The plaintiff. Photo courtesy of www.framptons.com.au
The plaintiff was a real estate agent in Alice Springs who operated under the name First National Real Estate Framptons. He was also the Southern regional representative of the Real Estate Institute of the Northern Territory. The self-represented defendants were the publishers of the Alice Spring News. The first defendant being the director and journalist who wrote the article in question and appeared at the trial. On 2 September 2010, he wrote this:
“Real Estate Institute silent on role of Framptons boss as probes by police & govt board continue. By Erwin Chlanda The Real Estate Intitute of Northern Territory Inc (REINT) has failed to respond to three enquiries from the Alice Spring News about whether David Forrest has been stood aside as the organization’s southern region representative, Mr Forrest is a principal of Framptons First National Real Estate which is the subject of a fraud investigation by the police and an enquiry by the NT Government’s Agents Licensing Board ,http://www.alice-springsnews.com.au/1720.html.. The probes follow the collapse of Carey Builders, causing losses estimated in the millions to several home buyers in Alice Springs. Framptons had close links with the failed company, promoting its services and offering performance and completion guarantees, according to documents provided to the Alice Springs News by the home buyers. ….. Framptons, after initially providing information, have told the Alice News they will not comment further on matters relating to Carey Builders and their responsibilities towards their clients.”The plaintiff sued and claimed the following imputations arose from the article:
- He has behaved in such a way as principal of First National Real Estate Framptons as to deserve to be stood aside as southern region representative of the Real Estate Institute of Northern Territory Inc;
- He is suspected by police of having engaged in fraud as principal of First National Real Estate Framptons;
- He has conducted the business of First National Real Estate Framptons in such a way as to allow it to be suspected by police of engaging in fraud.
The defendants asserted defences of honest opinion, qualified privilege and contextual truth.
Justice Kelly found that the article carried the imputations and then in respect of the defences, found against the defendants on all counts. Their main problem was that Framptons simply were not, and had never been, the subject of a fraud investigation by the NT Police. Not a good start for the journalist. Also the Judge concluded the following:
- The defendants failed to prove that there were reasonable grounds to enquire into the possibility of fraud on the part of the First National Real Estate Framptons;
- The facts on which the opinions were based were not true. Namely, not only that Framptons were not the subject of a fraud investigation by the NT Police, but nor were they subject of an enquiry by the Agents’ Licensing Board;
- The qualified privilege defence could not succeed because the defendants had not acted reasonably. Chlanda had admitted in evidence that he simply assumed, without checking, that Framptons were under investigation by police for fraud and he took no steps to verify those suspicions with the police.
In assessing damages, Kelly J found that the plaintiff was entitled to aggravated damages, by reason of the defendant’s conduct since the publication. That conduct was this:
- The defendants refused to withdraw the publication from its website;
The defendant
- The defendants contended that it was sufficient that at a later time, they properly hyperlinked the article to another article where it was stated that Framptons were not under police investigation and never had been under police investigation (when the defendants found out that this was actually the case).
- Nevertheless, the defendants wrote on their website that there would be: “further evidence of a fraud investigation into Framptons, and not just into Mr Carey.”
- In evidence, Chlanda admitted that he still believed that the police were investigating Framptons for fraud, even though he had been assured by the police that they were not and never had been.
So the plaintiff emerged victorious. The circulation of the paper was 11,500 and online viewers were estimated at 12,000 per month. The plaintiff’s damages were awarded at $100,000 plus interest, although the judge did not specifically identify any amount for aggravated damages. As for Mr Chlanda, well he might now be reconsidering the merits of his decision to represent himself.