Atkins v Australian Broadcasting Corporation (ABC)

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SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

ATKINS v AUSTRALIAN BROADCASTING CORPORATION (ABC)

[2024] SASCA 96

Decision of the Court of Appeal  

(The Honourable Acting Chief Justice Livesey and the Honourable Justice Stein)

2 August 2024

DEFAMATION - ACTIONS FOR DEFAMATION - PLEADING - SOUTH AUSTRALIA

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL

The applicant (Mr Atkins) seeks judicial review of a decision made by the primary judge on 18 April 2024 giving summary judgment in a defamation claim brought against the respondent.

Upon reviewing the matter, a Supreme Court judge made orders which had the effect of treating the application for judicial review as a notice of appeal.

The primary judge found that there was no reasonable basis for prosecuting the claim and that the respondent could demonstrate that it had available to it compete defences.

Held (the Court) refusing leave to appeal and dismissing the originating application for review:

1.Mr Atkins’ materials do not identify any relevant error of fact or law, nor any error in the exercise of discretion, by the primary judge.

2.Although it is a vexed question whether leave to appeal is required, this Court has tended to treat an order granting or refusing summary judgment to a defendant as interlocutory.

3.As there is no apparent merit in the appeal, leave to appeal should be refused. If the decision was not interlocutory in nature and leave to appeal is not required, the appeal should be dismissed as it is without merit.

Defamation Act 2005 (SA) ss 12A, 12B, 13, 14, 26, 27; Supreme Court Act 1935 (SA) s 50; Uniform Civil Rules 2020 (SA) r 143, 144.2, 213.1, referred to.
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117; Atkins v Protected Person [2022] SASC 31; Attorney-General (SA) v Kowalski [2015] SASC 123; Barach v University of New South Wales [2011] NSWSC 99; Bienstein v Bienstein (2003) 195 ALR 225; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; Coles Myer Ltd v Bowman [1996] 1 VR 457; Cummings v Fairfax Digital Australia & New Zealand Pty Ltd [2018] NSWCA 325; Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135; Gassy v The King [2023] SASCA 90; Hall v Nominal Defendant (1966) 117 CLR 423; Harris Scarfe Limited (Receivers and Managers Appointed) (In Liquidation) & Ors v Ernst & Young & Ors (No 2) [2005] SASC 168; House v The King (1936) 55 CLR 499; Hunt v Allied Bakeries Ltd [1956] 1 WLR 1326; Jennings v Police (2019) 133 SASR 520; Kowalski v Mitsubishi Motors Australia Staff Superannuation Fund…

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Details
Case
[2024] SASCA 96
Decision Date

CaseChat Overview and Summary

Mr Atkins sought leave to appeal from a decision of the primary judge who granted summary judgment in favour of the Australian Broadcasting Corporation (ABC). The dispute concerned an article published on the ABC website on 7 April 2022, which reported on two Supreme Court judgments in which Mr Atkins was involved. Mr Atkins alleged the article was defamatory and claimed substantial damages. The ABC contended that the article was protected by statutory defences, specifically the "fair report" defence under section 27 of the *Defamation Act 2005* (SA) and a defence relating to public documents under section 26 of the same Act.

The legal issues before the court were whether Mr Atkins had an arguable error of law or fact in the primary judge's decision to grant summary judgment. This required the court to consider whether there was a reasonable basis for prosecuting Mr Atkins' defamation claim, particularly in light of the primary judge's findings regarding the adequacy of the concerns notice, the pleading of defamation elements, and the availability of statutory defences to the ABC.

The court determined that leave to appeal should be refused because Mr Atkins had failed to identify any arguable error in the primary judge's decision. The primary judge had granted summary judgment pursuant to rule 144.2(2)(a) of the *Uniform Civil Rules 2020* (SA) on the basis that there was no reasonable basis for prosecuting the claim. This conclusion was founded on several findings: that Mr Atkins had not served a compliant "concerns notice" as required by the *Defamation Act*, that his claim did not plead the necessary elements of defamation but rather complaints about the underlying judgments, and that the ABC had available to it defences under sections 26 and 27 of the *Defamation Act* because the article fairly summarised public documents and constituted a fair report of proceedings of public concern. The primary judge's reasoning was supported by relevant case law concerning summary judgment and defamation defences.

Consequently, the court refused Mr Atkins leave to appeal.

