Gary BURNS v HARBOUR RADIO PTY LTD & Anor [2008] NSWSC 1254

Gary BURNS v HARBOUR RADIO PTY LTD & Anor [2008] NSWSC 1254

Because the plaintiff pleaded the three broadcasts as separate publications, each broadcast had to be assessed independently. The first broadcast was capable of conveying imputations 5(b), 5(c) and 5(d), but not 5(e), and the plaintiff had to elect between 5(a) and 5(c) because they did not differ in substance. The second broadcast, taken in isolation, was too vague or unsupported to convey the pleaded imputations involving humiliation, exploitation, dishonesty, or bringing rugby league into disrepute, so imputations 7(a) to 7(f) were struck out. The third broadcast was capable of conveying imputations 9(a) and 9(b), but imputations 9(c) and 9(d) did not differ in substance from 9(a) and...

Jurisdiction
Australia
Judgment Date
27 November 2008
Procedural Posture
Defamation Claim for Damages Arising From Three Radio Broadcasts / Procedural Ruling on Challenges to Pleaded Imputations, Including Capacity, Difference in Substance, Amendment, Election and Strike Out
Outcome
Leave to amend imputations 7(a) and 9(a) granted; plaintiff required to elect between imputations 5(a) and 5(c); imputations 5(e), 7(a), 7(b), 7(c), 7(d), 7(e), 7(f), 9(c) and 9(d) struck out.
Legal Topics
['capacity to Convey Defamatory Imputations' 'separate Publications' 'radio Broadcasts' 'striking Out Imputations' 'amendment of Imputations' 'election Between Imputations' 'imputations Differing in Substance']
['defamation' 'civil Procedure'] ['capacity to Convey Defamatory Imputations' 'separate Publications' 'radio Broadcasts' 'striking Out Imputations' 'amendment of Imputations' 'election Between Imputations' 'imputations Differing in Substance']

Case Brief

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Procedural Posture

Defamation Claim for Damages Arising From Three Radio Broadcasts / Procedural Ruling on Challenges to Pleaded Imputations, Including Capacity, Difference in Substance, Amendment, Election and Strike Out

Legal Issues

  1. 1 ['Whether each of the three radio broadcasts was capable of conveying the defamatory imputations pleaded by the plaintiff.' 'Whether consecutive broadcasts pleaded as individual publications had to be assessed in isolation from one another.' 'Whether particular imputations differed in substance from other pleaded imputations.' 'Whether leave should be granted to amend imputations 7(a) and 9(a) by substituting "Executive Producer" for "producer".']

Ratio Decidendi

Because the plaintiff pleaded the three broadcasts as separate publications, each broadcast had to be assessed independently. The first broadcast was capable of conveying imputations 5(b), 5(c) and 5(d), but not 5(e), and the plaintiff had to elect between 5(a) and 5(c) because they did not differ in substance. The second broadcast, taken in isolation, was too vague or unsupported to convey the pleaded imputations involving humiliation, exploitation, dishonesty, or bringing rugby league into disrepute, so imputations 7(a) to 7(f) were struck out. The third broadcast was capable of conveying imputations 9(a) and 9(b), but imputations 9(c) and 9(d) did not differ in substance from 9(a) and...

Court Disposition

Leave to amend imputations 7(a) and 9(a) granted; plaintiff required to elect between imputations 5(a) and 5(c); imputations 5(e), 7(a), 7(b), 7(c), 7(d), 7(e), 7(f), 9(c) and 9(d) struck out.

Orders

  • ['Leave to amend imputations 7(a), 9(a) granted.' 'Plaintiff to elect between 5(a) and 5(c).' 'Imputations 5(e), 7(a), 7(b), 7(c), 7(d), 7(e), 7(f), 9(c), 9(d) are struck out.']