A potentially defamatory “Australian” article
In February 2019, The Australian published several online and print versions of an article entitled “NDIS provider did time for fraud“.
The articles described Ms. McPhee, an individual with previous fraud convictions. The article explained that Ms. McPhee was the current “chief” of a Registered Service Provider for the NDIS (National Disability Insurance Scheme) (“the Provider”). That Registered Service Provider was the subject of complaints made by the mother of a disabled individual.
The complaints accused The Provider of improper and fraudulent activity. For example, it was accused of claiming full cancellation fees from appointments contrary to NDIS rules.
Mr. Olesen’s Potential Defamation Claim
Crucially, the article then stated:
“The company, which Ms McPhee runs alongside her daughter and co-director Kahli Olesen, 24 and Kahli’s husband, Michael Olesen, 27, was found to be charging full cancellation fees for appointments even if they were told before 3 pm the day before, contrary to rules set out by the National Disability Insurance Agency.” (emphasis added)
Mr. Olesen considered the article defamatory, by virtue of injuring his reputation by suggesting his involvement with The Provider’s fraudulent conduct. Mr. Olesen brought proceedings against Nationwide News Pty Ltd (The Australian’s publisher).
Represented by O’Brien Criminal and Civil Solicitors, Mr. Olesen claimed damages for defamation. His argument was that The Australian’s article had injured his reputation.
What’s in a defamatory Imputation?*
The law of defamation revolves around meanings conveyed by publications, and how they injure a person’s reputation. These meanings are termed “imputations“. This is in the sense that defamatory material “imputes”, i.e. asserts or attributes an act or condition to an individual.
When commencing his action, Mr. Olesen argued that The Australian‘s article contained several defamatory imputations. He argued that the article imputed that he ran the Provider with Ms. McPhee, that said Provider was guilty, or only could reasonably suspected as guilty, of:
- fraudulent conduct
- defrauding a disabled client by deliberately charging the client for cancelled appointments
- engaging in improper behaviour, contrary to the rules of the NDIS.
Nationwide News Objects to Mr. Olesen’s Claim
As is somewhat standard in defamation proceedings, Nationwide News objected to the imputations articulated by Mr. Olesen on two grounds:
- first, that the imputations were not reasonably capable of sustaining an action for defamation. This was argued on the basis that the article imputed fraudulent conduct to Ms McPhee and the company, but not specifically by Mr. Olesen.
- second, that imputations as plead were “insufficiently precise”, as they did not identify specific acts by Mr. Olesen that amounted to the imputed fraudulent and defrauding conduct.
Accordingly, Nationwide News argued that Mr. Olesen’s pleadings should be struck out, as they disclosed no reasonable action in defamation.
Court Rejects Nationwide News’ Objections
The NSW District Court rejected Nationwide News’ objections. In doing so Justice Gibson considered that an ordinary reasonable reader, and thus a potential member of the jury, could sensibly think that the imputations were defamatory.
What Would an Ordinary Reader Think?
The State of NSW often conducts defamation trials with juries. These juries act as “Tribunals of Fact”, determining whether the communications in question are indeed defamatory.
As such, the question in Olesen for Her Honour was not whether the article was or was not defamatory. That determination was for the jury to decide. The question was whether the article had the capacity to be found defamatory. Should the case go to the jury in the first place, or would it be a waste of the parties’ costs and the legal system’s time to do so?
As the Judge noted, the test of capacity is one of “generosity, and not of parsimony”. The ordinary reader “does not live in an ivory tower”, and “can and does read between the lines of his general knowledge and experience”.
As such, the question for the Court was: what would an ordinary reader sensibly think the article meant? Would they think that the Provider’s fraudulent conduct was undertaken solely by Ms. McPhee, or by Mr. Olesen as well?
A Sufficiently Clear “Defamatory Sting”
Her Honour accepted that, given the manner and context in which the article presented Mr. Olesen’s name, the ordinary reader might sensibly consider that Mr. Olesen was a member of “a group of wrongdoers” running the Provider. In this way, the article cast sufficiently intense suspicion on Mr. Olesen as a potential wrongdoer. It was imputing conduct to Mr. Olesen that contained a potentially “defamatory sting”.
Additionally, Justice Gibson did not consider the imputations pleaded as lacking specificity. The judge considered that the article “bristle[d]…with hints of wrongdoings”, containing a very generalised hint of “misconduct” by those “running” the company. Accordingly, Mr. Olesen’s pleadings were sufficiently specific. As Her Honour stated, “it is not necessary for there to be a greater specificity where the language is so general”.
Mr. Olesen’s Defamation Matter to Proceed
As such, The Court considered the “imputations” in The Australian‘s article had the capacity to sustain an action for defamation. The question of whether The Australian’s article indeed defamed Mr. Olesen remained live in that it was a question of fact to be determined by a jury. Mr. Olesen’s pleadings were not struck out, and his matter could successfully proceed.
The judgement in its entirety is available here.
*Discussion of aspects of the law of defamation is taken from Halsbury’s Laws of Australia, in chapters written by Dr. David Rolph, Senior Lecturer for the Faculty of Law at The University of Sydney. He is a frequent contributor to the The Conversation.
O’Brien Criminal and Civil Solicitors are able to pursue your possible defamation claim anywhere in Australia. Please don’t hesitate to contact us today on 02 9261 4281 or by email at