Setka v Abbott
[2012] VSC 534
•30 October 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. S CI 2012 2780
| JOHN SETKA | Plaintiff |
| v | |
| THE HONOURABLE TONY ABBOTT MP | First Defendant |
| and | |
| AUSTRALIAN NEWS CHANNEL PTY LTD (ACN 068 954 478) | Second Defendant |
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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 is exactly what we’ve had. I can remember when I first proposed the establishment of the Cole Royal Commission, senior building industry managers who knew just how bad things were, who knew just how much intimidation their workforce were exposed to, who knew how many tens and hundreds of millions of cost overruns their projects were liable to because of unlawful behaviour and thuggery were against it. They were against the establishment of the Cole Royal Commission. They said this was a problem that could not be fixed. Well it was fixed, if not entirely, then in large measure and it was getting better all the time. It was getting better all the time and in some ways it was getting better because the companies themselves were being told ‘You’ve got to lift your game’ as well the union officials being told ‘You’ve got to lift your game’. If the manager says ‘Look I just can’t do this anymore because I will go to jail if I do it’ well then it’s that much harder for the union official to get away with demands bordering, or indeed that are in fact, extortion, so I think the MBA has a very important role and I’m confident that Brian Welch knows exactly what it is. Welch by name but not Welch by nature.”
In this proceeding, the plaintiff claims damages for defamation from the defendants in respect of the publication of the words. The plaintiff alleges that in their natural and ordinary meaning the words were defamatory of him and meant and were understood to mean that:
(a)the plaintiff engages in unlawful behaviour by visiting the homes of people working in the construction industry for the purpose of intimidating them;
(b)the plaintiff visits the home of people working in the construction industry for the purpose of making demands that amount to extortion;
(c)the plaintiff is a thug in that he visits the homes of people working in the construction industry for the purpose of intimidating them;
(d)the plaintiff is a self-confessed thug, who has admitted visiting the homes of people working in the construction industry for the purpose of engaging in the conduct referred to in paragraphs 8(a) and (b) above.
As part of their defences, each defendant has pleaded Polly Peck[1] and contextual truth[2] defences in identical form. Additionally, the second defendant has pleaded a Lange[3] qualified privilege defence. The plaintiff seeks to strike these defences out.
[1]Polly Peck (Holdings) Plc v Trelford [1986] 1 QB 1000.
[2]Section 26 of the Defamation Act 2005.
[3]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
The words
Each defendant, in paragraph 4 of his/its defence, pleads:
“Subject to the production and tender of an audio or video recording of the publication of the words, [he/it] admits [the first defendant spoke the words at a conference of the Master Builders Association of Victoria on or about 10 February 2012].”
During the hearing before me, senior counsel for the first defendant asserted that the words were incomplete. That said, all parties invited me to view a DVD recording of the first defendant’s statements. Having viewed the DVD, it is clear that the first defendant’s answer to the question commenced with the words:
“Representatives bodies are so important because so many of you … .”
Further, senior counsel for the first defendant contended that the words actually commenced as follows:
“Representative bodies are so important because so many of you have got to go onto sites every day. And you’ve got to deal with the John Setkos[4] 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. … .”
[4]While the first defendant appears to have mispronounced the plaintiff’s name, and notwithstanding the failure by the defendants to admit the plaintiff’s pleading in his statement of claim, that the words were “of and concerning the plaintiff”, I do not understand there to be any real dispute that the first defendant was referring to the plaintiff when he said “the John Setkos of this world”.
While there was debate at the Bar table about the first defendant’s failure to apply to strike in the additional words, or to attempt to plead them and any relevant punctuation or intonation,[5] I was told by senior counsel for the first defendant that they had only very recently been provided with a copy of the DVD. Notwithstanding this additional potential pleading issue, both sides invited me to determine the present application after watching and listening to the DVD.
