Buckey v The Herald & Weekly Times Pty Ltd - [2008] VSC 459

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…

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.

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Details

Case: [2008] VSC 459
Decision Date: 5 November 2008

CaseChat Overview and Summary

The case of Buckey v The Herald & Weekly Times Pty Ltd involved the plaintiff, Mr Buckey, suing the defendants, The Herald & Weekly Times Pty Ltd, for defamation arising from statements published in a newspaper. The nature of the dispute centred on whether the published statements were defamatory and whether the defence of fair comment was applicable. The case was heard in the Supreme Court of Victoria. The plaintiff alleged that the defendants had published defamatory statements about him in their newspaper, The Herald. These statements were said to have damaged his reputation and caused him distress. The defendants raised the defence of fair comment, asserting that the statements were based on true facts and were made in good faith for the public interest.

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.

Orders