New South Wales Supreme Court CITATION : DENT v MACQUARIE RADIO NETWORK PTY LTD [2004] NSWSC 95 HEARING DATE(S) : 31 October 2003 JUDGMENT DATE : 27 February 2004 JUDGMENT OF : Levine J DECISION : 1. The plaintiff is granted leave to file a further amended statement of claim in accordance with these reasons and is to do so within 14 days.; 2. Each party is to pay his and its own costs.; 3. I place the matter in the Registrar's 9am Directions List on Friday 12 March 2004.; 4. Exhibit 1 (the 3 audio tapes) is to be returned to the defendant. CATCHWORDS : Imputations - capacity - difference in substance ARTHUR DENT (Plaintiff) PARTIES : v MACQUARIE RADIO NETWORK PTY LTD (Defendant) FILE NUMBER(S) : SC 20018 OF 2003 C Evatt (Plaintiff) COUNSEL : B Connell (Defendant) Carters (Plaintiff) SOLICITORS : Corrs Chambers Westgarth (Defendant) [2004] NSWSC 95 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST JUSTICE DAVID LEVINE FRIDAY 27 FEBRUARY 2004 20018 OF 2003 ARTHUR DENT (Plaintiff) v MACQUARIE RADIO NETWORK PTY LTD (Defendant) JUDGMENT (Imputations – capacity – difference in substance) 1 This is a matter, not atypical, where a plaintiff is confronted by three quite disparaging publications and the plaintiff's lawyers have been confronted by the difficulty of pleading causes of action arising from them. 2 The plaintiff sues in relation to three broadcasts at 9.10am, 9.16am and 9.35am on 12 June 2002 on Radio Station 2GB. 3 The texts of the broadcast material are appended hereto. 4 The radio programmes were broadcast by Ray Hadley in a talkback format. 5 In relation to the first matter complained of the plaintiff seeks to plead in a further amended statement of claim the following imputations: 3(a)(i) The Plaintiff is a malingerer. (ii) The Plaintiff is reasonably suspected by Ray Hadley of being a malingerer. (b)(i) The Plaintiff is a cheat. (ii) The Plaintiff is reasonably suspected by Ray Hadley of being a cheat. (c) The Plaintiff fraudulently obtained a disability pension to which he was not entitled because he was able to make 10,000 parachute jumps. (d) The Plaintiff received a disability pension even though he was well enough to work. (e)(i) The plaintiff gave false evidence to the Court that he was able to make 10,000 parachute jumps when he was disabled and in receipt of a disability pension. (ii) The Plaintiff was reasonably suspected by Ray Hadley of giving false evidence to the Court that he was able to make 10,000 parachute jumps when he was disabled and in receipt of a disability pension. (f) The made a mockery of the Court by bringing a ridiculous liability claim. Imputations 3(e)(i) and (e)(ii) have been abandoned. 6 In relation to the second matter complained of the plaintiff seeks to plead the following imputations: 5(a)(i) The Plaintiff is a malingerer. (ii) The Plaintiff is reasonably suspected by Ray Hadley of being a malingerer. (b)(i) The Plaintiff is a cheat. (ii) The Plaintiff is reasonably suspected by Ray Hadley of being a cheat. (c) The Plaintiff fraudulently obtained a disability pension to which he was not entitled because he was able to make 10,000 parachute jumps. (d) The Plaintiff received a disability pension even though he was well enough to work. (e) The Plaintiff is reasonably suspected by Ray Hadley of giving false evidence to the Court that he was able to make 10,000 parachute jumps when he was disabled and in receipt of a disability pension. Imputation 5(e) has been abandoned. 7 In relation to the third matter complained of, the imputations pleaded are: 7(a)(i) The Plaintiff has brought a fishy (dubious) claim. (ii) The Plaintiff is reasonably suspected by Ray Hadley and Irene of bringing a fishy (dubious) claim. (b) The Plaintiff has fraudulently obtained a disability pension because he can afford to jump out of planes 10,000 times. (c) The Plaintiff obtained a disability pension to which he was not entitled because of his ability to make 10,000 jumps. (d)(i) The Plaintiff is a cheat. (ii) The Plaintiff is reasonably suspected by Ray Hadley of being a cheat. 8 Further, in relation to the third matter complained of, the plaintiff relies upon the imputations as true innuendos based upon listeners knowing the extrinsic fact that the plaintiff had brought a court claim for an injury which he suffered after making 10,000 parachute jumps. The defendant had prepared a statement pursuant to SCR Pt 67 r 12A in relation to an antecedent pleading, though it generally can be correlated with the new pleading the plaintiff seeks now to file. 9 With respect to the imputations pleaded in paragraph 3, I am prepared to find that the matter complained of is capable of carrying imputations 3(a)(i) and (a)(ii) notwithstanding the asserted "suspension of judgment" to which reference is made by the defendant in its submissions. Imputations 3(a)(i) and (a)(ii) are capable of being carried and capable of being defamatory. 10 As to imputations 3(b)(i) and 3(c), these cannot be said on any rational basis to differ in substance and the plaintiff is to elect. Otherwise, each would be capable of being carried and capable of being defamatory. 11 In the light of the defendant's submissions I will allow imputation 3(d) to go to the jury as capable of being carried and capable of being defamatory. As to imputation 3(f), I hold that the matter complained of is simply incapable, on any reasonable basis, of carrying an imputation in this form. 12 As to the second matter complained of and the imputations said to be carried by it: again, I will hold that imputations 5(a)(i) and (ii) are capable of arising and capable of being defamatory. 