The Polly Peck defences
[5]On the issue of striking in additional words (requiring a plaintiff to plead additional words), see Australian Broadcasting Corporation v Obeid (2006) 66 NSWLR 605, 606 [2]; Perry v McIntosh [2010] VSC 85 [13] (Kaye J); and Cripps & Anor v Vakras & Anor [2012] VSC 400. On the issue of a defendant being able to plead additional words, see Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410, 414-415; Burrows v Knightley (1987) 10 NSWLR 651, 656; Phelps v Nationwide News Pty Ltd & Anor [2001] NSWSC 130; Australian Broadcasting Corporation v Obeid (2006) 66 NSWLR 605; Leighton v Garnham & Ors [2012] WASC 314 [44]-[53]; and Cripps & Anor v Vakras & Anor [2012] VSC 400 [7].
By their Polly Peck defences, the defendants allege that in their natural and ordinary meaning the words meant and were understood to mean that the plaintiff was a person who had engaged in:
(a)intimidation;
(b)unlawful behaviour;
(c)thuggery; and
(d)extortion.
Particulars of the truth of these meanings are given by both defendants (again in identical terms). These particulars refer to a rally alleged to have occurred on or about 20 July 2010 outside the offices of the Australian Building and Construction Commission in Melbourne; a blockade in which the plaintiff is alleged to have participated on 12 December 2008; a second blockade in which the plaintiff is alleged to have participated on 18, 20 and 22 February 2009; and three legal proceedings and their underlying facts.
The plaintiff seeks to strike out the Polly Peck defences on two bases: first, he contends that the Polly Peck imputations are incapable of arising; and secondly, he contends that the Polly Peck imputations are not permissible variants of the plaintiff’s pleaded meanings. Additionally, the plaintiff seeks to strike out sub-paragraphs (c), (d) and (h) of the particulars of truth on the basis that they are incapable of supporting the relevant justification plea.[6]
[6]See paragraph 4 of the plaintiff’s Outline of Submissions in Reply dated 29 October 2012. But Cf paragraphs 26 to 28 of the plaintiff’s Outline of Submission dated 7 September 2012.
The principles for determining whether or not a matter complained of is capable of conveying particular imputations were summarised by Hunt J in Farquhar v Bottom.[7] His Honour said:[8]
“In deciding whether the matter complained of is capable of conveying to the ordinary reasonable reader the imputations relied upon by the plaintiff, I must be guided and directed by the test of reasonableness. I must reject any strained, or forced, or utterly unreasonable interpretation: Jones v Skelton ([1063] SR (NSW) 644). I must proceed upon the basis that the ordinary reasonable reader is a person of fair, average intelligence: Slatyer v Daily Telegraph Newspaper Co Ltd ((1908) 6 CLR 1 at 7); who is neither perverse: ibid; nor morbid or suspicious of mind: Keogh v Incorporated Dental Hospital of Ireland ((1910) 2 Ir R 577 at 586); nor avid for scandal: Lewis v Daily Telegraph Ltd ([1964] AC 234 at 260).
This ordinary reasonable reader does not, we are told, live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs: Lewis v Daily Telegraph Ltd (supra at 258); Jones v Skelton (supra at 650); Lang v Australian Consolidated Press Ltd ([1970] 2 NSWR 408 at 412). It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his capacity for implication is much greater than that of the lawyer: Lewis v Daily Telegraph Ltd (supra at 277); Morgan v Odhams Press Ltd ([1971] 2 All ER 1156 at 1163); Lang v Australian Consolidated Press Ltd ([1970] 2 NSWR 408 at 412); Middle East Airlines Airliban SAL v Sungravure Pty Ltd ([1974] 1 NSWLR 323 at 34).”
[7][1980] 2 NSWLR 380.
[8]Ibid, pp 385-6.
