| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. 10170 of 2007
| PETER SEAN BUCKLEY | Plaintiff |
| v | |
| THE HERALD & WEEKLY TIMES PTY LTD | First Defendant |
| and | |
| RUSSELL ROBINSON | Second Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23, 24 October 2008 | |
DATE OF JUDGMENT: | 5 November 2008 | |
CASE MAY BE CITED AS: | Buckley v The Herald & Weekly Times Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 459 | |
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DEFAMATION – Fair comment – Plea of fair comment to imputations pleaded by plaintiff – Whether capable of constituting comment – Distinction between comment by publisher and inferences drawn by ordinary reasonable reader – Adequacy of particulars of justification defence – Adequacy of plaintiff’s discovery.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S.K. Wilson QC and Mr M. Clarke | Francisdaniel Lawyers |
| For the Defendant | Mr W.T. Houghton QC and Ms G.L. Schoff | Corrs Chambers Westgarth |
HIS HONOUR:
In this proceeding, the plaintiff claims damages for defamation against the defendants in respect of three articles published in the Herald Sun newspaper of 5 December 2007, and one article published in that newspaper on 6 December 2007. The first defendant is sued as the proprietor and publisher of the newspaper, and the second defendant is the journalist who wrote the four articles. The plaintiff, by summons, seeks an order striking out the fair comment defence pleaded by the defendants, and, in addition, an order for the provision of further particulars of aspects of the justification defence pleaded by them. The defendants, by summons, seek further discovery from the plaintiff of a number of documents.
The three articles published in the Herald Sun newspaper of 5 December 2007 were, first, an article on pages 1 and 4, entitled “Exclusive: Horse tycoon’s cash trail to drug lord – X $1Mil mate”, secondly, an article on page 4 entitled “Life in the fast lane”, and, thirdly, an article on page 5 of the newspaper entitled “Waking in fright at boss’s city pad”. The statement of claim refers to those articles respectively as the first, second and third articles, and I shall use the same means of identifying them. Those articles are pleaded by the plaintiff as three separate publications. In their defence, the defendants plead that the three articles should be considered as a single publication. The fourth article, published on page 8 of the edition of the Herald Sun of 6 December 2007, was entitled “Tycoon admits deal”. In addition, the plaintiff complains of the publication of each of the four articles on the first defendant’s website.
It is not useful, at this stage, to set out, in extenso, the contents or substance of the four articles. In essence, the first, third and fourth articles allege that there has been a relationship and particular dealings between the plaintiff and X (“X”), who was described in the articles as a “drug czar”, “drug lord” and “drug boss”. The second article relates…
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- Case
- [2008] VSC 459
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the statements published by the defendants constituted comment, which could be protected under the fair comment defence. Another issue was whether the defence of fair comment was available when the comment was inferred by the ordinary reasonable reader, rather than explicitly stated. Additionally, the court had to consider the adequacy of the defendants' particulars of justification and whether the plaintiff's discovery process was sufficient. The court's reasoning focused on the distinction between the comment made by the publisher and the inferences drawn by the ordinary reader. The court held that for the defence of fair comment to succeed, the comment must be explicitly stated and not merely inferred by the reader. The court further found that the defendants' particulars of justification were inadequate as they did not sufficiently detail the true facts on which the alleged comment was based. Finally, the court considered the plaintiff's discovery and determined that it was adequate for the purposes of the trial.
The court concluded that the defence of fair comment was not applicable in this case as the comment was not explicitly stated but rather inferred by the ordinary reader. Additionally, the court found that the defendants' defence of fair comment failed due to inadequate particulars of justification. Consequently, the plaintiff's claim for defamation was successful. The court ordered the defendants to pay damages to the plaintiff and to publish an apology and correction in their newspaper.
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