Cornish v Australian Broadcasting Corporation [2015] NSWSC 900

Supreme Court New South Wales

Medium Neutral Citation: Cornish v Australian Broadcasting Corporation [2015] NSWSC 900 Hearing dates: 22 May 2015 Date of orders: 22 May 2015 Decision date: 22 May 2015 Jurisdiction: Common Law Before: McCallum J Decision: Application for leave to file fourth proposed reply refused Catchwords: DEFAMATION – procedure – pleadings – application for leave to file fourth proposed reply – where proposed reply attempts to plead matter of defeasance identified in s 31(4)(c) of the Defamation Act 2005 (NSW) – requirement to plead adequate particulars to sustain contention that defendant had reasonable grounds to believe the opinion was not honestly held by each commentator when matter complained of was published – particulars not capable of supporting that contention Legislation Cited: Defamation Act 2005 (NSW), s 31 (4)(c) Cases Cited: Ahmed v Harbour Radio Pty Limited [2010] NSWSC 676 Category: Procedural and other rulings Parties: Adam Charles Cornish (First Plaintiff) Mark Hilton Hevers (Second Plaintiff) Australian Broadcasting Corporation (Defendant) Representation: Counsel: R Weaver (Plaintiffs) D Sibtain (Defendant)

Solicitors: Campbell Paton & Taylor (Plaintiffs) Australian Broadcasting Corporation (Defendant) File Number(s): 2014/305196 Publication restriction: None

Judgment – Ex Tempore 1. HER HONOUR: These are proceedings for defamation before the Court today for the second listing hearing in accordance with the Practice Note (SC CL 4). Two matters were brought forward for the Court's determination. 2. The first was the plaintiffs' application to file their fourth proposed reply in the form of a draft pleading, annexed as "A" to the affidavit of Mr Manwaring, sworn 1 May 2015. That draft pleading attempts the difficult task of pleading the matter of defeasance identified in s 31(4)(c) of the Defamation Act 2005 (NSW) as follows: 31 Defences of honest opinion … (3) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of a person (the "commentator" ), other than the defendant or an employee or agent of the defendant, rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. (4) A defence established under this section is defeated if, and only if, the plaintiff proves that: … (c) in the case of a defence under subsection (3)-the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published. 1. So far as the parties' researches have ascertained, there is yet no authority as to particulars required to be proved in order to make good that matter of defeasance. 2. In Ahmed v Harbour Radio Pty Limited [2010] NSWSC 676, Simpson J remarked that, at that point, the Defamation Act 2005 (NSW) was still in relative infancy. Her Honour observed at [18] a potential complication in the proper construction of the statute but the issue there raised is not relevant to the point raised today. 3. What has caused difficulty for the plaintiffs is the requirement to plead adequate particulars to sustain the contention that the defendants had reasonable grounds to believe that the opinion was not honestly held by each of the relevant commentators at the time the matter complained of was published. 4. The proposed reply attempts to address that matter with what will be (as I now understand from Mr Weaver's submissions) an argument that any opinion expressed by any of the relevant commentators was not an opinion relating to the plaintiffs but, rather, an opinion relating to other police officers referred to in the matter complained of. 5. The particulars pleaded in support of the matter of defeasance at present are as follows: 1. The defendant's agent interviewed each commentator; 2. The defendant's agent was aware of the discrete role played by the plaintiffs (in the relevant events); 3. The defendant's agent composed the matter complained of using selected footage and audio from interviews she conducted with each commentator; 4. The defendant's agent composed the matter complained of to create a dramatic view of the incident and subsequent investigation which she knew overstated the plaintiffs' involvement in the investigation, providing reasonable grounds for her to believe that whatever opinions may have been expressed were not reasonably held. 1. I accept, as submitted by Mr Sibtain on behalf of the defendant, that those particulars are not capable of sustaining the matter of defeasance identified in the statute. 2. I accept that it would be at least arguable that, if the communications made by each of the relevant commentators to the defendant were such as to make plain that their opinions related, not to the plaintiffs, but to other police officers, there may be occasion for pleading the matter of defeasance identified in the section. However, I do not think the current particulars achieve that end or are capable of achieving that end. 3. Accordingly, leave to file the fourth proposed reply, as currently pleaded, should be refused since, in my view, as currently pleaded, it is not reasonably arguable as a matter of defeasance in accordance with the statute. It was observed during argument that in order to plead that matter, the plaintiffs would need to know what were the communications made by the third party commentators to the defendant. As it happens, that information will come into the plaintiffs' possession properly in a different context by reason of the interrogatories it is agreed should be answered. Nothing in the present judgment should be understood to foreclose the plaintiffs from bringing forward a differently pleaded reply in due course, depending on what information is revealed by the answers to those interrogatories. 4. The second issue brought forward was the question of discovery and interrogatories which, happily, the parties have agreed upon during a short adjournment this morning. 5. The orders are: 1. That the application to file the fourth proposed reply is refused; and 2. By consent, orders 1, 2 and 3 in the handwritten orders provided to the Court. 1. I order the plaintiffs to pay the defendant's costs of and incidental to the hearing today.