Australian Broadcasting Corporation v Chau Chak Wing

The Australian Broadcasting Corporation, Fairfax Media, and Stuart McKenzie (collectively referred to as the respondents) were sued by Chau Chak Wing for defamation. The claim was based on two matters published by the ABC, which included a "Four Corners" television program and an internet article. The respondents admitted to the publication of these matters but denied defamation. The respondent McKenzie was a presenter of the program and article. The applicant alleged that the published matters contained defamatory imputations about him, including that he was a member of the Chinese Communist Party and engaged in espionage on behalf of China. The respondents filed a defence which included a plea of justification. The primary judge struck out the defence of justification, finding it untenable. The respondents applied for leave to appeal this decision, as well as the dismissal of their application to amend their defences. The legal issues before the court were whether the primary judge erred in striking out the defence of justification and in dismissing the application to amend the defences. The court considered the nature of pleadings in defamation cases and the adequacy of particulars in defences. The court found that the meaning of an applicant’s pleaded imputation is not a triable issue, but rather a question for the court to determine. The court also found that the primary judge’s decision to strike out the defence of justification was not in error, as the respondents’ imputations were not permissible variants of the applicant’s imputations. The court found that the primary judge’s dismissal of the application to amend the defences was also not in error, as the particulars were imprecise, embarrassing, conclusory, and hearsay. The appeal was dismissed, and the applicants were ordered to pay the respondents' costs of the application and the appeal.