O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289

Supreme Court New South Wales

Medium Neutral Citation: O'Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 Hearing dates: 9, 10, 11, 12, 13, 16 November 2015 Decision date: 15 September 2016 Before: McCallum J Decision: Judgment for the defendant Catchwords: DEFAMATION – Media Watch programme analysing articles written by a journalist about the results of tests for toxic substances – imputations that the journalist engaged in trickery by misrepresenting the location of the tests and that she created unnecessary concern in the community by irresponsibly failing to consult experts in the preparation of her article – defences of fair comment at common law and statutory defence of honest opinion – whether defamation conveyed as the comment or opinion of the presenter – defence of truth – whether imputations substantially true – defence of contextual truth – whether open to defendant to rely on an alternative, fall-back imputation pleaded by the plaintiff – whether open to plaintiff to rely on an imputation of which she complained but which was proved true – consideration of the decision of the Queensland Court of Appeal in Mizikovsky – whether because of the substantial truth of the contextual imputations the (untrue) defamatory imputation did not further harm the plaintiff's reputation – defence of qualified privilege at common law – whether the Media Watch programme was published on an occasion of qualified privilege at common law Legislation Cited: Defamation Act 2005 (NSW), ss 22, 25, 26, 31 National Environment Protection Council Act 1994 (Cth), s 14(1)(d) Supreme Court Act 1970 (NSW), s 90 Cases Cited: Adam v Ward [1917] 309 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 Carleton v ABC [2002] ACTSC 127 Channel Seven Adelaide Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 Dank v Nationwide News Pty Ltd [2016] NSWSC 156 Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165; [2002] NSWCA 41 Hall v TCN Channel Nine Pty Ltd [2014] NSWSC 1604 Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695; [2015] NSWCA 290 McMahon v John Fairfax Publications Pty Ltd (No 6) [2012] NSWSC 224 Kelly v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 166 Merivale v Carson (1887) 20 QBD 275 Mizikovsky v Queensland Television Ltd [2013] QCA 68 Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 Rose v Allen & Unwin Pty Ltd [2013] NSWSC 991 Smith's Newspapers Ltd v Becker (1932) 47 CLR 279; [1932] HCA 39 Toogood v Spyring (1834) 1 CM&R 181 at 193; 149 ER 1044 Category: Principal judgment Parties: Natalie O'Brien (plaintiff) Australian Broadcasting Corporation (defendant) Representation: Counsel: T Molomby SC, C Dibb (plaintiff) P Gray SC, MA Polden (defendant)