Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125

FEDERAL COURT OF AUSTRALIA

Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125 Appeal from: Wing v The Australian Broadcasting Corporation [2018] FCA 1340

File number: NSD 1760 of 2018

Judges: BESANKO, BROMWICH AND WHEELAHAN JJ

Date of judgment: 2 August 2019

Catchwords: DEFAMATION – pleadings – common law justification – primary judge struck out variant meanings – David Syme & Co Ltd v Hore-Lacy – respondents' imputations that there were reasonable grounds to believe not permissible variants of the applicant's imputations – untenable pleading of justification for the purposes of adducing evidence in mitigation of damage disallowed – leave to appeal given – appeal dismissed. PRACTICE AND PROCEDURE – application for leave to appeal primary judge's decision to strike out common law justification and statutory truth defences – application for leave to appeal dismissal of application for leave to file amended defence – adequacy of particulars of defences – primary judge held particulars imprecise, embarrassing, conclusory, hearsay, could not support defence of truth – whether the meaning of an applicant's pleaded imputation is a question of fact for trial – meaning of a pleaded imputation not a triable issue – leave to appeal given – appeal dismissed.

Legislation: Criminal Code Act 1995 (Cth), Divisions 91 and 92 Defamation Act 2005 (NSW), 8, 25, 26, 30, 36 Defamation Act 2005 (Vic), 22 Defamation Act 1974 (NSW), 9, 9(2) Defamation Act 1992 (NZ), 8(2)(a) Federal Court of Australia Act 1976 (Cth), 37M, 37N Federal Court Rules 2011 (Cth), 16.01(c), 16.02, 16.02(d), 16.03, 16.03(1), 16.06, 16.08, 16.41, 16.42, 16.43, 16.43(2), 39.32 Legal Profession Uniform Conduct (Barristers) Rules 2015, 64 Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015, 21.3 National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth) Parliamentary Privileges Act 1987 (Cth), 16(3), 16(3)(a) Uniform Civil Procedure Rules 2005 (NSW), 14.30(2)(a) Supreme Court Rules 2000 (Tas), 263B(2)(a)