Fenn v Australian Broadcasting Corporation - [2017] VSC 486

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2017 00782

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

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JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 June 2017
DATE OF JUDGMENT:	31 August 2017
CASE MAY BE CITED AS:	Fenn & Anor v Australian Broadcasting Corporation
MEDIUM NEUTRAL CITATION:	[2017] VSC 486

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DEFAMATION – Pleadings – Application to strike out statement of claim – Whether imputation of hypocrisy capable of arising – Whether elements of hypocrisy sufficiently temporally connected – McMillan v the Federal Capital Press of Australia Pty Ltd [2016] ACTSC 286 – Whether pleading impermissibly rolls up allegations – Whether pleading is impermissibly vague – Trkulja v Google Inc Llc [2010] VSC 226 – Whether pleading is impermissibly ambiguous – Supreme Court (General Civil Procedure) Rules 2015 r 23.02(c) – Civil Procedure Act 2010 s 48.

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff & Second Plaintiff	Mr T Mullen	Millens Lawyers
For the Defendant	Mr H Hassan	Grindal & Patrick

HIS HONOUR:

Mr Fenn is the managing director of Ethan Affordable Housing Limited (‘Ethan Housing’). In December 2016 the Australian Broadcasting Corporation published a report concerning Mr Fenn and Ethan Housing by broadcasting it on the 7.30 television program. On the same day, the report and an edited transcript were uploaded onto the ABC website.

The report concerned the operation of the National Rental Affordability Scheme (NRAS) which was described as a scheme operated by the Federal Government for the past decade as an alternative to public housing, and managed by a group of companies and charities, one of which was Ethan Housing. It was described as involving the purchase of residential properties by investors, which were then rented out at a discount rate to tenants in need of affordable housing. As an incentive for letting a property at a lower rent the investor was entitled to a payment of between $10,000 and $11,000 at the end of each financial year. Funding for those incentive payments was paid first by the Department of Social Services to the charity or company which was managing part of the scheme, such as Ethan Housing. The incentive payment was then to be paid by Ethan Housing to individual investors. ABC reported that investors were experiencing delays of many months in receiving the incentive payments, and that this was causing investors financial hardship.

In this proceeding Mr Fenn and Ethan Housing allege the report was defamatory of them. ABC’s strike out application relates only to the imputation, pleaded at paragraph 7(c) in the Statement of Claim, which reads:

Fenn is a hypocrite, in that he once sought election to the Federal Senate on a family values platform, but rather than supporting hardworking and vulnerable families, he had exploited them for his own commercial benefit and caused them financial hardship by failing to account to them for…

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: [2017] VSC 486
Decision Date: 31 August 2017

CaseChat Overview and Summary

The case of Fenn v Australian Broadcasting Corporation involved the plaintiff, Fenn, suing the defendant, Australian Broadcasting Corporation, for defamation. Fenn sought to recover damages for imputations of hypocrisy made by the defendant. The dispute was brought before the Supreme Court of Australia, which was tasked with determining whether the plaintiff's statement of claim adequately alleged the defamation claim and if it was permissible under the Supreme Court (General Civil Procedure) Rules 2015 and the Civil Procedure Act 2010.

The primary legal issues the court needed to address were whether the imputation of hypocrisy was capable of arising from the defendant's statements, and if the elements of hypocrisy were sufficiently temporally connected to support the claim. Additionally, the court considered whether the pleading rolled up allegations in an impermissible manner, was impermissibly vague, or was impermissibly ambiguous. These considerations were informed by relevant precedent, including McMillan v the Federal Capital Press of Australia Pty Ltd and Trkulja v Google Inc Llc.

The court found that the plaintiff's statement of claim did not adequately allege the defamation claim. The imputation of hypocrisy was deemed incapable of arising from the defendant's statements, and the elements of hypocrisy were not sufficiently temporally connected. Furthermore, the pleading was found to roll up allegations in an impermissible manner, was impermissibly vague, and was impermissibly ambiguous. Consequently, the court held that the pleading was deficient and granted the defendant's application to strike out the statement of claim. The court found that the plaintiff's statement of claim did not meet the necessary standards for proceeding with the defamation claim.

The court ordered that the plaintiff's statement of claim be struck out. The defendant was entitled to costs associated with the application to strike out.

Orders