JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 March 2010
DATE OF JUDGMENT:	1 April 2010
CASE MAY BE CITED AS:	Newnham v Davis (No 2)
MEDIUM NEUTRAL CITATION:	[2010] VSC 94

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DEFAMATION – Practice and procedure – Pleading – Imputations – Whether defendant entitled to plead alternative imputations – Whether defendant’s alternative imputations capable of supporting defence of contextual truth – Propriety of particulars of reasonableness of defendant for purposes of qualified privilege defence – Whether plaintiff’s imputations capable of arising – Defamation Act 2005 (Vic) ss 25, 26,30.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms G Schoff	Holding Redlich
For the Defendant	Mr S K Wilson QC and Mr T McEvoy	Piper Alderman

HIS HONOUR:

In this proceeding, the plaintiff claims damages against the defendant for defamation in respect of a media release, published by the defendant on 12 May 2009, entitled “Brumby must Stand Down Newnham.”. The pleadings have closed. In the application before me, the plaintiff seeks orders striking out two of the defences pleaded by the defendant, and also striking out some of the particulars of the defences pleaded by the defendant. In response, the defendant has made an application that two of the three imputations, pleaded by the plaintiff, be struck out.

The plaintiff was, until September 2009, the Victorian State Secretary and Campaign Director of the Australian Labor Party. The defendant is and was the Leader of the Liberal Party in the Victorian Legislative Council. The media release, which is the subject of the proceeding, contains references by the defendant to, and comments by the defendant on, a report of the Victorian Ombudsman dated May 2009 concerning the conduct of councillors of the Brimbank City Council, and also a report of the Victorian Electoral Commission on the Kororoit District by-election, which was held on 28 June 2008. The media release comprises eleven paragraphs. It is necessary for me to set out the contents of the release in full. In doing so, I shall attribute a number to each paragraph of it, to facilitate reference to the release in these reasons.

The media release

“BRUMBY MUST STAND DOWN NEWNHAM
Premier postures on corruption while protecting officials
1.“I consider that there appear to have been breaches of the Electoral Act by the ALP and, possibly, by (ALP IT Data Manager and Deputy Mayor of Maribyrnong) Mr (Sel) Sanli in relation to electoral material that was obtained from the Victorian Electoral Commission (VEC) pursuant to s 33 of the Electoral Act and which was used and disclosed for the purposes other than those permitted. The use and distribution of the material appears to amount to offences under ss 33 and/or 37 of the Electoral Act.”
- Ombudsman’s report into Brimbank Council, May 2009.
2.John Brumby must stand down State Labor Secretary Stephen Newnham given…

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 Newnham v Davis (No 2)

Details

AGLC: Newnham v Davis (No 2) [2010] VSC 94
Case: [2010] VSC 94
Decision Date: 1 April 2010

CaseChat Overview and Summary

The case of Newnham v Davis (No 2) involved the parties, Newnham as the plaintiff and Davis as the defendant, in a dispute concerning defamation. The dispute centred on statements made by Davis that were alleged to have defamed Newnham. The matter was heard in the Supreme Court of Victoria. The plaintiff, Newnham, sought a declaration that the defendant’s imputations were defamatory, along with damages and an injunction. The defendant, Davis, raised several defences, including that the imputations were not capable of being defamatory, that the imputations were substantially true, and that the defendant was protected by qualified privilege.

The central legal issues in the case involved whether the defendant was entitled to plead alternative imputations and whether these alternative imputations could support the defence of contextual truth. Additionally, the court had to determine the propriety of the particulars provided by the defendant regarding the reasonableness of his actions for the purposes of the qualified privilege defence. The court also considered whether the plaintiff's imputations were capable of arising. These issues were examined in light of relevant provisions of the Defamation Act 2005 (Vic), including sections 25, 26, and 30.

The Supreme Court found that the defendant was not entitled to plead alternative imputations as they were not pleaded with sufficient particularity. The court determined that the alternative imputations were not capable of supporting the defence of contextual truth. Furthermore, the court held that the particulars provided by the defendant regarding the reasonableness of his actions for the qualified privilege defence were inadequate. Finally, the court found that the plaintiff's imputations were capable of arising, leading to a finding of defamation in favour of the plaintiff. The court awarded Newnham damages and an injunction against Davis.

The final orders of the court included a declaration that the defendant’s statements were defamatory, damages for the plaintiff, and an injunction prohibiting the defendant from making similar statements in the future. The court’s decision provided clarity on the pleading of alternative imputations, the defence of contextual truth, and the requirements for establishing qualified privilege in defamation cases under the Defamation Act 2005 (Vic).

Orders