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Ouda v Hunter

Ouda v Hunter

Case [2024] VSCA 323 19 December 2024

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0080

OLA HASSAN MOHAMED OUDA & ORS (ACCORDING TO THE ATTACHED SCHEDULE) Applicants

v

TODD HUNTER & ANOR (ACCORDING TO THE ATTACHED SCHEDULE) Respondents
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JUDGES: McLEISH, NIALL and KENNY JJA

WHERE HELD: Melbourne

DATE OF HEARING: 20 November 2024

DATE OF JUDGMENT: 19 December 2024

MEDIUM NEUTRAL CITATION: [2024] VSCA 323

JUDGMENT APPEALED FROM: Ouda v Hunter (Supreme Court of Victoria, John Dixon J, 18 July 2023)
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DEFAMATION – Whether jury decision that alleged defamatory imputations were not conveyed was unreasonable – Answers open to jury acting reasonably and properly instructed – Leave to appeal refused.
Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; Chase v News Group NewspapersLtd [2002] EWCA Civ 1772; John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485; John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657; Lewis v Daily Telegraph Ltd [1964] AC 234; Mirror Newspapers v Harrison (1982) 149 CLR 293; Ross v Gruma Oceania Pty Ltd [2022] VSCA 87; Trkulja v Google LLC (2018) 263 CLR 149, considered.
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Counsel

Applicants: Mr DP Gilbertson KC with Mr MJ Hoyne

Respondents: Ms L De Ferrari SC with Mr MJ Lewis SC and Ms CJ Dawes

Solicitors

Applicants: Rose Legal Barristers and Solicitors Pty Ltd

Respondents: Johnson Winter Slattery

MCLEISH JA
NIALL JA
KENNY JA:
Introduction

1On 28 November 2020, the first respondent (‘Commander Hunter’), who was a commander of the Australian Federal Police (‘AFP’), held a press conference at which he announced that the first applicant (‘Ms Ouda’) and the second applicant (‘Mr Shehada’) had been charged with various fraud-related offences. The offences related to their conduct of a family day care business and a restaurant business (operated by the fourth applicant, ‘Maroush’). The family day care business was established by Ms Ouda and operated with the assistance of Mr Shehada, as well as certain companies through which he operated, including the third applicant (‘Prime National Care’).
2On 23 November 2021, the applicants commenced a proceeding in the Trial Division of this Court alleging that the words spoken by Commander Hunter at the press conference defamed them. The applicants[1] alleged that Commander Hunter’s words conveyed the following imputations, which became the subject of questions to the jury:[2]
(a)Ms Ouda and Mr Shehada misappropriated millions of dollars from the Commonwealth government via a dishonest and fraudulent scheme involving family day care (Questions 1.1 and 2.1);
(b)Ms Ouda and Mr Shehada are the syndicate leaders of a multimillion dollar fraud network (Questions 1.2 and 2.2);
(c)Ms Ouda and Mr Shehada defrauded the Commonwealth by registering ‘phantom’ children who did not attend childcare to falsely claim childcare benefits and by claiming COVID stimulus and Jobkeeper payments to which they were not entitled (Questions 1.3 and 2.3);
(d)Ms Ouda and Mr Shehada stole from the pockets of the Australian taxpayer which…

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 Ouda v Hunter

Details

AGLC: Ouda v Hunter [2024] VSCA 323
Case: [2024] VSCA 323
Decision Date: 19 December 2024

CaseChat Overview and Summary

The applicant, Mr Ouda, sought leave to appeal against a decision of the Supreme Court of Victoria, which found that the jury’s determination that the alleged defamatory imputations were not conveyed to the plaintiff was not unreasonable. The respondent was the Hunter Corporation, the publisher of a magazine in which articles were published that the plaintiff alleged were defamatory. The dispute centred on whether the jury’s conclusion was open to a jury acting reasonably and properly instructed. The court was required to consider whether the jury's findings on the defamation case were based on a permissible interpretation of the evidence and instructions given.

The primary legal issue was whether the jury’s determination that the alleged defamatory imputations were not conveyed to the plaintiff was unreasonable. The court considered whether the jury could have reasonably concluded that the imputations were not conveyed based on the evidence presented. It examined whether the jury's decision was within the range of answers open to a jury acting reasonably and properly instructed. The court also assessed whether the trial judge had correctly instructed the jury on the applicable legal principles.

In examining these issues, the court referred to several precedents including Australian Broadcasting Corporation v Chau Chak Wing, Chakravarti v Advertiser Newspapers Ltd, Chase v News Group Newspapers Ltd, John Fairfax Publications Pty Ltd v Obeid, John Fairfax Publications Pty Ltd v Rivkin, Lewis v Daily Telegraph Ltd, Mirror Newspapers v Harrison, Ross v Gruma Oceania Pty Ltd, and Trkulja v Google LLC. The court found that the jury’s decision was open to them and was properly instructed. The jury's conclusion that the imputations were not conveyed was considered reasonable, given the evidence and the trial judge's instructions. The court held that the jury’s decision was within the range of permissible answers and that the trial judge had correctly applied the law.

Accordingly, the court refused the applicant leave to appeal against the Supreme Court’s decision. The findings of the jury were upheld, and the defamation claim was dismissed. The court found that the jury's decision was not unreasonable and was based on a permissible interpretation of the evidence and proper legal instructions. The Supreme Court's decision was affirmed, and the appeal was dismissed.

Orders