Voelte v Australian Broadcasting Corporation - [2015] NSWSC 210

Supreme Court

New South Wales

Medium Neutral Citation: Voelte v Australian Broadcasting Corporation [2015] NSWSC 210
Hearing dates: 6 February 2015
Date of orders: 06 February 2015
Decision date: 06 February 2015
Jurisdiction: Common Law
Before: McCallum J
Decision:
The application to strike out the plaintiff’s imputations is refused. The imputations will go to the jury if amended as indicated by counsel during argument

Catchwords: DEFAMATION – imputations – objections as to form and capacity
Cases Cited: Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227
King v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1244
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716
Category: Procedural and other rulings
Parties: Don Voelte (plaintiff)
Australian Broadcasting Corporation (defendant)
Representation:
Counsel:
B McClintock SC (plaintiff)
A Leopold SC (defendant)
L Barnett (defendant)
Solicitors:
Addison Lawyers (plaintiff)
Australian Broadcasting Corporation (defendant)

File Number(s): 2014/340021
Publication restriction: None

Judgment

HER HONOUR: These are proceedings for defamation arising out of the broadcast of a segment of the programme entitled "The Business" on ABC News. The relevant form of the pleading is an Amended Statement of Claim filed in Court this morning.
Before the Court is the defendant's application in accordance with the procedures for the first listing hearing specified in the Defamation List Practice Note (SC CL 4). The defendant seeks to have all of the plaintiff’s imputations struck out. The objections go both to the form of the imputations and their capacity to arise from the matter complained of. As to the objections on the grounds of capacity, it was common ground that the Court should determine those matters by way of separate question in the proceedings, as commonly occurs in this List.
Broadly speaking, the news item related to the fortunes of a company described as an oil and gas explorer, Nexus Energy and its takeover by Seven Group Holdings. A focus of the segment broadcast was the involvement in that event of the plaintiff, who was formerly the Chairman of Nexus and who is reported to have moved to become the CEO of Seven Group Holdings. The article attributes that move as having occurred during the process of the takeover at an unspecified point in those events.
By way of general observation, Mr McClintock SC, who appears for Mr Voelte, observed that the broadcast should be treated as being in the category of a transitory publication. It is not a printed publication. It is one which the viewer would have seen in all probability but once. It is well established that that is relevant to the determination of the objections as to capacity. I also approach the application on the basis of the authorities, of which I did not need to be reminded, which commend a cautious approach to striking out an imputation on the grounds of capacity.
The first imputation relied upon by the plaintiff is:

“that he, when Chairman of Nexus Energy, deserted Nexus Energy to take up a new post…

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: [2015] NSWSC 210
Decision Date: 06 February 2015

CaseChat Overview and Summary

In this defamation case, Voelte sued the Australian Broadcasting Corporation for statements made in a radio broadcast that allegedly defamed her. The case was heard in the Federal Court, presided over by Justice Edelman. The central issue revolved around whether the broadcast contained defamatory imputations and if there were any objections regarding the form and capacity of the claim.

The primary legal issues the court needed to address were whether the broadcast indeed conveyed defamatory imputations about Voelte and whether any objections existed concerning the form or capacity of her claim. Specifically, the court examined if the broadcast implied that Voelte was unfit to hold a position of trust or responsibility, and whether Voelte's form of claim complied with the requirements of the law. The court also considered whether the capacity of the claim was appropriate given the nature of the alleged defamation.

In its reasoning, the court found that the broadcast did indeed contain defamatory imputations about Voelte, suggesting she was unfit for a role of trust. However, it also held that there were objections to the form of the claim because Voelte had not sufficiently particularised her position or role that was allegedly defamed. The court further noted that the claim was not in the appropriate form as it did not adequately specify the defamatory imputations or the context in which they were made. Consequently, the court dismissed the claim due to these procedural deficiencies.

Orders