JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 October 2012
DATE OF JUDGMENT:	12 November 2012
CASE MAY BE CITED AS:	Setka v Abbott & Anor
MEDIUM NEUTRAL CITATION:	[2012] VSC 534

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DEFAMATION – Practice and Procedure – Pleadings – Defences – Polly Peck imputations – Contextual truth imputations – Whether capable of arising – Whether imputations open to be pleaded by defendants – Whether Polly Peck imputations are permissible variants – Adequacy of particulars of truth – Whether jury could reasonably conclude that because of the truth of the contextual imputations, the plaintiff’s imputations do not further harm the reputation of the plaintiff - Lange qualified privilege – Defamation Act 2005, s 26.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W T Houghton QC with Ms R L Enbom	Slater & Gordon
For the First Defendant	Mr M F Wheelahan SC with Dr T J F McEvoy	Arnold Bloch Leibler
For the Second Defendant	Mr A T Strahan	Johnson Winter Slattery

HIS HONOUR:

Introduction

The plaintiff is and was at all relevant times Divisional Branch Assistant Secretary of the Victorian Divisional Branch of the Construction and General Division of the Construction, Forestry, Mining and Energy Union (“CFMEU”) and Divisional Senior Vice-President of the Construction and General Division of the CFMEU. The first defendant is and was at all relevant times the Leader of the Federal Opposition in the House of Representatives. The second defendant is the operator of a subscription television service accessible by subscribers in Sydney, Melbourne, Brisbane, Gold Coast, Canberra, Adelaide and Western Australia in which subscribers may select and thereby view items including items titled “Sky News”.

This proceeding concerns the following words (“the words”), alleged to have been spoken by the first defendant at a conference of the Master Builders Association of Victoria on 10 February 2012, and alleged to have been re-published on the same day by the second defendant on Sky News:

Question: “How do you propose the MBA actually move forward with, some sort of campaign to support the ABCC?”
First defendant: “…Because so many of you have got to go onto sites every day and you’ve got to deal with the John Setkos of this world every day and the last thing you need is home visits from some of the gentlemen associated with some of the industrial organisations that you have to deal with every day and those home visits we know take place. Now the MBA is one step removed from that and it’s very very important that the MBA takes a forthright and uncompromising position and I’m pleased to say that in all my dealings with the Victorian MBA, particularly with your Executive Director Brian Welch, that…

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 [2012] VSC 534
Case: [2012] VSC 534
Decision Date: 30 October 2012

CaseChat Overview and Summary

The dispute between Setka and Abbott was brought before the court, with the primary issue being defamation. Setka, the plaintiff, alleged that Abbott, the defendant, defamed him through various statements made during a legal proceeding. The case reached the court, which had to determine whether the statements made by Abbott were capable of being defamatory and whether they could be pleaded by the defendant as a defence. Additionally, the court had to consider whether the Polly Peck imputations were permissible variants of the contextual truth imputations, and whether the particulars of truth were adequate. Furthermore, the court examined whether the jury could reasonably conclude that the truth of the contextual imputations prevented the plaintiff's imputations from further harming his reputation. The court also addressed the issue of Lange qualified privilege under the Defamation Act 2005, section 26.

The court found that the statements made by Abbott were capable of being defamatory, and that the Polly Peck imputations were permissible variants of the contextual truth imputations. The court held that the particulars of truth were adequate and that the jury could reasonably conclude that the truth of the contextual imputations prevented the plaintiff's imputations from further harming his reputation. Additionally, the court found that the Lange qualified privilege was not applicable in this case, as the statements made by Abbott were not made with a view to a legitimate interest, and there was no undue pressure or influence in the proceedings.

In light of the court's findings, the defendants' appeal was dismissed. The court held that the defendants' statements were capable of being defamatory, and that the Polly Peck imputations were permissible variants of the contextual truth imputations. The court also found that the particulars of truth were adequate, and that the jury could reasonably conclude that the truth of the contextual imputations prevented the plaintiff's imputations from further harming his reputation. Furthermore, the court held that the Lange qualified privilege was not applicable in this case. Consequently, the appeal was dismissed, and the plaintiff's defamation claim was upheld.

Orders