Russell v Australian Broadcasting Corporation

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FEDERAL COURT OF AUSTRALIA

Russell v Australian Broadcasting Corporation [2023] FCA 38

File number: NSD 745 of 2022
Judgment of: LEE J
Date of judgment: 1 February 2023
Catchwords: DEFAMATION – defamation proceeding brought by former commander of special forces “November Platoon” – determination of separate questions as to meaning – news articles, television broadcast and radio broadcast concerning conduct of November Platoon in Afghanistan in 2012 – where pleaded imputations concern investigation, suspicion and guilt, killing a prisoner and committing war crimes – declaration that some defamatory imputations conveyed
Legislation:

Criminal Code Act 1995 (Cth)

Evidence Act 1995 (Cth) s 191

Federal Court of Australia Act 1976 (Cth) s 37P(2)

Federal Court Rules 2011 (Cth) rr 20.14, 30.01

Defamation Act 2005 (NSW) ss 25, 26, 29A
Cases cited:

Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632

Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334

Bik v Mirror Newspapers Limited [1979] 2 NSWLR 679

Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519

Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202; (2002) Aus Tort Reports ¶81-675

Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227

Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716

Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; (2022) 400 ALR 56

John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657

Knupffer v London Express Newspapers Ltd [1944] AC 116

Kumova v Davison (No 2) [2023] FCA 1

Lewis v Daily Telegraph Ltd [1964] AC 234

McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485

Mirror Newspapers Limited v Harrison (1982) 149 CLR 293

Oliver v Nine Network Australia Pty Ltd [2019] FCA 583

Palmer v McGowan (No 5) [2022] FCA 893; (2022) 404 ALR 621

Reading v Australian Broadcasting Corporation [2003] NSWSC 716

Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496

Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15; (2021) 387 ALR 123

Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845

Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149
P Milmo QC and W V H Rogers (eds), Gatley on Libel and Slander (Thomson Reuters, 11th ed, 2008)
Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 115
Date of hearing: 30 November 2022
Counsel for the applicant: Ms S Chrysanthou SC with Mr T Smartt
Solicitors for the applicant: Company Giles
Counsel for the respondents: Ms L Barnett
Solicitors for the respondents: Australian Broadcasting Corporation Legal Services

 

ORDERS

NSD 745 of 2022
BETWEEN:

HESTON RUSSELL

Applicant
AND:

AUSTRALIAN BROADCASTING CORPORATION

First Respondent

JOSHUA ROBERTSON

Second Respondent

MARK WILLACY

Third Respondent

ORDER MADE BY:

LEE J

DATE OF ORDER:

1 FEBRUARY 2023

THE COURT ORDERS THAT:

1.Order 1 of the Orders dated 30 November 2022 be varied such that only the issues…

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Details
Case
[2023] FCA 38
Decision Date

CaseChat Overview and Summary

In the case of Russell v Australian Broadcasting Corporation, the plaintiff, a former commander of the special forces unit known as November Platoon, brought a defamation proceeding against the Australian Broadcasting Corporation (ABC) regarding several publications. These included a news article, a television broadcast, and a radio broadcast concerning the conduct of the November Platoon in Afghanistan in 2012. The plaintiff alleged that the publications conveyed defamatory imputations, including an investigation, suspicion and guilt, the killing of a prisoner, and the commission of war crimes.

The legal issues before the court involved determining the natural and ordinary meanings of the defamatory imputations conveyed by the publications. The court had to ascertain whether the specific imputations alleged by the plaintiff were indeed conveyed by the ABC's publications. This involved interpreting the content of the articles and broadcasts in their ordinary and natural context to assess if the defamatory meanings were indeed communicated to the readers or viewers.

The court found that certain imputations were indeed conveyed by the publications. Specifically, the court declared that the publications conveyed that Mr Russell was the subject of an active criminal investigation and was reasonably suspected of committing crimes. Additionally, the court found that the publications implied Mr Russell's involvement in the killing of an Afghan prisoner and that he habitually acted immorally and unethically during his deployment in Afghanistan. The court did not find all pleaded imputations to be conveyed, but those that were found to be conveyed were significant and defamatory.

The court ordered that the specific defamatory meanings identified be recorded in a formal declaration and that the proceedings move forward to consider the defences of substantial truth, contextual truth, and public interest. The court also made orders to regularise the issues to be determined in the separate hearing and to allow for potential appeals and amendments to the pleadings. The court's decision provided clarity on the defamatory meanings conveyed by the publications, setting the stage for further proceedings on the defences and ultimate resolution of the case.

Orders

Orders of the court

1. Order 1 of the Orders dated 30 November 2022 be varied such that only the issues as to meaning joined in relation to [8], [11], [11D] and [11H] of the amended statement of claim be the subject of early and separate determination.

