Winn v Thompson

Case [2024] FCA 358

FEDERAL COURT OF AUSTRALIA

Winn v Thompson [2024] FCA 358

File number: WAD 104 of 2023
Judgment of: JACKSON J
Date of judgment: 12 April 2024
Catchwords: DEFAMATION - defence of justification - whether proposed amended defence fails to disclose a reasonable defence - whether proposed amended defence is evasive, ambiguous, or likely to cause prejudice, embarrassment or delay in the proceeding - leave to rely on proposed amended defence refused - respondents given leave to replead
Legislation:

Federal Court of Australia Act 1976 (Cth) s 37M

Federal Court Rules 2011 (Cth) r 16.02

Defamation Act 2005 (WA) s 25
Cases cited:

Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632

Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331

Gair v Greenwood [2017] NSWSC 1652

Gallagher v Destiny Publications Pty Ltd [No 2] [2015] WASC 475

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

Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376

Hunt v Times Newspapers Ltd [2012] EWHC 110 (QB)

Johnson v Miller (1937) 59 CLR 467

Khan v Fairfax Media Publications Pty Limited [No 3] [2015] WASC 400

Rush v Nationwide News Pty Ltd [2018] FCA 357

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262

Wing v The Australian Broadcasting Corporation [2018] FCA 1340
Division: General Division
Registry: Western Australia
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 135
Date of hearing: 3 April 2024
Counsel for the Applicant: Mr R Graham with Mr I Priddis
Solicitor for the Applicant: Graham & Associates Lawyers
Counsel for the Respondents: Ms R Young SC
Solicitor for the Respondents: MinterEllison

ORDERS

WAD 104 of 2023
BETWEEN:

STEPHEN WINN

Applicant
AND:

HOLLY THOMPSON

First Respondent

FAIRFAX DIGITAL AUSTRALIA & NEW ZEALAND PTY LIMITED

Second Respondent

THE AGE COMPANY PTY LIMITED

Third Respondent

FAIRFAX MEDIA PUBLICATIONS PTY LIMITED
Fourth Respondent

ORDER MADE BY:

JACKSON J

DATE OF ORDER:

12 APRIL 2024

THE COURT ORDERS THAT:

1.Leave to the respondents to rely on the minute of amended defence provided to the Court on 19 February 2024 is refused.

2.By 4.00 pm AWST on 10 May 2024, the respondents must file and serve a further minute of amended defence.

3.The matter is listed for a case management hearing on 23 May 2024 at 9.30 am AWST.

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


REASONS FOR JUDGMENT

JACKSON J:

  1. These reasons concern an application by the respondents for leave to rely on an amended defence in a defamation proceeding.  The proposed amended defence contains particulars of what is said to be the substantial truth of the defamatory imputations allegedly conveyed by the publications in question.

  2. The applicant, Professor Winn, opposes leave on the basis that some of the particulars are impermissibly broad and imprecise, that the respondents have not pleaded sufficient primary facts to support inferences and conclusions as to the imputations which…

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Details
AGLC
Winn v Thompson [2024] FCA 358
Case
[2024] FCA 358
Decision Date

CaseChat Overview and Summary

The parties involved in the case are Winn and Thompson. The dispute revolves around defamation, specifically whether certain actions and statements by Winn constituted bullying, gaslighting, and contributed to a toxic culture within the School of Education. The matter was heard in the Federal Court of Australia. The legal issues that the court had to decide centred on the validity of the proposed amended defence submitted by the respondents, Thompson. These issues included whether the proposed defence was justified, clear, and sufficient to warrant a reasonable defence against the defamation claims, and whether the proposed defence was likely to cause prejudice, embarrassment, or delay in the proceedings.

