Carter v Blanco

Case [2024] WASC 447


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

Callan v Chawk [2023] FCA 898

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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Carter v Blanco [2024] WASC 447
Case
[2024] WASC 447
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CaseChat Overview and Summary

In the matter of Carter v Blanco, the plaintiff, Carter, sought to strike out certain parts of the defendant, Blanco's, defence on the grounds that they did not disclose a reasonable defence. Blanco's defence relied on alternative imputations to those pleaded by Carter for the purposes of the Hore-Lacy and contextual truth defences. The court was required to determine whether these alternative imputations could arise from the publications complained of and whether the publications could constitute comment or opinion. Additionally, the relevance of Blanco's beliefs concerning Carter's conduct to the defence of qualified privilege was considered.

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

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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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).