Couple pulls out of legal spat with ABC’S Foreign Correspondent

An American couple suing the ABC, who were unable to prove they could pay damages if they lost, have had their case thrown out of court.

An American couple suing the ABC, who were unable to prove they could pay damages if they lost, have had their case thrown out of court.

Stay-at-home father Matthew Etnyre and film producer Irmgard Pagan launched defamation proceedings against the public broadcaster in August last year, claiming an episode of Foreign Correspondent defamed them by inferring they “heartlessly abandoned” their surrogate child at a Ukrainian orphanage.

The program, Motherland, showed their baby girl — whose biological father was Mr Etnyre — was carried by a Ukrainian surrogate and born prematurely with a “range of disabilities” at 25 weeks.

Justice Abraham dismissed the case, ordering the couple to pay ABC’s court costs. Picture: NCA NewsWire/Joel Carrett

In a judgment on June 7, 2021, Federal Court Justice Wendy Abraham QC said the couple’s case was “far from clear cut” and there were real issues they faced proving the defamation claim.

Notably, she said there was “merit” in the ABC proving a defence of truth, from admissions made by the pair in court and a sworn statement they wrote in 2016 to the company in Ukraine.

She ordered the couple to prove they could afford to continue the case by lodging $100,000 in security.

On Tuesday, Stewart O’Connell told the court his overseas clients were not able to come up with the cash.

“My clients are in a position where they are unable to raise the security for the matter to continue,” Mr O’Connell told the court.

“They did want to continue the proceeding but unfortunately they could not raise the security.”

The pair previously told the court they could come up with the damages if they lost, but it might take them a while to pay.

He asked Justice Abraham to dismiss ordering costs be paid, conceding his clients could not afford to pay The ABC’s court fees.

But, ABC’s barrister Lyndelle Barnett told the court there was “no reason The ABC should be deprived of their costs” of defending the case.

Justice Abraham agreed, dismissing the case and ordering Mr Etnyre and Ms Pagan to pay ABC’s court costs.