Wing v The Australian Broadcasting Corporation

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FEDERAL COURT OF AUSTRALIA

Wing v The Australian Broadcasting Corporation

[2018] FCA 1340

File number: NSD 1088 of 2017
Judge: RARES J
Date of judgment: 31 August 2018
Catchwords:

DEFAMATION – justification – whether justification of imputation that person was believed on reasonable grounds to be guilty discloses reasonable defence to imputation that person guilty – whether publisher can rely on less serious meaning as defence of justification of more serious meaning – Polly Peck defence – Hore-Lacey defence – whether differently nuanced meaning capable of providing defence of justification

DEFAMATION – particulars of justification – allegations of party’s knowledge and state of mind – requirement of particulars providing same particularity as indictment

Legislation:

Parliamentary Privileges Act 1987 (Cth) s 16

Federal Court Rules2011 rr 16.41, 16.43

Defamation Act 2005 (NSW) ss 8, 24, 25

Cases cited:

Adeang v The Australian Broadcasting Corporation [2016] FCA 1200

Agar v Hyde (2000) 201 CLR 552

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485

Banque Commerciale SA (En liq) v Akhil Holdings Ltd (1990) 169 CLR 279

Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519

Cunliffe v Woods [2012] VSC 254

Crosby v Kelly [2013] FCA 1343

Dare v Pulham (1982) 148 CLR 658

David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89

Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

George v Rockett (1990) 170 CLR 104

Giorgianni v The Queen (1985) 156 CLR 473

Gutnick v Dow Jones & Co Inc (No 4) (2004) 9 VR 369

Hamra v The Queen (2017) 260 CLR 479

Hussien v Chong Fook Kam [1970] AC 942

Hyams v Peterson [1991] 3 NZLR 648

John L. Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508

Johnson v Miller (1937) 59 CLR 467

Lewis v Daily Telegraph Ltd [1964] AC 234

Lloyd v David of Syme & Co Ltd [1986] AC 350

Mickelberg v Hay [2006] WASC 285

Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293

Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314

Polly Peck (Holdings) Ltd v Trelford [1986] QB 1000

Rush v Nationwide News Pty Ltd [2018] FCA 357

R v Hillier (2007) 228 CLR 618

Trkulja v Google LLC (2018) 356 ALR 178

West Australian Newspapers Ltd v Elliot (2008) 37 WAR 387

Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89

Wootton v Sievier [1913] 3 KB 499

Yorke v Lucas (1985) 158 CLR 661

Zierenberg v Labouchere [1893] 2 QB 183

Date of hearing: 27 June 2018
Registry: New South Wales
Division: General Division
National Practice Area: Other Federal Jurisdiction
Category: Catchwords
Number of paragraphs: 112
Counsel for the Applicant: Mr B McClintock SC with Mr M Richardson
Solicitor for the Applicant: Mark O’Brien Legal
Counsel for the Respondents: Mr P. Gray SC with Mr M. Lewis
Solicitor for the…
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Details
Case
[2018] FCA 1340
Decision Date

CaseChat Overview and Summary

In the matter of Wing v The Australian Broadcasting Corporation, the court was called upon to resolve a dispute concerning defamation, focusing on the justification defence and the specifics of the defamatory imputations. The central issue revolved around whether the imputation that the plaintiff was believed on reasonable grounds to be guilty could be a reasonable defence to an imputation that the plaintiff was guilty, and whether the defendant could rely on a less serious meaning as a defence to a more serious meaning, invoking the so-called Polly Peck and Hore-Lacy defences. Additionally, the court had to determine whether differently nuanced meanings could provide a defence of justification. The court further addressed the requirement of particulars of justification in defamation cases, particularly the necessity of these particulars to match the particularity of an indictment.

The respondents argued that the variant imputations, which indicated that there were reasonable grounds to believe the facts asserted in the plaintiff’s imputations, constituted a valid defence of justification under the Hore-Lacy principle. They contended that this defence was not merely an imputation of suspicion but rather of reasonable belief. They relied on several authorities to support their position, asserting that their defence could not be deemed obviously untenable or manifestly groundless. The court, however, disagreed with the respondents’ interpretation, finding that the case of Elliot was plainly wrong and inconsistent with established principles. The court emphasised that a report of an arrest and charge does not imply guilt and that the defamatory quality of published material must be determined by what is conveyed to the ordinary reasonable reader, not by their own beliefs or prejudices.