In Soultonov v The Age Company Limited & Another,[9] Kaye J described the hypothetical ordinary reasonable reader in the following terms:[10]
“The issue which I must determine on the defendants’ summons is a question of law, namely, whether the article was reasonably capable of conveying the imputation, pleaded by the plaintiff, to the ordinary reasonable reader. The hypothetical “ordinary reasonable” reader has been described as an ordinary person who does not live in an ivory tower, and who reads between the lines in the light of his or her general knowledge and experience of worldly affairs. Such a reader is described by the law as someone who is not “avid for scandal” and who is neither “unusually suspicious nor unusually naïve”. He (or she) does engage in a degree of loose thinking, and is understood to read between the lines. In particular, it is important to take into account that the ordinary reasonable reader is a lay person, and not a lawyer, and that his or her capacity for implication is much greater than that of a lawyer. On the other hand, as observed by Mason J in Mirror Newspapers Limited v Harrison, it is necessary to draw a distinction between the reader’s understanding of what the article is actually saying, and a judgment or conclusion which the reader may reach as a result of his or her own beliefs and prejudices after reading the particular matter in question.”[11]
[9](2009) 23 VR 182.
[10]Ibid [11].
[11]Footnotes omitted.
However, in considering the plaintiff’s submissions as to whether the Polly Peck imputations (or indeed any part of the defendants’ pleadings) should be struck out, it is necessary to bear in mind what was said by McPherson JA in Favell v Queensland Newspapers Pty Ltd.[12] His Honour said:
“Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken.”[13]
[12][2004] QCA 135 [2].
[13]Cited with approval by Gleeson CJ, McHugh, Gummow and Heydon JJ in Favell v Queensland Newspapers (2005) 79 ALJR 1716, at paragraph [6].
It is of course to be remembered that the words in this case are in “transient form” (as referred to and described in some of the authorities). That is, they are not contained in some article which might be read, or pored over, at leisure. As was said by Hunt CJ at CL[14] in Amalgamated Television Services Pty Ltd v Marsden:[15]
“Whereas the reader of the written document has the opportunity to consider or to reread the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed, the ordinary reasonable listener or viewer has no such opportunity … . Although such a listener or viewer (like the reader of the written article) must be assumed to have heard and/or seen the whole of the relevant program, he or she may not have devoted the same degree of concentration … to each part of the program as would otherwise have been given to the written article … and may have missed the significance of the existence, earlier in the program, of a qualification of a statement made later in the published material … .
The trial judge in a transient publication case will therefore more readily leave it to the jury to decide whether an imputation affected by any of those circumstances, or any similar circumstances peculiar to such type of publication, was in fact conveyed, than he or she would in relation to a written document case … . I should add that, in distinguishing between the written and the electronic media, and in referring to the transient form of the latter, I have been referring to what is the fact: that publication when broadcast or telecast by the electronic media are necessarily transient or ephemeral in nature, notwithstanding provisions such as s 124 of the Broadcasting Act 1942 (Cth) and its successor, s 206 of the Broadcasting Services Act 1992 (Cth) which deem there to be ‘publication in a permanent form’. Such statutory provisions enact a fictional situation solely in order to make defamatory statements so published libel rather than slander (and thus avoid the need for proof of special damage) … .”[16]
[14]With whom Mason P and Handley JA agreed.
[15](1998) 43 NSWLR 158, 166.
[16]But see now s 7 of the Defamation Act 2005 which has abolished the distinction between slander and libel.
The tenor of the plaintiff’s imputations relates to unlawful behaviour, intimidation, extortion and thuggery associated with “home visits” said to have been made by the plaintiff. The Polly Peck imputations are wider in one sense, in that the charges of intimidation, unlawful behaviour, thuggery and extortion are not linked to home visits. The first point made by the plaintiff is that the words are not capable of bearing the more general meanings alleged by the defendants. In this regard, the plaintiff places reliance upon Bookbinder v Tebbit.[17]
[17][1989] 1 All ER 1169.
