Chau v Australian Broadcasting Corporation (No 3) [2021] FCA 44

Federal Court of Australia

Chau v Australian Broadcasting Corporation (No 3) [2021] FCA 44 File number(s): NSD 1088 of 2017

Judgment of: RARES J

Date of judgment: 2 February 2021

Catchwords: DEFAMATION – national broadcast of television program said to convey defamatory imputations – where program, co-produced by the first and second media respondents and third respondent reporter made available for viewing online until trial – whether ordinary reasonable viewer of program would have understood imputations to be conveyed – whether disclaimers in program sufficient to dispel imputations of guilt DAMAGES – where applicant did not speak or understand English and did not see program but told about its stings – whether possible for applicant to recover compensatory damages for hurt feelings where he only read a translation sometime after broadcast or where he did not give evidence that he understood matter complained of to convey imputation DAMAGES – mitigation – where applicant had brought previous defamation proceedings relating to other publications carrying similar imputations which had resulted in an apology and award of damages respectively – whether effect of those outcomes mitigated any damage to applicant pursuant to s 38 of the Defamation Act 2005 (NSW) by publication of the matter complained of DAMAGES – where applicant claimed aggravated damages by conduct of respondents including maintaining a truth defence, failing to apologise and continuing to make the program available online – whether conduct of respondents improper, unjustifiable or lacking in bona fides INJUNCTION – jurisdiction to grant injunction to restrain publication of defamatory matter – whether applicant had to have a legal proprietary right before Court had power to grant injunction – whether Harbour Radio Pty Ltd v Wagner [2019] 2 Qd R 468 plainly wrong – whether respondents should be prohibited from continuing to publish program online – whether damages a sufficient remedy – where respondents contended that program dealt with matters of ongoing public interest – where respondents proffered undertaking to publish a statement to readers of online version of the program noting that applicant had successfully brought defamation proceedings and giving hyperlink to judgment – where applicant would require leave of a court under s 23 of the Defamation Act to bring further proceedings if program remains online Held: verdict for applicant for $590,000 and injunction restraining publishers from conveying imputations found to have been conveyed