FEDERAL COURT OF AUSTRALIA
Wing v The Australian Broadcasting Corporation
[2018] FCA 1340
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- Case
- [2018] FCA 1340
- Decision Date
CaseChat Overview and Summary
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
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)