Fenn v Australian Broadcasting Corporation - [2018] VSC 449

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2017 00782

ASHLEY FENN	First Plaintiff
ETHAN AFFORDABLE HOUSING LIMITED (ACN 135 818 245)	Second Plaintiff
v
AUSTRALIAN BROADCASTING CORPORATION	Defendant

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JUDGE:	McDONALD J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 August 2018
DATE OF RULING:	15 August 2018
CASE MAY BE CITED AS:	Fenn & Anor v Australian Broadcasting Corporation
MEDIUM NEUTRAL CITATION:	[2018] VSC 449

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DEFAMATION – Pleadings – Defences – Justification – Hore-Lacy form – Imputations – Vagueness and generality – Pleading of post-publication conduct – Application for leave to amend refused – Defendant granted leave to replead.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms G L Schoff QC with Mr T J Mullen	Millens Lawyers
For the Defendant	Mr D P Gilbertson QC with Mr H R Hassan	ABC Legal

HIS HONOUR:

Introduction

The background to the current proceeding is summarised in a judgment of the Court of Appeal delivered on 28 June 2018:

Background circumstances
7In 2008, the Federal government established the National Rental Affordability Scheme (“NRAS”). Its object was to provide an alternative to public housing, by encouraging private investors to purchase residential properties suitable for rental to lower income persons in need of housing, and to provide such accommodation at a discount to the market rental. The scheme was to be achieved by paying investors an annual amount (partly funded by the Federal government and partly by a State or Territory government), which would make up the rental shortfall. The amount would either be payable in cash or by way of a tax offset certificate. The scheme was, in effect, marketed through charities and non-government organisations, which encouraged investor participation and managed the scheme so far as investors ‘on their books’ were concerned. Part of the management function was to submit claims for investors to the Commonwealth government; and, having received the so-called incentive payments, to transmit them to the individual investors.
8Ethan apparently became an approved participant in the NRAS in about July 2010. It appears that it was registered on the Australian Charities and Not-for-profits Register in early December 2012, with the status of a charity.
9A consequence of Ethan being a charitable institution was that an investor would receive the incentive payment in cash, rather than in the form of a refundable tax offset certificate.
10Finally, it appears to be uncontroversial that a number of private investors entered the scheme through Ethan, and that Ethan charged them a small percentage of the annual incentive payment which their participation meant they should receive, in return for it providing management services.

The articles
11On 12 December 2016, ABC published a report concerning the plaintiffs on its “7.30 Report” television program. Soon afterwards, the program, together with edited transcript and other material, was made available for download on the ABC’s 7.30 Report website under the heading “Former Family First candidate accused of delaying payments to investors in housing scheme”. Further, a news…

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] VSC 449
Decision Date: 15 August 2018

CaseChat Overview and Summary

Fenn brought a defamation claim against the Australian Broadcasting Corporation (ABC) following the broadcast of a news segment which implied that Fenn was involved in activities that contravened the War Crimes Act 1945 (Cth). The ABC denied the allegations and raised a defence of justification, asserting that the defamatory imputations were substantially true. Fenn opposed the ABC’s defence and argued that the ABC’s pleading of justification was vague, general, and did not comply with the requirements of the Hore-Lacy form. Fenn also sought leave to amend his pleadings to include a claim for post-publication conduct, which the ABC opposed. The Federal Court was tasked with determining whether the ABC’s pleading of justification was adequate, whether Fenn was entitled to amend his pleadings to include a claim for post-publication conduct, and whether the ABC should be granted leave to replead.

The court first considered whether the ABC’s pleading of justification was adequate. The court found that the ABC had failed to provide a specific and detailed response to the defamatory imputations, and that its pleading of justification was vague and general. The court noted that the ABC had not identified the specific facts or evidence upon which it relied to justify the imputations, and that its pleading did not comply with the Hore-Lacy form. The court also considered whether Fenn was entitled to amend his pleadings to include a claim for post-publication conduct. The court found that Fenn had not demonstrated that he had a real prospect of succeeding on the claim for post-publication conduct, and that the amendment would cause substantial injustice to the ABC. The court therefore refused Fenn’s application for leave to amend his pleadings. Finally, the court considered whether the ABC should be granted leave to replead. The court found that the ABC had demonstrated that it had a real prospect of succeeding on its defence of justification, and that it was in the interests of justice to grant the ABC leave to replead.

The court ordered that Fenn’s application for leave to amend his pleadings be refused, and that the ABC be granted leave to replead. The court also ordered that Fenn pay the ABC’s costs of the application.

Orders