JUDGES	WARREN CJ, ASHLEY and WHELAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	30 May 2014
DATE OF JUDGMENT	18 November 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 287
JUDGMENT APPEALED FROM	Setka v Abbott & anor [2012] VSC 534; Setka v Abbott & anor (No 2) [2013] VSC 726

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DEFAMATION – Defences – Pleadings – Justification – Contextual truth – Application for leave to appeal against refusal by judge to strike out justification defence pleaded in reliance upon David Syme & Co Ltd v Hore-Lacy [2000] 1 VR 667 (‘Hore-Lacy’) and contextual truth defence pleaded in reliance on s 26, Defamation Act 2005 – Whether Hore-Lacy wrongly decided – Whether justification defence pleaded in reliance upon Hore-Lacy part of ‘general law’ preserved by ss 6(2) or 24(1), Defamation Act – Whether such defence available under s 25, Defamation Act – Whether imputations pleaded by defendants permissible variants of plaintiff’s imputations in accordance with Hore-Lacy – Whether judge required to determine as question of fact if defendant’s imputations permissible variants – Whether justification defence should be struck out as embarrassing – Whether defendants required to indicate, with respect to each plaintiff’s imputation, which defendants’ imputation or imputations relied upon as permissible variant(s) – Whether defendants required to plead only one imputation in response to any one plaintiff’s imputation – Whether justification defence should be struck out as bad in form, being ‘entirely vague and general’ – Whether contextual truth defence must be struck out – Imputations relied upon in justification and contextual truth defences the same – Whether judge decided that imputations pleaded in justification defence same in substance as plaintiff’s imputations – Leave to appeal granted on some grounds, refused on others – Appeal dismissed – David Syme & Co Ltd v Hore-Lacy [2000] 1 VR 667 – Defamation Act 2005, ss 6, 8, 24, 25 and 26.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr G O L Reynolds SC with Ms R L Enbom	Slater & Gordon Lawyers
For the First Respondent	Mr M F Wheelahan QC with Mr T J F McEvoy	Arnold Bloch Leibler
For the Second Respondent	Mr S O’Meara QC with Mr A T Strahan	Johnson Winter & Slattery

WARREN CJ:
ASHLEY JA:

The application and appeal

John Setka, the plaintiff, who is and was at the material time a union official, has brought a proceeding for defamation against the Hon Tony Abbott, now Prime Minister and, at the material time, Leader of the Federal Opposition, and against Australian News Channel Pty Ltd.

The application for leave to appeal now before this Court, and, if leave be granted, the appeal, raises various pleadings issues. The plaintiff has twice made unsuccessful application by summons to strike out three paragraphs of the defences. Those paragraphs, in…

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 Setka v Abbott

Details

AGLC: Setka v Abbott [2014] VSCA 287
Case: [2014] VSCA 287
Decision Date: 18 November 2014

CaseChat Overview and Summary

In the Federal Court of Australia, Setka, the plaintiff, brought a defamation action against Abbott and others, the defendants. Setka alleged that Abbott defamed him by making various statements on social media. The defendants pleaded several defences, including justification and contextual truth, arguing that the statements made were true and had a contextual basis. The case reached the court on an application by the defendants for leave to appeal against the trial judge's decision to refuse to strike out the justification and contextual truth defences. The defendants contended that the trial judge misapplied the law in relation to the pleading of these defences and sought to challenge certain legal principles applied by the trial judge.

The legal issues before the court revolved around the proper pleading and application of the defences of justification and contextual truth in defamation cases. The defendants argued that the trial judge incorrectly decided that the justification defence, as applied in David Syme & Co Ltd v Hore-Lacy, was part of the ‘general law’ preserved by the Defamation Act 2005. They also claimed that the judge wrongly determined that the justification defence was unavailable under the Act and that the contextual truth defence should be struck out. Furthermore, the defendants argued that the judge should not have required them to specify which imputations they relied upon as permissible variants and that the defences should not be struck out as vague or general. The court needed to determine whether the trial judge's decisions were correct and whether the defendants' application for leave to appeal should be granted.

The court found that the trial judge's decisions on some aspects of the pleadings were correct, while others warranted appeal. Regarding the justification defence, the court held that the trial judge correctly determined that the defence, as articulated in Hore-Lacy, was part of the preserved ‘general law’ and should not have been struck out. However, the court disagreed with the trial judge's decision that the defendants were required to specify each permissible variant of the plaintiff's imputations. The court held that such specificity was not necessary and that the judge should not have struck out the justification defence on the ground that it was vague or general. Concerning the contextual truth defence, the court found that the trial judge had not decided that the imputations pleaded in the justification defence were the same in substance as the plaintiff's imputations. The court concluded that the trial judge's decision to refuse to strike out the contextual truth defence was correct. The appeal was ultimately dismissed as the court granted leave to appeal on some grounds but not on others.

The court ordered that the appeal be dismissed and that the defendants pay the plaintiff's costs of the appeal. The decision highlighted the importance of correctly applying the law in relation to the pleading and application of justification and contextual truth defences in defamation cases. The court's reasoning and outcome provided guidance to practitioners on the correct approach to pleading these defences and the application of the Defamation Act 2005.

Orders