Christopher Lamont v Phillip Dwyer - [2008] ACTSC 125

CHRISTOPHER LAMONT v PHILLIP DWYER
[2008] ACTSC 125 (21 November 2008)

DEFAMATION – defendant sent two letters to the Prime Minister – the contents of one letter reported in The Australian –allegation that the plaintiff, as chief of staff to a Minister, failed to report the representations made by the defendant to his Minister and blocked any action on the part of his Minister to progress them – allegation that the plaintiff failed to act as motivated by a desire for personal gain – imputations held defamatory.

DEFAMATION – defendant undischarged bankrupt – s60 Bankruptcy Act 1966 (Cth) does not prevent the action being prosecuted even if enforcement of any money judgment proves difficult or unproductive.

DEFAMATION – defence of truth – s135 Civil Law (Wrongs) Act 2002 (ACT) – evidence establishes the allegations made by the defendant are untrue – this defence fails.

DEFAMATION – defence of qualified privilege – s139A Civil Law (Wrongs) Act 2002 (ACT) – matter must be false and defamatory – community of interest between publisher and recipient – Lange test – publisher must “honestly” believe in the truth of his or her accusation – category where communication to the general public and politicians warranted – public interest in the issue of builders’ warranty insurance – conduct of defendant must be reasonable in all the circumstances – defendant held an honest belief on reasonable grounds – defence of qualified privilege succeeds unless malice established.

DEFAMATION – defence of qualified privilege – malice – primary indicator – knowledge of the falsity of the imputations or the facts supporting them – defence not defeated by malice.

DEFAMATION – defence of honest opinion / fair comment – s139B Civil Law (Wrongs) Act 2002 (ACT) – imputations partly expressions of opinion but presented as facts – it is a fact that the plaintiff adequately briefed his Minister – reasonable opinion as to the reason the plaintiff was recruited – this defence fails.

DEFAMATION – reputational damage and hurt to feelings – damage claimed to plaintiff’s reputation as lobbyist and future political prospects – judgment as vindication.

Bankruptcy Act 1966 (Cth), s 60

Civil Law (Wrongs) Act 2002 (ACT), s 123, s 134, s 135, s 139A, s 139B

Smith v John Fairfax & Sons Ltd (1987) 81 ACTR 1
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Carleton v Australian Broadcasting Corporation [2002] ACTSC 127
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183
Evatt v Nationwide News Pty Ltd [1999] NSWCA 99
Horrocks v Lowe [1975] AC 135
Calwell v Ipec Australia Ltd (1975) 135 CLR 321

No. SC 453 of 2006

Judge: Higgins CJ
Supreme Court of the ACT

Date: 21 November 2008

IN THE SUPREME COURT OF THE       )
  )          No. SC 453 of 2006
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:CHRISTOPHER LAMONT
Plaintiff

AND:PHILLIP DWYER
Defendant

ORDER

Judge:  Higgins CJ
Date:  21 November 2008
Place:  Canberra

THE COURT ORDERS THAT:

The claim be dismissed.

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 Christopher Lamont v Phillip Dwyer

Details

AGLC: Christopher Lamont v Phillip Dwyer [2008] ACTSC 125
Case: [2008] ACTSC 125
Decision Date: 21 November 2008

CaseChat Overview and Summary

The plaintiff, Christopher Lamont, brought an action against Phillip Dwyer, alleging defamation. Dwyer sent two letters to the Prime Minister, one of which was reported in The Australian, containing allegations against Lamont. The reported letter suggested that Lamont, as chief of staff to a Minister, failed to report Dwyer's representations to his Minister, and blocked any action motivated by a desire for personal gain. Lamont claimed these imputations were defamatory.

The court was required to determine whether the statements made by Dwyer were defamatory, if there were any available defences to the defamation claim, and whether the defence of qualified privilege was applicable in this case. The court also considered the implications of Dwyer being an undischarged bankrupt on the enforceability of any potential judgment.

The court held that the imputations made by Dwyer were indeed defamatory, as they carried a meaning that lowered Lamont in the estimation of right-thinking members of society. The court dismissed the argument that the Bankruptcy Act 1966 (Cth) precluded Lamont from pursuing the action, given that the Act does not prevent the prosecution of an action if enforcement of a judgment proves difficult or unproductive. The defence of truth was dismissed as the evidence established the allegations were untrue. The defence of qualified privilege was found to be applicable, as Dwyer held an honest belief on reasonable grounds, and the communication was in the public interest. The defence of honest opinion/fair comment was also dismissed as the imputations were presented as facts rather than opinions.

In conclusion, the court dismissed Lamont's claim and ordered judgment for the defendant, Phillip Dwyer. The court found that Dwyer's defence of qualified privilege was successful, barring Lamont from recovering damages.

Orders

Orders of the court

1.The claim be dismissed.

2.There be judgment for the defendant.

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

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