Bass v McDonald & TCN Channel Nine Pty Ltd (No.2) [2001] NSWSC 955

New South Wales Supreme Court

CITATION : Bass v McDonald & TCN Channel Nine Pty Ltd (No.2) [2001] NSWSC 955 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 16791/90 17 - 19 October 2001 HEARING DATE(S) : 22 & 23 October 2001 25 October 2001 JUDGMENT DATE : 26 October 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 : Defamation - defence of common law qualified privilege - riposte - malice - whether the defendant's state of mind concerning the truth or otherwise of the publication is an answer in law to the defence - whether the defendant's knowledge that the person on whose behalf the riposte was made was predominantly motivated by an intention to injure the plaintiff is an answer in law to the defence CASES CITED : Loveday v Sun Newspapers Ltd (1937) 59 CLR 503 Makin v John Fairfax & Sons Ltd [1973-96] A Def R [50,075] DECISION : See paragraph 26 of the judgment.

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

SPERLING J

Friday, 26 October 2001

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

Judgment (No. 2) 1 SPERLING J: On Friday 19 October 2001, the jury found that certain of the alleged imputations were conveyed and were defamatory. 2 In the course of the argument on Monday 22 and Tuesday 23 October, I gave leave to the defendant to file an amended defence. I also gave leave to the plaintiff to file a further amended reply, which substituted new particulars of malice as pleaded in paragraph 2 of the document. 3 In argument, Mr Molomby, counsel for the plaintiff, made clear that averment of malice was confined to the defendant's defence of common law qualified privilege. 4 The defendant contended that the plea of malice as particularised was not an answer in law to the defendant's defence of common law qualified privilege. The leave to further amend the reply was given without prejudice to that argument. (At one stage the argument was categorised, at my suggestion, as one to strike out the relevant part of the further amended defence. Ultimately, however, the argument was categorised, by agreement, as an application for a ruling as stated at the commencement of this paragraph.) 5 The matter complained of was a television programme which included statements made on camera by the plaintiff, an erstwhile building contractor, and by a Mr McDonald, then state secretary of the BWIU. The plaintiff's statement was to the effect that he was unfairly victimised by the union and driven out of business. The statements by Mr McDonald were to the effect that union action against the plaintiff was justified because, as the jury found the imputations, the plaintiff was a shonky operator who could not be relied on to pay his employees money due to them. 6 Obviously enough, the plaintiff's plea of malice would arise for consideration by the jury only if the defence of common law qualified privilege were made out. That might not occur. Counsel, however, wished to have the question which was argued resolved at this stage for the purposes of the ongoing trial.