Celebrity gardener Don Burke has won a “pyrrhic victory” against defamation action launched by a woman who accused him of inappropriate behaviour, after the ACT Supreme Court found allegedly defamatory comments he made could be seen with limited credibility.
Journalist Wendy Dent launched defamation action against Mr Burke after he gave an interview with Channel 9’s A Current Affair, in which he denied allegations he had asked her to audition for his popular television program Burkes Backyard topless.
Ms Dent sued Mr Burke over his denial, in which he implied she was the participant in a “witch hunt”, claiming his comments carried the defamatory imputation that she was a liar.
ACT Supreme Court Justice David Mossop found that when taken out of context Mr Burke’s words were defamatory, but when taken as part of the whole interview they failed to carry a defamatory imputation.
Justice Mossop noted clips played during the interview, the questions and statements of A Current Affair host Tracy Grimshaw, and her sceptical facial expressions and demeanour all helped to reinforce the perception that Ms Dent was not lying.
“The proposition that the events alleged actually occurred is put strongly and persistently by the interviewer,” he said.
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“At times, the expression on her face and the manner in which she responds to the defendant’s statements indicates a lack of acceptance of what he has said.
“The end result is one in which the publication, taken as a whole, does not indicate that the allegations made by the plaintiff are false or motivated by a desire to join a ‘witch-hunt’.
“Rather, a fair-minded observer of the program would understand that there were credible allegations made by a number of people including the plaintiff and that the defendant denied the allegations but did so in a manner which gave rise to real doubts about the credibility of his denials.”
Outside court Ms Dent said she had been vindicated by the judgement.
“It was an absolute vindication because the judge ruled that I am the one to be believed, that my allegations were absolutely credible, and that is what counts,” she said.
“But I have been through hell 100 times because of Don Burke, and because of this ruling today, it was 101.”
Her lawyer Zoe Jones said Mr Burke may have won on paper, but that the victory was hollow.
“What the court has found today is that Ms Dent’s allegations are entirely credible and believable,” she said.
“So in a sense today’s result is only a phyrric victory for Mr Burke.”
Justice Mossop also noted the strangeness of the finding, concluding that “The irony of the defendant obtaining judgment in his favour on the basis that he has will be obvious”.