Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223

Federal Court of Australia

Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223 File number: NSD 745 of 2022

Judgment of: LEE J

Date of judgment: 16 October 2023

Catchwords: DEFAMATION – defamation proceeding brought by former commander of special forces "November Platoon" against public broadcaster and two journalists – where various imputations found to have been carried concerning conduct of platoon in Afghanistan – consideration of serious harm requirement in s 10A of the Defamation Act 2005 (NSW) (Defamation Act) – where defences all but fell away excepting new defence of public interest in s 29A of the Defamation Act – consideration of common law and statutory antecedents to s 29A – genealogy of "public interest" and "reasonableness" in the law of defamation in Australia – proper approach to s 29A ultimately open-textured and value-laden – focus on all the circumstances of the case – respondents believed publication of impugned matters was in the public interest – respondents' belief was not reasonable – defence failed DAMAGES – where applicant sought general damages for non-economic loss – where applicant sought aggravated damages for no less than 58 circumstances of aggravation – whether general damages may be reduced on account of the conduct of a plaintiff during litigation – whether aggravated damages should be awarded where adverse credit finding made in relation to applicant – general damages awarded but aggravated damages refused

Legislation: Australian Broadcasting Corporation Act 1983 (Cth) Evidence Act 1995 (Cth) s 126K, 191 Freedom of Information Act 1982 (Cth) 37(1)(a), 93A Civil Wrongs Act 2002 (ACT) s 139AA Criminal Code Act 1899 (Qld) s 377, 377(8) Defamation Act 1957 (Tas) s 16 Defamation Act 2005 (NSW) Pt 4 Div 3, ss 4, 4(1), 4(2), 8, 10A(1), 29A, 29A(1), 29A(1)(a), 29A(1)(b), 29A(2), 29A(3)(a), 29A(3)(b), 29A(3)(c), 29A(3)(d), 29A(3)(e), 29A(3)(g), 29A(3)(h), 29A(3)(i), 33, 34, 35(1), 35(2), 35(2A), 35(2B), 35(3), 39 Defamation Act 2005 (Qld) s 29A Defamation Act 2005 (SA) s 27A Defamation Act 2005 (Tas) s 29A Defamation Act 2005 (Vic) s 29A Defamation Amendment Act 2020 (NSW) sch 1, cll 6, 27 Defamation Act 1889 (Qld) (repealed) ss 17(c), 17(d), 17(e) Defamation Act 1901 (NSW) (repealed) Defamation Act 1912 (NSW) (repealed) s 30 Defamation Act 1958 (NSW) (repealed) Defamation Act 1974 (NSW) (repealed) s 3(b), 22, 22(2A), 22(2A)(c), 22(2A)(d), 22(2A)(f), 22(2A)(g), 22(2A)(h), 30, 30(3), 30(3)(b), 30(3)(c), 30(3)(d), 30(3)(e), 30(3)(g), 30(3)(h), 30(3)(i) Defamation Act 1957 (Tas) (repealed) s 15(b) Defamation (Amendment) Act 1909 (NSW) (repealed) s 6 Defamation Act 2013 (UK) ss 1, 4, 4(3), 4(4), 4(6) Human Rights Act 1998 (UK) Slander & Libel Act or Injuries to Character Act 1847 (repealed) European Convention for the Protection of Human Rights and Fundamental Freedoms opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 June 1952)