Voelte v Australian Broadcasting Corporation

Judgment - Ex Tempore

1. HER HONOUR: These proceedings are before the Court today for determination of the matters required to be determined at the second listing in accordance with Practice Note SC CL 4. The parties raised four issues for the Court's determination.
2. First, the plaintiff has taken objections to the contextual imputations pleaded by the defendant in an amended defence filed on 1 May 2015. The first contextual imputation objected to is A, as follows: A. The plaintiff betrayed Nexus Energy shareholders, in that he resigned as Chairman of Nexus Energy without ensuring that they were informed that a takeover offer was made by Seven Group of 5.3 cents per share and was allowed to lapse, and the subsequent acquisition of Nexus by Seven Group, of which he was CEO, rendered their shares valueless.
3. The plaintiff complains that the imputation is bad in form as it contains more than one sting and is confusing. I would accept that submission. In particular, in my view it is unclear by reason of the addition of the consequence in the second clause of the imputation precisely what act it is alleged is imputed or attributed to the plaintiff by the matter complained of. In my view, that imputation must be struck out.
4. Imputations B and C may be dealt with together. They are: B. The plaintiff's conduct in resigning as Chairman of Nexus Energy without having ensured that its shareholders were informed that a takeover offer was made by the Seven Group, but allowed to lapse, was such as to warrant complaint by Nexus shareholders to ASIC over a takeover of Nexus by Seven Group, of which he was CEO. C. The plaintiff's conduct in resigning as Chairman of Nexus Energy without having ensured that its shareholders were informed that a takeover offer was made by the Seven Group, but allowed to lapse, was such as to anger Nexus shareholders and cause them to take court action to block a takeover of Nexus by Seven Group, of which he was CEO.
5. In short, the objection to those imputations was that they add nothing to the notion of betrayal of the shareholders and, put colloquially, "jumping ship" already captured in the imputations pleaded by the plaintiff. In the case of those two imputations, whilst there may be some force in the plaintiff's objection, I think there is a slight or at least arguable difference in sense and, accordingly, I would not be inclined to strike those contextual imputations out. As I understand them, they convey the notion that the combination of the plaintiff's resignation and the circumstance that, while he remained chairman of the company, a takeover offer had remained secret and been allowed to lapse was such as to warrant, in each case, the reaction identified, namely, first the complaint by shareholders to ASIC and secondly the commencement of a Court action by the shareholders.