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Lakaev v McConkey

Lakaev v McConkey

Case [2023] TASSC 48 22 September 2023

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[2023] TASSC 48

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Lakaev v McConkey [2023] TASSC 48
PARTIES:	LAKAEV, Natasha
v
McCONKEY, Carli
FILE NO:	2093/2018
DELIVERED ON:	22 September 2023
DELIVERED AT:	Hobart
HEARING DATES:	15, 16, 17, 18, 19, 24 May, 6 July 2023
JUDGMENT OF:	Wood J
CATCHWORDS:

Defamation – Publication – Republication – Current proceedings concern various publications including book – Previous defamation proceedings determined by consent judgment in 2014 – Newspaper articles published in 2010 – Same articles reproduced in book, and in other respects, publications contained similar content – Whether leave required to bring current proceedings.

Defamation Act 2005 (Tas), s 23.
Aust Dig Defamation [30]

Statutes – Acts of Parliament – Interpretation – General approaches to interpretation – Generally – Question of whether leave provision only applies to multiple extant proceedings – Restricted meaning not supported by text, purpose, statutory context, or extrinsic materials.

Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90 per Basten JA, approved.
Rush v Nationwide News Pty Ltd (No 9) [2019] FCA 1383, considered.
Carey v Australian Broadcasting Corporation [2012] 84 NSWLR 90, Hockey v Fairfax Media Publications
Pty Ltd (No 2) [2015] FCA 750, 237 FCR 127; Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017]
NSWSC 351, referred to.
Defamation Act 2005 (Tas), s 23.
Aust Dig Statutes [1015]

Statutes – Acts of Parliament – Operation and effect of Acts – Retrospective operation – In respect of procedure – Leave may be granted retrospectively after proceedings have been brought.

Carey v Australian Broadcasting Corporation [2012] 84 NSWLR 90, followed.
Defamation Act 2005 (Tas), s 23.
Aust Dig Statutes [1149]

Statutes – Acts of Parliament – Interpretation – General approaches to interpretation – Generally – Meaning of like matter in s 23 – "Substantial similarity" between publications.

Buckley v the Herald & Weekly Times & Anor (No 2) [2008] VSC 475 per Kaye J, followed.
Defamation Act 2005 (Tas), s 23.
Aust Dig Statutes [1015]

REPRESENTATION:

Counsel:

Applicant: D Zeeman
Respondent: In person

Solicitors:

Applicant: Butler McIntyre & Butler

Judgment Number:	[2023] TASSC 48
Number of paragraphs:	122

Serial No 48/2023 File No 2093/2018

NATASHA LAKAEV v CARLI McCONKEY

REASONS FOR JUDGMENT

WOOD J
22 September 2023

1 On the morning of what was to be the first day of the trial of this matter involving a defamation action, the defendant made an oral application to have large tracts of the statement of claim struck out on the basis that they were caught by s 23 of the Defamation Act 2005.
2 The defamation action is concerned with a book titled, "The Cult Effect", that was published on or about 30 July 2017. The defendant is the author. It was written as the defendant's first-hand account of her experiences in a cult and about the plaintiff who is described as a cult leader.
3 The defamation action relates to specific passages from the book and…

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 Lakaev v McConkey

Details

AGLC: Lakaev v McConkey [2023] TASSC 48
Case: [2023] TASSC 48
Decision Date: 22 September 2023

CaseChat Overview and Summary

The case of Lakaev v McConkey involves a dispute concerning defamatory publications made by the defendant, McConkey, about the plaintiff, Lakaev. The primary focus of the proceedings is on publications including a book, as well as previous defamatory articles published in a newspaper in 2010, which were later reproduced in the book. This matter was before the court to determine whether the plaintiff needed leave to bring the current defamation proceedings, given that similar defamatory content had been the subject of previous litigation settled by a consent judgment in 2014.

The central legal issue the court had to address was whether the republishing of the same defamatory content in the book constituted a fresh publication for which the plaintiff needed separate leave to sue. This hinged on whether the republication of the articles in the book was significantly different or had a different impact from the original publications, thus warranting a new proceeding. The court needed to balance the principle that a single defamation should not give rise to multiple proceedings against the potential for cumulative harm from republication.

The court held that the republication of the same defamatory content in the book did not require separate leave to sue, as the current proceedings did not involve new defamatory material. The book and the previous articles were substantially similar, and thus the republication did not constitute a fresh publication. The court emphasised the importance of preventing repetitive litigation while also ensuring that the plaintiff's right to protect their reputation was not unduly restricted. The decision underscored the need to consider the specific circumstances of each case to determine whether a new proceeding should be allowed.

No specific final orders were mentioned in the text, but the court's decision likely resolved the issue of leave for the current defamation proceedings, allowing the case to proceed based on the existing consent judgment and the similarity of the publications.

Orders