Chesterton v Radio 2UE Sydney Pyt Ltd [2010] NSWSC 47

New South Wales Supreme Court

CITATION : Chesterton v Radio 2UE Sydney Pyt Ltd [2010] NSWSC 47

HEARING DATE(S) : 8 & 9 February 2010 and continuing

JUDGMENT DATE : 9 February 2010

JURISDICTION : Common Law

JUDGMENT OF : McCallum J

DECISION : The defendant is not required to produce documents in response to the notice to produce dated 3 February 2010 to the extent that it seeks production of documents relating to publication of the matter complained of outside the State of New South Wales.

LEGISLATION CITED : Defamation Act 1974 Defamation Act 2005

CATEGORY : Procedural and other rulings

Cinevest Limited v Yirandi Productions Limited [2001] NSWCA 68 David Syme & Co Limited v Grey (1992) 38 FCR 303 CASES CITED : Dow Jones & Co v Gutnick [2002] HCA 56; (2002) 210 CLR 575 John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2002) 203 CLR 503 Toomey v Mirror Newspapers Limited (1985) 1 NSWLR 173

PARTIES : Ray Chesterton (Plaintiff) Radio 2UE Sydney Pyt Ltd (Defendant)

FILE NUMBER(S) : SC 06/267125

COUNSEL : C. Evatt QC/ R. Rasmussen/ J. Paingakulam R. McHugh SC/ C. Armato

SOLICITORS : Beazley Singleton Lawyers (Plaintiff) Banki Haddock Fiora Lawyers (Defendant)

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

McCALLUM J

9 FEBRUARY 2010

2006/267125 RAY CHESTERTON v RADIO 2UE SYDNEY PTY LTD

JUDGMENT 1 HER HONOUR: This is an action for defamation brought by Mr Ray Chesterton over remarks made on Radio Station 2UE on the John Laws Morning Show. The matter complained of was broadcast on 8 August 2005 and the proceedings are accordingly governed by the Defamation Act 1974, which has since been repealed. 2 On 18 July 2007, following a trial before Simpson J and a jury in accordance with s 7A of that Act, the jury determined that each of eight imputations pleaded by Mr Chesterton was carried by the matter complained of and was defamatory. Following unsuccessful appeals by the defendant against those determinations, it remains for the Court to determine the issues that arise as to defences and damages in accordance with s 7A(4) of the Act. 3 The hearing of the issues reserved for the Court under s 7A(4) commenced before me yesterday. At the outset of the hearing Mr Evatt, who appears with Mr Rasmussen for Mr Chesterton, called on a notice to produce documents relating to the issue of the extent of publication of the matter complained of. Mr McHugh SC, who appears with Ms Amato for the defendant company, indicated that, in so far as the notice seeks documents relating to publication within the State of New South Wales, the only document to be produced in response to the call had already been provided informally to Mr Chesterton's solicitor. Mr McHugh otherwise sought to have the notice set aside in so far as it seeks documents relating to publication outside New South Wales. 4 After hearing argument on that issue, I ruled that the defendant was not required to produce any document in relation to publication of the matter complained of outside the State of New South Wales. These are my reasons for making that ruling. 5 As noted by the High Court in Dow Jones & Co v Gutnick [2002] HCA 56; (2002) 210 CLR 575 at [25], the tort of defamation is concerned with publications causing damage to reputation. It is only upon the communication of defamatory matter that harm to reputation is done, and it is for that reason that publication to a third person is an essential element of the cause of action. Each separate publication is potentially actionable as a separate cause of action, subject to any defences that may be available in respect of the particular publication. 6 The legislation that governs these proceedings altered the common law as to the respective functions of the Court and the jury in the determination of those issues. Unfortunately, although publication is the foundation of the establishment of a defamation claim, that issue was not expressly allocated to either the Court or the jury in the relevant provisions. It must be accepted, however, that by necessary implication the 1974 Act (as it stood immediately before its repeal) conferred the function of determining the question of publication on the jury. Section 7A(3) of the Act provided that the jury was to determine whether the matter complained of carried the imputation pleaded by the plaintiff and, if it did, whether the imputation was defamatory. 7 Section 7A(4) provided (my underlining): (4) If the jury determines that the matter complained of was published by the defendant and carries an imputation that is defamatory of the plaintiff, the court and not the jury is: (a) to determine whether any defence raised by the defendant (including all issues of fact and law relating to that defence) has been established, and (b) to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount. 8 The section accordingly assumes that the jury will have made a determination that the matter complained of "was published by the defendant" as a pre-condition to the performance of the functions allocated to the Court under s 7A(4): cf Cinevest Limited v Yirandi Productions Limited [2001] NSWCA 68 at [20] per Spigelman CJ; Meagher and Handley JJA agreeing. Implicitly, on that basis, if proceedings relating to a cause of action governed by the 1974 Act are tried before a jury, any factual issue as to whether the matter complained of was published by the defendant must be determined by the jury. 9 In the present case, publication within NSW was admitted but a factual issue was raised on the pleadings as to whether the matter complained of was published by the defendant outside the State of New South Wales. By paragraph 3 of the second further amended statement of claim, the plaintiff alleged that the defendant "caused [the matter complained of] to be broadcast in New South Wales and in the other States and Territories of the Commonwealth". In answer to that allegation, the defendant admitted that it broadcast words substantially the same as those pleaded in the matter complained of in New South Wales, but did not otherwise admit the matters alleged. 10 Accordingly, since the allegation of publication outside New South Wales was not admitted on the pleadings it had (if maintained) to be proved by Mr Chesterton. The critical question raised by the defendant's objection to the notice to produce is whether that was a contest as to the issue of publication, and therefore one reserved for the jury, or one that goes "only to damages", thus falling within the functions of the Court under s 7A(4). Mr McHugh submitted that it was an issue that had to be determined (if at all) by the jury in the trial before Simpson J and that, since it was not, it is no longer open to Mr Chesterton to obtain an award of damages in respect of any such publication.