This proceeding will be tried by a jury. I would only strike out the Polly Peck defences if I was persuaded that no jury (bearing in mind the principles to which I have already referred) could find the defendants’ meanings. It is sufficient to say, at this stage, that I am not so satisfied. Putting aside the plaintiff’s other submissions, the question of whether the words convey the plaintiff’s meanings or the defendants’ meanings is quintessentially a jury question in the circumstances of this case. This is not a case where the matter complained of unambiguously charges some limited and specific instance of bad conduct, to which the defendants seek to defend by relying upon a more general charge, including conduct not referred to in the matter in respect of which complaint is made (cf Bookbinder v Tebbit). That said, it is sufficient at this stage to say that, at the very least, the issue is arguable – and thus, a triable issue.
Senior counsel for the plaintiff then took me in some detail through the judgment of Doyle CJ[18] in Advertiser-News Weekend Publishing Co Ltd v Manock.[19] I was taken to this judgment for the propositions that where a number of distinct or separate statements or charges are made about a plaintiff, the plaintiff is entitled to decide in respect of which statement or charge he or she will sue upon, and it is not open to a defendant to seek to justify some other statement or charge that might also be contained in the material in respect of which complaint is made. Further, as is sometimes said, whether that is what a defendant is trying to do may be tested by seeing whether proving the truth of that defendant’s meanings would involve a different factual inquiry from that involved in proving the truth of the plaintiff’s meanings.[20]
[18]With whom Vanstone and White JJ agreed.
[19](2005) 91 SASR 206.
[20]Ibid, [38] and [41]. See further, [57], [62]-[63] and [70]-[82].
The short answer to the plaintiff’s submissions on this point is that this is not a case of the kind described in Manock or the other authorities to which the plaintiff referred me. While in a different case it may well be correct to say that a plaintiff ought to be able, if he can, to prove the untruth of a specific mistaken or false charge, without having to face the burden of a trial directed to any number of other incidents in respect of which nothing was said in the matter complained of, that is not the present case. More particularly, because each party’s contention as to what the words mean is arguable, the issue falls to be determined by reference to whether the defendants’ meanings are capable of arising, and whether they are permissible variants of the plaintiff’s meanings. That is, whether the defendants’ meanings are not substantially different from the plaintiff’s meanings and no more injurious or serious than the plaintiff’s meanings.[21]
[21]David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667.
Bearing in mind the principles to which I have referred, in my view the defendants’ Polly Peck meanings are open. The defendants’ meanings are capable of being conveyed by the words. Further, they are not substantially different from the plaintiff’s meanings. While the plaintiff contends that they are more injurious or serious than the meanings pleaded by him because they impute intimidation, unlawful behaviour, thuggery and extortion in more general circumstances than merely associated with “home visits”, the defendants contend that their meanings might be found by the jury to be no more serious (if not less serious) because intimidation, unlawful behaviour, thuggery and extortion perpetrated in the context of a “home visit” is arguably as serious (if not more serious), on one level, than such conduct more generally, but in a context away from a victim’s home. In my view the matter is arguable. Put simply, having found that the meanings are capable of arising and that they are not substantially different from the plaintiff’s meanings, I am not prepared to strike out the defendants’ Polly Peck meanings, on a pleadings summons, on the basis that they are unarguably more serious than the plaintiff’s pleaded meanings.
In a further attack on the defendants’ Polly Peck meanings, the plaintiff highlighted the fact that his imputations were pleaded in the present tense, whereas the defendants’ Polly Peck meanings were pleaded in the past tense. The plaintiff submitted that an imputation that someone is presently committing a crime is very different from an imputation that someone has at some point in their past committed a crime. So much may be accepted in a particular case. However, the question is whether the temporal differences identified between the plaintiff’s meanings and the defendants’ Polly Peck meanings in the present case mandate a conclusion that the defendants’ Polly Peck meanings are impermissible. In my view there is nothing in this point. In the present case where both sides’ meanings are open and, it is at least arguable, that the defendants’ meanings are permissible variants, there is no basis for striking out the defendants’ Polly Peck defences. The temporal differences in each side’s imputations does not lead to the result that the defendants’ meanings should be struck out.
