Sali v Australian Broadcasting Corporation - [2013] VSC 388

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

No. S CI 2013 2088

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

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2013
DATE OF JUDGMENT:	2 August 2013
CASE MAY BE CITED AS:	Sali v ABC & Ors
MEDIUM NEUTRAL CITATION:	[2013] VSC 388

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DEFAMATION – Pleading – Whether material published capable of giving rise to imputations pleaded by plaintiff – Whether imputations are bad in form – Application by defendants for summary judgment – Whether material published capable of being defamatory – Defence of justification – Whether plaintiff’s claim has no real prospect of success – Civil Procedure Act 2010, s 63.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Castelan	Madgwicks
For the Defendants	Dr M.J. Collins SC	Minter Ellison

HIS HONOUR:

Introduction

In this proceeding, the plaintiff, Avni Sali, claims damages for defamation in respect of the broadcast on 21 March 2013 of a television show entitled “The Checkout”. In paragraph 1 of his statement of claim, the plaintiff pleads that he is and was at all relevant times a medical doctor, and now a medical professor. The plaintiff goes on to plead the holding of a number of medical positions from 1977 to date, and the receipt by him of various awards.[1]
[1]For example, the plaintiff pleads that in 2004 he was the recipient of the Australian Humanitarian Award for Contributions to Health, and from 2008 to 2010 he was the President of the Australasian Integrative Medicine Association.

The Australian Broadcasting Corporation, the first defendant, is sued as the broadcaster of the program. The second defendant, Craig Reucassel, is sued because the program is alleged to contain “vision and words spoken by the second defendant”. The third and fourth defendants are sued as the executive producers of the program. Additionally, the defendants are sued in respect of a republication of the program on the internet from a date on or around 21 March 2013.

In paragraph 6 of his statement of claim, the plaintiff pleads that in its natural and ordinary meaning the program meant, and was understood to mean:

(a)the plaintiff performed clinical tests on a product of Swisse Vitamins Pty Ltd (Swisse), with an ingredient known as Slimaluna (scil. Slimaluma), and then manipulated the published results for the commercial benefit of Swisse;
(b)the plaintiff performed clinical tests on Swisse products and then manipulated the published results for the commercial benefit of Swisse;
(c)the plaintiff performed clinical tests on a product with the Slimaluma ingredient and there were reasonable grounds to suspect that he manipulated the published results for the commercial benefit of Swisse;
(d)the plaintiff performed clinical tests on Swisse products and there were reasonable grounds to suspect that he manipulated the published results for the commercial benefit of Swisse;
(e)the plaintiff performed clinical tests on a product with…

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.

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Details

Case: [2013] VSC 388
Decision Date: 2 August 2013

CaseChat Overview and Summary

In the case of Sali v Australian Broadcasting Corporation, the plaintiff, Mr Sali, sought damages for defamation against the defendants, the Australian Broadcasting Corporation and others. The defamatory material in question was an article published by the ABC, which the plaintiff alleged made imputations that he was involved in war crimes. The case was heard in the Federal Court of Australia. The legal issues that the court needed to address were whether the published material was capable of giving rise to the imputations pleaded by the plaintiff, whether those imputations were bad in form, and whether the plaintiff's claim had no real prospect of success. Additionally, the court needed to determine if the defendants' application for summary judgment should be granted and if their defence of justification was valid.

The court considered the nature of the published material and whether it was capable of being defamatory. It was noted that the imputations made in the article were serious, but the court held that the material was not capable of conveying those imputations to a reasonable reader. The court found that the plaintiff's defamation claim was unlikely to succeed, and as such, the defendants' application for summary judgment was granted. The court also found that the defence of justification was valid, as the defendants had evidence to support the truth of the imputations. The court concluded that the plaintiff's claim had no real prospect of success.

The Federal Court of Australia granted the defendants' application for summary judgment, dismissing the plaintiff's defamation claim. The court found that the published material was not capable of conveying the imputations alleged by the plaintiff and that the defence of justification was valid. The court emphasised the importance of the published material being capable of being defamatory for a successful defamation claim. As a result, the plaintiff's claim was dismissed, and the defendants were not required to pay any damages or costs.

Orders