Cleary v Hore-Lacey (No 2) - [2009] VSCA 132

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3705 of 2006

PHIL CLEARY - and - ALLEN UNWIN PTY LTD (ACN 003 994 278)	First Appellant
	Second Appellant
v
DYSON HORE-LACY [NO 2]	Respondent

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JUDGES:	ASHLEY, NEAVE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 November 2008
DATE OF JUDGMENT:	11 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 132

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Defamation – Pleading – Book – Defence – Application to amend to plead fair comment – Whether open to jury, properly instructed, to find that matter sought to be pleaded could be comment rather than fact – Whether, if matter was capable of constituting comment, any comment was so intermingled with facts as to be indistinguishable from those facts – Whether open to jury to find that any comment was based upon facts truly stated – Refusal by judge at first instance to permit amendment affirmed.

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APPEARANCES:	Counsel	Solicitors
For 1^st and 2^nd Appellants	Mr W T Houghton QC with Dr M J Collins	Gibson Legal
For the Respondent	Mr J W K Burnside QC with Mr L W Maher	Lennon Mazzeo

ASHLEY JA:

Before the Court is an application for leave to appeal against an order made by a judge of the Trial Division[1] on 25 June 2008. His Honour dismissed a summons, dated 18 March 2008 by which the defendants, Phil Cleary and Allen & Unwin Pty Ltd (for convenience, ‘the appellants’), sought leave to amend their defence.
[1]For the sake of convenience, and intending no disrespect, I shall refer to him hereafter simply as ‘his Honour’ or ‘the judge’.

Also before the Court, in the event that the application is granted, is the appeal itself.

For the reasons which follow, I would refuse the application on the ground that the decision below was not wrong or attended by sufficient doubt as would warrant grant of leave. Indeed, I consider that the decision was correct.

The proceeding. The history of the pleadings.

The proceeding involves an alleged defamation of the respondent by the appellants – the first appellant being the author, and the second appellant being the publisher, of a book entitled ‘Getting Away with Murder: The True Story of Julie Ramage’s Death’.

The proceeding commenced with the filing of a writ on 15 October 2005. The pleadings remain incomplete. At least, they do so until disposition of the present application.

The history of the matter, up to the time of the decision now challenged, is set out in the reasons for judgment of the learned trial judge at [2008] VSC 215, [2]-[[16].

The question for determination on the appellants’ summons filed 18 March 2008 was whether the appellants should be granted leave to amend their defence so as to allege a third version of a fair comment defence. The application to amend was the appellants’ response to an earlier decision of this Court[2] which struck out their then-current fair comment defence.
[2](2007) 18 VR 562.

By his amended…

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: [2009] VSCA 132
Decision Date: 11 June 2009

CaseChat Overview and Summary

The defendants, Cleary, brought an application for leave to amend their pleadings in a defamation action against the plaintiff, Hore-Lacy. The dispute arose from statements in a book written by Hore-Lacy that the defendants claimed were defamatory of them. The application sought to amend the pleadings to include a defence of fair comment, arguing that the allegedly defamatory statements were expressions of opinion rather than factual assertions.

The primary legal issue before the court was whether it was open to the jury, properly instructed, to find that the matter sought to be pleaded could be considered comment rather than fact. A secondary issue was whether, if the matter was capable of constituting comment, any comment was so intermingled with facts as to be indistinguishable from those facts. Additionally, the court needed to determine if it was open to the jury to find that any comment was based on facts truly stated.

The court held that the matter sought to be pleaded was not capable of being considered comment rather than fact. It concluded that any comment was so intermingled with facts as to be indistinguishable from those facts. The court also found that it was not open to the jury to find that any comment was based on facts truly stated. Consequently, the application to amend the pleadings to include the defence of fair comment was refused. The refusal by the judge at first instance to permit the amendment was affirmed.

Orders