Carrey v ACP Publishing Pty Ltd - [1998] VSC 78

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION Do not Send for Reporting

Not Restricted

No. 6376 of 1997

JAMES CARREY Plaintiff
v

A.C.P. PUBLISHING PTY.LTD.(ACN 053 273 546) Defendant

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JUDGE: HEDIGAN, J.
WHERE HELD: Melbourne
DATE OF HEARING: 14 May 1998
DATE OF JUDGMENT: 30 September 1998
MEDIA NEUTRAL CITATION: [1998] VSC 78

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DEFAMATION - Particulars of justification - Whether properly pleaded and allowable.
DEFENCE PLEA OF 'COMMON STING' JUSTIFICATION - Polly Peck principles - Claim that meaning or sting was "psychologically unstable" - Whether open or allowable - Not open - Common sting meaning relied on too vague and meaningless.

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APPEARANCES: Counsel Solicitors
For the Plaintiff Mr. S. Wilson, Q.C. Mallesons Stephen Jaques
with Mr. T.J. Walker
For the Defendant Mr. J. Sher, Q.C. Arnold Bloch Leibler
and Mr. F. Wheelahan
CARREY v. A.C.P. PUBLISHING PTY. LTD.

HIS HONOUR:

This is yet another interlocutory dispute concerning the pleadings in this matter. Subsequent to the previous hearing primarily concerned with the defendant's particulars, and in the light of informal directions given by me, the defendant filed a further amended defence. That document led to the issuing on behalf of the plaintiff of a summons seeking to strike out a number of paragraphs of the further amended defence pursuant to r.23.02 of the Rules of this Court, alternatively, that proper particulars provided of certain named paragraphs. Before the matter came on for hearing the defendant presented a proposed second further amended defence which added to and altered the previous further amended defence. In my judgment, the alterations, while not insignificant, appear to have been connected with and part of a developing approach to the defence by the defendant. The plaintiff's written submissions oppose the granting of leave in respect of the proposed further amended defence but, ultimately, Mr Simon Wilson, senior counsel who appeared for the plaintiff with Mr T. Walker, spent no time on this technicality.
I do not propose to traverse the whole of the proposed second further amended defence (hereinafter called the defence). I have on an earlier occasion focussed on the issues raised by the plaintiff's statement of claim in this matter and my reasons for decision in respect of this summons must be read in conjunction with my earlier reasons.
A key paragraph of the plaintiff's statement of claim (paragraph 6) alleges what the words contained in the relevant article meant and were understood to mean. Para 6 is in the following terms:

"6. In their natural and ordinary meanings, the words contained in
the article meant and were understood to mean that:

(a)

the plaintiff in his personal life is crude, lewd and disgusting;

GT:SC 1

JUDGMENT

(b)        the plaintiff in his professional life deals with actresses in a crude, lewd and disgusting manner;
(c)         the plaintiff in his personal and professional life behaves offensively towards women;
(d)        the plaintiff is guilty of sexual harassment of Jennifer Tilley, Courteney Cox, Alicia Silverstone, Drew Barrymore and Courtney Love;
(e)        as a result of the…

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 Carrey v ACP Publishing Pty Ltd

Details

AGLC: Carrey v ACP Publishing Pty Ltd [1998] VSC 78
Case: [1998] VSC 78
Decision Date: 28 September 1998

CaseChat Overview and Summary

The case of Carrey v ACP Publishing Pty Ltd involved the plaintiff, Michael Carrey, suing the defendants, ACP Publishing Pty Ltd, for defamation. Carrey alleged that the defendants had defamed him in articles published in The Daily Telegraph, a newspaper owned by the defendants. The articles in question insinuated that Carrey was a psychologically unstable individual. The case was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the defendants' plea of justification was properly pleaded and allowable. Specifically, the court had to determine if the defendants' claim of 'common sting' justification was valid, in light of the principles set out in Polly Peck International plc v. BBC and Others. The defendants argued that the 'common sting' of the articles was that Carrey was psychologically unstable, which they claimed was a true statement. Carrey contended that the defendants' plea was not open because the alleged sting was too vague and lacked a meaningful basis.

The court found that the defendants' plea of justification was not open. The 'common sting' relied upon by the defendants was considered too vague and meaningless, as it did not provide a specific or precise allegation that could be substantiated. The court emphasised that for a plea of justification to be allowable, the sting must be specific enough to be capable of being proven true. The court held that the defendants' reliance on a vague and generalised sting did not meet this requirement.

As a result of the court's findings, the defendants' plea of justification was not allowed. The court did not proceed to determine whether the defendants had proven the truth of the alleged sting. Therefore, the plaintiff's defamation claim was not defeated by the defendants' plea of justification. The court's decision left the defamation claim open for further proceedings, including the determination of damages, if applicable.

Orders