The court examined the particulars provided in the amended defence, focusing on the alleged bullying and toxic culture within the School of Education. The court noted that the amended defence contained hearsay and lacked clarity regarding certain allegations. The respondents were required to clarify the relevance and purpose of specific statements and decisions made by Winn. The court also considered whether the particulars of the alleged decisions by Winn sufficiently disclosed a reasonable defence against the defamation claims. The court concluded that the proposed amended defence failed to meet the necessary standards and was inadequate in providing a reasonable defence against the allegations.

Based on the court's findings, it was decided that leave to rely on the proposed amended defence was refused. The respondents were given the opportunity to replead and submit a further minute of amended defence by a specified deadline. The matter was then listed for a case management hearing to address the ongoing issues and to facilitate further proceedings. The orders mandated the respondents to file and serve a further minute of amended defence by a certain date and scheduled a case management hearing for a later date to manage the case proceedings.

Orders

Orders of the court

1. Leave to the respondents to rely on the minute of amended defence provided to the Court on 19 February 2024 is refused.

2. By 4.00 pm AWST on 10 May 2024, the respondents must file and serve a further minute of amended defence.

3. The matter is listed for a case management hearing on 23 May 2024 at 9.30 am AWST.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Professor Winn submits that this part of the Schedule is hearsay. It is not clear from the Schedule whether the respondents allege that the view said to have been expressed at the meeting was correct. How or why the things said at this meeting are relevant is also unclear. The purpose for which the respondents rely on the views expressed at the meeting should be made clear.Three specific decisions Particulars are then given of three decisions that Professor Winn made that are said to have upset staff members:(72)In around September to October 2021, Zina Cordery (Cordery), who was an IT teacher, was refused approval by the Applicant to appoint a person as a tutor to teach one of her classes. The Applicant's stated basis for refusal was that the tutor's first degree was in theology, when that reason ought not have disqualified the tutor from being so appointed in the circumstances where the tutor was approved to be a tutor. That refusal upset Cordery and was communicated by Cordery to Allen.(73)In around late 2021, Eileen Slater (Slater), who taught a Masters program, which included about 30 to 40 Bhutanese students, failed a number of the Bhutanese students on the first assignment in the unit because, on her assessment, their English comprehension skills were inadequate. While Slater was on leave, Paula Mildenhall, with the approval of the Applicant, had altered those fail marks to pass marks. This alteration of Slater's marks upset her and was communicated by her to Allen.(74)In around late 2021, Christine Cunningham (Cunningham) was promoted to the position of Assistant to Associate Dean, a role reporting to the Applicant. Despite the promotion she was neither given a salary increase nor a promotion to Associate Professor, in circumstances in which the prior practice had been to do so for a person appointed to that position. The Applicant was empowered to increase her salary or promote her to Associate Professor. His omission to do either upset her and was communicated by her to Allen. It is alleged that this conduct on the part of Professor Winn, along with his conduct at the May 2021 staff meeting, 'constituted bullying, gaslighting, and it contributed to a toxic culture of fear amongst staff at the School of Education' (para 74A). Professor Winn submits again that the particulars given of those three decisions do not disclose any bullying, intimidation or gaslighting behaviour. According to Professor Winn, they raise false issues and disclose no reasonable defence. He also complains about a lack of particulars of the allegations in paragraph 72.Investigation into the School of Education Under this heading, the Schedule goes on to recount four occasions in 2021 and 2022 on which written allegations were made that concerned the culture at the School of Education (paras 75‑86). One is a statutory declaration which Dr Prout sent to Professor Winn, copied to the Vice‑Chancellor of ECU, Steve Chapman, on 14 October 2021. Another is a letter Dr Prout sent to Professor Winn in early 2022 which substantially reiterated the concerns expressed on the October 2021 statutory declaration. It is pleaded that Professor Winn had not responded to the 14 October communication. Another is a response Dr Allen gave to an inquiry and investigation into the culture of the School of Education which Professor Chapman announced in October 2021. The fourth is a letter that the National Tertiary Education Union (NTEU) sent to ECU on 18 May 2022.

Ratio Decidendi

Legal Principle Established

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