AND THE COURT DECLARES THAT:

2. The following specified publications identified in the amended statement of claim (ASOC) conveyed the following defamatory meanings:

(a) the November Article (as defined at ASOC [6]):

(i) Mr Russell was the subject of an active criminal investigation by the relevant investigatory defence authority into his conduct as a commando in Afghanistan in June or July 2012 as part of November Platoon;

(ii) Mr Russell was reasonably suspected by the relevant investigatory defence authority of committing a crime or crimes when he was a commando in Afghanistan in June or July 2012 as part of November Platoon;

(b) the Linked Article (as defined at ASOC [9]):

(i) Mr Russell was the subject of an active criminal investigation by the relevant investigatory defence authority into his conduct as a commando in Afghanistan in June or July 2012 as part of November Platoon;

(ii) Mr Russell was reasonably suspected by the relevant investigatory defence authority of committing a crime or crimes when he was a commando in Afghanistan in June or July 2012 as part of November Platoon;

(iii) Mr Russell, as commander of November Platoon, was involved in shooting and killing an Afghan prisoner during an operation in Helmand province in mid-2012;

(iv) Mr Russell, as the commander of November Platoon, habitually left “fire and bodies” in his wake when deployed in Afghanistan;

(v) Mr Russell, as a commando in Afghanistan, habitually and knowingly crossed the line of ethical conduct when he was deployed there;

(vi) Mr Russell, as a commando in November Platoon, had behaved so immorally when deployed in Afghanistan, that American forces refused to work with him; and

(c) the Television Broadcast (as defined at ASOC [11B]):

(i) Mr Russell was the subject of an active criminal investigation by the relevant investigatory defence authority into his conduct as a commando in Afghanistan in June or July 2012 as part of November Platoon; and

(ii) Mr Russell was reasonably suspected by the relevant investigatory defence authority of committing a crime or crimes when he was a commando in Afghanistan in June or July 2012 as part of November Platoon.

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

Background

Background to the litigation

The publications concern the conduct of the November Platoon in Afghanistan.B BACKGROUNDB.1 Procedural Backdrop During a case management hearing, I made orders by consent to determine separately all questions of meaning raised by the amended statement of claim and defence to the amended statement of claim (that is, whether the pleaded imputations were carried, and whether the contextual truth imputations were conveyed) pursuant to s 37P(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 30.01 of the Federal Court Rules 2011 (Cth) (FCR). At the separate trial, however, it became apparent that it would not be possible, or at least unsafe, to deal now with Mr Russell’s “true innuendo” case. This aspect of the case was premised upon a factual contention that was not evidenced, nor agreed pursuant to s 191 of the Evidence Act 1995 (Cth). This meant the separate and early determination of the true innuendo case was at risk of morphing into an impermissible hypothetical exercise: see Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 (at 355–356 [47] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). In any event, it became apparent it may be unnecessary to deal with this aspect of the case, depending upon the result of the separate hearing. Similarly, at the hearing it was considered expedient to defer consideration of the contextual imputations until after the Court had resolved what defamatory meanings relied upon by Mr Russell were conveyed. I will make an order regularising the precise ambit of the issues to be determined by the separate hearing, that is, the issues relating to the natural and ordinary meaning of the impugned publications. B.2 The Matters Identified There is no dispute between the parties as to the metes and bounds of the relevant matters: T79.45–80.1.The November Article On or about 19 November 2021, the respondents published an article entitled “Defence confirms criminal investigation into conduct of Australian commando platoon in Afghanistan” (November Article). The November Article, written by Mr Robertson and reproduced in Annexure A to these reasons, states that “[t]he Defence Department has revealed there is an active criminal investigation into the conduct of an Australian commando platoon in Afghanistan in 2012”. It recalls an earlier report by the ABC first published on the ABC website on 21 October 2020 and co-authored by Mr Willacy (October Article), concerning “allegations of a US marine who said Australian commandos shot and killed an Afghan prisoner”, and proceeds to name, picture and discuss Mr Russell. I digress here to note that the Marine is given the pseudonym “Josh”, but strangely enough is pictured, notwithstanding both the October and November Articles record he does not want to be identified because he “fears retribution”. If those responsible for publication of “Josh’s” photograph within the ABC thought there was substance in “Josh’s” fears of retribution, they must have assumed his potential assailants were a somewhat incurious and lazy lot.The Linked Article

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am not satisfied that Imputation 11.44 is carried.D CONCLUSION As noted above, pursuant to s 37P(2) of the FCA Act and FCR 30.01, I resolved to determine separately and before any other issue the question of the ordinary and natural meaning of the matters identified. The conclusions I have reached need to be recorded in a formal order. A separate question was not framed, so it is appropriate that my conclusions be recorded in terms of a declaration. It will be now necessary for the Court to consider the defence case to be mounted by the ABC as to substantial truth, contextual truth and public interest. My preliminary view is that I should reserve the costs of the separate hearing to be dealt with at the same time as the issue of costs in the balance of the proceeding. In order to avoid any bifurcation of the proceeding but preserve the rights of the parties, I am also disposed to make an order granting leave to appeal (to the extent it is necessary), and extending time to allow any appeal from the declaration as to meaning to be filed contemporaneously with any appeal from orders made at the ultimate conclusion of this proceeding. If any party wishes to be heard as to why such orders ought not to be made, they can raise the issue with my Chambers within seven days. Finally, as foreshadowed at the hearing, I propose to make orders providing for the filing of any amended defence and standard discovery pursuant to FCR 20.14. Prior to the filling of the defence, and subject to hearing from the parties, it may be convenient for a further version of the amended statement of claim to be filed to bring the applicant’s pleading into conformity with what was conveyed and to remove references to any allegations that are no longer pressed in the light of these reasons.

Ratio Decidendi

Legal Principle Established

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