JUDGE:	JOHN DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 December 2017
DATE OF JUDGMENT:	16 February 2018
CASE MAY BE CITED AS:	Fenn v ABC
MEDIUM NEUTRAL CITATION:	[2018] VSC 60

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DEFAMATION – Pleadings – Application to strike out – Defences of justification and contextual truth – Whether arguable that particulars could justify plaintiff’s imputation – Whether contextual implications were of sufficient seriousness and were in addition to the plaintiff’s imputations – Defamation Act2005 (Vic) s 25, 26.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	G L Schoff QC with TJ Mullen	Millens Lawyers
For the Defendant	M J Collins QC with H Hassan	Grindal & Patrick (as town agents for ABC Legal)

HIS HONOUR:

Introduction

The plaintiffs, Mr Ashley Fenn and Ethan Affordable Housing Ltd (‘Ethan Housing’) claim damages against the defendant for defamation in publications on the 7.30 television program[1] on 12 December 2016 and related sources.[2]
[1]An item broadcast on the ABC’s 7.30 on 12 December 2016 (‘the Program’).
[2]The Program together with an edited transcript and other material was published on the ABC website and a news article based on the Program was published on the ABC website.

The plaintiffs applied to strike out paragraphs 7A to 7E of the Australian Broadcasting Corporations’ (‘ABC’) defence, pursuant to r 23.02(a) and/or (c) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), contending that the ABC’s defences should be struck out because they ‘did not disclose … a defence’ or ‘may prejudice, embarrass or delay the fair trial of the proceeding.’

In a related proceeding,[3] the plaintiffs claim damages for defamation against Mr Neil Henson who participated in the ABC’s 7.30 program broadcast. The plaintiffs plead the same imputations in each proceeding. In part, Mr Henson’s defence mirrors the ABC’s defence in this proceeding. Additionally, Mr Henson pleads honest opinion, common law qualified privilege, statutory qualified privilege and ancillary and attendant privilege. Mr Henson intends to re-plead his defence, acknowledging the plaintiffs’ criticisms of the pleading of these additional defences, subject to the Court’s ruling in this proceeding in respect of the common defences. I need say no more about that proceeding.
[3]S CI 2017 00781.

The plaintiffs’ imputations

The plaintiffs allege each publication conveyed the following imputations:

(a) the plaintiffs had breached their obligations to vulnerable investors in the Federal Government’s National Rental Assistance Scheme (the ‘NRAS’) by failing to account to them for money paid to them on behalf of those investors by the Government, for lengthy periods and for sometimes more than a year;

(b) the plaintiffs had ripped off vulnerable investors in the NRAS by deliberately delaying the payment of moneys received from the Government on behalf of those investors so that they could pocket the interest earned…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fenn v ABC

Details

AGLC: Fenn v ABC [2018] VSC 60
Case: [2018] VSC 60
Decision Date: 16 February 2018

CaseChat Overview and Summary

In the Federal Circuit Court, Fenn sued the ABC for defamation. The plaintiff claimed that the defendant had published defamatory material about them in a news report. The defendant sought to have the plaintiff's claims struck out, arguing that the plaintiff's particulars of defamation were not sufficient and that the publication was justified or contextually true. The court had to determine whether the plaintiff's particulars were arguable and whether the defences of justification or contextual truth could be successfully raised.

The court considered whether the plaintiff's particulars could justify the imputations alleged in the defamation claim. The court held that the particulars were sufficient to justify the imputations made in the report. The court also examined whether the implications of the context were of sufficient seriousness and were in addition to the plaintiff's imputations. The court found that the contextual implications were not of sufficient seriousness and did not add to the plaintiff's imputations. The court held that the defences of justification and contextual truth were not arguable and dismissed the defendant's application to strike out the claims.

The court found that the plaintiff's claims were not frivolous or vexatious and were arguable. The court held that the defendant's application to strike out the claims should be dismissed. The court did not make any orders regarding costs.

The court's decision in Fenn v ABC provides guidance on the requirements for pleadings in defamation cases and the defences of justification and contextual truth. The court held that the plaintiff's particulars were sufficient to justify the imputations alleged in the defamation claim and that the contextual implications were not of sufficient seriousness to add to the plaintiff's imputations. The court's decision also highlights the importance of considering the context in which the allegedly defamatory material was published.

Orders