Hore-Lacy v Cleary - [2006] VSC 421

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

No. 9049 of 2005

Dyson Hore-Lacy	Plaintiff
v
Phil Cleary & Others	Defendants

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JUDGE:	Williams J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 October 2006
DATE OF JUDGMENT:	6 November 2006
CASE MAY BE CITED AS:	Hore-Lacy v Cleary & Ors
MEDIUM NEUTRAL CITATION:	[2006] VSC 421

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Defamation – Libel – Practice and procedure – Defence of fair comment - “Rolled up” plea – Application to strike out defence – Whether compliance with order to specify substance of alleged comment -Whether alleged comment or statement of fact – Whether comment could meet the libel - Whether comment expressed on matter of public interest – Whether public interest in question of entitlement to rely on a defence of provocation to charge of murder and role of legal practitioners - Whether plaintiff entitled to particulars of comment or facts upon which comment based.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Sher QC with Mr L. Maher	Lennon Settle and Mazzeo
For the Defendants	Mr W. Houghton QC With Dr. M. Collins	Gibson Legal

HER HONOUR:

The proceeding

This proceeding was commenced by the plaintiff filing a writ on 28 October 2005, alleging that he had been defamed in the first defendant’s book, “Getting Away With Murder: The True Story Of Julie Ramage’s Death” (“the book”). The second and third defendants, respectively, published and printed the book. The proceeding against the third defendant has been resolved, so I will refer to the first and second defendants as “the defendants” in these reasons.

In the statement of claim in the writ, the plaintiff alleged that the book, in its ordinary and natural meaning or, alternatively, by way of innuendo, conveyed the defamatory meanings that:

“(a)the plaintiff had manufactured a defence of provocation for James Ramage thereby perverting the course of justice;
(b)the plaintiff had, in combination with James Ramage and/or Stephen Pica, agreed to manufacture a defence of provocation for James Ramage thereby perverting the course of justice.”

The true innuendo was alleged to arise for readers of the book with a knowledge of Victorian law relating both to provocation as a defence to a charge of wilful murder and to the crime of perverting the course of justice.

In their defence filed on 6 December 2005, the defendants denied that the book conveyed the alleged meanings or was capable of doing so. In the alternative, they raised a defence of fair comment in the following terms:-

“11.They say further that, if the book was defamatory of the Plaintiff (which is denied), then in so far as it consisted of statements of fact, those statements are true in substance and in fact and, in so far as it consisted of expressions of opinion, those expressions are fair comment on a matter of public interest, namely whether James Ramage should have been entitled to rely on a defence of provocation to the charge of…

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: [2006] VSC 421
Decision Date: 6 November 2006

CaseChat Overview and Summary

In the case of Hore-Lacy v Cleary, the dispute centred on allegations of defamation, specifically libel, with the matter being heard in the Supreme Court. The plaintiff, Hore-Lacy, claimed that statements made by the defendant, Cleary, defamed him. The crux of the dispute revolved around whether the defence of fair comment was applicable and if the comments made could be considered expressions on matters of public interest.

The legal issues before the court included determining whether Cleary had complied with an order to specify the substance of the alleged defamatory comment. The court also had to consider whether the comment in question was a statement of fact or a comment, and if the comment could be considered to meet the requirements of a libel. Additionally, the court needed to assess whether the comment was expressed on a matter of public interest, specifically the question of the plaintiff's entitlement to rely on a defence of provocation to a charge of murder and the role of legal practitioners in such matters. Another issue was whether the plaintiff was entitled to particulars of the comment or the facts upon which the comment was based.

The court examined the nature of the comments made and concluded that they were not merely statements of fact but rather comments on those facts. The court found that the comments related to a matter of public interest, given the context of a murder trial and the role of legal practitioners. It was determined that the plaintiff was entitled to particulars of the comment and the facts upon which it was based. However, the court found that Cleary had not adequately complied with the order to specify the substance of the alleged comment. Consequently, the court granted the plaintiff's application to strike out the defence of fair comment. The court ruled in favour of the plaintiff, finding that the defendant's comments were defamatory and not protected by the defence of fair comment.

Orders