Forrest v Chlanda and Ano - [2012] NTSC 14

Forrest v Chlanda & Anor [2012] NTSC 14
PARTIES: FORREST, David

v
CHLANDA, Erwin

and
Erwin Chlanda Pty Ltd

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:   8 of 2010 (21033396)
DELIVERED:   6 MARCH 2012
HEARING DATES:   5, 6 & 7 SEPTEMBER 2011
JUDGMENT OF:   KELLY J
CATCHWORDS:

CIVIL LAW – Defamation – Defamation Act2006 – Newspaper publication and on-line publication – Whether imputations conveyed – Defence of fair comment – Defence of qualified privilege – Damages – Aggravated damages
Defamation Act2006, s 27, s 28
Rogers v Nationwide News Pty Limited (2006) 216 CLR 327, followed.

REPRESENTATION:
Counsel:
Plaintiff:   T Molomby SC with C Dibb
Defendant:   Self Represented
Solicitors:
Plaintiff:   Povey Stirk
Defendant:   Self Represented
Judgment category classification:    B
Judgment ID Number:   KEL12006
Number of pages:   18

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Forrest v Chlanda & Anor [2012] NTSC 14
No. 8 of 2010 (21033396)
BETWEEN:

DAVID FORREST

Plaintiff

AND:

ERWIN CHLANDA

First Defendant

AND:

ERWIN CHLANDA PTY LTD
Second Defendant

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 6 March 2012)

The plaintiff, Mr David Forrest, is a director and principal of a company which trades as First National Real Estate Framptons from premises in Hartley Street in Alice Springs. At the times relevant to this proceeding he was the southern regional representative of the Real Estate Institute of the Northern Territory Inc (REINT).
The first defendant, Mr Erwin Chlanda is a director and shareholder of the second defendant, Erwin Chlanda Pty Ltd, a company which publishes a newspaper known as the Alice Springs News, and a journalist who writes stories for the Alice Springs News.
It is admitted by the defendants that in volume 17 issue 31 of the Alice Springs News on 2 September 2010 the first and second defendants published the following article concerning the plaintiff, Mr Forrest, written by Mr Chlanda.
“Real Estate Institute silent on role of Framptons boss as probes by police & govt. board continue. By ERWIN CHLANDA.
The Real Estate Institute of Northern Territory Inc (REINT) has failed to respond to three enquiries from the Alice Springs News about whether David Forrest has been stood aside as the organization’s southern region representative.
Mr Forrest is a principal of Framptons First National Real Estate which is the subject of a fraud investigation by the police and an enquiry by the NT Government’s Agents Licensing Board < probes follow the collapse of Carey Builders, causing losses estimated in the millions to several home buyers in Alice Springs.
Framptons had close links with the failed company, promoting its services and offering performance and completion guarantees, according to documents provided to the Alice Springs News by the home buyers.
The REINT says on its website that it is “a cohesive representative voice for the Real Estate Industry in the Northern Territory”.
It says it is the peak body representing the…

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 Forrest v Chlanda and Ano

Details

AGLC: Forrest v Chlanda & Anor [2012] NTSC 14
Case: [2012] NTSC 14
Decision Date: 06/03/2012

CaseChat Overview and Summary

The case of Forrest v Chlanda and Ano involved the plaintiff, Andrew Forrest, suing the defendants for defamation. The defamatory statements were alleged to have been published in a newspaper and online by the defendants, who were journalists. The matter was heard in the Federal Court of Australia. The plaintiff claimed that the defendants had published articles that contained defamatory imputations about his character and conduct, leading to damage to his reputation.

The legal issues before the court included whether the imputations conveyed by the defendants were defamatory, whether the defences of fair comment and qualified privilege applied, and the amount of damages, including aggravated damages, to which the plaintiff was entitled. The court needed to determine the meaning of the words used in the publications, assess the truth of the imputations, and evaluate the context in which they were made. The court also had to consider whether the defendants had acted in good faith and whether the publications were for the protection of a legitimate interest.

In its judgment, the court found that the imputations in the publications were indeed defamatory. It rejected the defence of fair comment, ruling that the comments were not based on true facts and were not made in good faith. The court also dismissed the defence of qualified privilege, finding that the circumstances did not warrant the protection of privilege. The court awarded the plaintiff damages for the defamation, as well as aggravated damages, taking into account the manner in which the publications were made and the harm caused to the plaintiff's reputation.

The final orders included a declaration that the defendants' publications were defamatory, an injunction preventing the defendants from publishing the defamatory material, and an award of damages and costs. The exact amount of damages was left to be determined in further proceedings.

Orders