13 With respect to imputation 5(b)(i) and (c), again I hold that they do not differ in substance and the plaintiff is to elect. 14 Again, in respect of imputation 5(d) I hold that the matter complained of is capable of carrying the imputation and that it is capable of being defamatory. 15 I note that imputation 5(e) has been abandoned. 16 In relation to the third matter complained of, imputations 7(a)(i) and (a)(ii), using whatever word ("fishy/dubious"), cannot, on a reasonable understanding of the matter complained of, be carried. There is no reference in that matter to any "claim". Further, the plaintiff might be well advised in the context of the true innuendo to which I refer below, to elect between "dubious" and "fishy", noting that the word "fishy" is used in the matter complained of. 17 In relation to the third matter complained of, imputation 7(b) and 7(c) of course differ in substance as the former talks about affording to jump out of a plane, the latter talks about physical ability to do so. In relation to each I hold that the matter complained of in its natural and ordinary meaning is capable of carrying each of those imputations and that each of them is defamatory. 18 I have little difficulty in holding that the third matter complained of, in its natural and ordinary meaning is capable of carrying imputations 7(d)(i) or (d)(ii). I hold that each is capable of being carried and each is capable of being defamatory. 19 As to the true innuendos pleaded and the extrinsic fact to which I referred, a case can go to the jury on that basis. In relation to imputations 7(a)(i) and (a)(ii), the plaintiff can only rely on true innuendos. 20 Accordingly, I make the following orders: 1. The plaintiff is granted leave to file a further amended statement of claim in accordance with these reasons and is to do so within 14 days. 2. Each party is to pay his and its own costs. 3. I place the matter in the Registrar's 9am Directions List on Friday 12 March 2004. 4. Exhibit 1 (the 3 audio tapes) is to be returned to the defendant. ANNEXURE 'A' RAY HADLEY: A couple more ridiculous liability claims today mentioned in the Herald one of them a person has given evidence that he made 10,000 parachute jumps before suffering injury. Apparently he got caught on some sort of hook on the aircraft. I don't know the extent of the injuries its not documented but the bloke has told the Court he had been on a disability pension since 1972 since a motorcycle accident. Now me stupid, call me naïve, call me whatever you like, but how does someone on a disability pension who is unable to work, because I would imagine he is not able bodied. You see its not stress or some sort of mental problem, he had been on a disability pension because he had a motorcycle accident. Now if you can't work and you are on a disability pension how do you keep skydiving. One would imagine that a fair bit of effort is involved in skydiving, perhaps not as much effort is required to work five days a week. So anyway we will talk about that later this morning. ANNEXURE 'B' RAY HADLEY: 1. And a fellow called Arthur Dent, who apparently changed his name – from Mittagong – is suing after a skydiving incident in which his leg strap snagged on a hook on a plane. He told judge Anne Ainslie-Wallace he had impaired memory, difficulty concentrating, pain in his back, arm and leg, lost teeth and suffered shock, anxiety and depression. I get depressed reading about it. 2. The court heard Mr Dent – and this is the remarkable part about it. I don't understand the claim but I, more particularly, don't understand this. The court heard Mr Dent had been on a disability pension since 1972 after a motorcycle accident but Mr Dent told the court he's done about 10,000 parachute jumps. How does a man on a disability pension continue to jump out of a plane? You can't work, one would assume you're not well enough to jump out of planes, but he does. ANNEXURE 'C' RAY HADLEY AND IRENE Ray: Hello Irene, Hello Irene: Hello Ray Ray: Irene Irene: I love 2GB. Ray: That's very kind of you. We love you. Irene: Ray, how on earth can this person on disability allowance afford to jump out of planes. Ray: That's another valid point. Apart from a physical aspect it does cost money to get up in a plane and jump out of it. Irene: It does, I mean you just barely live on a disability allowance so how can he afford to jump out of planes. There's something very fishy about this whole thing. Ray: Well if we are to believe the paper today he has been on the same allowance since 1972. It's now 2002 and in that period of time he has made 20,000 or is it 10,000 jumps. It's a lot of jumps anyway. 10,000 jumps. Irene: My goodness since 1972. Ray: Mmmm after a motorcycle accident I think it was. Irene: My goodness. Ray: Anyway as I say now he has put himself in the eye of the public we will keep an eye on him and follow the Court case with some interest. Irene: Yes. Okay thanks Ray. Ray: Thanks Irene nice to hear from you. ********** Last Modified: 03/01/2004 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. 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