Orders

Orders of the court

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Background

Background to the litigation

As will be seen, Mr Atkins requires leave to appeal. For the reasons that follow, Mr Atkins has failed to identify any arguable error in the decision of the primary judge, with the result that leave to appeal should be refused.Background to the appeal Mr Atkins wishes to litigate over an article uploaded to the ABC website at 7.05pm on 7 April 2022. That article reported on two Supreme Court judgments in which Mr Atkins was involved, O’Toole v Atkins,[1] and Atkins v Protected Person.[2] The ABC article was headed “Man claims lawyer misunderstood colloquial ‘Aussie language’ in threats that led to intervention order”. The article included the following:[1] O’Toole v Atkins [2020] SASC 166.[2] Atkins v Protected Person [2022] SASC 31.A man who claimed threats to his former lawyer were misinterpreted because he only speaks “Aussie language” and not proper English has lost an appeal against an intervention order against him.Key points:·Paul Atkins had an intervention order issued against him in 2019·He claimed the threats he issued against his former lawyer were misunderstood·A Supreme Court judge said it was reasonable to suspect he might abuse the lawyer Mr Atkins became aware of the article on 26 May 2022. The following day he served a “final notice” and other documents on the ABC advising of his intention to claim millions of dollars plus costs. The response from the ABC on 17 June 2022 was that the article was protected by the “fair report” defence under s 27 of the Defamation Act 2005 (SA) (the Defamation Act). On 29 June 2022, the ABC received correspondence from Mr Atkins which included an unfiled and unsealed claim for defamation concerning the article. Mr Atkins then engaged in correspondence with the District Court Registry which rejected his claim for filing because it was an abuse of process. On 10 January 2023, the ABC received from Mr Atkins a letter dated 25 December 2022 purporting to be a “concerns notice”. On 13 January 2023, the ABC sent Mr Atkins a letter advising him that he had breached the time limits contained in ss 13 and 14 of the Defamation Act, the article was protected by the “fair report” defence under s 27 of the Defamation Act and, as the claim had been rejected by the Registry, the ABC did not intend to take further action. On 15 May 2023, Mr Atkins filed the claim. This was received by the ABC on 20 June 2023. It emerged that though Mr Atkins had not sought a review of the Registrar’s decision to reject his claim, the claim was re-filed and approved for filing. On 27 June 2023, the ABC sent a letter to Mr Atkins advising that the claim had been filed outside the relevant limitation period, a concerns notice had not been issued and there had been a failure to comply with pre-action requirements. On 18 August 2023, Mr Atkins purported to serve the ABC with a “revised statement of claim”. On 19 February 2024, Mr Atkins filed an application to amend and annexe to his affidavit a “proposed revised claim”. The primary judge’s decision applied to all three iterations of the claim.The hearing before the primary judge

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Although other provisions were relied on, the primary judge gave summary judgment pursuant to r 144.2(2)(a) of the Uniform Civil Rules 2020 (SA):144.2—Summary judgment (1)The Court may, on application by a party, give summary judgment in favour of an applicant—(a) on a claim if there is no reasonable basis for defending the claim;(b) on a cause of action in a claim if there is no reasonable basis for defending the cause of action; or(c) on a separate issue that arises in a claim if there is no reasonable basis for contesting that issue.(2)The Court may, on application by a party, give summary judgment against an applicant—(a) on a claim if there is no reasonable basis for prosecuting the claim;(b) on a cause of action in a claim if there is no reasonable basis for prosecuting the cause of action; or(c) on a separate issue that arises in a claim if there is no reasonable basis for prosecuting the applicant’s contention on that issue.(3)An application for summary judgment must be made by filing an interlocutory application and supporting affidavit in accordance with rule 102.1. The primary judge found that there was no reasonable basis for prosecuting the claim, relying upon the principles set out in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd.[3] Her Honour did not find it necessary to address various limitation arguments raised by the ABC. The decision of the primary judge rested on the following conclusions:1.Mr Atkins commenced proceedings without serving anything which could properly be described as a “concerns notice” for the purposes of ss 12A and 12B of the Defamation Act. Her Honour gave reasons explaining why the letter from Mr Atkins dated 25 December 2022 could not be regarded as a “compliant concerns notice”.2.None of the versions of the claim advanced by Mr Atkins pleaded the necessary elements of a cause of action in defamation, particularly each defamatory imputation he relied on.[4] Rather, Mr Atkins pleaded a number of complaints about the findings made in the two judgments which were the subject of the article and which he said were wrong. The primary judge was satisfied that there was no reasonable basis for prosecuting the claim.3.Whilst satisfied that there was no reasonable basis for prosecuting the claim, the primary judge “for completeness” addressed the availability of two statutory defences.4.The primary judge found that the article fairly summarised what was contained in the judgments, which could each be regarded as a “public document” for the purposes of s 26(4) of the Defamation Act. The primary judge found that the ABC had available to it a defence under s 26(1) because the matters complained about were contained in a public document or comprised a fair summary of a public document. The primary judge undertook her evaluation from the perspective of the ordinary reasonable reader reading the publication as a whole.[5] The primary judge rejected the proposition that Mr Atkins could establish that the article was not published honestly for the information of the public, cf s 26(3) of the Defamation Act.5.The primary judge also found that ABC had available to it a defence pursuant to s 27 of the Defamation Act because the article concerned a matter which was or was contained in a “fair report” of “proceedings of public concern”. By s 27(4)(e) these include “any proceedings in public of a court or arbitral tribunal of any country”.[6] The primary judge rejected the proposition that Mr Atkins could establish that the article was not published honestly for the information of the public, cf s 27(3) of the Defamation Act. [3] Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] 137 SASR 117.[4] The primary judge relied on Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663, Barach v University of New South Wales [2011] NSWSC 99, and Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135.[5] Relying on Cummings v Fairfax Digital Australia & New Zealand Pty Ltd [2018] NSWCA 325, [88].[6] Relying on Vacik Distributors Pty Ltd v Australian Broadcasting Corporation [1999] NSWSC 1176.

Ratio Decidendi

Legal Principle Established

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