Hoser v Nine Entertainment & Ors (Ruling)
[2022] VCC 1663
•6 October 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Defamation List
Case No. CI-21-03944
| RAYMOND TERRENCE HOSER | Plaintiff |
| v | |
| NINE ENTERTAINMENT CO. HOLDINGS LIMITED (ACN 122 205 065) | First Defendant |
| and | |
| TOM KELLY | Second Defendant |
| and | |
| PETER DONALD BEAUCHAMP HITCHENER | Third Defendant |
| and | |
| NINE NETWORK AUSTRALIA PTY LTD (ACN 008 685 407) | Fourth Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 March and 18 July 2022 | |
DATE OF RULING: | 6 October 2022 | |
CASE MAY BE CITED AS: | Hoser v Nine Entertainment & Ors (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1663 | |
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 v City of Casey (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; Morgans v Odham Press Ltd [1971] 2 All ER 1156, 1163; Soultanov v The Age Co Ltd (2009) 23 VR 182; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Ruling: The defendants’ strike out application allowed in part. The plaintiff’s amended statement of claim is struck out in part in the terms outlined 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 | Thomson Geer |
HER HONOUR:
1The plaintiff sues the defendants for defamation arising out of publications relating to the events surrounding the plaintiff’s snake catching business.
2By summons dated 23 December 2021, the defendants seek to strike out parts of the respective pleadings in relation to the plaintiff’s claims against New Life Media Pty Ltd (‘News’) and Nine Entertainment Co. Holdings Limited (‘Nine’) and others.
Claim Against Nine Entertainment and Others
3The plaintiff’s claim against the defendants arises from eight publications the plaintiff alleges defamed him. There 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]
[1]Wheelahan v City of Casey (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).
6The 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 re-stated 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.
[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, paragraph [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, 1163; Soultanov v The Age Co Ltd (2009) 23 VR 182; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293.
First Publication
7The first publication is a video on the 9News website on 17 September 2020.
8That video says:
(a) the startling discovery of a tiger snake at a Nunawading petrol station is now the subject of a police investigation;
(b) Raymond Hoser posted photographs on social media posting ‘its lucky the Melbourne snake catcher was on the job and keeping people safe’; (sic)
(c) Coles says its staff did not call for help;
(d) police are now investigating reckless conduct;
(e) Hoser conceded he had mocked up the photos using his own snake.
9At paragraph 43 of the amended statement of claim, the plaintiff pleads that the first publication conveys the following meanings:[4]
[4] For clarity I have followed the numbering in the plaintiff’s pleading, although it requires certain numerals
to be omitted.
(i)the plaintiff has broken the law;
(ii)the plaintiff had engaged in reckless conduct with a tiger snake (well known to be deadly) and is likely to be charged for doing so;
(iii)the plaintiff is a danger to the public because he had mocked up photos with a deadly snake in a public place;
(iv)the plaintiff cannot be trusted because he generated a fake news story;
(v)the plaintiff is being investigated by police for criminal conduct endangering lives with a deadly snake (being a tiger snake, well known as a deadly species);
(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 and Hoser had previously said he had been ‘reinforced by the claim “A short time ago, Hoser conceded to nine news he’d mocked up the photos with his own snake.” And failing to mention the action was a re-enactment’);
(vii)the plaintiff is a fraud;
(viii)ꟷ
(ix)the plaintiff has put lives at risk with a deadly snake;
(x)the plaintiff plants snakes in places so that he can be called to remove them;
(xi)ꟷ
(xii)the plaintiff has admitted to fake snake-catching work;
(xiii)the plaintiff has admitted to criminal, or potentially criminal, conduct;
(xiv)the plaintiff has admitted to endangering, or potentially endangering, lives;
(xv)the plaintiff has admitted to being reckless with safety or legal compliance.
Findings
10Imputation (iv) is incapable of being conveyed, as the broadcast makes no reference, directly or indirectly, to a fake news story. The broadcast makes no reference to a story being generated by the plaintiff. The reference refers only to ‘snaps’. The imputation is incapable of being conveyed and must be struck out.
