The Federal Court of Australia has sent Nauru justice minister David Adeang’s defamation case against the ABC back to the drawing board, with the ABC paying the majority of Adeang’s costs.

In a judgment released Monday morning, Federal Court Judge Stephen Rares gave Adeang leave to add a number of imputations to the case, after the ABC filed a defence of contextual truth against some of the earlier imputations filed.

The case revolves around a February 23 Lateline report, during with the ABC explored circumstances around the death of Madelyn Adeang, who burnt to death in the garden of her home in April 2013. It’s claimed she was carrying a bucket of petrol that accidentally caught fire.

According to Adeang’s statement of claim, filed in June, he initially alleged the program had claimed he had obstructed justice over the investigation of his wife’s death, had the commissioner of police removed, had the resident magistrate deported to prevent a proper investigation, and cancelled the visa of the chief justice to prevent an investigation from going ahead.

The ABC said the report did not carry those meanings but said the program did allege that he systematically violated the principles of democracy and the rule of law, and that and he obstructed justice in Nauru — a defence known as contextual justification. In response, Adeang on August 8 sought to amend his statement of claim to add four additional imputations: that he behaved in such a way as to “deserve to be reasonably suspect of an involvement in the unlawful killing of his wife”, that he “behaved in such a way as to deserve to be reasonably suspected of the murder of manslaughter of his wife”, that he “acted corruptly as the justice minister of Nauru by covering up the unlawful killing of his wife”, and that he “acted corruptly as the justice minister of Nauru by covering up his own role in the death of his wife”.

The ABC argued at a hearing that its broadcast was incapable of conveying several of the new imputations. Yesterday’s judgment examined the issue and gave Adeang leave to add the first two imputations to the case, which would allow the court to examine whether the broadcast made the defamatory imputations that he could be reasonably suspect to the unlawful killing of his wife, and that he had behaved in such a way as to be suspected of using his power as justice minister to cover it up.

Rares’ judgment says:

“Although [reporter Ginny] Stein said (in par 35) part way through the broadcast that it was ‘not suggested that David Adeang was involved in the death of his wife’, the thrust of the matter complained of was capable of conveying that there was good reason to suspect that he was. The broadcast told the viewer that neighbours had heard a male and female having had a heated argument just prior to Mrs Adeang’s death in the couple’s garden and that Mr Adeang had not given a statement to police, that his whereabouts at the time of the death were not known and that although the former Chief Justice said that there should have been an inquest (par 34), at which the viewer was invited to think Mr Adeang would be required to answer questions, he, the Minister for Justice, could, and had removed, any official who might try to hold him to account (par 8). The viewer could also consider that the former coroner, Mr Law, was saying that Mr Adeang had spoken to witnesses about what they had then told the police (pars 28-30).”

“Thus, the matter complained of was capable of being understood by the ordinary reasonable viewer as suggesting that Mr Adeang should be looked at with suspicion or that he had something to hide in connection with his wife’s death.”

The judge struck out one of the ABC’s contextual truth defences as being untenable but allowed it to continue to defend the case on the basis of the other imputation, that Adeang obstructed the administration of justice on Nauru. That does not mean that the ABC has won on that point, but that it can continue its defence on that basis.

Adeang has until October 17 to file an amended statement of claim with the new imputations, while the ABC has until November 22 to respond.”Although each party had a measure of success,” the judgment reads, on balance it ruled that the ABC pay two thirds of the costs of Adeang’s interlocutory application.

Peter Fray

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