FARRAH ARSENIA AGUSTIN-BUNCH	First Plaintiff
DRF LLC	Second Plaintiff
v
ADAM CHARLES SMITH	First Defendant
DOC ADAM PTY LTD (ACN 636 853 177)	Second Defendant

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 March 2022
DATE OF JUDGMENT:	6 June 2022
CASE MAY BE CITED AS:	Agustin-Bunch v Smith (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 290

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DEFAMATION – Pleadings – Defences – Truth – Form – Failure to identify permissible variants for truth defence and to particularise imputations for contextual truth defence.

DEFAMATION – Pleadings – Defences – Honest opinion – Failure to identify how particulars of truth related to comments defended as honest opinion and how it is contended that the particulars may be relied on as proper material on which to base the opinion.

PRACTICE AND PROCEDURE – Application to strike out parts of defence – Application for leave to file proposed further amended defence – Leave refused as defence affected by extensive and confusing cross-referencing that rendered pleading embarrassing – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 23.02.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J Castelan with Ms E Tadros	Armstrong Legal
For the Defendants	Mr A Anderson	Mills Oakley

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

The pleaded defamation defences.................................................................................................. 2

Relevant Principles............................................................................................................................ 5

Truth................................................................................................................................................ 5
Honest opinion.............................................................................................................................. 7
Contextual truth.......................................................................................................................... 11

Plaintiffs’ general submissions..................................................................................................... 13

Truth defence............................................................................................................................... 13
Honest opinion defence............................................................................................................. 19
Contextual truth.......................................................................................................................... 20

Defendants’ general submissions................................................................................................. 20

Analysis.............................................................................................................................................. 20

Truth.............................................................................................................................................. 20
Honest opinion............................................................................................................................ 26
Contextual Truth......................................................................................................................... 29

Conclusion......................................................................................................................................... 34

HIS HONOUR:

Introduction

The plaintiffs by writ seek damages, a permanent injunction restraining the defendants from publishing certain material, and a mandatory injunction for the removal of certain publications from the internet that they allege are defamatory. The second plaintiff (‘DRF’) also seeks damages pursuant to s 236 of the Australian Consumer Law (‘ACL’),[1] contending that the defendants had engaged in misleading or deceptive conduct in contravention of s 18 of the ACL.
[1]Competition and Consumer Act 2010 (Cth) sch 2.

On 12 April 2021, I refused the plaintiffs’ application for an interlocutory injunction restraining the defendants from publishing or causing to be published in any form, or maintaining online for download, or uploading so as to make available for publication online:

(a) 15 specific videos;

(b) hyperlinks to a Facebook group described by the plaintiffs as the ‘Dr Farrah Hate Page’;

(c) certain Facebook and Instagram posts;

(d) the imputations and representations set out in nominated paragraphs of the plaintiffs’ statement of claim; and

(e) any matter of and concerning the plaintiffs to the same purport or effect as any of the publications referred to.

That application was limited to seven defined videos, although publications by certain Facebook and Instagram posts are pursued in the proceeding.

Some background details about the dispute between the parties, including the allegations…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Agustin-Bunch v Smith (No 2)

Details

AGLC: Agustin-Bunch v Smith (No 2) [2022] VSC 290
Case: [2022] VSC 290
Decision Date: 6 June 2022

CaseChat Overview and Summary

In the case of Agustin-Bunch v Smith (No 2), the plaintiff sought to recover damages for defamation against the defendant. The dispute centred on the defendant's alleged defamatory statements published in various forms of media. The case was heard in the County Court of Victoria. The primary issues before the court were whether the defendant's defences of truth and honest opinion were adequately pleaded and whether the court should grant leave to amend the pleadings to address perceived deficiencies.

The court had to determine if the defendant's plea of truth was properly formulated. The defence needed to specify the permissible variants of the alleged defamatory statements to effectively assert the truth defence. Additionally, the court examined whether the defendant had sufficiently identified the imputations from the words complained of to allow the application of the contextual truth defence. Furthermore, the court considered whether the defendant had adequately connected the particulars of truth to the comments defended as honest opinion, ensuring that these particulars could be properly relied upon as a basis for the opinion.

The court found that the defendant's defences were inadequately pleaded. The court held that the truth defence was flawed due to the failure to identify permissible variants and the contextual truth defence was similarly deficient for not particularising the imputations. The court also noted that the honest opinion defence was not properly linked to the particulars of truth. Consequently, the court refused the plaintiff's application to strike out parts of the defence and the defendant's application for leave to file a further amended defence, citing that the defence was rendered confusing and embarrassing due to extensive cross-referencing. The court's decision was made under the Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 23.02, which governs applications to strike out parts of pleadings.

Orders