O'Brien v Australian Broadcasting Corporation [2014] NSWSC 420

Supreme Court New South Wales

Medium Neutral Citation: O'Brien v Australian Broadcasting Corporation [2014] NSWSC 420 Hearing dates: 7 April 2014 Decision date: 07 April 2014 Before: McCallum J Decision: Defendant's objections to the plaintiff's imputations rejected. Defendant ordered to pay the plaintiff's costs of today's argument Catchwords: DEFAMATION - imputations - objections as to form Legislation Cited: Defamation Act 1974 Uniform Civil Procedure Rules 2005, r 14.28 Cases Cited: Harvey v John Fairfax Publications [2005] NSWCA 255 Kelly v Fairfax Media Publications (No 2) [2014] NSWSC 166 Category: Interlocutory applications Parties: Natalie O'Brien (plaintiff) Australian Broadcasting Corporation (defendant) Representation: Counsel: T Molomby (plaintiff) M Polden (defendant) Solicitors: Mitry Lawyers (plaintiff) ABC Legal (defendant) File Number(s): 2013/357528 Publication restriction: None

Judgment 1HER HONOUR: These are proceedings for defamation commenced by a journalist, Ms Natalie O'Brien, against the Australian Broadcasting Corporation arising out of the program Media Watch. The plaintiff has pleaded three imputations allegedly arising from the matter complained of. The defendant has some objections to those imputations. The parties were content for me to deal with those objections by way of application to strike-out under rule 14.28 of the Uniform Civil Procedure Rules 2005. 2The first objection is to imputation (a), as follows: As a journalist the plaintiff engaged in trickery by representing that tests or toxic chemicals had been conducted in a children's playground, whereas she knew that they had been conducted in an area nearby. 3The subject of the Media Watch program was an article evidently written by the plaintiff under the heading, "Toxic Substances Found in Reserve." The principal basis for the objection to imputation (a) was that, read in context, the matter complained of does not convey the meaning that the tests were conducted "nearby". Mr Polden, who appears for the ABC, submitted that the ordinary reasonable reader could not reasonably understand the matter complained of in that way. It was submitted that the thrust of the article is, rather, that the tests were not conducted in the playground the subject of the plaintiff's article. 4I disagree. Applying the test of reasonableness, in my view there is ample material in the matter complained to convey the notion that the act or condition levelled at the plaintiff by the Media Watch program is that she had, by what is referred to in the article as a sleight of hand, misrepresented the true position of the testing by suggesting that it occurred in a children's playground, when in fact the testing area was close by to that playground, but not under the playground. That arises from at least two aspects of the matter complained of, in my view. 5The first is an extract from a later television article which picked up Ms O'Brien's article. The television reporter was said to have stated the following words, "The EPA admits the soil underneath the playground was never part of the tests. However, the samples were taken just 200 metres up the hill." 6Secondly there is, in the matter complained of, a reproduction of a map. Mr Molomby invited me to pay attention to the map when viewing the program on a DVD. In my view, the areas depicted on the map are capable of supporting the meaning that the samples were taken close to the area where the playground is, or nearby to that area. In my view, the submission that the article conveys the meaning that the tests were not undertaken in the playground, but does not convey the meaning that the tests were undertaken nearby, poses a false dichotomy. The matter complained of is capable of conveying both meanings and, in my view, is capable of conveying the meaning that the plaintiff has chosen. 7The second objection to the imputation was that the word "nearby" is an uncertain word and that the imputation is objectionable on the grounds of form for that reason. Mr Polden submitted that it would be unfair to tax his client with an imputation in such uncertain terms, effectively putting, as I understood the submission, that the term "nearby" is one of indeterminate reference. 8I do not accept that submission. In my view the meaning of the term "nearby", considered in the context of the matter complained of as a whole, is of sufficient clarity to put the defendant on notice as to the case put against it. 9The second objection related to the plaintiff's reliance on imputations (b) and (c) as follows: (b) that she acted irresponsibly as a journalist by failing to consult experts as part of her preparation of an article about toxic chemicals; (c) that she created unnecessary concern in the community by irresponsibly failing to consult experts as part of her preparation of an article about toxic chemicals. 10Mr Polden submitted that what the article really says as to the creation of unnecessary concern is that such concern was due to the publication of a factually wrong article, rather than being due to the failure to consult experts. There may be some force in the view that that would have been a preferable imputation and it is certainly an imputation that would have been open to the plaintiff to plead. However, the plaintiff has chosen imputation (c) in the form set out above and that is the imputation as to which the present objection should be determined. 11The principal point in respect of imputations (b) and (c) was that they do not differ in substance in that imputation (c) comprehends within it all of the defamatory sting of imputation (b). Mr Molomby, who appears for the plaintiff, accepted that was so, but indicated that the plaintiff would wish to rely on both imputations, albeit putting imputation (b) as a fallback alternative to imputation (c). 12Mr Polden reminded me in that context of the remarks I made recently in Kelly v Fairfax Media Publications (No 2) [2014] NSWSC 166 at [26] concerning fallback imputations. I noted that the Court of Appeal had observed in Harvey v John Fairfax Publications [2005] NSWCA 255 that a fallback imputation of lesser seriousness is correctly regarded as differing in substance from a more serious imputation (with the result that both can be pleaded). However, I pointed out that that was an observation made by the Court of Appeal in the context of a claim governed by the Defamation Act 1974, under which the imputation was the cause of action. I observed that one effect of the 2005 Act may be a return to the previous position as it was before the imputation became the cause of action, where the imputation was regarded as the most injurious meaning and that it includes within it all the less injurious meanings which fall broadly within its terms: see Harvey at [75]. On that analysis, the imputation of lesser seriousness would not be required to be pleaded. 13It seems to me that the plaintiff's position in the present case differs to some extent from the position I was dealing with in Kelly. Imputation (c) levels a charge of creating concern in the community. Mr Molomby properly acknowledged that imputation (b) is comprehended within imputation (c), but imputation (c) conveys not only more serious conduct, but conduct of a different kind, in my view. In my assessment, it should be open to the plaintiff to rely on both imputations, accepting that imputation (b) is properly a fallback to imputation (c). For those reasons, I reject the defendant's objections to the plaintiff's imputations.