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Gant v The Age Co Ltd

Gant v The Age Co Ltd

Case [2011] VSC 169 29 April 2011

Defamation

Limitation Periods

Defamation Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

No. 6515 of 2010

PETER GANT	Plaintiff
v
THE AGE COMPANY LIMITED STEPHEN NALL WENDY WHITELEY	Firstnamed Defendant Secondnamed Defendant Thirdnamed Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 April 2011
DATE OF JUDGMENT:	29 April 2011
CASE MAY BE CITED AS:	Gant v The Age & Ors
MEDIUM NEUTRAL CITATION:	[2011] VSC 169

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DEFAMATION – Pleading – Whether material published capable of giving rise to imputations pleaded by plaintiff – Whether imputations are bad in form – Whether material published capable of being defamatory – Whether imputations defamatory.

LIMITATION OF ACTIONS – Cause of action in respect of first article statute-barred – Limitation of Actions Act 1958, ss 5(1AAA) and 23B.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J.A. Ribbands	T F Grundy
For the Firstnamed Defendant	Dr M.J. Collins	Minter Ellison
For the Secondnamed Defendant	Dr T.J.F. McEvoy	Stynes Dixon
For the Thirdnamed Defendant	Mr T. Molomby	PHI Legal

HIS HONOUR:

Introduction

In this proceeding, the plaintiff, Peter Gant, claims damages for defamation in respect of five articles published by the first defendant, The Age Company Limited. The five articles were:

(a)an article published on 20 November 2008 headed “Top artists move to block dealers selling ‘fakes’” (“the first article”);
(b)an article published on 19 July 2010 headed “A striking similarity, but spot the suspected fake” (“the second article”);
(c)an article published on 21 July 2010 headed “Spurious Whiteleys focus failings on art fraud” (“the third article”);
(d)an article published on 11 October 2010 headed “Suspect Whiteley painting used to cover debt” (“the fourth article”); and
(e)an article published on 6 November 2010 headed “Whiteley genius in the flesh” (“the fifth article”).

The Age is sued in respect of the publication of each of the five articles. The second defendant, Stephen Nall, is referred to in the first, third and fourth articles. The plaintiff claims damages from him in respect of words alleged to have been spoken by Mr Nall with the intention that they be published, or in the reasonable expectation that they would be published. The third defendant, Wendy Whiteley, is referred to in the fourth and fifth articles. The plaintiff claims damages from her in respect of words alleged to have been spoken by Ms Whiteley with the intention that they be published or in the reasonable expectation that they would be published. Neither the second defendant nor the third defendant is sued in respect of the publication of any of the five articles. The claims against them are limited to what they are alleged to have said as reported in the articles in which they are named.

Each of the defendants has filed a summons seeking to strike out various paragraphs of the statement of claim.[1] Additionally, the first and second defendants seek summary judgment in respect of the causes of action pleaded against them in relation to the publication 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 Gant v The Age Co Ltd

Details

AGLC: Gant v The Age Co Ltd [2011] VSC 169
Case: [2011] VSC 169
Decision Date: 29 April 2011

CaseChat Overview and Summary

Gant brought a defamation claim against The Age Co Ltd, the publisher of The Age newspaper, over two articles published in the newspaper. The plaintiff contended that the articles contained defamatory imputations about his character and conduct. The primary legal issue before the court was whether the material published in the articles was capable of giving rise to the imputations pleaded by the plaintiff, and if those imputations were sufficiently serious to be defamatory. Additionally, the court had to determine whether the plaintiff's cause of action in respect of the first article was statute-barred under the Limitation of Actions Act 1958.

The court found that the articles were capable of bearing the imputations pleaded by the plaintiff, however, the imputations were not considered defamatory as they were not considered to be bad in form. The court further held that the plaintiff's cause of action in respect of the first article was statute-barred under section 5(1AAA) of the Limitation of Actions Act 1958, as the plaintiff had not commenced the proceeding within the requisite period under section 23B of the Act. The court therefore dismissed the plaintiff's claim in its entirety.

Orders