Setka v Abbott

Case [2012] VSC 534


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

  1. 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”.

  1. 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…

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Setka v Abbott [2012] VSC 534
Case
[2012] VSC 534
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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