11Imputation (vi) makes no reference, directly or indirectly, to the plaintiff being a liar, telling lies or lying about being called out by Coles. The imputation may be that the plaintiff attended Coles uninvited. It does not convey a meaning that he said he was called out when he was not, nor that he lied about being called out. The imputation must be struck out.
12Imputation (x) is incapable of being conveyed by the broadcast. There is no reference to the plaintiff planting snakes, being called to remove them or planting snakes for any particular purpose. This requires a strained interpretation of the words. What is said is the plaintiff mocked up photographs. The broadcast states that he was not called to attend by Coles. The imputation may be that the plaintiff attended the service station uninvited for the purpose of taking photographs. The pleaded meaning is not capable of being conveyed and must be struck out.
13Imputation (vii) must be struck out and re-pleaded to identify in what way the broadcast is said to convey the plaintiff is a fraud. The meaning may be capable of being conveyed, but needs to be pleaded with sufficient precision so the defendants know in what way the claim is put.
14Imputations (xiii), (xiv), (xv) are incapable of being conveyed. The plaintiff conceded he had mocked up photographs using his own snake. That is all that is said about what the plaintiff had admitted. The words of the broadcast cannot convey a meaning that the plaintiff has made admissions beyond that. Those imputations must be struck out.
15The defendants submit that imputations (ii),(iii), (v) and (ix) are incapable of being conveyed because they turn on the use of the word ‘deadly’ and it cannot be assumed that all viewers of the broadcast would know tiger snakes are deadly. While the extent of knowledge about any particular subject may vary significantly among the range of persons taken to be representative of the hypothetical ordinary reasonable person, I do not accept the submission that the ordinary reasonable person would not know that a tiger snake is deadly, or at least very dangerous and life threatening. Further, the sting is that he put others at risk by his conduct in relation to a snake. Even if an ordinary reasonable person might not know a tiger snake is deadly, an ordinary reasonable person, particularly in Australia, would know that a tiger snake is venomous and dangerous.
16The defendants also submit imputations (ii), (iii), (v) and (ix) do not differ in substance. I am satisfied that they may differ in substance and convey different meanings. They are not struck out.
Second Publication
17The second publication is an article posted on the 9News website on 17 September 2020. That article is headed ‘[s]nake catcher “staged” deadly encounter on Melbourne petrol pump’.
18The article says:
(a) a professional snake catcher could face criminal charges after staging photos of a dangerous tiger snake clinging to a petrol bowser;
(b) Raymond Hoser told Nine he was called by staff at Coles Express in Nunawading to remove a deadly reptile that crawled from underneath a car and wrapped itself around a pump;
(c) Coles Express staff did not call for help and the rescue appears to be merely a stunt;
(d) Police are investigating the matter and Mr Hoser could face charges of reckless conduct;
(e) Mr Hoser admitted the snake was his own and he had mocked up the photos.
19At paragraph 61 of the amended statement of claim, the plaintiff pleads that the second publication carries the following imputations:
(i)the plaintiff has broken the law;
(ii)the plaintiff had engaged in reckless conduct with a tiger snake (well known to be deadly) and is likely to be charged for doing so;
(iii)the plaintiff is a danger to the public because he had mocked up photos with a deadly snake in a public place;
(iv)the plaintiff cannot be trusted because he generated a fake news story;
(v)the plaintiff is being investigated by police for criminal conduct endangering lives with a deadly snake;
(vi)the plaintiff is a liar because Coles Express staff are quoted as saying Mr Hoser had not been called to remove a tiger snake and Hoser had previously said he had been ‘(reinforced by the claim “A short time ago, Hoser conceded to nine news he’d mocked up the photos with his own snake.” And failing to mention the action was a re-enactment)’;
(vii)ꟷ
(viii)the plaintiff is a faker;
(ix)the plaintiff has put lives at risk with a deadly snake;
(x)the plaintiff plants snakes in places so that he can be called to remove them and make money in an act of scamming people;
(xi)ꟷ
(xii)the plaintiff has admitted to fake snake-catching work;
(xiii)the plaintiff has admitted to criminal, or potentially criminal, conduct;
(xiv)the plaintiff has admitted to endangering lives;
(xv)the plaintiff has admitted to being reckless.
