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Cite as: Jan/Feb 2015 89 (1/2) LIJ, p.61

Hore-Lacy and contextual truth defences to claim for defamation

Setka v Abbott & Anor [2014] VSCA 287 (unreported, 18 November 2014, No S APCI 2012 0231, Warren CJ, Ashley and Whelan JJA).

This was an application for leave to appeal against a decision of a judge of the Court to refuse an application to strike out parts of the defendants’ defence to a claim for defamation.

The plaintiff pleaded a number of imputations upon which he relied, said to have been spoken by the first defendant, now Prime Minister of Australia, and republished by the second defendant at [5]:

“The plaintiff pleads that in their natural and ordinary meaning, the words were defamatory of him, and meant and were understood to mean that:

  1. the plaintiff engages in unlawful behaviour by visiting the homes of people working in the construction industry for the purpose of intimidating them;
  2. the plaintiff visits the homes of people working in the construction industry for the purpose of making demands that amount to extortion;
  3. the plaintiff is a thug in that he visits the homes of people working in the construction industry for the purpose of intimidating them;
  4. the plaintiff is a self-confessed thug who has admitted visiting the homes of people working in the construction industry for the purpose of engaging in the conduct referred to in [earlier paragraphs]”.

The defendants by their defence pleaded at [11]:

“Further, or alternatively, if the words alleged in paragraph 4 of the statement of claim were defamatory of the plaintiff then in their natural and ordinary meaning the words meant and were understood to mean that the plaintiff was a person who had engaged in:

  1. intimidation;
  2. unlawful behaviour;
  3. thuggery; and
  4. extortion”.

And in the meanings alleged, the words used were true in substance and in fact. Particulars were given.

The defence pleaded derived from David Syme & Co Ltd v Hore-Lacy [(2000) 1 VR 667.

The defendants further pleaded that if any of the words bore any of the plaintiff’s imputations, which was denied, then at [13]:

  1. “in their natural and ordinary meaning the words also meant and were understood to mean that the plaintiff was a person who had engaged in:
    1. intimidation;
    2. unlawful behaviour;
    3. thuggery; and
    4. extortion;
      (“the contextual imputations”);
  2. the contextual imputations were substantially true;
  3. the plaintiff’s imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations; and
  4. accordingly, the first defendant has a defence pursuant to s26 of the Defamation Act 2005 and corresponding uniform legislation”.

The plaintiff sought to argue that Hore-Lacy ought not to be followed even though it was an earlier decision of the Court of Appeal. Two principal arguments were advanced for these departures at [41]-[43] of the joint judgment of Warren CJ and Ashley JA:

“In our opinion, for two reasons, the submission for the plaintiff that this Court should depart from Hore-Lacy should be rejected.

“First, even if what was before the Court were an appeal, and not an application for leave to appeal from an interlocutory judgment upon an application made under r23.02(a) of ch 1 [of the Rules], this Court would only depart from one of its own previous decisions if it considered that decision to be plainly wrong. We are not persuaded that the decision in Hore-Lacy was plainly wrong. To the contrary, we respectfully consider that the majority judgments were correct.

“Second:

Intermediate appellant courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia, rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law”. [Endnotes omitted]

Hore-Lacy had been considered and applied by a number of intermediate courts. The decision was not plainly wrong. Warren CJ and Ashley JA spent some time explaining why this was so and concluded at [66]:

“The submission for the plaintiff that Hore-Lacy has led, in effect, to chaos in defamation law – if it could be decisive – does not accord with experience. The decision has produced a certain amount of interlocutory disputation in this and other jurisdictions; but not of great extent. Judges in this state have been directing juries in accordance with Hore-Lacy for more than a decade now. As we earlier noted, only one appeal from a jury verdict in all that time in this State has involved the decision, and that was a case which had unique features. Counsel did not refer us to any other relevant post-trial decision in any other state or territory”. [Endnote omitted]

Hore-Lacy was not inconsistent with s25 of the Defamation Act 2005 (Vic). The section is as follows:

“25 Defence of justification

It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true”.

Section 6(2) of the Act preserves common law defences except to the extent the Act provides otherwise expressly or by necessary implication.

Warren CJ and Ashley JA said at [108]:

“If a defendant were to be required to plead the substantial truth of all imputations – pleaded or not – which permissibly arise from a publication of defamatory matter, it would have two consequences. First, a defendant might, in effect, be put to defending as true in substance a meaning which he or she says is incapable of arising. Second, the obscurity of confession and avoidance would conceal from the plaintiff the beneficial effect of a defendant being required to identify permissible meanings upon which the defendant accepts that the plaintiff could succeed, and pleading justification to them. We reject as an adequate response to those consequences the plaintiff’s submission that, because ‘imputations’ in s25 can include (some) variants, and because a defendant can plead justification across the board, the point and utility of HL justification is subsumed by s25”.

Even if it were assumed that s25 permitted a defendant to plead justification to some only of the plaintiff’s pleaded imputations, the position would be no better (at [109]-[111]).

It followed that the plaintiff’s “exclusion by necessary implication” argument failed.

Hore-Lacy justification was preserved as part of the operation of the general law rather than as an available pleading under s25 (at [113]-[114]).` Whelan JA at [312] differed with Warren CJ and Ashley JA on this point. However, even if their Honours approach was wrong, there was every reason to conclude that Hore-Lacy justification was available under s25. Reference was made to the decision of McCallum J in Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380 which was distinguished.

Warren CJ and Ashley JA then proceeded to the question of whether the imputations pleaded by the defendants were permissible variants of the plaintiff’s imputations. They referred to New South Wales authorities. These did not support the plaintiff’s argument that it is for the judge to determine the presence or absence of a difference. It is for the judge to determine whether the imputations are capable of being held by a jury to be a variant of, not substantially different from and not more injurious than, the plaintiff’s meanings (at [163]). The jury will then decide the matter unless the judge rules against the defendant (at [190]). The judge at first instance had applied the correct test.

Their Honours dealt also with contextual truth defences in favour of the defendants.

Leave to appeal was given in relation to certain grounds argued by the plaintiff and not in others. Where leave was given, the appeal was dismissed.


PROFESSOR GREG REINHARDT is executive director of the Australasian Institute of Judicial Administration and a member of the Faculty of Law at Monash University, ph 9600 1311, email Gregory.Reinhardt@monash.edu. The numbers in square brackets in the text refer to the paragraph numbers in the judgment. The full version of this judgment can be found at www.austlii.edu.au.

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