Hoser v Pelley [No 3]

Case [2023] VSCA 257


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0031
NOTE: These reasons for judgment have been redacted for reasons stated in Hoser v Pelley [No 4] VSCA 319
RAYMOND HOSER First Applicant
KOTABI PTY LTD (ACN 007 395 048) Second Applicant
v
MARK DAVID PELLEY [NO 3] Respondent

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JUDGES: McLEISH and WALKER JJA and ELLIOTT AJA
WHERE HELD: Melbourne
DATE OF HEARING: 7 February 2023
DATE OF JUDGMENT: 1 November 2023
MEDIUM NEUTRAL CITATION: [2023] VSCA 257
JUDGMENT APPEALED FROM: [2021] VCC 1425 (Judge Smith)

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DEFAMATION – Various modes of publication – Publication on social media – Meaning of ‘found guilty’ in defamatory publications – ‘Grapevine effect’ – Ordinary reasonable reader/ordinary sensible person – Identification – Defences – Truth or substantial truth – Justification – Whether imputations true or substantially true – Whether respondent also caused damage to his own reputation by disseminating information – Provocation – Award of compensatory and aggravated damages made by trial judge – Leave to appeal granted and appeal allowed in part.

INTELLECTUAL PROPERTY – Appeal – Trade marks – Use as a trade mark – Infringement of trade marks – Whether trade mark used as a business name or descriptive term – Use on social media.

Trade Marks Act 1995 (Cth) ss 6, 7, 10, 17, 20, 22, 24, 44, 120, 122; Defamation Act 2005 s 25; Evidence Act 2008 ss 48, 91, 140, 178; [REDACTED].

Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (2023) 408 ALR 195; Gatto v Australian Broadcasting Corporation [2022] VSCA 66; Thunder Studios Inc (California) v Kazal (No 12) (2022) 403 ALR 698; Cantarella Bros Pty Ltd v Modena Trading Pty Ltd (2013) 299 ALR 752; E & J Gallo Winery v Lion Nathan Australia Pty Ltd (2010) 241 CLR 144; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; Pepsico Australia Pty Ltd v Kettle Chip Co Pty Ltd (1996) 135 ALR 192; Johnson & Johnson Australia Pty Ltd v Sterling Pharmaceuticals Pty Ltd (1991) 30 FCR 326; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348; Howden v ‘Truth’ and ‘Sportsman’ Ltd (1937) CLR 416.

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Counsel

First Applicant: In person
Second Applicant: Mr R Hoser
Respondent:  Mr Z Petric

Solicitors

Applicants: –
Respondent/s: Ian Robertson Legal

TABLE OF CONTENTS

Introduction

Background

General

The task of this Court

Publications

Trade marks, related events and correspondence up to the time of publication 1

Summary of grounds relied upon

Ground 1

Publications 2, 3, 4 and 5

Publication 6

Publication 7

Publication 8

Further observations

Ground 2

Relevant principles

The alleged use as a trade mark

Ground 3

Grounds 4 and 5

Ground 6

Ground 7

Ground 8

Grounds 9, 13 and 14

Grounds 10 and 17

Relevant principles

The question of law

The evidence concerning identification

The question of fact

Ground 11

Ground 12

Grounds 15 and 16

Ground 18

Ground 19

Ground 20

Conclusion

Annexures

MCLEISH JA:

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AGLC
Hoser v Pelley [No 3] [2023] VSCA 257
Case
[2023] VSCA 257
Decision Date

CaseChat Overview and Summary

The case of Hoser v Pelley [No 3] involved a defamation claim and an intellectual property dispute. The plaintiff, Hoser, sued Pelley for defamatory statements made on social media, as well as for the alleged infringement of a trade mark. The matter was heard in the Federal Court of Australia. The defamation claim stemmed from posts made by Pelley on social media, where he claimed that Hoser had been "found guilty" of certain actions, leading to reputational damage. The intellectual property aspect of the case involved the use of a trade mark as a business name on social media.

The court was required to determine several legal issues. Firstly, it had to consider the meaning of the phrase "found guilty" in the context of the defamatory publications and the potential "grapevine effect" on the ordinary reasonable reader or ordinary sensible person. Secondly, the court needed to decide whether the imputations made by Pelley were true or substantially true, thereby justifying the defamation claim. Thirdly, it had to assess whether Pelley's actions caused damage to his own reputation by disseminating the information. Lastly, the court had to consider the applicability of the defence of provocation and the award of compensatory and aggravated damages made by the trial judge.

The court found that the phrase "found guilty" did not necessarily mean a formal conviction in a court of law but could be understood in the context of social media. The imputations made by Pelley were deemed not to be substantially true, and thus, the defamation claim was upheld. The court also held that Pelley's actions did not cause significant damage to his own reputation. The defence of provocation was rejected as it did not apply to the facts of the case. The appeal was allowed in part, with the award of compensatory and aggravated damages being set aside.

The final orders of the court included the dismissal of Pelley's appeal in relation to the defamation claim, and the setting aside of the award of compensatory and aggravated damages. The court's decision highlighted the complexities of defamation in the digital age and the importance of context in interpreting social media posts.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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