Findings
20The words in imputation (vi)
…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 statement by the plaintiff, (reinforced by the claim ‘A short time ago, Hoser conceded to nine news he’d mocked up the photos with his own snake.’ And failing to mention the action was a re-enactment).
are struck out as they are bad in form and contain submissions. The imputation now reads, ‘[t]he Plaintiff is a liar’.
21Imputation (x) is incapable of being conveyed. There is nothing in the article that suggests the plaintiff planted a snake so that he could be called to remove one, if the meaning conveyed is that the plaintiff used his own snake to take photos and lied about being called out by Coles staff. There is no reference, direct or indirect, to the plaintiff putting one of his snakes on the bowser so it would be seen by staff, who then called him, in order to generate work and make money. There is no allegation of scamming people for money. The imputation is struck out.
22Imputation (viii) is struck out and must be re-pleaded with precision so that the pleading sets out in what way the plaintiff is alleged to be a faker.
23For the reasons given at paragraph 13 above, imputations (xiii), (xiv) and (xv) are struck out.
24For the reasons given at paragraph 15 above, imputations (ii), (iii), (v) and (ix) are not struck out.
Third Publication
25At paragraph 62 of the amended statement of claim, the plaintiff pleads that on 17 September 2020 the defendants published a post on Facebook which attracted a number of comments. The publication was headed, ‘A professional snake catcher could face criminal charges after staging photos of a dangerous tiger snake clinging to a petrol bowser. #9News | Nightly at 6’. Comments posted included:
His a wanka, thats going to help people come around to snakes, and taints reptile owners, give him the boot; (sic)
Maybe will teach reporters to investigate a story before media runs a story. And not half baked stories just to generate reaction on social media. The peanut should be charged and have his license revoked; (sic)
I just read a court statement about him letting 2 venomous snakes bite his 12 yr old daughter to prove a point ! This can’ t be real right ? What sort off person a father lets that happen!; (sic)
He has a longggggg history of bending the truth! Google the cruel piece of sh*t.; (sic)
Wtf is wrong with some ppl, I seriously hope he gets jail time;
What a flog;
lol as soon as I saw ‘Snake Catcher’ and before I read the story I KNEW this would be about Ray Hoser! The guy is as mad as a rattle snake and has pulled stunts like this before. He is a serial liar and conman and shouldn’t be given airtime.;
Cruelty to any animal really upsets me;
he took a wild animal and released it at a petrol station. He has a history of doing this so he can ‘catch’ the wildlife;
Animal neglect, abuse and cruelty are despicable acts.
