Hore-Lacy v Cleary - [2006] VSC 341

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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 AND OTHERS	Defendants

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JUDGE:	KELLAM J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2006
DATE OF JUDGMENT:	20 September 2006
CASE MAY BE CITED AS:	Hore-Lacy v Cleary and Ors
MEDIUM NEUTRAL CITATION:	[2006] VSC 341

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DEFAMATION – Libel – Practice and procedure – Fair comment “rolled up” plea – Whether plaintiff entitled to particulars of comment – Amendments to statement of claim.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Sher QC with Mr L. Maher	Lennon Settle & Mazzeo
For the Defendants	Mr W. Houghton QC with Mr D.P. Gilbertson	Gibson Legal

TABLE OF CONTENTS

Parties................................................................................................................................................... 1

The Proceeding................................................................................................................................... 1

The Rolled up Plea............................................................................................................................. 2

Amendments to the Statement of Claim................................................................................... 12

The proposed amendments relating to the claim for aggravated/exemplary damages.. 14

Conclusions....................................................................................................................................... 16

Proposed Orders.............................................................................................................................. 17

HIS HONOUR:

By summons dated 28 July 2006 the plaintiff seeks an order that the rolled up plea set out in paragraph 11 of the defence filed on behalf of the defendants be struck out. Alternatively, the plaintiff seeks particulars of the substance of the comment referred to in the rolled up plea. Furthermore, the plaintiff seeks leave to amend his statement of claim.

Parties

At all material times the plaintiff, Dyson Hore-Lacy, has been a member of the Victorian Bar.

The first defendant, Phil Cleary (“Cleary”), is the author of a book “Getting Away with Murder – the True Story of Julie Ramages’ Death”. The second defendant, Allen and Unwin Pty Ltd (“the publisher”) is the publisher of the book.

The Proceeding

On 28 October 2005 the plaintiff instituted a proceeding against Cleary and the publisher seeking damages for defamation. The proceedings against a third defendant, the printer of the book, have now been resolved.

The plaintiff has pleaded that the book contains defamatory allegations of him. He has pleaded that in its ordinary and natural meaning the book means and is understood to mean 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 another agreed to manufacture a defence of provocation for James Ramage thereby perverting the course of justice.”

In their defence, the defendants deny that the book is defamatory of the plaintiff and deny further that the book means, or is capable of meaning, or is understood to mean any of the meanings which have been pleaded by the plaintiff.

The Rolled up Plea

In addition and in the alternative, in respect of the pleaded imputations, the defendants have relied upon a rolled up plea of fair comment which is pleaded as follows:

“11.They say further that, if the book was defamatory of the plaintiff which is denied), then insofar as it consisted of statements of fact, those statements are true in substance and in fact and,…

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 341
Decision Date: 20 September 2006

CaseChat Overview and Summary

Hore-Lacy v Cleary involved a defamation claim brought by the plaintiff against the defendant, alleging that defamatory comments made by the defendant had harmed the plaintiff's reputation. The case was heard in the Federal Court of Australia, where the plaintiff sought damages for the alleged defamation. The nature of the dispute centred on whether the comments made by the defendant were fair comment or merely defamatory libel, and whether the plaintiff was entitled to particulars of the alleged defamatory comments.

The central legal issues the court had to decide were whether the plaintiff was entitled to particulars of the alleged defamatory comments and whether the defendant's fair comment plea could be considered a "rolled up" plea. Additionally, the court needed to determine whether the plaintiff's amendments to the statement of claim were appropriate and if they were permissible under the circumstances. The plaintiff argued that they were entitled to particulars of the comments to understand the basis of the defendant's fair comment plea, while the defendant maintained that providing such particulars would be unnecessary and potentially prejudicial.

The court held that the plaintiff was not entitled to particulars of the alleged defamatory comments as the fair comment plea was considered a "rolled up" plea. The court reasoned that the fair comment plea included all necessary particulars to allow the plaintiff to adequately respond to the defence. Furthermore, the court found that the amendments to the statement of claim were permissible, as they were not substantially altering the nature of the plaintiff's claim. The court's decision allowed the case to proceed to trial on the merits of the defamation claim, with the fair comment plea remaining as a defence for the defendant.

As a result of the court's decision, the defamation claim was allowed to proceed to trial, with the fair comment plea intact as a defence. The court's ruling clarified the parameters of a "rolled up" plea in defamation cases and reinforced the importance of allowing parties to adequately respond to defences without requiring unnecessary particulars. The case serves as a useful precedent for defamation claims involving fair comment pleas and the process of amending statements of claim.

Orders