Ultimately, the court ruled that the respondents’ defence of justification, based on the variant imputations, was not tenable. The court struck out specific paragraphs and particulars of the defence, dismissed the respondents’ application to amend their defence, and ordered the respondents to pay the plaintiff's costs associated with the interlocutory application and the application to amend. This decision underscored the importance of clear and precise particulars in defamation cases and reinforced the principle that imputations of guilt require more than mere suspicion to be actionable.

Orders

Orders of the court

1. Paragraphs 13.1 and 13.2 and the particulars of truth in paragraphs A1-54 of the defence filed on 6 October 2017 be struck out.

2. The respondents’ oral application made on 27 June 2018 to file an amended defence be dismissed.

3. The respondents pay the applicant’s costs of his interlocutory application filed on 21 March 2018 and of their oral application to amend made on 27 June 2018.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Finally, the particulars concluded:Conclusion in relation to Yan and the Bribery Allegations(80) It is to be inferred from particulars (70) to (79):(a) that “CC-3” is the Applicant and a co-conspirator of Yan and others in the corrupt scheme to bribe Ashe;(b) that the Applicant must have known that Yan was corrupt;(c) that the Applicant knowingly participated in the payment of the $200,000 bribe to a US bank account in the name of Ashe;(d) that the Applicant did so in order to profit from Ashe’s activities on behalf of the co-conspirators in return for the bribe.(81) The Respondents reserve the right to provide further particulars following discovery and interrogatories. (emphasis added)The respondents’ submissions as to the variant imputations The respondents argued that the variant imputations, that there were reasonable grounds to believe the facts asserted in each of Dr Wing’s imputations, constituted a good Hore-Lacy defence (based on David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667) to Dr Wing’s imputations. They contended that the variant imputations were not imputations of mere suspicion, but were of reasonable grounds to believe. Rather they submitted, the variant imputations meant that both parties’ sets of imputations did not differ in substance from one another. The respondents argued that this position was supported by the following authorities that had held that imputations to the effect of the variant imputations were available as meanings at common law to support a defence of justification in accordance with Polly Peck (Holdings) Ltd v Trelford [1986] QB 1000, namely what Steytler P (with whom McLure JA agreed) had held in West Australian Newspapers Ltd v Elliot (2008) 37 WAR 387 at 405 [49], 410 [70], in apparent reliance on what Cooke P had said in Hyams v Peterson [1991] 3 NZLR 648 at 655. That was because, the respondents submitted, other authorities, including Lewis v Daily Telegraph Ltd [1964] AC 234 and Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293, recognised that, as Steytler P had said in Elliot 37 WAR at 410 [70]:for practical purposes there can be an imputation of suspicion so strong as to be indistinguishable from guilt and that it must always be a question of fact how far the defamatory meaning goes. The respondents contended that in those circumstances, their defence of justification, based on the variant imputations, could not be characterised as so obviously untenable that it cannot possibly succeed, or as manifestly groundless, relying on General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; and Trkulja v Google LLC (2018) 356 ALR 178.The variant imputations - consideration In Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 151-152 [135], Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said that intermediate appellate courts and trial judges in Australia should not depart from decisions of intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation or non-statutory law unless they are convinced that the interpretation is “plainly wrong”: see too Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ.

Ratio Decidendi

Legal Principle Established

The respondents contended that in those circumstances, their defence of justification, based on the variant imputations, could not be characterised as so obviously untenable that it cannot possibly succeed, or as manifestly groundless, relying on General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; and Trkulja v Google LLC (2018) 356 ALR 178.The variant imputations - consideration In Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 151-152 [135], Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said that intermediate appellate courts and trial judges in Australia should not depart from decisions of intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation or non-statutory law unless they are convinced that the interpretation is “plainly wrong”: see too Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ. I am of opinion that Elliot 37 WAR 387 is plainly wrong and inconsistent with Harrison 149 CLR 293, as well as George v Rockett (1990) 170 CLR 104 and long established principle. In Harrison 149 CLR at 300-303, Mason J with whom Wilson J and, with a limited reservation, each of Gibbs CJ and Brennan J (at 295 and 303) agreed, held that a report that does no more than state that a person has been arrested and charged with an offence cannot convey to an ordinary reasonable reader, listener or viewer that the person is guilty of the offence. That was because the ordinary reasonable reader (of a newspaper) is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he (or she) is guilty (see at 300). Mason J explained the principle as follows (149 CLR at 300-301):Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.In this situation the reader will view the plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have ground for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned is guilty. A distinction needs to be drawn between the reader’s understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader. (emphasis added)