Barrow v The Herald & Weekly Times Pty Ltd - [2015] VSC 263

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2015 01281

DAVID CHARLES BARROW	Plaintiff
v
THE HERALD & WEEKLY TIMES PTY LTD (ACN 004 113 937)	Defendant

---

JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 June 2015
DATE OF JUDGMENT:	12 June 2015
CASE MAY BE CITED AS:	Barrow v The Herald & Weekly Times Pty Ltd
MEDIUM NEUTRAL CITATION:	[2015] VSC 263

---

DEFAMATION – Pleadings – Online article about Supreme Court case - Imputation – Whether article is capable of conveying meaning relied upon - No reasonable prospect of success in establishing article conveys plaintiff’s asserted imputation – Consideration of defence of fair report of proceedings of public concern pursuant to Defamation Act 2005 (Vic) s 29.

PRACTICE AND PROCEDURE – Summary judgment application – No real prospect of success – Granted - Civil Procedure Act 2010 (Vic) ss 62, 63 and 64.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The plaintiff appears for himself
For the Defendant	Dr M J Collins QC and Mr S Mukerjea	M+K Lawyers

HIS HONOUR:

Introduction

During the running of a defamation trial in October 2014[1] in which the plaintiff in this proceeding, David Barrow, was the plaintiff, and the defendant in this proceeding, The Herald and Weekly Times Pty Ltd (‘HWT’), was the second defendant, HWT published an online report about the case. In this proceeding Mr Barrow claims that the article published by HWT about that proceeding defamed him.
[1]The proceeding number is S CI 2012 02412, and the reasons are Barrow v Bolt [2014] VSC 599 (2 December 2014). The reasons for the appeal are Barrow v Bolt [2015] VSCA 107 (21 May 2015).

HWT has applied for summary judgment on the ground that the Mr Barrow’s claim has no real prospect of success,[2] and it is that application I am now to decide.
[2]Civil Procedure Act 2010 (Vic) s 62 (‘CPA’).

The article appeared early in the afternoon (1:36pm) on 20 October 2014 — the first day of the earlier trial. Under the heading ‘Supreme Court judge reluctantly gives green light to catastrophically expensive Bolt defamation case’, the article stated as follows:

A SUPREME Court judge has reluctantly proceeded with a ‘catastrophically expensive’ defamation trial against Herald Sun columnist Andrew Bolt that centres on an email sent to two people.
Former ALP member turned failed Family First candidate David Barrow launched the action two years ago claiming he was defamed when Mr Bolt branded him a vexatious litigant in an email sent to his boss and then the Press Council.
The matter, which has already run up large legal fees, has made it to trial, but not before Judge [sic] Terence Forrest made a last ditch effort to have the case mediated.
Barrow claims Mr Bolt maliciously defamed him in the email because of his long-time criticism of the columnist.

In this proceeding, Mr Barrow alleges that in its natural and…

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.

Keep reading for free

Create a free CaseChat account to read Barrow v The Herald & Weekly Times Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] VSC 263
Decision Date: 12 June 2015

CaseChat Overview and Summary

Barrow brought an action against The Herald & Weekly Times Pty Ltd, the publisher of The Herald Sun, claiming defamation in relation to an online article published by the defendant. The article concerned a case in the Supreme Court in which Barrow was involved, and the plaintiff contended that the article defamed him by implying he was guilty of contempt of court. The defendant applied for summary judgment on the basis that the plaintiff had no real prospect of success. The court was required to consider whether the article was capable of conveying the imputation the plaintiff asserted, and whether the defence of fair report of proceedings of public concern was available.

The court found that the plaintiff had failed to establish that the article was capable of conveying the imputation of contempt of court. The court held that the article was a fair and accurate report of the proceedings, and that the imputation relied upon was not reasonably capable of being conveyed by the article. The court also found that the defence of fair report was available, as the article was a fair and accurate report of the proceedings and was published in the public interest. The court held that there was no real prospect of the plaintiff succeeding in establishing that the article conveyed the imputation of contempt of court, and that the defendant was therefore entitled to summary judgment.

The court granted the defendant’s application for summary judgment. The court held that the plaintiff had no real prospect of success in establishing that the article was capable of conveying the imputation of contempt of court, and that the defence of fair report of proceedings of public concern was available to the defendant. The court dismissed the plaintiff’s claim with costs.

Orders