26The plaintiff pleads the following imputations:
(i)the plaintiff has broken the law;
(ii)the plaintiff had engaged in reckless conduct with a tiger snake (well known to be deadly) and is likely to be charged for doing so;
(iii)the plaintiff is a danger to the public because he had mocked up photos with a deadly snake in a public place;
(iv)the plaintiff cannot be trusted because he generated a fake news story;
(v)the plaintiff is being investigated by police for criminal conduct endangering lives with a deadly snake (being a tiger snake well known as a deadly species);
(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, and Hoser had previously said he had been ‘(reinforced by the claim “A short time ago, Hoser conceded to nine news he’d mocked up the photos with his own snake.” And failing to mention the action was a re-enactment)’;
(vii)the plaintiff is a fraud;
(viii)ꟷ
(ix)the plaintiff has put lives at risk with a deadly snake;
(x)–
(xi)–
(xii)the plaintiff has admitted to fake snake-catching work;
(xiii)the plaintiff has admitted to criminal, or potentially criminal, conduct;
(xiv)the plaintiff has admitted to endangering lives;
(xv)the plaintiff has admitted to being reckless;
(xvi)the plaintiff ‘taints’ other reptile owners with improper acts;
(xvii)the plaintiff has committed a crime, or a crime so serious as to warrant a criminal charge and snake-catcher licence revocation;
(xviii)the plaintiff made two venomous snakes bite his twelve-year-old daughter;
(xix)the plaintiff has a long history of being a liar;
(xx)the plaintiff is a cruel piece of shit;
(xxi)the plaintiff is a flog;
(xxii)the plaintiff is a serial liar and conman;
(xxiii)the plaintiff shouldn’t be given media publicity for his business;
(xxiv)the plaintiff engages in acts of animal cruelty;
(xxv)the plaintiff took a wild animal and released it at the petrol station. This plaintiff has a history of doing this so he can catch the wildlife;
(xxvi)the plaintiff engages in acts of animal neglect, abuse and cruelty which are despicable acts.
Findings
27The words in imputation (vi):
… 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 statement by the plaintiff (reinforced by the claim ‘A short time ago, Hoser conceded to nine news he’d mocked up the photos with his own snake.’ And failing to mention the action was a re-enactment).
are struck out, as they are extraneous, and in the form of evidence or submissions. The imputation now reads ‘[t]he plaintiff is a liar’.
28Imputation (vii) is struck out and must be re-pleaded with precision so that the pleading sets out in what way the plaintiff is alleged to be a fraud.
29The words in imputation (xvi) are struck out. The plaintiff has leave to re-plead them with sufficient precision to identify what the improper acts are said to be. However, if the plaintiff does not re-plead, the imputation can stand as ‘the plaintiff taints other reptile owners’.
30Imputations (xiii), (xiv) and (xv) are struck out for the reasons set out at paragraph 13.
31Imputations (ii),(iii) (v) and (ix) can stand for the reasons given at paragraph 15 above.
32The words ‘piece of shit’ in imputation (xx) are struck out. The imputation pleaded is that the plaintiff is cruel. The ordinary reasonable reader would understand that ‘piece of shit’ is a term of abuse which may be ‘mere abuse’ but does not affect the sting of the imputation capable of being conveyed and is, therefore, extraneous to the pleaded imputation. However, if the plaintiff seeks to plead that a separate imputation is conveyed by the words ‘piece of shit’, he must plead the imputation he contends is conveyed by those words to the ordinary reasonable reader.
33Imputation (xxi) is bad in form and is struck out with a right to re-plead. The plaintiff must set out what he contends the term ‘flog’ would be understood to mean by the ordinary reasonable reader.
34Imputation (xxiii) is struck out. The plaintiff has a right to re-plead, to set out what he contends is the defamatory meaning conveyed. On the face of the pleading as it currently stands, no defamatory meaning is conveyed.
35Imputation (xxv) is struck out, with a right to re-plead to separate out each defamatory sting he contends. It is possible that some, or all, of the potential stings are conveyed, or are not conveyed, but until it is clear what is said to be conveyed, neither the defendants nor the Court can properly understand the pleading.
36Imputation (xxiv) is struck out, as this imputation is pleaded in (xxvi).
Fourth Publication
37At paragraph 96 of the amended statement of claim, the plaintiff pleads that the defendants published a tweet on Twitter, which included a link to the first publication and second publications.
38The plaintiff pleads the Twitter post generated a comment, ‘Hopefully he’ll now be forever known as Mister Fake Snake.’
