Robert Waites & Anor v Macquarie Radio Network Ltd [2006] NSWSC 507

New South Wales Supreme Court

CITATION : Robert Waites & Anor v Macquarie Radio Network Ltd [2006] NSWSC 507

HEARING DATE(S) : 24.05.06

JUDGMENT DATE : 30 May 2006

JUDGMENT OF : Nicholas J

DECISION : para 26

CATCHWORDS : DEFAMATION – statement of claim – multiple publications – defendant's strike in application – separate radio talk-back programmes – whether plaintiffs should plead both programmes as one publication – UCPR r 14.28

Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 Buckingham v Murray (1825) 2 Car. & P. 46, 172 ER 22 Burrows v Knightley (1987) 10 NSWLR 651 CASES CITED : Gordon v Amalgamated Television Services Pty Ltd (1980) 2 NSWLR 410 Plato Films Ltd v Speidel [1961] AC 1090 Phelps v Nationwide News Pty Ltd & Anor [2001] NSWSC 130 Kyle Sandilands v Channel Seven Sydney Pty Ltd [2005] NSWSC 1250 The Age Corporation Ltd v Beran [2005] NSWCA 289

Robert Waites - first plaintiff PARTIES : Susan Waites - second plaintiff Macquarie Radio Network Ltd - defendant

FILE NUMBER(S) : SC 20425/05

COUNSEL : R Potter - plaintiffs M Lynch - defendant

SOLICITORS : Phillips Fox - plaintiffs Banki Haddock Fiora - defendant

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

Nicholas J

30 May 2006

20425/05 Robert Waites & Anor v Macquarie Radio Network Ltd JUDGMENT 1 His Honour: The defendant seeks an order that the plaintiffs be directed to include as part of the publication presently pleaded consisting of matter from a radio programme presented by Mr Alan Jones additional matter from the later radio programme presented by Mr Ray Hadley. In the jargon of practitioners in the Defamation List the defendant's application is often described as a "strike in" application. In substance the application is made under r 14.28 for an order that the amended statement of claim be struck out on the ground that it is unfair and embarrassing to have omitted matter which forms part of the publication sued upon which was capable of being understood by the ordinary reasonable listener as materially altering or qualifying the complexion of the imputations. 2 The first plaintiff at all material times was an Assistant Commissioner of Police. The second plaintiff was at all material times a staff officer within the New South Wales police force, and the wife of the first plaintiff. 3 By their amended statement of claim the plaintiffs claim damages against the defendant arising out of the publication on 22 August 2005 on radio station 2GB of matter from its Alan Jones programme (the Jones programme). It was a talk-back programme in which members of the public participated by telephone. 4 The plaintiffs have pleaded as one publication six items from the Jones programme the first of which was broadcast at about 6.18am and the last at about 9.35am. Each item was between about 2-3 minutes duration. The intervals between each varied considerably, e.g., 4 minutes between the first and second; 24 minutes between the third and fourth; 84 minutes between the fifth and sixth. It is common ground that during the intervals other unrelated matter were broadcast including advertisements, and news items. 5 The discussion during these items principally concerned advice given by the first plaintiff to the Federal Minister, Mr Tony Abbott, to cancel a debate with Ms Julia Gillard at the University of Sydney on voluntary student unionism because the police could not guarantee his safety. Another question raised concerned the promotion of the second plaintiff in circumstances where the first plaintiff sat on the panel which interviewed her, and she proceeded under her maiden name. 6 The first plaintiff alleges the following imputations arise from the matter complained of: "(a) The First Plaintiff acted dishonestly in the performance of his duties as an Assistant Commissioner of Police in that he participated as a member of an interview panel in the determination of an application for promotion by his wife within the Police Service without disclosing to the other panel members his relationship to her. (b) The First Plaintiff participated as a member of an interview panel in the determination of an application for promotion by his wife within the Police Service without disclosing to the other panel members his relationship to her. (c) The First Plaintiff allowed promotion within the Police Service by the use of nepotism. (d) The First Plaintiff is a half-wit. (e) The First Plaintiff is regarded by other policemen as the most hated policeman in the Police Service. (f) The First Plaintiff as an Assistant Commissioner of Police is out of touch with the operations of the Police Service because he refuses to leave his office". 7 The second plaintiff alleges the following imputations arise from the matter complained of: "(a) The Second Plaintiff acted dishonestly by applying for promotion in the Police Service in her maiden name to disguise the fact she was married to a member of the panel appointed to decide her application. (b) The Second Plaintiff applied for promotion in the Police Service in her maiden name to disguise the fact she was married to a member of the panel appointed to decide her application. (c) The Second Plaintiff gained promotion in the Police Service by the use of nepotism". 8 The Jones programme concluded with the sixth item at about 9.38am with these words: "… This is a policeman speaking. And if other police want to ring, please ring. And, Ken Moroney, your credibility is on the line. You either support Waites or you don't. And if you support Waites in this decision you are supporting the surrender of the police force of New South Wales to potential intimidation". 9 At about 10.06am the Hadley programme, which was also in talk-back format, commenced with an item of about 1 minute's duration concerning the first plaintiff's advice to Mr Abbott. During the interval of about 28 minutes between the end of the Jones programme and the start of the Hadley programme the defendant broadcast unrelated matter which included the news at 10am. 10 Thereafter, until about 11.22am, the defendant broadcast four more items concerning the first plaintiff. Like those on the Jones programme, the items, except the second, were between about 1 and 4 minutes duration. The second item consisted of an interview with the first plaintiff of about 10 minutes' duration. There were intervals of various lengths between the items during which unrelated matter was published. In the first item Mr Hadley stated that he had received plenty of complaints about the first plaintiff, and was hopeful of talking to him. He commenced the second item with the words: "We'll go to callers shortly. But an important issue that Alan raised this morning um, the New South Wales Police Force have decided to give up as opposed to try to serve and protect …".