The ABC has sought to dismiss a defamation case by claiming an online news story attracted a handful of readers at the time a business owner sent legal warnings.
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The broadcaster is being sued by owner and former director of discount airfare booking website Bestjet, Robert McVicker, in June 2022 over claims made by the business's former owner that were repeated by the ABC News website.
Queensland-based Bestjet went into voluntary administration in December 2018, leaving travellers facing out-of-pocket expenses or cancelled flights days before Christmas.
ABC News published a story about the Bestjet collapse in January 5, 2019, and under Australian law the usual window for any person mentioned in the story to sue for defamation expired 12 months later.
Mr McVicker sent a concerns notice to the ABC in August 2021 and filed his lawsuit in June 2022, arguing the story had been republished between June 28 and 30 in 2021 as it was able to be viewed online and appeared in web search engines.
Mr McVicker claimed $250,000 in damages for economic loss as a result of the news story.
In an application to the Brisbane District Court, the ABC argued last month that the lawsuit should be dismissed as an abuse of process.
The ABC also argued that during the three-day period in 2021 nominated by Mr McVicker, the story had been viewed by just two people, one using a device in Brisbane for 10 seconds and one in Sydney for almost two minutes.
The application asserted the ABC website user from Brisbane could not have read the story about BestJet within the space of a few seconds.
Judge Nicholas Andreatidis said the identities of the two readers were unknown but the Sydney reader was connected in some way to BestJet.
"(The ABC) asserted ... there was a very limited publication and that any damages Mr McVicker may recover will be nominal and that the cost of the proceedings will be out of proportion," Judge Andreatidis stated.
Mr McVicker argued in response that the proportionality principle had no application in Queensland, and he was also seeking to restore his allegedly damaged reputation.
"The act of downloading material has been held to constitute publication for the purposes of determining both the time and place of publication of alleged defamatory matter," Judge Andreatidis said, citing a High Court decision as precedent.
In an order that did not speak to the merits of the original defamation claim, Judge Andreatidis denied the ABC a permanent stay to proceedings that would have effectively ended the case.
He did grant the ABC's application to dismiss any defamation claims Mr McVicker had filed concerning publications after July 1, 2021. That included changes and an editor's note added to the original story made in September 2021.
Mr McVicker was ordered to file an amended statement of claim and the ABC will be able to file an amended defence.
Australian Associated Press
