Hanks v Johnston (No 2) - [2016] VSC 149

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2015 03372

PAUL HANKS	Plaintiff
v
STUART NEILE JOHNSTON	Defendant

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 MARCH 2016
DATE OF JUDGMENT:	11 APRIL 2016
CASE MAY BE CITED AS:	HANKS v JOHNSTON (No 2)
MEDIUM NEUTRAL CITATION:	[2016] VSC 149

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PRACTICE AND PROCEDURE – Pleadings – Defendant’s application for leave to amend defence following earlier strike out of certain paragraphs – Paragraphs plead honest opinion defence – Whether particulars capable of establishing that an honest opinion was based on proper material – Section 31 Defamation Act2005 – Rule 23.02 Supreme Court (General Civil Procedure) Rules 2005.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr DP Gilbertson	HWL Ebsworth
For the Defendant	Mr A Anderson	DLA Piper Australia

HIS HONOUR:

In this proceeding, the plaintiff claims that he was defamed by imputations conveyed in a letter published by the defendant on The Peninsula School (the School) website, in an email to the parents of the School (as an attachment) and in a Weekly Bulletin emailed to parents of the School and others (as a link). The defendant, the Principal of the School, is the author of the letter. The plaintiff is the President of the Peninsula School Parents’ Association (the PSPA).

The letter related to the actions of the PSPA Executive. In summary, it stated that the Board of Directors had lost confidence in the current PSPA Executive and its President to act in the best interests of the School, its students and broader community. The letter alleged that the PSPA Executive had ignored governance and management processes and broken the working relationship with the school leadership team, that the PSPA’s President was intending to operate the PSPA with no financial governance by the School (as demonstrated by the PSPA Executive transferring parent funds of approximately $200,000 to an offsite account) and that the PSPA Executive was operating in a manner that was harming the reputation of the School and its students in the wider community. The letter nominated the Deputy Principal as the School Liaison Officer and the PSPA’s point of contact.

The plaintiff claims that the publication conveys four defamatory imputations against him:

(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; and
(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 defendant denied the defamatory imputations and pleaded qualified privilege defences in relation to all…

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 (No 2)

Details

AGLC: Hanks v Johnston (No 2) [2016] VSC 149
Case: [2016] VSC 149
Decision Date: 11 APRIL 2016

CaseChat Overview and Summary

The case of Hanks v Johnston (No 2) involved a legal dispute where the plaintiff, Hanks, sued the defendant, Johnston, for defamation. The case was heard in the Supreme Court of Victoria. The plaintiff had previously succeeded in a strike-out application that removed certain paragraphs from the defendant's defence. The defendant sought leave to amend the defence, adding paragraphs that pleaded an honest opinion as a defence to the defamation claim. The court had to determine whether these particulars were capable of establishing that the opinion was based on proper material.

The primary legal issue before the court was whether the particulars provided by the defendant were sufficient to establish that the opinion expressed was honestly held and based on proper material, as required by section 31 of the Defamation Act 2005. The court also had to consider the provisions of rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2005, which governs the amendment of pleadings. The court needed to balance the defendant's right to amend pleadings against the potential prejudice to the plaintiff if the amendment was allowed at a late stage.

The court held that the particulars provided by the defendant were insufficient to establish that the opinion was based on proper material. The court found that the particulars were vague and did not provide enough detail about the sources or the process by which the opinion was formed. The court emphasised the importance of specificity in pleadings, particularly in defamation cases where the defence of honest opinion requires a high level of substantiation. The court also noted the prejudice that allowing the amendment at that stage would cause the plaintiff, given the timing of the application and the progress of the case. Consequently, the court denied the defendant's application for leave to amend the defence.

The court ordered that the defendant's application to amend the defence be dismissed. The court made no order as to costs, leaving the parties to bear their own costs of the application. This decision underscored the importance of careful pleading and the need for defendants to provide detailed and substantiated particulars when raising the defence of honest opinion in defamation cases.

Orders