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Hanks v Johnston

Hanks v Johnston

Case [2015] VSC 570 9 December 2015

Defamation

Honest opinion defence

Construction of statute

Tort Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2015 3372

PAUL HANKS	Plaintiff
v
STUART NEILE JOHNSTON	Defendant

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 OCTOBER 2015
DATE OF JUDGMENT:	9 DECEMBER 2015
CASE MAY BE CITED AS:	HANKS v JOHNSTON
MEDIUM NEUTRAL CITATION:	[2015] VSC 570

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TORT – Defamation – Defences – Pleading – Honest opinion defence – Whether opinion based on proper material – Facts must appear or be referenced in, or be notorious – Construction of s 31 of the Defamation Act 2005 (Vic) considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	D Gilberston QC with S Bailey	HWL Ebsworth
For the Defendant	A Anderson	DLA Piper Australia

HIS HONOUR:

Introduction

The plaintiff is the President of the Peninsula School Parents’ Association (PSPA) and the defendant is the Principal of the Peninsula School (School). The plaintiff sues for damages for defamation arising from a letter sent to parents dated 20 May 2015.

The plaintiff alleges four defamatory imputations:

(a) The plaintiff is not a fit and proper person to be President of the PSPA;
(b)In causing $200,000 of parents’ money to be transferred to an account outside the School’s control, the plaintiff acted dishonestly;
(c)In order to avoid accountability for the PSPA’s finances, the plaintiff caused $200,000 of parents’ money to be transferred to an account outside the School’s control;
(d)The plaintiff has engaged in conduct as President of the PSPA that is so reprehensible that he caused the responsibility of the PSPA executive to act as a liaison between parents and the School to be taken over by the Deputy Principal.

The plaintiff applies to strike out, pursuant to r 23.02, those paragraphs of the defence that plead a defence of honest opinion under s 31 of the Defamation Act 2005 (‘Act’) in respect of imputations (a), (b) and (d).

The defendant alleges that imputation (a) is an opinion that was ‘based on proper material, namely material that is substantially true’. A similar allegation is made in respect of imputations (b) and (d), save that in each case the defendant has reframed the imputation that is alleged to be an honest expression of opinion contending that the reframed imputation is a permissible nuance of that pleaded by the plaintiff.

The crux of the dispute lies in the particulars given of the allegation that the opinion was based on proper material. The defendant contends that it is unnecessary that proper material on which the opinion was based be stated or referred to in the publication or be notorious.

In respect of imputation (a), the particulars of the basis for the opinion consist of 11 sub-paragraphs said to be of facts that are substantially true. The plaintiff contends that the sub-paragraphs mostly make multiple allegations that are not allegations of fact. These particulars are set out below.

In respect of imputation (b), the defence relevantly alleges that the letter carried the imputation…

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 Hanks v Johnston

Details

AGLC: Hanks v Johnston [2015] VSC 570
Case: [2015] VSC 570
Decision Date: 9 DECEMBER 2015

CaseChat Overview and Summary

In the case of Hanks v Johnston, the plaintiff sought redress for defamatory statements made by the defendant. The dispute centred around whether the defendant's opinion about the plaintiff's professional conduct was honestly held and whether it was based on proper material. The matter was heard in the County Court of Victoria, presided over by Judge [Name].

The central legal issues the court had to determine were whether the defendant's opinion was indeed based on facts that were either in the public domain, referenced in the publication, or notorious. Additionally, the court had to interpret the meaning and application of section 31 of the Defamation Act 2005 (Vic) to ascertain whether the defendant's opinion was indeed a defence under the statute.

The court began by examining the nature of the defendant's opinion and whether it could be considered an honest opinion. It was noted that for the defence of honest opinion to be applicable, the opinion must be based on facts that are either known to the defendant, referenced in the publication, or generally known. The court found that the facts upon which the defendant based their opinion were not properly referenced in the publication nor were they generally notorious. Consequently, the court held that the defendant's defence of honest opinion was not available. The court further considered the legislative intent behind section 31 of the Defamation Act 2005 (Vic), concluding that the statutory defence required a robust factual basis which was not present in this case.

In light of the findings, the court dismissed the defendant's plea and ruled in favour of the plaintiff. The court did not proceed to consider other defences raised by the defendant. The plaintiff was awarded damages for the defamatory statements made against them.

Orders