FEDERAL COURT OF AUSTRALIA
Adeang v The Australian Broadcasting Corporation
[2016] FCA 1200
File number: NSD 552 of 2016 Judge: RARES J Date of judgment: 10 October 2016 Catchwords: DEFAMATION – Defamation Act 2005 (NSW) ss 25, 26 – Federal Court Rules 2011 – requirements for pleadings pursuant to r 16.02 – pleading of imputations and contextual imputations – consideration of principles for pleading defamatory meaning – whether imputation of suspicion must identify the holder of that suspicion – consideration of principles for pleading an imputation of suspicion – Sergi v Australian Broadcasting Corporation [1983] 2 NSWLR 669 not followed and Fairfax Media Publications v Zeccola [2015] NSWCA 329 distinguished
DEFAMATION – form of imputations – whether imputation pleading that plaintiff had so conducted himself as to give rise to suspicion was vague, unspecific and defective for failing to identify the person who held suspicion – need for imputation and contextual imputation to attribute an act or condition to plaintiff sufficiently related to nature and context of matter complained of
DEFAMATION – whether particulars of justification and contextual truth embarrassing or defective in form – necessity for precision in particulars of truth and that they be capable of supporting pleaded imputation being justified
Legislation: Federal Court Rules 2011 r 16.02
Federal Court of Australia Act 1976 (Cth) s 37M
Defamation Act 2005 (NSW) ss 8, 25, 26
Defamation Act 1974 (NSW)
Cases cited: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
APN New Zealand Ltd v Simunovich Fisheries Ltd [2010] 1 NZLR 315
Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190
Crosby v Kelly [2013] FCA 1343
David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346
Drummoyne Municipal Corporation v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Edwards v Bell (1824) 1 Bing 403; 130 ER 162
Fairfax Media Publications v King [2015] NSWCA 172
Fairfax Media Publications v Zeccola [2015] NSWCA 329
Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186
George v Rockett (1990) 170 CLR 104
Greig v WIN Television NSW Pty Ltd [2007] NSWSC 1118
Greig v WIN Television NSW Pty Ltd [2009] NSWSC 632
Hough v London Express Newspaper Ltd [1940] 2 KB 507
Hussein v Chong Fook Kam [1970] AC 942
Jones v Skelton [1963] 63 SR (NSW) 644
Lewis v Daily Telegraph Ltd [1964] AC 234
Liversidge v Anderson [1942] AC 206
Lloyd v David Syme & Co Ltd [1986] AC 350
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Purcell v Cruising Yacht Club of Australia [2003] NSWSC 245
R v Hillier (2007) 228 CLR 618
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460
Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500
Sergi v Australian Broadcasting Corporation [1983] 2 NSWLR 669
Shah v Standard Chartered Bank [1999] QB 241
Weaver v Lloyd (1824) 2 B&C 678; 107 ER 535
Webb v Bloch (1928) 41 CLR 331
Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148
Willmett v…
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- Case
- [2016] FCA 1200
- Decision Date
CaseChat Overview and Summary
The court found that some of the particulars of contextual truth were defective and struck them out. The court also determined that certain imputations were too vague and did not sufficiently identify the person who held the suspicion. The court rejected Mr Adeang's application to add a particular imputation (h), which he claimed conveyed the idea that he obstructed the investigation into his wife’s death. The court held that the broadcast did not necessarily convey this specific suspicion and that the existing imputations sufficiently captured the defamatory meaning. The court granted Mr Adeang leave to amend the statement of claim by adding certain imputations but denied the addition of imputation (h). The court also struck out certain imputations and particulars of justification from the ABC's defence.
In conclusion, the court allowed Mr Adeang to amend his statement of claim to include specific imputations while rejecting the addition of imputation (h). The court struck out certain imputations and particulars of justification from the ABC's defence. The court ordered the parties to file further amended pleadings and set a date for directions. The ABC was ordered to pay two-thirds of Mr Adeang's costs for the interlocutory application.
Orders
Orders of the court
1. The applicant:
(a) have leave to further amend by adding imputations (e) and (f); and
(b) be refused leave to further amend by adding imputation (h)
to the amended statement of claim in the form proposed in the further amended statement of claim annexed to his interlocutory application dated 8 August 2016.
2. The applicant file and serve a further amended statement of claim incorporating the amendments allowed pursuant to order 1 on or before 17 October 2016.
3. The respondent’s first contextual imputation pleaded in paragraph 11(a) of its defence and particulars of contextual truth in annexure A thereto (a)-(q), (aa), (dd), (ee), (aaa)‑(ccc), (ggg) and (iii)-(ooo) be struck out.
4. The respondent file and serve its defence to the further amended statement of claim on or before 8 November 2016.
5. The applicant file and serve any reply on or before 22 November 2016.
6. The proceedings be stood over for directions on 2 December 2016.
7. The respondent pay two thirds of the applicant’s costs of his interlocutory application dated 8 August 2016.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Mr Adeang contended that imputation (h) was conveyed because the thrust of the matter complained of was that there were real concerns about the rule of law in Nauru arising from the inadequacies in the investigation into Mrs Adeang’s death and the removal of, or interference with the exercise of powers by, senior officials of the Republic. He argued that the matter complained of left open that Mrs Adeang may have met with foul play and that he had made sure that no-one could enquire into what his role was. Mr Adeang submitted that this impression was reinforced by the broadcast’s emphasis on his refusal to give answers to the questions that Ms Stein wanted him to answer. He submitted that the clear impression that the matter complained of conveyed was that he had a role in his wife’s death and had ensured that that role would not be investigated.The capacity issue – consideration A television broadcast is a continuous stream of sounds and images that, usually, the ordinary reasonable viewer will see once, in a situation, probably at home, where he or she is not concentrating intently: cf Marsden 43 NSWLR at 165G-166E. He or she ordinarily will not play the program back or take it in slowly, as might occur reading a newspaper, book or an online written publication. Thus, although he or she must be treated as having seen and heard the whole of the broadcast, the ordinary reasonable viewer can have a greater capacity to draw inferences when viewing a television broadcast than in the case of a less transient form of publication. The matter complained of centred on the role of Mr Adeang in numerous events that occurred in Nauru. Ms Alberici’s introduction (in par 1 of the annexure to these reasons) set the scene by, first, referring to Mrs Adeang having been found burnt to death in the garden of their home and, secondly, stating that:The circumstances surrounding her shocking end remain unexplained and the apparent absence of a thorough investigation has raised serious concerns about Nauru's commitment to the rule of law. That invited the viewer to approach what followed in the broadcast with an enquiring mind as to why his wife’s shocking death in the garden of their home had not been thoroughly investigated when Mr Adeang, the Minister for Justice, held so much power in Nauru. Indeed, the whole tone of the matter complained of was capable of being understood to suggest that Mr Adeang had a motivation to abuse his powers because he had something to hide about his own responsibility in how his wife died. The journalist, Ms Stein, described Mr Adeang as holding “the reins of power”, and reinforced that with statements by both Mr Bliim, the former Solicitor-General of Nauru, and the Hon Geoffrey Eames, the former Chief Justice of Nauru (pars 2-9). Mr Bliim said that Mr Adeang “didn’t want anyone on the island to hold he [sic] or others accountable” (par 8). The broadcast then moved through how Mr Adeang caused each of the Republic’s former Director of Police, Richard Britten, the former resident magistrate and coroner, Peter Law, and Mr Eames to be either suspended or removed from or to be unable to perform the duties of their official positions once each had fallen out of favour or crossed swords with Mr Adeang in some way.