Fenn v Australian Broadcasting Corporation - [2018] VSCA 166

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0035

ASHLEY FENN		First Applicant
and
ETHAN AFFORDABLE HOUSING LIMITED (ACN 135 818 245)		Second Applicant
v
AUSTRALIAN BROADCASTING CORPORATION	Respondent

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JUDGES:	McLEISH, NIALL and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	31 May 2018
DATE OF JUDGMENT:	28 June 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 166
JUDGMENT APPEALED FROM:	[2018] VSC 60 (John Dixon J)

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DEFAMATION – Defences – Pleadings – Partial justification – Contextual truth – Application for leave to appeal against refusal to strike out defences – Whether particulars of justification capable of justifying sting of plaintiffs’ imputation – Whether matter for jury to determine meaning of plaintiffs’ imputation – Whether contextual imputations capable of ‘swamping’ plaintiffs’ imputation – Whether contextual imputation ‘in addition to’ plaintiffs’ imputation – Leave to appeal granted – Appeal allowed in part – Defamation Act 2005 ss 25, 26.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Ms G L Schoff QC with Mr T J Mullen	Millens Lawyers
For the Respondent	Dr M J Collins QC with Mr H R Hassan	Grindal & Patrick (as town agents for ABC Legal)

McLEISH JA:

I agree with Ashley JA, for the reasons he gives, that the application for leave to appeal should be granted and that the appeal should be allowed with respect to grounds 1, 1A and 2 but otherwise dismissed.

NIALL JA:

I have had the advantage of reading in draft the reasons for judgment of Ashley JA. I agree that the application for leave to appeal should be granted and that the appeal should be allowed with respect to grounds 1, 1A and 2 but otherwise dismissed for the reasons given by his Honour.

ASHLEY JA:

On 21 February 2018, a judge in the Trial Division ordered that an application before trial by Ashley Fenn (‘Fenn’ or ‘the first plaintiff’) and Ethan Affordable Housing Limited (‘Ethan’ or ‘the second plaintiff’) in a defamation proceeding brought by them (collectively, ‘the plaintiffs’) against Australian Broadcasting Corporation (‘ABC’) be very largely dismissed.

By their application, made in reliance upon r 23.02(a) and/or (c) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) and/or s 48 of the Civil Procedure Act 2010, the plaintiffs had sought that a pleading of justification by paragraph 7A of ABC’s defence and a pleading of contextual truth by paragraphs 7B to 7E should be struck out.

The relevant orders made by the judge were as follows:

1.With the exception of particulars 7A.15 – 7A.16 which will be struck out, the plaintiff’s [sic] application to strike out the defence of justification is refused.

2.With the exception of the cross-referencing in the particulars to paragraph 7C.12 (which must be limited in accordance with the reasons for judgment published on 16 February 2016 (sic)) the plaintiff’s application to strike out the defence of contextual truth is refused.

Now the plaintiffs seek leave to appeal against the orders to which I have just referred; and that their…

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.

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Details

Case: [2018] VSCA 166
Decision Date: 28 June 2018

CaseChat Overview and Summary

Fenn brought an action for defamation against the Australian Broadcasting Corporation, seeking damages for a television broadcast that allegedly defamed him. The defendants denied the defamation claims and raised several defences, including partial justification, contextual truth, and fair reporting. Fenn applied for leave to appeal against the refusal of the primary judge to strike out the defendants' defences. The court was required to decide whether the particulars of justification were capable of justifying the sting of Fenn's imputation, whether the meaning of Fenn's imputation was a matter for the jury, whether contextual imputations were capable of 'swamping' Fenn's imputation, and whether the contextual imputation was 'in addition to' Fenn's imputation.

The court found that the particulars of justification were capable of justifying the sting of Fenn's imputation, and that the meaning of Fenn's imputation was a matter for the jury. The court also found that the contextual imputations were capable of'swamping' Fenn's imputation, and that the contextual imputation was not 'in addition to' Fenn's imputation. The court held that the primary judge erred in refusing to strike out the defendants' defences, and that leave to appeal should be granted. The appeal was allowed in part, and the matter was remitted to the primary judge for further proceedings.

The court found that the defendants' defence of partial justification was capable of justifying the sting of Fenn's imputation, and that the meaning of Fenn's imputation was a matter for the jury. The court held that the primary judge erred in refusing to strike out the defendants' defences, and that leave to appeal should be granted. The appeal was allowed in part, and the matter was remitted to the primary judge for further proceedings. The court held that the defendants' defence of contextual truth was capable of 'swamping' Fenn's imputation, and that the contextual imputation was not 'in addition to' Fenn's imputation. The court held that the primary judge erred in refusing to strike out the defendants' defences, and that leave to appeal should be granted.

Orders