Allan v The Migration Institute of Australia Limited [2012] NSWSC 42

Supreme Court New South Wales

Medium Neutral Citation: Allan v The Migration Institute of Australia Limited [2012] NSWSC 42 Hearing dates: 11 May 2011 Decision date: 07 February 2012 Before: McCallum J Decision: Defendants ordered to provide further particulars of defence Catchwords: DEFAMATION - defences - honest opinion - qualified privilege - adequacy of particulars Legislation Cited: Defamation Act 2005 Migration Act 1958 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Haddon v Forsyth [2010] NSWSC 123 Kemsley v Foot [1952] AC 345 Sims v Wran [1984] 1 NSWLR 317 Texts Cited: Tobin & Sexton, Australian Defamation Law and Practice Category: Interlocutory applications Parties: Liana Justine Allan (plaintiff) The Migration Institute of Australia Limited (first defendant) Representation: Counsel A Henskens (for the plaintiff) D P O'Dowd (for the defendants) Solicitors Christopher Levingston & Associates (for the plaintiff) Moray & Agnew (for the defendants) File Number(s): 2011/25235 Publication restriction: None

Judgment 1HER HONOUR: These are proceedings for defamation arising out of the publication of an item in an email newsletter distributed by The Migration Institute of Australia Limited (the Institute). The newsletter was distributed to the members of the Institute, who are mostly registered migration agents or solicitors practising in the field of migration. 2Any person providing immigration assistance in Australia must be registered as a migration agent under the Migration Act 1958 (Cth). The statutory authority responsible for the registration of migration agents is the Migration Agents Registration Authority, known as MARA. The office of the authority is commonly referred to as OMARA. One of the requirements of registration of migration agents is that they undertake continuing professional development (CPD). 3The article sued on by the plaintiff appeared under the heading "Scare Marketing on MARA CPD Framework". It responded to "recent marketing statements" made by the plaintiff, Ms Liana Allan. Ms Allan is a director of Migration Training Australia Pty Limited, a company which competes with the Institute in the business of providing professional development seminars to migration agents. 4The proceedings are brought against the Institute and its Chief Executive Officer, Ms Maureen Horder. 5Apart from denying that the article was defamatory of the plaintiff, the defendants have pleaded substantive defences of honest opinion under s 31 of the Defamation Act 2005, qualified privilege under s 30 of the Act and the defence of triviality under s 33 of the Act. A series of disputes has arisen between the parties as to the adequacy of the particulars provided in support of those defences. This judgment determines those disputes. 6The matter complained of is in the following terms: Scare Marketing on MARA CPD Framework Recent marketing statements by Migration Training Australia (MTA) Director Liana Allan about CPD changes should not be heeded. The Institute recently attended a forum with MARA staff and all CPD providers and can report it is untrue that any final changes have been decided. The tactics used by this commercial organisation are simple marketing ploys. "These statements are inappropriate and unprofessional," said Institute CEO Maureen Horder. "It is quite contrary to the values of the Institute to fear monger about changes to CPD requirements." Members can be assured the Institute will keep them updated on any changes to their CPD requirements. The MARA has released a set of FAQ's and answers in response to this erroneous campaign. 7The plaintiff alleges that the article conveyed the following imputations defamatory of her: (a) that the plaintiff acted unscrupulously by engaging in scare marketing for MTA, of which she is a director; (b) that the plaintiff made false statements to migration agents about changes to CPD rules; (c) that the plaintiff has acted inappropriately in making statements about CPD requirements; (d) that the plaintiff acted unprofessionally in making statements about CPD requirements; (e) that the plaintiff made false statements about CPD requirements as a marketing ploy to benefit MTA, an organisation of which she is a director; (f) that the plaintiff has engaged in fear mongering; (g) that the plaintiff has acted contrary to the values of the Institute. 8The defendants do not appear to have raised any preliminary issue in respect of those imputations. It ought nonetheless be noted that it seems doubtful whether imputation (g) is capable of being defamatory. Further, as to some of the imputations, the plaintiff should indicate whether they are relied upon as alternatives, as it appears they may be (see imputations (a) and (f); (b) and (e)).