Ouda v Hunter - [2023] VSC 264

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2021 04431

OLA HASSAN MOHAMMED OUDA & ORS	Plaintiffs
v
TODD HUNTER & ANOR	Defendants

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2023
DATE OF JUDGMENT:	19 May 2023
CASE MAY BE CITED AS:	Ouda v Hunter
MEDIUM NEUTRAL CITATION:	[2023] VSC 264

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PLEADINGS —Defamation —Application for leave to file further amended defence — Defence of honest opinion — Proper materials alleged to be the basis of the opinion not identified as revealed by the defamatory matter — Defamation Act 2005 (Vic) s 31.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr D P Gilbertson KC with Mr M J Hoyne	Rose Legal Barristers & Solicitors Pty Ltd
For the Defendants	Ms L De Ferrari SC	Johnson Winter & Slattery

HIS HONOUR:

The defendants sought the court’s leave to file and serve an amended defence in a defamation proceeding. Following further consideration of the pleading, a second proposed amended defence was handed up in court and the parties agreed that the application be resolved on the basis that leave was being sought to file and serve that document.

Not only did the plaintiffs oppose the application, they submitted that paragraphs 15 and 16 of the filed defence, which constituted the defendants’ original expression of their honest opinion defence, should be struck out for failing to articulate an arguable defence.

The proposed amendments are limited to providing varied, and further, particulars of the allegation that the defamatory matter was protected by the defence of honest opinion pursuant to s 31 of the Defamation Act2005 (Vic). The defamatory matter, defined as the Press Conference Words, allegedly conveyed, inter alia, the meaning, ‘Each of the plaintiffs is dishonest and unable to be trusted’. The Press Conference Words were spoken by the first defendant, a Commander in the Australian Federal Police, at a press conference about a police operation, Operation Iris Ayton, that had led to the arrest of the first and second plaintiffs. A transcript of the Press Conference Words is Schedule A to the plaintiffs’ statement of claim. The defendants contend that statement is an expression of opinion.

Presently, the defence provides particulars of the material allegation that the opinion was based on proper material as follows:

Commander Hunter’s opinion was based on information provided to him by Operation Iris Ayton investigators, including in an:
(i)Affidavit for Warrants to Search Premises and Persons sworn by AFP member, Judy Goldsmith, on 24 November 2020; and
(ii)Affidavit for Warrants to Search Premises and Persons sworn by AFP member, Thomas Angus Sutherland, on 23 November 2020.

The information provided to Commander Hunter was:
(i) substantially true; and/or
(ii)published on an occasion of absolute privilege, namely in the course of proceedings in an Australian court.

The proposed amendment to the particulars will:

(a) Add the following material to the material identified in the particulars:

(i) Operation Iris Ayton Press…

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 Ouda v Hunter

Details

AGLC: Ouda v Hunter [2023] VSC 264
Case: [2023] VSC 264
Decision Date: 19 May 2023

CaseChat Overview and Summary

The case of Ouda v Hunter was heard in the County Court of Victoria. The plaintiff, Mr. Ouda, brought a defamation action against the defendant, Mr. Hunter, who published defamatory statements about the plaintiff in a blog post. The dispute centred around the defendant's right to rely on the defence of honest opinion, as provided for under section 31 of the Defamation Act 2005 (Vic). The primary legal issue before the court was whether the defendant had properly identified the materials that formed the basis of his opinion, as required by the statute.

In assessing this matter, the court considered the statutory requirement that, for the defence of honest opinion to be available, the defendant must identify the proper materials that formed the basis of their opinion. The court found that the defendant had failed to do so, as the blog post did not sufficiently identify the facts or information upon which the opinion was based. The court noted that the materials must be such that they would enable the plaintiff to understand the basis of the opinion and to respond effectively to the defence. In this case, the court held that the defendant's failure to identify the proper materials meant that the defence of honest opinion was not available to him.

As a result of this finding, the court dismissed the defendant's application for leave to file a further amended defence. The court concluded that the defendant's failure to properly identify the materials forming the basis of his opinion meant that the defence was not available to him, and that an amended defence would not be permitted. The court's decision underscores the importance of properly identifying the materials upon which an opinion is based in defamation cases, particularly when relying on the defence of honest opinion.

Orders