Sali v ABC (Ruling No 2) - [2013] VSC 719

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
MAJOR TORTS

No. S CI 2013 2088

AVNI SALI	Plaintiff
v
AUSTRALIAN BROADCASTING CORPORATION, CRAIG REUCASSEL, JULIAN MORROW AND NICK MURRAY	Defendants

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 DECEMBER 2013
DATE OF RULING:	18 DECEMBER 2013
CASE MAY BE CITED AS:	SALI v ABC & ORS (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2013] VSC 719

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DEFAMATION — Discovery — Third party subpoenas - Objection to production of documents— Fishing— Defence of justified conflict of interest imputation — Defence of contextual truth— Objection to proposed further particulars of defence made by subpoenaed party not plaintiff — Plaintiff fails to object - Whether defendant may plead and prove wider general imputation where the plaintiff pleads wide innuendo – Whether instances of conflict of interest of the kind initially particularised occurring prior to publication but not known to defendant at that time may be particularised – Leave to amend particulars given – Subpoenas confined to documents existing at date of publication— Defamation Act 2006 (Vic) s 26— Civil Procedure Act 2010 (Vic) ss 7(1) and 9.

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APPEARANCES:	Counsel	Solicitors
For National Institute of Integrative Medicine and Swisse Wellness	Mr C Shaw	Madgwicks
For the Defendants	Dr MJ Collins SC	Minter Ellison

HIS HONOUR:

In this proceeding, Professor Sali claims damages for defamation in respect of the broadcast on 21 March 2013 of a television show entitled ‘The Checkout’. The program was also made available via the ABC’s website.

The pleadings have now closed and the defendants have issued subpoenas directed to the National Institute of Integrative Medicine (‘NIIM’) and Swisse Wellness Pty Ltd (‘Swisse’) (together ‘the subpoenaed parties’), which seek production of a number of categories of documents. In respect of NIIM, the documents sought relate to arrangements for payments by Swisse to NIIM, documents recording or relating to payment of moneys by NIIM to Professor Sali and documents relating to a research paper (which I will further explain). None of these categories of documents is confined by date. The subpoena to Swisse seeks documents recording payments to Professor Sali or NIIM or the Graduate School of Integrative Medicine at Swinburne University. Documents in the last category are confined by date but the other categories are also not so confined.

The subpoenaed parties contend that the two subpoenas are being used by the defendants for the purposes of fishing. The subpoenas are not intended to obtain evidence in support of the defence, but rather to discover whether the defendants have a defence.

Following argument, I substantially rejected the subpoenaed parties’ contentions and ordered that –

(a)The defendants have leave to rely on the further particulars set out in the letter to the plaintiff’s solicitors dated 28 November 2013.
(b)The categories of documents in each subpoena dated 24 October 2013 and addressed to the National Institute of Integrative Medicine and Swisse Wellness Pty Ltd is limited to documents in the possession, custody or control…

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 Sali v ABC (Ruling No 2)

Details

AGLC: Sali v ABC (Ruling No 2) [2013] VSC 719
Case: [2013] VSC 719
Decision Date: 18 DECEMBER 2013

CaseChat Overview and Summary

In this case, Sali, the plaintiff, sued the Australian Broadcasting Corporation (ABC), the defendant, for defamation. The plaintiff argued that a television program aired by the defendant defamed him by implying he had engaged in corrupt conduct. The dispute was heard in the Supreme Court of Victoria. The defendant raised several defences, including that the imputations were contextually true and that there was a justified conflict of interest. The plaintiff objected to the defendant's subpoenas for documents, arguing they were a fishing exercise. The defendant sought to amend its defence to include a wider general imputation, and to plead and prove instances of conflict of interest that occurred prior to publication but were unknown to the defendant at the time.

The court considered whether the plaintiff could object to the subpoenas, whether the defendant could plead and prove a wider general imputation, and whether instances of conflict of interest that occurred prior to publication but were unknown to the defendant at the time could be particularised. The court held that the plaintiff could not object to the subpoenas as they were not a fishing exercise, and that the defendant could plead and prove a wider general imputation if it could be shown to be relevant to the case. The court also held that instances of conflict of interest that occurred prior to publication but were unknown to the defendant at the time could be particularised if they were relevant to the case.

The court allowed the defendant's application to amend its particulars to include a wider general imputation and to plead and prove instances of conflict of interest that occurred prior to publication but were unknown to the defendant at the time. The court also confined the subpoenas to documents existing at the date of publication. The court relied on the Defamation Act 2006 (Vic) and the Civil Procedure Act 2010 (Vic) in reaching its decision.

The court ordered that the defendant's application to amend its particulars be allowed, that the subpoenas be confined to documents existing at the date of publication, and that the defendant's defence of contextual truth be allowed. The court did not make any orders regarding the defendant's defence of justified conflict of interest as it was not necessary to do so given the other orders made.

Orders