Hoser v News Life Media & Ors (Ruling)

[2022] VCC 1665

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Defamation List

Case No. CI-21-03943

RAYMOND TERRENCE HOSER	Plaintiff
v
NEWS LIFE MEDIA PTY LIMITED (ACN 088 923 906)	First Defendant
and
ADVERTISER NEWSPAPERS PTY LIMITED (ACN 007 872 997)	Second Defendant
and
QUEENSLAND NEWSPAPERS PTY LIMITED (ACN 009 661 778)	Third Defendant
and
JACK GRAMENZ	Fourth Defendant

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JUDGE:	HER HONOUR JUDGE CLAYTON
WHERE HELD:	Melbourne
DATE OF HEARING:	18 July 2022
DATE OF RULING:	6 October 2022
CASE MAY BE CITED AS:	Hoser v News Life Media & Ors (Ruling)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1665

RULING
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Subject:DEFAMATION – CIVIL PROCEDURE

Catchwords:              Pleadings – Strike out application – Whether imputations capable of being conveyed – Whether pleading bad in form

Cases Cited:Wheelahan & Anor v City of Casey & Ors (No 12) [2013] VSC 316; Gunns Limited v Marr [2005] VSC 251; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; Trkulja v Google LLC (2017) 263 CLR 149; Hockey v Fairfax Media Publications Pty Limited (2015) 237 FCR 33; Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185; Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496; Chau v Australian Broadcasting Corporation (No 3) (2021) 386 ALR 36; Sali v Australian Broadcasting Corporation [2013] VSC 388; Farquhar v Bottom [1980] 2 NSWLR 380; Jones v Skelton (1963) 63 SR (NSW) 644; Lewis v Daily Telegraph Ltd [1964] AC 234, 260; Morgans v Odham Press Ltd [1971] 2 All ER 1156; Soultanov v The Age Co Ltd (2009) 23 VR 182; Mirror Newspapers Ltd v Harrison (1982) 149 CLR)

Ruling:  The defendants’ strike out application is allowed in part. The plaintiff’s amended statement of claim is struck out in part in the terms set out in this ruling, with a  right to replead.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The plaintiff appeared in person
For the Defendants	Mr S Mukerjea	Editorial Legal Office News Corp Australia

HER HONOUR:

1The plaintiff sues the defendants for defamation arising out of three publications.

2By summons dated 4 February 2022, the defendants seek to strike out parts of the plaintiff’s amended statement of claim.

Claim against News Life Media and Others

3There is a great deal of repetition in the pleading, as the publications themselves are substantially the same.

4The defendants’ objections fall into two categories – that the imputations are incapable of being conveyed, and must be struck out on that basis, or are bad in form and must be re-pleaded.

5A statement of claim should plead all material facts necessary to establish the essential elements of the cause of action, it should be in intelligible form and not be embarrassing.  Pleadings should not be struck out unless there is a substantial objection or real embarrassment is shown.[1]

The relevant principles for pleading defamatory imputations are summarised in a number of decisions.[2]  The principles were also set out, in the context of findings of fact at trial, in a series of recent Federal Court decisions[3] and can be briefly restated here (without citations):

(a)   whether an imputation is actually conveyed is a question for the tribunal of fact, however whether an imputation is capable of being conveyed, is a question of law for the judge to decide;

(b)   the test is whether the Court is satisfied that the imputation is capable of being conveyed to an ordinary reasonable reader;

(c)   The Court must avoid a strained, forced or utterly unreasonable interpretation of the matter complained of;

(d)   the Court must proceed on the basis that the ordinary reasonable reader is a person of fair, average intelligence, who is neither perverse, morbid or suspicious of mind, nor avid for scandal, but who is not unusually naïve, engages in a degree of loose thinking, can and does read between the lines in the light of his general knowledge and experience of worldly affairs, and has a capacity for implication that is greater than that of a lawyer;

(e)   conclusions which the reader may reach as a result of personal beliefs of prejudice must be distinguished from the ordinary reasonable reader’s understanding of what the matter complained of is actually saying;

(f)    the exercise involves ‘generosity, not parsimony’.  That is, the Court should have regard to the most damaging meaning an ordinary reasonable reader would consider capable of being conveyed;

(g)   a court should not lightly find that an imputation is not capable of being conveyed.

[1]Wheelahan & Anor v City of Casey & Ors (No 12) [2013] VSC 316, paragraphs [25(a)]-[25(q)] (per Dixon J); see also Gunns Limited v Marr [2005] VSC 251, paragraph [14] (per Bongiorno J).

[2]See for example Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186, 189-90, paragraphs [9]-[11] (per Gleeson CJ, McHugh, Gummow and Heydon JJ) and Trkulja v Google LLC (2017) 263 CLR 149, 159-61, paragraphs [30]-[32].

