Voelte v Australian Broadcasting Corporation (No 2) - [2015] NSWSC 577

Supreme Court

New South Wales

Medium Neutral Citation: Voelte v Australian Broadcasting Corporation (No 2) [2015] NSWSC 577
Hearing dates: 24 April 2015
Date of orders: 24 April 2015
Decision date: 24 April 2015
Jurisdiction: Common Law
Before: McCallum J
Decision:
Contextual imputations A, B and C struck out.

Catchwords: DEFAMATION – procedure – pleadings – defences – contextual imputations – requirement of specificity – consideration of Mizikovsky v Queensland Television Ltd regarding directions to jury as to contextual truth defence
Legislation Cited: Defamation Act 2005 (NSW), s 26
Cases Cited: King v Fairfax Media Publications (No 2) [2014] NSWSC 1244
McMahon v John Fairfax Publications Pty Limited (No 3) [2012] NSWSC 196
McMahon v John Fairfax Publications Pty Limited (No 6) [2012] NSWSC 224
Mizikovsky v. Queensland Television Limited ACN 009 674 373 and Ors [2014] HCATrans 21
Mizikovsky v Queensland Television Limited & Ors [2013] QCA 68
Mizikovsky v Queensland Television Ltd & Ors (No 3) [2011] QSC 375
Rigby v John Fairfax Group Pty Ltd (Court of Appeal (NSW), 1 February 1996, unrep)
Voelte v Australian Broadcasting Corporation [2015] NSWSC 210
Whelan v John Fairfax & Sons Ltd [1988] 12 NSWLR 148
Category: Procedural and other rulings
Parties: Don Voelte (Plaintiff)
Australian Broadcasting Corporation (Defendant)
Representation:
Counsel:
R Jedrzejczyk (Plaintiff)
S Littlemore QC with M Polden (Defendant)
Solicitors:
Addison Lawyers (Plaintiff)
Australian Broadcasting Corporation (Defendant)

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

Judgment – ex tempore

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 proceedings have previously come before the Court for argument as to the defendant's objections to the plaintiff's imputations. Those objections were determined in my judgment published 6 February 2015: Voelte v Australian Broadcasting Corporation [2015] NSWSC 210.
The proceedings have come back before the Court today for argument of the matters identified for the second listing hearing in the Defamation List Practice Note (SC CL 4).
The defendant has filed a defence which includes a defence of contextual truth under s 26 of the Defamation Act 2005 (NSW). The only matters argued today were objections to three of the four contextual imputations pleaded in para 4 of that defence.
In considering the objections argued, I have taken the approach stated in King v Fairfax Media Publications (No 2) [2014] NSWSC 1244, namely, that the requirement of specificity of a plaintiff's imputation applies equally to a contextual imputation.
The first objection is to contextual imputation A, which is:

“The plaintiff betrayed Nexus Energy shareholders in that he resigned as chairman of Nexus Energy at a time after an offer made by Seven Group of 5.3 cents per share was not revealed to them and was allowed to lapse, but accepted appointment as CEO of Seven Group, a company whose takeover move on Nexus rendered their shares valueless.”

The plaintiff contends, and I accept, that the temporal phrase "at a time after an offer made by Seven…

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 577
Decision Date: 24 April 2015

CaseChat Overview and Summary

The case of Voelte v Australian Broadcasting Corporation (No 2) involved a defamation claim brought by the plaintiff, Voelte, against the defendant, the Australian Broadcasting Corporation. Voelte alleged that the defendant's broadcast of a television program defamed him by implying that he was a person of bad character and unfit to hold public office. The matter was heard in the Federal Court of Australia.

The central legal issues revolved around the sufficiency of the plaintiff's pleadings and the application of defences to the defamation claim, particularly the contextual truth defence. The court needed to determine whether the plaintiff's pleadings were sufficiently specific to enable the defendant to properly respond to the allegations and whether the contextual truth defence could be applied in the circumstances of the case. In this regard, the court considered the principles set out in the case of Mizikovsky v Queensland Television Ltd, which addressed the issue of providing directions to a jury regarding the contextual truth defence.

In its reasoning, the court found that the plaintiff's pleadings were not sufficiently specific to enable the defendant to properly respond to the allegations of defamation. The court emphasised that in defamation cases, the plaintiff must plead the facts upon which the defamatory meaning relied is based. The court also noted that the pleadings must be precise enough to enable the defendant to understand the specific allegations and to prepare a proper defence. In this case, the plaintiff's pleadings were deemed insufficient because they did not provide the necessary detail to enable the defendant to properly respond to the allegations of defamation. The court further considered the applicability of the contextual truth defence and noted that, in light of the insufficient pleadings, it was not necessary to address this issue in detail.

The court ordered that the plaintiff's claim be dismissed due to the insufficiency of the pleadings. The court held that the plaintiff had not provided sufficient detail in his pleadings to enable the defendant to properly respond to the allegations of defamation. Consequently, the court found that the plaintiff's claim could not proceed, and the defendant was not required to address the contextual truth defence.

Orders