39The plaintiff pleads the following imputations are conveyed:
(i)the plaintiff has broken the law;
(ii)the plaintiff had engaged in reckless conduct with a tiger snake (well known to be deadly) and is likely to be charged for doing so;
(iii)the plaintiff is a danger to the public because he had mocked up photos with a deadly snake in a public place;
(iv)the plaintiff cannot be trusted because he generated a fake news story;
(v)the plaintiff is being investigated by police for criminal conduct endangering lives with a deadly snake (being a tiger snake, well known as a deadly species);
(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, and Hoser had previously said he had been ‘(reinforced by the claim “A short time ago, Hoser conceded to nine news he’d mocked up the photos with his own snake.” And failing to mention the action was a re-enactment)’;
(vii)ꟷ
(viii)the plaintiff is a faker;
(ix)the plaintiff has put lives at risk with a deadly snake;
(x)the plaintiff plants snakes in places so that he can be called to remove them;
(xi)ꟷ
(xii)the plaintiff has admitted to fake snake-catching work;
(xiii)the plaintiff has admitted to criminal, or potentially criminal, conduct;
(xiv)the plaintiff has admitted to endangering, or potentially endangering, lives;
(xv)the plaintiff has admitted to being reckless.
Findings
40The words in imputation(vi):
… 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 statement by the plaintiff (reinforced by the claim ‘A short time ago, Hoser conceded to nine news he’d mocked up the photos with his own snake.’ And failing to mention the action was a re-enactment).
are struck out, as they are extraneous, and in the form of evidence or submissions. The imputation now reads ‘[t]he plaintiff is a liar’.
41Imputation (x) is struck out for the reasons given at paragraph 11 above.
42Imputation (viii) is struck out and must be re-pleaded for the reasons set out at paragraph 20 above.
43Imputations (xiii), (xiv) and (xv) are struck out for the reasons given at paragraph 13 above.
44Imputations (ii),(iii), (v) and (ix) can stand for the reasons given at paragraph 15 above.
Fifth Publication
45At paragraph 108 of the amended statement of claim, the plaintiff pleads that the defendants published a tweet on Twitter which included a link to the first and second publication. Comments on that post included:
I don’t know how he is still allowed to own animals after his extensive history. The man isn’t right in the head
…
Not to mention he stalks, harasses and bullies people to take down his competition websites due to his ‘cough air quotes’ ‘trademarks’ and if he doesn’t hear from you, he cyber stalks, bullies and threaten your employees and their Families – what he did to me last mont (sic)
46The plaintiff pleads the publication conveys the following imputations:
(i)the plaintiff has broken the law;
(ii)the plaintiff had engaged in reckless conduct with a tiger snake (well known to be deadly) and is likely to be charged for doing so;
(iii)the plaintiff is a danger to the public because he had mocked up photos with a deadly snake in a public place;
(iv)the plaintiff cannot be trusted because he generated a fake news story;
(v)the plaintiff is being investigated by police for criminal conduct endangering lives with a deadly snake (being a tiger snake, well known as a deadly species);
(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, and Hoser had previously said he had been ‘(reinforced by the claim “A short time ago, Hoser conceded to nine news he’d mocked up the photos with his own snake.” And failing to mention the action was a re-enactment)’;
(vii)ꟷ
(viii)the plaintiff is a faker;
(ix)the plaintiff has put lives at risk with a deadly snake;
(x)the plaintiff plants snakes in places so that he can be called to remove them;
(xi)ꟷ
(xii)the plaintiff has admitted to fake snake-catching work;
(xiii)the plaintiff has admitted to criminal, or potentially criminal, conduct;
(xiv)the plaintiff has admitted to endangering, or potentially endangering, lives;
(xv)the plaintiff has admitted to being reckless;
(xvi)the plaintiff should not be allowed to possess animals;
(xvii)the plaintiff is mentally ‘not right’ and therefore potentially dangerous, deranged or unstable, and/or should not be allowed to deal with wildlife and/or the general public;
(xviii)the plaintiff is a stalker;
(xix)the plaintiff harasses people;
(xx)the plaintiff is a bully;
(xxi)the plaintiff cyber stalks;
(xxii)the plaintiff makes improper trademark threats;
(xxiii)the plaintiff threatens people and their families.
