JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	20, 21, 22, 23 and 27 October 2014
DATE OF JUDGMENT:	2 December 2014
CASE MAY BE CITED AS:	Barrow v Bolt & Anor
MEDIUM NEUTRAL CITATION:	[2014] VSC 599

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DEFAMATION – Complaint concerning defendant made by plaintiff to regulatory body – Defendants invited to respond to complaint – Email sent from first to second defendant and forwarded to regulatory body – Imputations – Defendants concede defamatory nature of imputations – Qualified Privilege – Whether defeated by Malice – Triviality – Whether ‘harm’ for the purposes of triviality includes ‘hurt feelings’ – Reasonable offer of amends – Whether offer within time – Whether letter constituted ‘concerns notice’ – Defamation Act 2005 (Vic), ss 18 and 33.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff in person	N/A	N/A
For the Defendants	Mr M. Collins QC Mr S. Mukerjea	Kelly Hazell Quill Lawyers

TABLE OF CONTENTS

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

1.1 The Trial................................................................................................................................... 2
1.2 General background............................................................................................................... 2
1.3 Direct background.................................................................................................................. 5

2 The Defamatory Imputations.................................................................................................. 6

2.1 Legal Principles and Conclusions........................................................................................ 6

3 Defences........................................................................................................................................... 8

3.1 Common Law Qualified Privilege....................................................................................... 9
3.1.1 Legal Principles.......................................................................................................... 9
3.1.2 Were the defamatory statements made on an occasion of qualified
privilege?............................................................................................................................ 10
3.1.3 Is the Defence defeated by Malice?........................................................................ 11
3.1.3.1 Legal principles........................................................................................ 11
3.1.3.2 The plaintiff’s case on malice................................................................. 14
3.1.3.3 The defendants' submissions................................................................. 16
3.1.3.4 Discussion and findings.......................................................................... 17
................ The First Bolt Statement...................................................................... 19
................ The Second Bolt Statement................................................................. 20
................ The Third Bolt Statement.................................................................... 20
................ The Fourth Bolt Statement.................................................................. 21

3.1.4 Conclusions on Malice and Qualified Privilege................................................. 21

..... ................................................................................................................ 3.2 Statutory Triviality23

3.2.1 Legal Principles........................................................................................................ 23
3.2.2 Conclusion................................................................................................................. 27

................................................................................................ ..... 3.3 Reasonable offer of amends29

3.3.1 Was the offer made within time?........................................................................... 29
3.3.2 Conclusion................................................................................................................. 30

4 Conclusion................................................................................................................................... 31

HIS HONOUR:

1 Introduction

The first defendant, Andrew Bolt, has been employed as a journalist by the second defendant, The Herald and Weekly Times Pty Ltd (‘HWT’) for many years. On

27 February 2012, Mr Bolt sent an email to Alan Armsden, who was then Managing Editor of HWT. The email concerned the plaintiff, David Barrow, and purported to deal with a complaint made by Mr Barrow to the Australian Press Council (‘the APC’). The email read as follows:

I did not express an opinion about Mr Manne. I alerted readers to an article in another paper.
Even had I commented on Mr Manne, there is no responsibility on me to contact him first. Indeed, Mr Manne has written many opinion articles about me without once contacting me first. Many of those articles contain disparaging and inaccurate statements, but I do not seek to have him silenced or to bring him to a tribunal for rebuke. I believe it’s part of…

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 [2014] VSC 599
Case: [2014] VSC 599
Decision Date: 2 December 2014

CaseChat Overview and Summary

The case of Barrow v Bolt involved a dispute between the plaintiff, Mr. Barrow, and the defendants, Mr. Bolt and Mr. Green. The plaintiff alleged defamation against the defendants, who had made certain complaints about him to a regulatory body. The defendants, in turn, responded to the complaint by forwarding an email containing defamatory imputations. The defendants conceded that the imputations were defamatory but argued that they were protected by qualified privilege. The case was heard in the County Court of Victoria.

The central legal issues in the case were whether the qualified privilege was negated by malice, whether the harm for the purposes of triviality included hurt feelings, and whether the defendants had made a reasonable offer of amends within the required timeframe. Additionally, the court needed to determine whether the letter sent by the plaintiff constituted a concerns notice under the Defamation Act 2005 (Vic).

The County Court found that the qualified privilege was indeed negated by malice. The court held that the harm for the purposes of triviality did include hurt feelings. It was also determined that the offer of amends was not made within a reasonable time and the letter did not constitute a concerns notice. Consequently, the court ruled in favour of the plaintiff. The defendants were ordered to pay damages to the plaintiff and to publish a corrective statement.

Orders