Laming v Nine Network Australia Pty Ltd

FEDERAL COURT OF AUSTRALIA

Laming v Nine Network Australia Pty Ltd [2022] FCA 63  

File number:

NSD 873 of 2021

Judgment of:

BROMWICH J

Date of judgment:

28 January 2022

Catchwords:

PRACTICE AND PROCEDURE – application for part of the respondent’s defence to be stuck-out – whether the contextual imputations pleaded as part of the defence were too imprecise and ambiguous to be a contextual imputation – whether the contextual imputation comprising of the word “creep” to describe the applicant’s character is too imprecise and ambiguous – whether the honest opinion defence is a defence for the pleaded imputation or the entire published defamatory matter – held: application granted in part

Legislation:

Defamation Act 2005 (NSW) ss 25, 26, 30, 31

Cases cited:

Domican v Pan Macmillan Australia Pty Ltd [2019] FCA 1384

Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520

McLachlan v Browne (No 7) [2018] NSWSC 1914

Division:

General Division

Registry:

New South Wales

National Practice Area:

Other Federal Jurisdiction

Number of paragraphs:

23

Date of hearing:

28 January 2022

Counsel for the Applicant:

S Chrysanthou SC, B Dean

Solicitor for the Applicant:

Company Giles Pty Ltd

Counsel for the Respondents:

L Barnett

Solicitor for the Respondents:

Banki Haddock Fiora

ORDERS

NSD 873 of 2021

BETWEEN:

ANDREW LAMING

Applicant

AND:

NINE NETWORK AUSTRALIA PTY LTD

First Respondent

TCN CHANNEL NINE PTY LTD

Second Respondent

ORDER MADE BY:	BROMWICH J
DATE OF ORDER:	28 JANUARY 2022

THE COURT ORDERS THAT:

1.Leave be granted to file the proposed amended defence upon the following deletions being made and the necessary consequential changes to paragraph numbering and otherwise being made:

(a)delete paragraph 14(a)(iii);

(b)delete paragraphs 48 to 90, 97 to 104, and 130 to 139 of the particulars of truth.

2.The interlocutory application dated 25 October 2021 otherwise be dismissed

3.The costs of and incidental to the interlocutory application dated 25 October 2021 be costs in the cause.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from transcript)

BROMWICH J:

1. Dr Andrew Laming is a member of the House of Representatives for an electorate in Queensland.  He sues for defamation by way of an originating application and statement of claim in relation to a 27 March 2021 news segment concerning him that was published on the Channel 9 free-to-air network, and subsequently on the 9Now streaming service, the 9news website, and on a related Facebook page and Twitter account.  The first respondent, Nine Network Australia Pty Ltd, is the producer of the Nine News television program.   

2. By a defence, Nine Network admits that all of the 11 pleaded imputations are defamatory, and that three of them were conveyed.  By reference to the Defamation Act 2005 (NSW) and the common law, Nine Network’s defence pleads substantial truth (s 25), substantial truth of pleaded contextual imputations (s 26), qualified privilege (s 30), common law qualified privilege (Lange v Australian Broadcasting Corporation [1997] HCA 25