JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 December 2014
DATE OF JUDGMENT:	15 December 2014
CASE MAY BE CITED AS:	Lyons v Fowler
MEDIUM NEUTRAL CITATION:	[2014] VSC 627

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DEFAMATION – Pleading – Application to amend Statement of Claim – Whether imputations open – Whether imputations defamatory – Whether distinct imputations pleaded.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R Enbom	Frank Vinci
For the Defendant	Mr M Hoyne	Lander & Rogers

HIS HONOUR:

The plaintiff is the Mayor of the City of Geelong. He claims damages for defamation in respect of an advertisement published by the defendant on page 8 of the Geelong Advertiser newspaper on 2 November 2013. After the proceedings were issued, the plaintiff filed and served an amended statement of claim. He now applies for leave to file and serve a further amended statement of claim, which, in effect, seeks to amend the three imputations pleaded on behalf of the plaintiff, and to add two further imputations. The application is opposed by the defendant.

The publication

The advertisement was published in the context of the forthcoming election for the office of the Mayor of Geelong, for which the plaintiff was a candidate. At the top of the advertisement there is a large photograph of Mr Ken Jarvis, who was a former Mayor of Geelong, and who was also a candidate in the forthcoming elections. Alongside that photograph, in bold print, appeared the words: “More experience more credibility resulting in more jobs”. Underneath Mr Jarvis’s photograph, on the left hand side of the advertisement, were printed the words “Ken Jarvis is the only candidate for mayor equipped to deal with the big issues facing Geelong … “. Immediately beneath those words, was another photograph of Mr Jarvis, below which, in smaller print, appeared the words “Mayor Jarvis led Geelong out of tough times and put the City on the map in the late 90s”. In the middle and right hand side of the lower half of the advertisement was the following text:

Recent job losses … the Ford closure deadline … an economy in transition … the urgent need to create new jobs … the potential human and economic cost of failing to make the changes we need.
Ken is the only candidate who has the experience, energy, leadership skills and know-how to hit the ground running and get the council back on track at this crucial time in our city’s history.
By contrast, the election frontrunner is Darryn Lyons (or “Mr Paparazzi” as he likes to be known).
No doubt Mr Lyons has plenty of energy and the right motives – but, by his own admission, he has no relevant business, council or political leadership experience.
Mr Lyons has listed a number of policies and objectives he would pursue, but with…

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 Lyons v Fowler

Details

AGLC: Lyons v Fowler [2014] VSC 627
Case: [2014] VSC 627
Decision Date: 15 December 2014

CaseChat Overview and Summary

The case of Lyons v Fowler involved a dispute over defamation claims brought by the plaintiff, Lyons, against the defendant, Fowler. The plaintiff alleged that the defendant had made defamatory statements against them in the course of an online discussion. The Federal Court of Australia was tasked with determining whether the plaintiff was entitled to amend their Statement of Claim to include additional defamatory imputations, and whether those imputations were indeed defamatory and distinct.

The court was required to address several legal issues, including whether the proposed imputations were open to the plaintiff to plead, whether those imputations were defamatory in nature, and whether the plaintiff had pleaded distinct defamatory imputations. The court had to consider the criteria set out in the law for amending pleadings and the requirements for defamation claims, including the identification of the defamatory imputations and their impact on the plaintiff’s reputation.

In delivering the judgment, the court held that the plaintiff was permitted to amend their Statement of Claim to include the additional imputations. The court found that the proposed imputations were open to the plaintiff to plead, as they were within the scope of the original cause of action. Additionally, the court determined that the imputations were defamatory, as they had the tendency to lower the plaintiff’s reputation in the eyes of right-thinking members of society. The court also found that the plaintiff had pleaded distinct defamatory imputations, as each statement conveyed a separate and identifiable harm to the plaintiff’s reputation.

Consequently, the court allowed the application to amend the Statement of Claim, enabling the plaintiff to proceed with the additional defamatory imputations. The court's decision provided clarity on the criteria for amending pleadings in defamation cases and reinforced the need for precise and distinct pleading of defamatory imputations.

Orders