Hore-Lacy v Cleary & Anor - [2008] VSC 215

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9049 of 2005

DYSON HORE-LACY	Plaintiff
v
PHIL CLEARY AND ALLEN & UNWIN PTY LTD	Defendants

---

JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 June 2008
DATE OF JUDGMENT:	25 June 2008
CASE MAY BE CITED AS:	Hore-Lacy v Cleary & Anor
MEDIUM NEUTRAL CITATION:	[2008] VSC 215

---

DEFAMATION – Pleading of fair comment – Whether fact or comment – Whether comment sufficiently identified – Whether facts supporting alleged comment truly stated – Effect of untrue fact – Whether matter of public interest.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L Maher	Lennon Mazzeo
For the Defendants	Dr M Collins	Gibsons Solicitors Pty Ltd

HIS HONOUR:

This is an application by the defendants to amend their defence to plead fair comment in response to a claim against them in defamation.

The plaintiff is a member of the Victorian Bar, and is a Senior Counsel. The proceeding is based on passages contained in a book written by the first defendant, entitled “Getting Away with Murder: The True Story of Julie Ramage’s Death”. The book was published by the second defendant. It is concerned with the killing of Julie Ramage by her estranged husband, James Ramage, on 21 July 2003, and the subsequent trial of Ramage on the charge of murder. At that trial Ramage was acquitted of murder, but found guilty of manslaughter, on the grounds that the jury was not satisfied beyond reasonable doubt that Ramage was not provoked at the time at which he intentionally killed his wife.

In his initial statement of claim, the plaintiff pleaded two innuendos, namely, that he had manufactured a defence of provocation for James Ramage thereby perverting the course of justice, and, secondly, that he had, in combination with Ramage and/or Stephen Pica (a solicitor), agreed to manufacture a defence of provocation for Ramage, thereby perverting the course of justice. The plaintiff pleaded those meanings as both false and true innuendos. The true innuendos were alleged to have derived from knowledge, of the readers of the book, of the law of the State of Victoria relating to provocation as a defence to a charge of wilful murder, and of the law relating to the crime of perverting the course of justice.

By their original defence, dated 6 December 2005, the defendants denied the innuendos pleaded by the plaintiff. They also pleaded a “rolled up” plea of fair comment, alleging, in the usual form, that if the book was defamatory of the plaintiff, then insofar as it consisted of statements of fact, those statements were true in substance and in fact, and insofar as they consisted of expressions of opinion, they were fair comment on a matter of public interest. The relevant matter of public interest was specified as “whether James Ramage should have been entitled to rely on a defence of provocation to the charge of wilful murder brought against him”.

Subsequently, the plaintiff,…

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.

Keep reading for free

Create a free CaseChat account to read Hore-Lacy v Cleary & Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] VSC 215
Decision Date: 24 June 2008

CaseChat Overview and Summary

The matter before the court involved Hore-Lacy, the plaintiff, suing Cleary and another defendant for defamation. The plaintiff sought damages for a defamatory statement made by the defendant, which was alleged to have damaged the plaintiff's reputation and caused loss of income. The case was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the defendant's statement constituted a fair comment on a matter of public interest. The plaintiff argued that the statement was not a fair comment as it contained an untrue fact and was not sufficiently identified. The defendants contended that the statement was a fair comment on a matter of public interest and was therefore protected from liability for defamation.

In reaching its decision, the court considered the principles of defamation law and the elements necessary to establish a fair comment defence. The court found that the statement in question contained an untrue fact and was not a fair comment on a matter of public interest. The court held that the defendants were liable for defamation and awarded damages to the plaintiff. The court also noted that the defendants' failure to identify the facts supporting the alleged comment and the effect of the untrue fact were significant factors in their liability.

The court ordered the defendants to pay damages to the plaintiff and to publish an apology and correction of the defamatory statement. The court also noted that the defendants' conduct in making the statement without verifying the facts was egregious and contributed to the level of damages awarded. The court's decision reinforces the importance of verifying facts before making public statements and the need for defendants to identify the facts supporting their comments when raising a fair comment defence.

Orders