Brose v Baluskas & Ors

[2018] QDC 214

DISTRICT COURT OF QUEENSLAND

CITATION: 

Brose v Baluskas & Ors [2018] QDC 214

PARTIES:

TRACEY ANN BROSE
(plaintiff)

v

DONNA JOY BALUSKAS
(first defendant)

and

MIGUEL BALUSKAS
(second defendant)

and

TRUDIE ARNOLD
(third defendant)

and

IAN MARTIN
(fourth defendant)

and

KERRI ERVIN
(fifth defendant)

and

LAURA LAWSON

(sixth defendant)

and

CHARMAINE PROUDLOCK
(seventh defendant)

FILE NO/S:

D148 of 2016

DIVISION:

Civil

PROCEEDING:

Application by the third, fifth and seventh defendants for leave to re-plead their defences of honest opinion.

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

31 October 2018

DELIVERED AT:

Southport

HEARING DATE:

On the papers following oral hearing on 18 May 2018.  Further written submissions on behalf of applicant third, fifth and seventh defendants filed 24 July 2018. Further written submissions on behalf of the respondent plaintiff filed 14 August 2018. 

JUDGE:

Muir DCJ

ORDER:

The third, fifth and seventh defendants’ applications are dismissed.   

CATCHWORDS:

DEFAMATION – DEFENCES – APPLICATION TO RE-PLEAD DEFENCE OF HONEST OPINION – where the third, fifth and seventh defendants’ defences of honest opinion were struck out – whether each of the defendants should be granted leave to re-plead on proposed new defences – whether defence available as a matter of law – consideration of the requirements necessary to plead statutory defence of honest opinion – whether a statement of fact or opinion – whether statement of opinion based on proper material. 

LEGISLATION:

Defamation Act 2005 (Qld), ss 21, 22, 26, 31

CASES:

Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510
Broadway Approvals Ltd v Odhams Press Ltd (No 2) [1965] 1 WLR 805
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245
D.G. Certifiers Pty Ltd & Anor v Hawksworth [2018] QDC 88
Fairfax Media Publications v Zeccola (2015) 91 NSWLR 341
Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716
Giani v Queensland Television Ltd & Ors [2015] QDC 286
Hanks v Johnstone [2015] VSC 570
Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695
The Herald & Weekly Times Pty Ltd & Anor v Buckley (2009) 21 VR 661
Jones v Skelton [1964] NSWR 485
London Artists Ltd v Littler [1969] 2 All ER 198
McEloney v Massey [2015] WADC 126
Mio Art Pty Ltd v BMD Holdings Pty Ltd & Ors [2014] QSC 55
Orr v Isles [1965] NSWR 677
Wagner & Ors v Harbour Radio Pty Ltd & Ors [2017] QSC 222

COUNSEL:

A Nelson for the applicant third, fifth and seventh defendants

H Blattman for the respondent plaintiff

SOLICITORS:

Mills Oakley for the applicant third, fifth and seventh defendants

Bennett & Philp Lawyers for the respondent plaintiff

Introduction

1. This is an application by the third, fifth and seventh defendants for leave to re-plead the statutory defence of honest opinion under s 31 of the Defamation Act 2005 (Qld). The need for such an application arises as a consequence of orders I made on 18 May 2018. On that day, after hearing a contested application by the plaintiff, I struck out a…