Findings
47The words in imputation (vi):
… 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 statement by the plaintiff (reinforced by the claim ‘A short time ago, Hoser conceded to nine news he’d mocked up the photos with his own snake.’ And failing to mention the action was a re-enactment).
are struck out, as they are extraneous, and in the form of evidence or submissions. The imputation now reads, ‘[t]he plaintiff is a liar’.
48Imputation (x) is struck out for the reasons given at paragraph 11 above.
49Imputation (viii) is struck out and must be re-pleaded for the reasons set out at paragraph 21 above.
50Imputations (xiii), (xiv) and (xv) are struck out for the reasons given at paragraph 13 above.
51Imputations (ii),(iii), (v) and (ix) can stand, for the reasons given at paragraph 15 above.
52Imputation (xvi) is struck out, and must be re-pleaded to convey the defamatory sting said to be conveyed.
53Imputation (xvii) is not capable of being conveyed. It may be defamatory to say someone is ‘not right in the head’, however the imputation pleaded is that, being not right in the head carries the meaning that he is deranged, unstable or dangerous, and should not be allowed to deal with the general public or wildlife. Nothing in the words could convey anything about the general public or wildlife. Nothing in the words can convey to an ordinary reasonable reader that the plaintiff is deranged, dangerous or unstable. The pleading is struck out and the plaintiff has a right to re-plead the imputation setting out the defamatory imputation that can be conveyed by the words. The current pleading impermissibly rolls up a number of imputations and would be struck out as being bad in form on that basis.
Sixth Publication
54At paragraph 122 of the amended statement of claim, the plaintiff pleads that on 17 September 2020 the defendants published a tweet on Twitter which contained a link to the second publication. The plaintiff pleads the following imputations were conveyed:
(i)the plaintiff has broken the law;
(ii)the plaintiff had engaged in reckless conduct with a tiger snake (well known to be deadly) and is likely to be charged for doing so;
(iii)the plaintiff is a danger to the public because he had mocked up photos with a deadly snake in a public place;
(iv)the plaintiff cannot be trusted because he generated a fake news story;
(v)the plaintiff is being investigated by police for criminal conduct endangering lives with a deadly snake (being a tiger snake, well known as a deadly species);
(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 and Hoser had previously said he had been ‘(reinforced by the claim “A short time ago, Hoser conceded to nine news he’d mocked up the photos with his own snake.” And failing to mention the action was a re-enactment)’;
(vii)the plaintiff is a fraud;
(viii)ꟷ
(ix)the plaintiff has put lives at risk with a deadly snake;
(x)the plaintiff plants snakes in places so that he can be called to remove them;
(xi)ꟷ
(xii)the plaintiff has admitted to fake snake-catching work;
(xiii)ꟷ
(xiv)the plaintiff has admitted to endangering lives;
(xv)the plaintiff has admitted to being reckless and/or a law breaker.
Findings
55The words in imputation (vi):
… 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 statement by the plaintiff (reinforced by the claim ‘A short time ago, Hoser conceded to nine news he’d mocked up the photos with his own snake.’ And failing to mention the action was a re-enactment).
are struck out as they are extraneous, and in the form of evidence or submissions. The imputation now reads, ‘[t]he plaintiff is a liar’.
56Imputation (x) is struck out for the reasons given at paragraph 11 above.
57Imputation (vii) is struck out and must be re-pleaded for the reasons set out at paragraph 12 above.
58Imputations (xiii), (xiv) and (xv) are struck out for the reasons given at paragraph 13 above.
59Imputations (ii),(iii), (v) and (ix) can stand for the reasons given at paragraph 13 above.
