RADIO 2UE SYDNEY PTY LTD & ANOR v GOLDSWORTHY

MASON P: The claimants failed to make good a defence of comment referable to imputation (d) (that the opponent was a heartless person) because: 1. it was found to be a statement of fact (Judgment of Dunford J, par 24); 2. it did not relate to a matter of public interest, because it was not confined to the opponent’s conduct in the committal proceedings (par 26); and 3. it was not “based on” the facts relied upon by the claimants, ie the material in the broadcast. Dunford J held that the imputation was not an opinion which might reasonably be based on material relating only to the committal proceedings. There was “no reasonable connection between [the opponent’s] conduct as a barrister in the committal and the description of his general character as heartless, and so there was no proper material for comment in relation to the imputation that he was a heartless person generally, which was the imputation found by the jury” (par 27).

The claimants must show an arguable case of error at each step to have a prospect of vacating the verdict.

I agree with the learned trial judge on each point, although I hesitate before describing the challenge to (1) as unarguable.

However, the challenges to (2) and (3) have insufficient prospects of success to merit the grant of leave to appeal.

As to (2), I reject the submission that it was sufficient that the putative comment arose out of the conduct of legal proceedings. Every detail of a barrister’s life does not become a matter of public interest simply because the barrister appears in court in significant legal proceedings.

As to (3), the claimants reminded the Court that the limits of criticism are exceedingly wide and that it is not the function of the tribunal of fact to sit in judgment upon the conclusions drawn by a defendant from the identified underlying material. There remains, however a requirement that any comment be “based on” the “proper material” .

In David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346, differing views were expressed by Glass JA (at 354-6) and Priestley JA (at 360) as to whether the common law as modified by Pt 3 Div 7 of the Defamation Act 1974 continues to embody the requirement that the comment is one that an honest person might hold on the basis of the designated material. Samuels JA did not address that issue, nor did the Privy Council that reversed the Court of Appeal on different grounds (see Lloyd v David Syme & Co Ltd [1986] AC 350).

This area of disagreement is not relevant to the present case. Both Glass JA (at 358) and Priestley JA (at 360) were at one in holding that it was necessary to show what Priestley JA described as a “rational relationship” between the material relied upon by the defendant and the imputation relied upon by the plaintiff. The submission by the claimants that a defendant’s honesty is the only relevant limit must be rejected. I would reject as unarguable the submission that the defendant is the sole judge of how far or wide he or she can jump from the chosen springboard of underlying material.

I would refuse leave and dismiss the Summons with costs.

SHELLER JA: I agree with Mason P.

STEIN JA: I agree with Mason P.