Wing v The Australian Broadcasting Corporation [2018] FCA 1340

Wing v The Australian Broadcasting Corporation [2018] FCA 1340

The defence of justification relying on less serious variant imputations ('there are reasonable grounds to believe') is not a reasonable defence to the pleaded imputations of fact (guilt), because suspicion or belief on grounds, however reasonable, is substantively distinct from asserting guilt as a fact; the amended particulars of justification are embarrassing, fail to give sufficient detail for the applicant to know the case to meet, and do not disclose a reasonable defence; accordingly, the defences and particulars are struck out and the application for leave to amend is dismissed.

Parties
Applicant: Dr Chau Chak Wing; First Respondent: The Australian Broadcasting Corporation; Second Respondent: Fairfax Media Publications Pty Limited ACN 003 357 720; Third Respondent: Nick McKenzie
Jurisdiction
Australia
Judgment Date
31 August 2018
Procedural Posture
Defamation / Interlocutory Application – Application to Strike Out Defences of Justification and for Leave to Amend Defence
Outcome
Application granted. Defence and particulars struck out. Leave to amend refused. Respondents to pay applicant's costs.
Legal Topics
Justification Defence, Imputation, Particulars of Justification, Pleadings, Hore Lacy Defence, Polly Peck Defence
Defamation Justification Defence Imputation Particulars of Justification Pleadings Hore Lacy Defence Polly Peck Defence

Case Brief

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Parties

Dr Chau Chak Wing

Applicant

The Australian Broadcasting Corporation

First Respondent

Fairfax Media Publications Pty Limited ACN 003 357 720

Second Respondent

Nick McKenzie

Third Respondent

Procedural Posture

Defamation / Interlocutory Application – Application to Strike Out Defences of Justification and for Leave to Amend Defence

Legal Issues

  1. 1 Whether the defence of justification based on variant imputations ('there are reasonable grounds to believe') is a reasonable defence to the pleaded imputations of fact (guilt)
  2. 2 Whether the amended particulars of justification provide sufficient detail to disclose a reasonable defence and allow a fair opportunity for the applicant to meet his case, or are embarrassing and liable to be struck out

Ratio Decidendi

The defence of justification relying on less serious variant imputations ('there are reasonable grounds to believe') is not a reasonable defence to the pleaded imputations of fact (guilt), because suspicion or belief on grounds, however reasonable, is substantively distinct from asserting guilt as a fact; the amended particulars of justification are embarrassing, fail to give sufficient detail for the applicant to know the case to meet, and do not disclose a reasonable defence; accordingly, the defences and particulars are struck out and the application for leave to amend is dismissed.

Court Disposition

Application granted. Defence and particulars struck out. Leave to amend refused. Respondents to pay applicant's costs.

Orders

  • Paragraphs 13.1 and 13.2 and particulars of truth in paragraphs A1-54 of the defence filed on 6 October 2017 be struck out.
  • Respondents' oral application on 27 June 2018 to file an amended defence be dismissed.