Seventh Publication
60At paragraph 132 of the amended statement of claim, the plaintiff pleads that on 17 September 2021 the defendants published a tweet on Twitter which contained a link to the second publication. The plaintiff pleads the following imputations were conveyed:
(i)the plaintiff has broken the law;
(ii)the plaintiff had engaged in reckless conduct with a tiger snake (well known to be deadly) and is likely to be charged for doing so;
(iii)the plaintiff is a danger to the public because he had mocked up photos with a deadly snake in a public place;
(iv)the plaintiff cannot be trusted because he generated a fake news story;
(v)the plaintiff is being investigated by police for criminal conduct endangering lives with a deadly snake (being a tiger snake, well known as a deadly species);
(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 and Hoser had previously said he had been ‘reinforced by the claim “[a] short time ago, Hoser conceded to nine news he’d mocked up the photos with his own snake.” And failing to mention the action was a re-enactment’);
(vii)ꟷ
(viii)the plaintiff is a faker;
(ix)the plaintiff has put lives at risk with a deadly snake;
(x)the plaintiff plants snakes in places so that he can generate a fake news story;
(xi)ꟷ
(xii)the plaintiff has admitted to fake snake-catching work;
(xiii)the plaintiff has admitted to criminal, or potentially criminal, conduct;
(xiv)the plaintiff has admitted to endangering lives.
Findings
61The words in imputation (vi):
… 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 statement by the plaintiff (reinforced by the claim ‘A short time ago, Hoser conceded to nine news he’d mocked up the photos with his own snake.’ And failing to mention the action was a re-enactment).
are struck out, as they are extraneous, and in the form of evidence or submissions. The imputation now reads, ‘[t]he plaintiff is a liar’.
62Imputation (x) is struck out for the reasons given at paragraph 11 above.
63Imputation (viii) is struck out and must be re-pleaded for the reasons set out at paragraph 20 above.
64Imputations (xii), (xiii), and (xiv) are struck out for the reasons given at paragraph 13 above.
65Imputations (ii),(iii), (v) and (ix) can stand for the reasons given at paragraph 15 above.
Eighth Publication
66At paragraph 143 of the amended statement of claim, the plaintiff pleads that on 18 September 2020, the defendants published a tweet on Twitter which contained a link to the Second Publication. The plaintiff pleads the following imputations were conveyed:
(i)the plaintiff has broken the law;
(ii)the plaintiff had engaged in reckless conduct with a tiger snake (well known to be deadly) and is likely to be charged for doing so;
(iii)the plaintiff is a danger to the public because he had mocked up photos with a deadly snake in a public place;
(iv)the plaintiff cannot be trusted because he generated a fake news story;
(v)the plaintiff is being investigated by police for criminal conduct endangering lives with a deadly snake (being a tiger snake, well known as a deadly species);
(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 and Hoser had previously said he had been ‘(reinforced by the claim “A short time ago, Hoser conceded to nine news he’d mocked up the photos with his own snake.” And failing to mention the action was a re-enactment)’;
(vii)the plaintiff is a fraud;
(viii)ꟷ
(ix)the plaintiff has put lives at risk with a deadly snake;
(x)the plaintiff plants snakes in places so that he can be called to remove them;
(xi)ꟷ
(xii)the plaintiff has admitted to fake snake-catching work;
(xiii)the plaintiff has admitted to criminal, or potentially criminal, conduct;
(xiv)the plaintiff has admitted to being reckless;
(xv)the plaintiff has admitted to endangering lives;
Findings
67The words in imputation (vi):
… 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 statement by the plaintiff (reinforced by the claim ‘A short time ago, Hoser conceded to nine news he’d mocked up the photos with his own snake.’ And failing to mention the action was a re-enactment).
are struck out as they are extraneous, and in the form of evidence or submissions. The imputation now reads ‘[t]he plaintiff is a liar’.
68Imputation (x) is struck out for the reasons given at paragraph 11 above.
69Imputation (vii) is struck out and must be re-pleaded for the reasons set out at paragraph 12 above.
70Imputations (xii), (xiii), (xiv) and (xv) are struck out for the reasons given at paragraph 13 above.
71Imputations (ii),(iii), (v) and (ix) can stand for the reasons given at paragraph 15 above.
Conclusion
72Accordingly, 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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