Russell v Australian Broadcasting Corporation [2023] FCA 38

Russell v Australian Broadcasting Corporation [2023] FCA 38

Applying the ordinary reasonable reader, viewer or listener test to each publication as a whole, the November Article, Linked Article and Television Broadcast conveyed defamatory variant meanings that Mr Russell was the subject of an active criminal investigation by the relevant investigatory defence authority and was reasonably suspected by that authority of committing a crime or crimes in Afghanistan as part of November Platoon. The Linked Article, because it combined the November Article with the October Article and reinforced the Marine's allegations with vivid headings and asserted corroboration, also conveyed defamatory meanings that Mr Russell, as commander of November Platoon, was...

Jurisdiction
Australia
Judgment Date
01 February 2023
Procedural Posture
Defamation Proceeding / Separate and Early Determination of Questions as to Ordinary and Natural Meaning
Outcome
Order varied and declarations made that some defamatory meanings were conveyed; other pleaded imputations were found not to be conveyed or not separately necessary to determine.
Legal Topics
['defamatory Imputations' 'ordinary and Natural Meaning' 'investigation, Suspicion and Guilt Imputations' 'separate Questions' 'substantial Truth, Contextual Truth and Public Interest Defences']
['defamation' 'civil Procedure'] ['defamatory Imputations' 'ordinary and Natural Meaning' 'investigation, Suspicion and Guilt Imputations' 'separate Questions' 'substantial Truth, Contextual Truth and Public Interest Defences']

Case Brief

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Procedural Posture

Defamation Proceeding / Separate and Early Determination of Questions as to Ordinary and Natural Meaning

Legal Issues

  1. 1 ['Whether the pleaded imputations, or variants of them, were conveyed by the November Article, Linked Article, Television Broadcast and Radio Broadcast in their ordinary and natural meaning.' 'Whether imputations concerning an active criminal investigation and reasonable suspicion were conveyed in relation to Mr Russell as commander and member of November Platoon.' 'Whether imputations alleging involvement in killing a prisoner, war crimes, dishonest denial, habitual unethical conduct and immoral conduct were conveyed by the publications.']

Ratio Decidendi

Applying the ordinary reasonable reader, viewer or listener test to each publication as a whole, the November Article, Linked Article and Television Broadcast conveyed defamatory variant meanings that Mr Russell was the subject of an active criminal investigation by the relevant investigatory defence authority and was reasonably suspected by that authority of committing a crime or crimes in Afghanistan as part of November Platoon. The Linked Article, because it combined the November Article with the October Article and reinforced the Marine's allegations with vivid headings and asserted corroboration, also conveyed defamatory meanings that Mr Russell, as commander of November Platoon, was...

Court Disposition

Order varied and declarations made that some defamatory meanings were conveyed; other pleaded imputations were found not to be conveyed or not separately necessary to determine.

Orders

  • ['Order 1 of the Orders dated 30 November 2022 be varied such that only the issues as to meaning joined in relation to [8], [11], [11D] and [11H] of the amended statement of claim be the subject of early and separate determination.' 'The November Article conveyed defamatory meanings that Mr Russell was the subject...