I turn now to the plaintiff’s complaints concerning sub-paragraphs (c), (d) and (h) of the particulars of justification.[22] Each defendant has pleaded eight paragraphs of particulars (sub-paragraphs (a) to (h)) of his or its plea of justification in relation to the Polly Peck meanings. The plaintiff contends that sub-paragraphs (c) and (d) are incapable of supporting the plea of justification to the meanings that the plaintiff was a person who had engaged in extortion, intimidation and thuggery. Nothing is said by the plaintiff about these sub-paragraphs in relation to the Polly Peck meaning that the plaintiff was a person who had engaged in unlawful behaviour. Sub-paragraph (h) is said by the plaintiff to be incapable of supporting a plea of justification that the plaintiff was a person who had engaged in thuggery. However, and again, nothing is said by the plaintiff about the other Polly Peck pleas that the plaintiff was a person who had engaged in intimation, unlawful behaviour and extortion.
[22]Under paragraph 12 of each defendant’s defence.
While in some cases it might be preferable to separate the particulars of justification so that one can see clearly what facts are relied upon in support of each imputation, that is not the complaint made in the present case (no doubt because the view has been taken that, in the context of this case, no confusion arises from the way in which the defendants have pleaded their Polly Peck defences and particulars). However, the more limited complaint made by the plaintiff about sub-paragraphs (c), (d) and (h) in this case does not lead to the conclusion that these sub-paragraphs should be struck out. At best, if these sub-paragraphs had been relied upon in separate particulars for each Polly Peck meaning then perhaps there could have been some appropriate fine tuning about which sub-paragraph really belonged to which meaning.
That said, the short answer to the plaintiff’s complaint about the particulars is that the particulars are capable of supporting the pleas of justification to the Polly Peck meanings. For that reason, I do not propose to strike out any of the particulars.
The contextual truth defences
Each defendant pleads the defence of contextual truth pursuant to s 26 of the Defamation Act. Both defendants rely upon the same imputations they pleaded in their Polly Peck defences. They then plead that the contextual imputations were substantially true and that the plaintiff’s imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.[23]
[23]Cf s 26 of the Defamation Act.
The plaintiff submits that if the defendants’ imputations have not been struck out for the reasons he submitted in respect of the Polly Peck defences, then the contextual meanings (and the contextual truth defence) should be struck out because a jury could not reasonably conclude that the plaintiff’s meanings do not further harm his reputation because of the substantial truth of the defendants’ meanings. In support of this submission the plaintiff referred to a textual comparison made by him between the various meanings each side contends for, before submitting:
It is plainly more harmful to a person’s reputation to impute that the person is presently engaging in a crime than to impute that the person has in the past engaged in a crime.[24]
[24]Plaintiff’s outline of submissions dated 7 September 2012, [30].
Section 26 of the Defamation Act provides:
It is a defence to the publication of defamatory matter if the defendant proves that—
(a)the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true; and
(b)the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
As was said by Kaye J in Newnham v Davis (No. 2),[25] there is “some conflict in the authorities as to the correct test, which should be applied by the Court, in undertaking the comparison required by s 26(b) of the Act”. His Honour identified the conflict as follows:
On the one hand, the decisions of Hunt J in Jackson v John Fairfax & Sons Ltd[26], and of the New South Wales Court of Appeal in Australian Broadcasting Corporation v Hodgkinson[27], are authorities for the proposition that the correct approach is by weighing the imputations pleaded by the plaintiff against the imputations pleaded by the defendant. On the other hand, in John Fairfax Publications Pty Ltd v Blake[28] Spigelman CJ disagreed with that approach. His Honour considered that, in considering the application of s 26(b), the Court must focus on the facts, matters and circumstances which are said to establish the truth of the contextual imputation, rather than on the terms of the contextual imputation itself. That conclusion was based on the terms of s 26(b), namely, that the defamatory imputations do not further harm the reputation because of the “substantial truth of the contextual imputations”.[29]
[25][2010] VSC 94, [50].
[26][1981] 1 NSWLR 36, 39-40.
