Kearney v 2HD Broadcasters Pty Limited t/as 1143 2HD [2012] NSWSC 321

Kearney v 2HD Broadcasters Pty Limited t/as 1143 2HD [2012] NSWSC 321

Craig Stephens was liable to contribute because he published defamatory allegations about Aaron Kearney, no defence of honest opinion or qualified privilege would have succeeded, and 2HD's failure to use the delay button was not a novus actus interveniens. The reasonable settlement basis was $50,000 plus reasonable 2HD legal costs of $8,495, and responsibility was apportioned 80% to Craig Stephens because his false claim that he had the Newcastle Herald in front of him was the major cause of the publication, although 2HD bore some responsibility for making publication possible through its talkback format. The deceit claim failed because the pleaded representations were insufficiently...

Jurisdiction
Australia
Judgment Date
27 July 2012
Procedural Posture
Defamation Cross Claim for Contribution or Indemnity and Deceit / Principal Judgment on the Cross Claim After the Plaintiff's Defamation Proceedings Against 2 HD Were Settled
Outcome
Judgment for the First Cross-Defendant on the Cross-Claim; judgment for the Cross-Claimant against the Second Cross-Defendant for $46,796 together with interest; the deceit claim failed.
Legal Topics
['talkback Radio Publication' 'contribution Between Tortfeasors' 'honest Opinion' 'qualified Privilege' 'causation' 'reasonableness of Settlement' 'deceit']
['torts' 'defamation'] ['talkback Radio Publication' 'contribution Between Tortfeasors' 'honest Opinion' 'qualified Privilege' 'causation' 'reasonableness of Settlement' 'deceit']

Case Brief

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Procedural Posture

Defamation Cross Claim for Contribution or Indemnity and Deceit / Principal Judgment on the Cross Claim After the Plaintiff's Defamation Proceedings Against 2 HD Were Settled

Legal Issues

  1. 1 ['Whether Craig Stephens was liable as a joint tortfeasor for defamatory statements broadcast by 2HD.' 'Whether Craig Stephens could have made out defences of honest opinion or qualified privilege.' "Whether 2HD's failure to use the delay button broke causation or otherwise defeated liability." 'Whether the settlement and legal costs claimed by 2HD were reasonable for contribution purposes.' 'What contribution Craig Stephens should pay to 2HD.' 'Whether Craig Stephens was liable to 2HD in deceit.']

Ratio Decidendi

Craig Stephens was liable to contribute because he published defamatory allegations about Aaron Kearney, no defence of honest opinion or qualified privilege would have succeeded, and 2HD's failure to use the delay button was not a novus actus interveniens. The reasonable settlement basis was $50,000 plus reasonable 2HD legal costs of $8,495, and responsibility was apportioned 80% to Craig Stephens because his false claim that he had the Newcastle Herald in front of him was the major cause of the publication, although 2HD bore some responsibility for making publication possible through its talkback format. The deceit claim failed because the pleaded representations were insufficiently...

Court Disposition

Judgment for the First Cross-Defendant on the Cross-Claim; judgment for the Cross-Claimant against the Second Cross-Defendant for $46,796 together with interest; the deceit claim failed.

Orders

  • ['Judgment for the First Cross-Defendant on the Cross-Claim.' 'Judgment for the Cross-Claimant against the Second Cross-Defendant in the sum of $46,796 together with interest thereon.' "The Second Cross-Defendant is to pay the Cross-Claimant's costs of the Cross-Claim."]