[3]Hockey v Fairfax Media Publications Pty Limited (2015) 237 FCR 33, paragraphs [63]-[73] (per White J); Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185, paragraphs [14]-[31] (per Wigney J); Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496, paragraphs [70]-[89] (per Wigney J); Chau v Australian Broadcasting Corporation (No 3) (2021) 386 ALR 36, 45-8, paragraphs [31]-[38] (per Rares J); Sali v Australian Broadcasting Corporation [2013] VSC 388, paragraphs [18]–[22] (per Beach J), citing Farquhar v Bottom [1980] 2 NSWLR 380, 385–6; Jones v Skelton (1963) 63 SR (NSW) 644; Lewis v Daily Telegraph Ltd [1964] AC 234, 260; Morgans v Odham Press Ltd [1971] 2 All ER 1156; Soultanov v The Age Co Ltd (2009) 23 VR 182; Mirror Newspapers Ltd v Harrison (1982) 149 CLR).

First Publication

6The first publication is an article posted to news.com.au on 18 September 2020.

7The article is titled, ‘Snake catcher responds to claims he planted tiger snake on Coles Express petrol pump’.

8At paragraph 60 of the amended statement of claim, the plaintiff pleads that the publication contains the following imputations:

(i)the plaintiff has broken the law;

(ii)the plaintiff has planted a deadly snake at a servo , being a tiger snake, well known as a deadly species and, as a result, might be in trouble with police for breaking the law, and he “was previously found to be in breach of his commercial wildlife demonstrator licence”;

(iii)the plaintiff’s actions may be a danger to the public, inferred because Victorian Police were investigating the incident involving him planting a deadly snake at a servo;

(iv)the plaintiff cannot be trusted because, contrary to his claims, there have been no recent reports of snakes at any Coles Express stations in Victoria.  Coles is assisting Victoria Police with their investigation, meaning he lied about him being called to Coles Express to catch a snake;

(v)the plaintiff is being investigated by police for criminal conduct endangering lives with a deadly snake (planting a tiger snake);

(vi)–

(vii)–

(viii)the plaintiff is a fake because he planted a tiger snake to generate snake catcher work;

(ix)–

(x)–

(xi)–

(xii)the plaintiff was found by a court, tribunal, or similar truth finding body, to be in breach of his commercial wildlife demonstrator licence for letting two ‘devenomised’ snakes bite his then ten-year old daughter;

(xiii)the preceding finding was not overturned in any way by virtue of the fact that such was not mentioned in the news report and would have been, had such happened;

(xiv)the plaintiff has probably lied about the government trying to ban two books on police corruption published, allegedly, in 1999 and 2000, by virtue of the statement:

Mr Hoser is the author of nine books he claims ‘the government has tried to ban’, as opposed to a statement ‘the government has tried to ban Hoser’s books’ not being placed in inverted commas as a quote attributed to Hoser, attacked elsewhere in the story.

Finding

9The defendants submit imputations (i), (ii) and (iii) are incapable of being conveyed by the article, because the article contained Mr Hoser’s emphatic responses and explanations to the allegations which had been made against him by Coles, Victoria Police and in other publications.  Mr Hoser’s detailed explanations are reported in the article, and provided the antidote to the bane cast by the allegations.  An ordinary reader, reading the article in its entirety, could not understand the article to convey imputations (i), (ii) or (iii), other than via a strained or forced analysis which would require the reader to infer, based on their own prejudices, rather than from anything in the article, that Mr Hoser was not to be believed.

10However, the test I must apply is not whether the imputations are conveyed, but whether the imputations are capable of being conveyed, taking a generous approach and the worst interpretation an ordinary reasonable reader could find as conveyed.

11I am not persuaded that the imputations are not capable of being conveyed.

12However imputation (ii) is bad in form and must be struck out and re-pleaded.  It rolls up numerous imputations which must be separately pleaded.

13Imputation (iii) is bad in form and includes submissions.  The words ‘inferred because ‘Victorian Police were investigating the incident.’ Involving him ‘planting a deadly snake at a servo’’ are struck out.

14Imputation (xiii) is not defamatory of the plaintiff.  It appears to be a submission to support the previous pleaded imputation.  It is struck out.

15Imputation (xiv) is not capable of being conveyed and is pleaded in a confusing and embarrassing way.  There is nothing in the article which would cause an ordinary reasonable reader to think the plaintiff had probably lied, unless that reader drew an inference from their own prejudices regarding Mr Hoser.  The imputation is struck out.

Second Publication

16The plaintiff pleads that on 18 September 2020, the defendants published the second publication on The Advertiser web page.

17The article is titled, ‘Snake catcher responds to claims he planted tiger snake on Coles Express petrol pump’.

