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Barrow v Bolt

Barrow v Bolt

Case [2015] VSCA 107 21 May 2015

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0001

DAVID CHARLES BARROW	APPLICANT
V
ANDREW BOLT	FIRST RESPONDENT
- and -
THE HERALD & WEEKLY TIMES PTY LTD (ACN 004 113 973)	SECOND RESPONDENT

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JUDGES:	ASHLEY, KAYE and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 May 2015
DATE OF JUDGMENT:	21 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 107
JUDGMENT APPEALED FROM:	Barrow v Bolt & Anor [2014] VSC 599 (T Forrest J)

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DEFAMATION — Complaint concerning first respondent by applicant to Australian Press Council — Respondents invited to respond to complaints — Email by first respondent to second respondent — Email forwarded to Council — Defamatory imputations conceded — Qualified Privilege — Whether trial judge erred in concluding that applicant had/failed to establish malice — Triviality defence — Meaning of ‘harm’ — Whether includes distress and hurt feelings — Jones v Sutton (2004) 61 NSWLR 614 discussed — Application for leave to appeal dismissed — Defamation Act 2005 s 33.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr Barrow (self-represented)
For the Respondents	Dr M Collins QC	M & K Lawyers
Mr S Mukerjea

ASHLEY JA:

I agree in the reasons of Kaye JA and with the order his Honour proposes.

KAYE JA:

The applicant seeks leave to appeal from the judgment of a judge of the Trial Division[1] dismissing the proceeding, brought by the applicant against the respondents, in which he claimed damages for defamation.
[1]Barrow v Bolt & Anor [2014] VSC 599.

The first respondent, Andrew Bolt, is a journalist employed by the second respondent, The Herald and Weekly Times Pty Ltd. He is the author of the ‘Bolt Blog’, which is accessible via a website owned and operated by the second respondent.

Between 24 November 2011 and 13 December 2011, the applicant made nine direct complaints to the respondents concerning statements made by the first respondent on his blog. Those statements by the first respondent did not relate to the applicant, but, rather, concerned matters about which the applicant was apparently concerned. The substance of the applicant’s complaints was, in some cases, that the particular item, posted by the first respondent in his blog, did not constitute fair, accurate and balanced reporting. In other cases, the applicant’s complaint was that the particular item contained a gratuitous emphasis on racial characteristics of the subject of the item. The respondents did not acknowledge, or respond to, any of those complaints. Nor did the respondents modify the particular article complained about by the applicant. On 13 December 2011, the applicant referred five of the nine complaints to the Australian Press Council (‘APC’). After the APC became involved in the matter, all of the five articles were removed from the Bolt blog by senior management of the second respondent in January 2012.

On 28 November 2011, the applicant made a separate complaint directly to the APC. That complaint concerned a blog post made by the first respondent on 29 September 2011. In…

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 Barrow v Bolt

Details

AGLC: Barrow v Bolt [2015] VSCA 107
Case: [2015] VSCA 107
Decision Date: 21 May 2015

CaseChat Overview and Summary

Barrow brought a defamation claim against Bolt in the Supreme Court of New South Wales, alleging that defamatory statements were made about him by Bolt. The case proceeded to a full hearing, but the trial judge dismissed Barrow’s claim. Barrow applied for leave to appeal the trial judge's decision, contending that the judge erred in concluding that he had not established the necessary malice and that the judge incorrectly interpreted the concept of ‘harm’ in the context of the triviality defence.

The key legal issues in this case revolved around the application of qualified privilege in defamation law, the requirement to prove malice, and the interpretation of the term ‘harm’ in the context of the triviality defence. The court had to determine whether the trial judge correctly applied these principles in dismissing the defamation claim. Specifically, the court needed to examine whether the trial judge erred in concluding that Barrow failed to prove malice and whether the judge's interpretation of ‘harm’ in the triviality defence was correct.

The court found that the trial judge correctly applied the law in relation to the elements of malice and the triviality defence. The court held that the trial judge did not err in concluding that Barrow had not established malice as required. Additionally, the court found that the judge correctly interpreted the term ‘harm’ in the context of the triviality defence, noting that ‘harm’ does not include distress and hurt feelings. The court referred to the decision in Jones v Sutton to support its interpretation. Consequently, the application for leave to appeal was dismissed.

No further orders were made by the court in this instance.

Orders