Bass v McDonald & TCN Channel Nine Pty Ltd (No.4)

His Honour : At this stage of the proceedings Mr Molomby moves for a ruling that the defence of unlikelihood of harm should be withdrawn from the jury on the basis it would not be open to the jury to find in favour of the defendant under that defence.

The authorities to which I have been referred relate to circumstances very different from those which arise in the present case. The assistance which I have derived from them is the legislation refers to "the circumstances of the publication" in contradistinction with an expression such as "in all the circumstances of the case". The section draws attention to those circumstances which are immediately associated with the publication, such as were mentioned by way of illustration in Morosi v Mirror Newspapers [1977] 2 NSWLR 749 at 800, namely, the manner in which the matter was published, the persons to whom it was published and the place where it was published.

In the present case, the defendant relies on material in the subject programme other than that giving rise to the defamatory imputations and which the defendant wishes to argue so outweighed what might otherwise have been the effect of the defamatory imputations that the plaintiff was not likely to suffer harm from the defamatory imputations themselves.

It seems to me that nothing could be more intimate to the circumstances of the publication of the matter complained of than that the selfsame publication, whether it be a newspaper article or a radio or television programme, itself contained countervailing material which it would be open to a jury to regard as sufficient to outweigh, in the mind of any viewer or reader, what would otherwise be the harmful effect of the defamatory imputations.

It is unnecessary for me in this judgment to specify with particularity the countervailing material on which the defendant would rely; it is apparent from seeing and viewing the television programme. In my view, it would be open to a jury, having regard to that countervailing material, to find, the defendant carrying the burden of proof, that the programme as a whole, and, accordingly, the defamatory imputations in it, was not likely to cause harm to the plaintiff.

Accordingly, the application to withdraw that defence from the jury is refused. -oOo-