARING DATE(S) : 25 & 26 October 2001 29 - 31 October 2001 1 & 2 November 2001 5 - 7 November 2001 JUDGMENT DATE : 7 November 2001

Robin Bass PARTIES : Thomas McDonald TCN Channel Nine Pty Ltd JUDGMENT OF : Sperling J at 1

COUNSEL : Mr T Molomby with Mr R Rasmussen for the Plaintiff Mr B McClintock SC with Mr M Richardson for the Second Defendant SOLICITORS : William Oates Lawyers for the Plaintiff Gilbert & Tobin Lawyers for the Second Defendant CATCHWORDS : No question of principle DECISION : See paragraph 5 of the judgment.

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Defamation List

Sperling J

Wednesday 7 November 2001

16791/90 Robin Bass v Thomas McDonald & TCN Channel Nine Pty Ltd

Judgment (No.5) 1 His Honour: I have been asked by counsel for the plaintiff to require the jury, if they come to damages, to determine separately what damages are recoverable for publication in Queensland and what damages are recoverable for publication elsewhere in Australia. 2 Counsel for the defendant opposes this course. He mentioned, although I apprehend not intending to be exhaustive, that he has had no opportunity to address the jury differentially. I do not give weight to that point because the quantification of damages, as presently contemplated, would necessarily involve the extent of publication in particular parts of Australia. 3 I am, however, concerned that a jury, already burdened with a multiplicity of issues and questions, many of which are conceptually difficult, and with the task of producing answers that are consistent one with the other, could be forced onto the wrong side of the line of tolerance by adding the questions that are now sought. The basis for the application is the possibility of the plaintiff ending up at this trial or on appeal with an entitlement to damages only for publication in Queensland, or with an entitlement to damages other than for publication in Queensland, by reason of the statutory provision for qualified privilege in Queensland, whereas the case has been conducted on the basis of common law qualified privilege in relation to other places in Australia. 4 Whilst the possibilities to which I have referred are to be recognised, they are unlikely because of the similarity between qualified privilege at common law and the statutory form of the defence in Queensland. 5 Taking the foregoing considerations into account I decline the application. -oOo-