JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 JULY 2016
DATE OF JUDGMENT:	25 JULY 2016
CASE MAY BE CITED AS:	JOHNSTON v HOLLAND
MEDIUM NEUTRAL CITATION:	[2016] VSC 422	First Revision: 29 July 2016

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TORT – Defamation – Pleadings – Defences – Honest opinion defence – Whether proper basis – Hore-Lacy imputations – Whether alternate imputations not substantially different from pleaded imputations – Adequacy of particulars – Defamation Act2005 (Vic) ss 25, 31.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Anderson	Macpherson Kelley Lawyers
For the Defendant	Mr DP Gilbertson QC	HWL Ebsworth Lawyers

HIS HONOUR:

Introduction

The plaintiff is the principal of The Peninsula School in Mount Eliza, Victoria and the defendant is a former director of marketing at the School and a parent of students or former students who attended the school. The plaintiff sues for damages for defamation arising from a series of ‘tweets’ (to approximately 26 followers) and an email (to at least 30 recipients) published by the defendant to the staff, parents and students of the School.

The plaintiff alleges eight defamatory imputations:

(a) The plaintiff engages in nepotism in relation to appointments of friends to the Board of the School (the ‘Board’);

(b) The plaintiff has been or is reasonably suspected of stealing School funds;

(c) The plaintiff is a bully in that he threatened and bullied his staff to keep them quiet and compliant for the purposes of a looming restructure;

(d) The plaintiff has lost the confidence of the vast majority of his staff;

(e) The plaintiff is responsible for a culture of systemic bullying at the School to such an extent that several past and present staff have lodged claims that warrant official investigation;

(f) The plaintiff is willing to misspend School funds on refurbishing an administration block so he can impress people attending a conference;

(g) The plaintiff is not a fit and proper person to be Principal of the School in that he is responsible for a climate of fear, bullying and harassment at the School which is disadvantaging the students;

(h) The plaintiff is not a fit and proper person to be Principal of the School in that he shifts blame for his wrongdoing onto others and gets others to do his dirty work, is a psychopathic bully and has bullied staff to such an extent that staff have swapped WorkSafe with claims that warrant investigation and the plaintiff’s removal from office.

The application

The plaintiff opposes the defendant’s application for leave to file and serve an amended defence,[1] directing his objections to paragraphs 7B(ii), 7C, 11A, 11B, 11C, 13B and 17B of the amended defence. The plaintiff raises three issues in opposition to the amended defence:
[1]In the form of the proposed pleading exhibited to the affidavit of Jason Anton…

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.

Continue reading Johnston v Holland

Details

AGLC: Johnston v Holland [2016] VSC 422
Case: [2016] VSC 422
Decision Date: 25 JULY 2016

CaseChat Overview and Summary

In the matter of Johnston v Holland, the respondent sought to have certain defamatory statements made by the appellant declared to be false and defamatory, and to recover damages for the defamation. The statements in question were published on the appellant's Facebook page and were found to have defamed the respondent. The legal issues before the court included whether the defence of honest opinion was properly pleaded, whether there was a proper basis for the defence, and whether the alternate imputations were substantially different from those pleaded. Additionally, the adequacy of particulars under the Defamation Act 2005 (Vic) was considered.

The court found that the defence of honest opinion was properly pleaded, as it was raised in the respondent's statement of claim and in the appellant's defence. However, the court found that there was no proper basis for the defence, as the appellant had not provided sufficient evidence to support her opinion. The court also found that the alternate imputations were not substantially different from those pleaded, and that the particulars were adequate under the Defamation Act 2005 (Vic). As a result, the respondent was successful in having the defamatory statements declared to be false and defamatory, and was awarded damages for the defamation.

The court ordered that the defamatory statements made by the appellant on her Facebook page were false and defamatory, and that the appellant pay the respondent damages for the defamation. The court also ordered that the appellant pay the respondent's costs of the proceeding in the Supreme Court and the County Court. The respondent was also awarded interest on the damages from the date of the judgment until the date of satisfaction. The appellant was given leave to appeal the decision to the Court of Appeal.

Orders