[27][2005] NSWCA 190, [33]–[34] (Hodgson JA).
[28][2001] NSWCA 434.
[29]Footnotes in original.
As in Newnham v Davis, the question of the correct test to be applied by the Court, in undertaking the comparison required by s 26(b) of the Defamation Act, was not the subject of argument. Like Kaye J in Newnham v Davis, I think it desirable in the circumstances that I refrain from expressing any view on it. Accordingly, I shall decide the issues relating to s 26(b) by reference to both tests.
Applying both tests, I am not satisfied that a jury could not reasonably conclude that because of the truth of the contextual imputations, the plaintiff’s imputations do not further harm the reputation of the plaintiff. While the plaintiff advanced arguments before me (including the argument concerning the temporal differences in each side’s imputations) which are capable of supporting an argument that even if the contextual imputations are found to be substantially true, the plaintiff’s imputations further harm his reputation, the point is not incapable of debate. I cannot say that a reasonable jury might not conclude that because of the substantial truth of the contextual imputations, the plaintiff’s pleaded imputations do not further harm his reputation. Accordingly, I will not strike out the contextual imputations or the contextual truth defences.
Lange qualified privilege
In paragraph 15 of its defence, the second defendant alleges that the words “were a communication which disseminated information, opinion or argument concerning government or political matters which affected the people of Australia” and that the second defendant’s conduct in republishing the words was reasonable. This is a plea of what has become known as the Lange qualified privilege defence.[30]
[30]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
In particulars, the second defendant states that the government and political matters referred to in its defence were “the views of the first defendant on industrial relations and in particular the proper role of employer associations in respect of industrial relations”. The plaintiff asserts that this is neither a proper nor accurate characterisation of “the true nature” of the words. In his written submissions, the plaintiff went on:
The first defendant was asked how the MBA can support the ABCC (which was, until recently, the statutory body responsible for, inter alia, enforcing workplace laws in the construction industry). He said that the MBA had a very important role to play and that it must take a forthright and uncompromising position. The publication is properly characterised as a discussion of the role of the MBA, being a private association of building practitioners, in supporting the role of the ABCC. That is not a government or political matter within the meaning of the Lange defence.
The precise width and ambit of what is a government or political matter encompassed by the Lange defence has been the subject of numerous authorities.[31] The boundaries of the defence are yet to be delineated.[32] In Theophanous v Herald & Weekly Times Ltd & Anor,[33] Mason CJ, Toohey and Gaudron JJ said:
For present purposes, it is sufficient to say that "political discussion" includes discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office. The concept also includes discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate, e.g., trade union leaders, Aboriginal political leaders, political and economic commentators. Indeed, in our view, the concept is not exhausted by political publications and addresses which are calculated to influence choices. Barendt states that:
"'political speech' refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about".
[31]See for example, Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 and Hogan v Hinch (2011) 243 CLR 506.
[32]See further, Theophanous v Herald & Weekly Times Ltd & Anor (1994) 182 CLR 104, 122-125.
[33]Ibid.
The plaintiff submits that “the first defendant’s view on the role of a private association of builders in supporting the ABCC in its role is not necessary for the effective operation of the system of representative and responsible government”. Further, the plaintiff submits that the first defendant’s “view on such a matter could have no impact or influence upon the choice of representatives by the people of Australia”. From this it is submitted that the second defendant’s Lange qualified privilege defence is so unarguable that it should be struck out.
I disagree. It is at least arguable that the words, spoken as they were by the leader of the Federal Opposition, constitute government or political matters as encompassed by the Lange qualified privilege defence. At the very least, so much might be said to be apparent from the judgment of Mason CJ, Toohey and Gaudron JJ in Theophanous.[34] Accordingly, I do not propose to strike out the Lange qualified privilege defence.
[34]Ibid.
Conclusion
The plaintiff’s application to strike out the defendants’ Polly Peck and contextual truth defences and the second defendant’s Lange qualified privilege defence will be dismissed.
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