18At paragraph 83 of the amended statement of claim, the plaintiff pleads that the publication contains the following imputations:

(i)the plaintiff has broken the law;

(ii)the plaintiff has planted a deadly snake at a servo , being a tiger snake, well known as a deadly species and, as a result, might be in trouble with police for breaking the law, and he was previously found to be in breach of his commercial wildlife demonstrator licence;

(iii)–

(iv)–

(v)the plaintiff is being investigated by police for criminal conduct endangering lives with a deadly snake (planting a tiger snake);

(vi)the plaintiff is a liar, because Coles Express staff are quoted as saying Mr Hoser had not been called to one of their places to remove a tiger snake, in contradiction to a previous quoted statement by the plaintiff to the effect he had been called, meaning he lied about being called by Coles Express to catch a snake;

(vii)the plaintiff is a fraud because he planted a tiger snake to generate a fake news story;

(viii)–

(ix)The plaintiff has put lives at risk with a deadly snake because he planted a tiger snake;

(x)–

(xi)–

(xii)the plaintiff was found by a court, tribunal, or similar truth finding body, to be in breach of his commercial wildlife demonstrator licence for letting two ‘devenomised’ snakes bite his then ten-year old daughter;

(xiii)the preceding finding was not overturned in any way by virtue of the fact that such was not mentioned in the news report and would have been, had such happened;

(xiv)the plaintiff has probably lied about the government trying to ban two books on police corruption published allegedly in 1999 and 2000, by virtue of the statement:

Mr Hoser is the author of nine books he claims ‘the government has tried to ban’, as opposed to a statement ‘the government has tried to ban Hoser’s books’ not being placed in inverted commas as a quote attributed to Hoser, attacked elsewhere in the story.

Findings

19Imputation (ii) is bad in form and must be struck out and re-pleaded for the reasons set out at paragraph 12 above.

20Imputation (ix) is incapable of being conveyed to the extent that the plaintiff pleads he put lives at risk because he planted a snake.  The only mention of a snake being planted is the plaintiff’s denial that he plants snakes to generate business.  He goes on to explain that he used a surgically-enhanced snake for the photo he posted, and explains the reasons why.  The ordinary reasonable reader might consider a number of things are conveyed, including that the plaintiff lied about being called to Coles Express, or lied about finding a snake at Coles Express, but could not reasonably conclude that he had planted a snake there.  It must be struck out.

21Imputation (vii) is not capable of being conveyed.  There is no direct or indirect reference to a fake news story, the reference is to his own posts on Facebook and a Herald Sun article, which does not suggest that there was a fake news story.  The imputation is struck out.

22Imputation (xiii) is struck out for the reasons given at paragraph 14 above.

23Imputation (xiv) is struck out for the reasons given at paragraph 15 above.

Third Publication

24The plaintiff pleads the defendants published the Third Publication on 18 September 2020 on the Courier Mail website.

25At paragraph 106 of the amended statement of claim, the plaintiff pleads that the following imputations are conveyed:

(i)the plaintiff has broken the law;

(ii)the plaintiff has planted a deadly snake at a servo , being a tiger snake, well known as a deadly species and, as a result, might be in trouble with police for breaking the law, and he was previously found to be in breach of his commercial wildlife demonstrator licence;

(iii)–

(iv)the plaintiff cannot be trusted because, contrary to his claims, there have been no recent reports of snakes at any Coles Express stations in Victoria.  Coles is assisting Victoria Police with their investigation, meaning he lied about being called to Coles Express to catch a snake;

(v)the plaintiff is being investigated by police for criminal conduct endangering lives with a deadly snake (planting a tiger snake);

(vi)–

(vii)–

(viii)the plaintiff is a faker because he planted a tiger snake to generate snake catcher work;

(ix)the plaintiff put lives at risk with a deadly snake because he planted a tiger snake;

(x)–

(xi)–

(xii)the plaintiff was found by a court, tribunal, or similar truth finding body, to be in breach of his commercial wildlife demonstrator licence for letting two ‘devenomised’ snakes bite his then ten-year old daughter;

(xiii)the preceding finding was not overturned in any way, by virtue of the fact that such was not mentioned in the news report and would have been, had such happened;

(xiv)the plaintiff has probably lied about the government trying to ban two books on police corruption published allegedly in 1999 and 2000, by virtue of the statement:

Mr Hoser is the author of nine books he claims ‘the government has tried to ban’, as opposed to a statement ‘the government has tried to ban Hoser’s books’ not being placed in inverted commas as a quote attributed to Hoser, attacked elsewhere in the story.

Findings

26Imputation (ii) is bad in form and must be struck out and re-pleaded for the reasons set out at paragraph 12 above.

27Imputation (ix) must be struck out for the reasons given at paragraph 20 above.

28Imputation (viii) is struck out for the reasons given at paragraph 21 above.

29Imputation (xiii) is struck out for the reasons given at Paragraph 14 above.

30Imputation (xiv) is struck out for the reasons given at Paragraph 15 above.

Conclusion

31Accordingly, the plaintiff’s amended statement of claim is struck out in part in the terms set out in this ruling, with a right to replead.

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