JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: CARTER -v- BLANCO [2024] WASC 447
CORAM: LEMONIS J
HEARD: 17 JUNE 2024
DELIVERED : 5 DECEMBER 2024
FILE NO/S: CIV 1679 of 2023
BETWEEN: PETER CARTER
Plaintiff
AND
CAMILO BLANCO
Defendant
Catchwords:
Defamation - Plaintiff's application to strike out parts of the defence - Defence relies on alternative imputations to those pleaded by the plaintiff for purposes of Hore-Lacy and contextual truth defences - Whether the alternative imputations are capable of arising from the publications complained of - Defence pleads fair comment at common law and honest opinion under s 31 of the Defamation Act 2005 (WA) - Whether the publications complained of are capable of constituting comment or opinion - Relevance of the defendant's beliefs concerning the plaintiff's conduct to the defence of qualified privilege
Legislation:
Defamation Act 2005 (NSW)
Defamation Act 2005 (Vic)
Defamation Act 2005 (WA)
Result:
Plaintiff's application to strike out paragraphs of the defence is allowed in part
Representation:
Counsel:
| Plaintiff | : | I W Priddis |
| Defendant | : | A J Tharby |
Solicitors:
| Plaintiff | : | Graham & Associates Lawyers |
| Defendant | : | Bennett |
Case(s) referred to in decision(s):
Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228
Besser v Kermode [2011] NSWCA 174
Buckeridge v Walter [2007] WASCA 19
Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245
Clarke v Norton [1910] VLR 494
Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255
David Syme & Co Ltd v Hore‑Lacy [2000] VSCA 24
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Dutton v Bazzi [2021] FCA 1474
Fairfax Media Publications v Zeccola [2015] NSWCA 329
Fenn v Australian Broadcasting Corporation [2018] VSCA 166
Green v Fairfax Media Publications Pty Ltd [No 4] [2021] WASC 474
Hore‑Lacy v Cleary [2007] VSCA 314
Hyndes v Nationwide News Pty Limited [2011] NSWSC 633
Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104
Maher v Nationwide News Pty Ltd [2013] WASC 254
Maisel v Financial Times Limited [1915] 3 KB 336; (1915) 113 LT 772
Marshall v Smith [2013] WASC 451
Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Pty Ltd [2022] NSWCA 150
Mickelberg v 6PR Southern Cross Radio Pty Ltd [2002] WASCA 270
Nationwide News Pty Ltd v Moodie [2003] WASCA 273
Nationwide News Pty Ltd v Warton [2002] NSWCA 377
Newnham v Davis (No 2) [2010] VSC 94
O'Brien v Australian Broadcasting Corporation [2016] NSWSC 1289
Rayney v Pan MacMillan Australia Pty Ltd [2014] WASC 129
Rayney v The State of Western Australia [No 2] [2009] WASC 133
Setka v Abbott [2014] VSCA 287
Soultanov v The Age Company Limited [2009] VSC 145
Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398
West Australian Newspapers Ltd v Elliott [2008] WASCA 172
Younan v Nationwide News Pty Ltd [2013] NCSWCA 335
LEMONIS…
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- AGLC
- Carter v Blanco [2024] WASC 447
- Case
- [2024] WASC 447
- Decision Date
CaseChat Overview and Summary
The court examined the need for specificity in the formulation of an imputation, as established in Drummoyne Municipal Council v Australian Broadcasting Corporation and Hall-Gibbs Mercantile Agency Ltd v Dun. The court found that the requirement for specificity was one to be resolved by considerations of practical justice rather than linguistic refinement. The test formulated by Hunt J in Whelan v John Fairfax & Sons Ltd was adopted, which held that the issue to be decided in a particular case was whether there was likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contended.
The court held that the alternative imputations pleaded by Blanco could arise from the publications complained of, and the publications could constitute comment or opinion. The court also found that Blanco's beliefs concerning Carter's conduct were relevant to the defence of qualified privilege. Therefore, the plaintiff's application to strike out parts of the defence was dismissed.
The court made no orders as to costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In Drummoyne Municipal Council v Australian Broadcasting Corporation, Gleeson CJ (when sitting on the NSW Court of Appeal) made the following observations regarding the word 'imputation' itself, and also the need for specificity in the formulation of an imputation:[43]In Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at 91, Griffith CJ observed that 'impute' is an ordinary English word, and is properly used with reference to any act or condition asserted of or attributed to a person. His Honour went on to say that in the section of the Criminal Code Act 1899 (Qld) which he was considering the word 'imputation' meant the matter (act or condition) imputed, and that if the act or condition imputed were such that the plaintiff's reputation was likely to be injured by it, or the plaintiff was likely to be injured in his profession or trade, the law called it defamatory. In Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1, a case concerning the Defamation Act 1958, Gibbs J said (at 10): '… To make an imputation concerning a person is to attribute some act or condition to him, or in other words, simply to make a statement concerning him'.The requirement that a plaintiff must 'specify' the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology.…As I have indicated, the question is ordinarily one to be resolved by considerations of practical justice in the circumstances of a particular case, rather than considerations of the possibility of linguistic refinement. I agree with the test formulated by Hunt J in Whelan v John Fairfax & Sons Ltd E (1988) 12 NSWLR 148 at 155 where his Honour said:'… The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends.'[43] Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, 136 ‑ 138. One of the imputations pleaded in Drummoyne was that the plaintiff was a corrupt municipal council. Gleeson CJ made the following observations regarding allegations of corruption:[44]Allegations of corruption have, in recent years, provided a fruitful source of controversy in this area of defamation law and practice. As Hunt J pointed out in Whelan and elsewhere, the word 'corrupt' can have significantly different shades of meaning. This does not make it unusual, but, because it is a word the use of which is apt to give rise to allegations of defamation, it seems to have come in for a high degree of forensic exegesis. Depending upon the context, for example, it can mean that a person takes bribes, or that he abuses power entrusted to him, or that he improperly obtains private benefits from a public position.[44] Drummoyne (138).