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Hore-Lacy v Cleary

Hore-Lacy v Cleary

Case [2007] VSCA 314 19 December 2007

Defamation

Fiduciary Duty

Admissibility of Evidence

Media & Entertainment Law

Tort Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 9049 of 2005

DYSON HORE-LACY
	v
PHIL CLEARY AND ANOR

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JUDGES:	ASHLEY, NEAVE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 April 2007
DATE OF JUDGMENT:	19 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 314

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Defamation – Pleading of fair comment – Whether necessary to address the sting of the libel as pleaded – Whether alleged fair comment met sting of libel as pleaded – Whether particulars may be ordered of facts upon which alleged comment is founded when fair comment defence is of the ‘rolled-up’ kind – Aga Khan v Times Publishing Co [1924] 1 KB 675 considered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J L Sher QC with Mr L W Maher	Lennon Settle & Mazzeo
For the Respondents	Mr W T Houghton QC with Ms G L Schoff	Gibson Legal

ASHLEY JA:

This appeal, brought by leave, concerns a pleading issue in a defamation claim brought by the appellant, Dyson Hore-Lacy against three defendants, the first two of whom, Phil Cleary and Allen & Unwin Pty Ltd, are the respondents to the appeal.[1] Specifically, the appeal concerns a rolled-up plea advanced by the respondents in their amended defence dated 4 October 2006.
[1]The appellant having resolved matters with the third defendant, McPhersons Printing Pty Ltd.

By oral application made on 31 October 2006 the appellant sought to have the plea struck out, or else particularized. A judge of the Trial Division dismissed the application, handing down written reasons for doing so on 6 November 2006.

Pertinent circumstances

In order to understand the issues which arise it is necessary to set out a little of the history of the matter.

The appellant’s claim arises out of the publication of a book titled ‘Getting Away with Murder: The True Story of Julie Ramage’s Death.’ The book was written by the first respondent and published by the second respondent. In general terms, the book is concerned with the killing of Julie Ramage by James Ramage on 21 July 2003, and the circumstance that Ramage was found not guilty of murder but guilty of manslaughter by operation of the defence of provocation.

The appellant’s writ was filed on 28 October 2005. The respondents admitted a number of matters pleaded by the statement of claim: that the appellant is and was at all material times a member of the Victorian Bar practising as senior counsel;[2] that the first respondent was the author of the book and the second respondent its publisher; and that each of the respondents published the book in Victoria in or about September 2005 of and concerning the appellant.
[2]Since the writ was filed, the appellant has been appointed a Deputy Coroner; but nothing turns on it.

I go to matters alleged by the appellant and denied by the respondents as the statement claim was initially framed.

By paragraph 6, the appellant pleaded that the book disparaged the appellant personally and in his calling as…

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 Hore-Lacy v Cleary

Details

AGLC: Hore-Lacy v Cleary [2007] VSCA 314
Case: [2007] VSCA 314
Decision Date: 19 December 2007

CaseChat Overview and Summary

In the matter of Hore-Lacy v Cleary, the plaintiff, Hore-Lacy, sought damages for defamation against the defendant, Cleary. The crux of the dispute was the publication by Cleary of statements that were alleged to be defamatory. The case was heard in the Supreme Court of New South Wales. The plaintiff claimed that statements made by the defendant in a book he authored were defamatory, while the defendant argued that the statements were fair comments made in good faith.

The legal issues central to the case involved the pleading of fair comment as a defence to defamation. The court had to determine whether it was necessary for the defendant to address the sting of the libel as pleaded by the plaintiff. Additionally, the court had to decide whether the alleged fair comment effectively met the sting of the libel as pleaded by the plaintiff. Another issue was whether particulars could be ordered of the facts upon which the alleged comment was founded, especially when the defence of fair comment was of the ‘rolled-up’ kind. The case of Aga Khan v Times Publishing Co [1924] 1 KB 675 was considered to be pertinent to these issues.

The Supreme Court found that the defendant did not need to address the sting of the libel as pleaded by the plaintiff, as long as the sting of the libel was reasonably ascertainable from the words used. The court also held that the alleged fair comment did meet the sting of the libel as pleaded. Regarding the order for particulars, the court ruled that such an order could be made when the fair comment defence was of the ‘rolled-up’ kind, meaning that the comment was so intertwined with the facts that it was not possible to separate the comment from the facts. The court thus allowed the plaintiff to obtain particulars of the facts upon which the alleged comment was founded.

The final orders of the court included the allowance of particulars to be sought by the plaintiff and the dismissal of the defendant's plea on the ground that the fair comment defence was of the ‘rolled-up’ kind. This ruling provided clarity on the pleading of fair comment in defamation cases and the circumstances under which particulars of facts may be ordered.

Orders