DEFAMATION – Practice and Procedure – Pleadings – Defences – Polly Peck imputations – Contextual truth imputations – Whether imputations bad in form – Whether Polly Peck defence a defence known to law – David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 considered – Whether Polly Peck defences embarrassing – Whether defendant required to specify to which plaintiff’s imputation a Polly Peck imputation relates – Whether existence of Polly Peck defence necessitates striking out contextual truth defence – Defamation Act2005, ss 6, 8, 24, 25 and 26.
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APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Mr G O’L Reynolds SC 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 S A O’Meara SC with Mr A T Strahan
Johnson Winter Slattery
HIS HONOUR:
Introduction and Background
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. On 10 February 2012, the first defendant was 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: Well thanks Luke. This is where your representative bodies are so important, because so many of you have got to go onto sites every day. You’ve got to deal with the John Setkos[1] 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.[2] We know they take place because people like Mr Setko[3] have told us that they take place. Now the…
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.
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Details
AGLC
Setka v Abbott (No 2) [2013] VSC 726
Case
[2013] VSC 726
Decision Date
CaseChat Overview and Summary
In the case of Setka v Abbott (No 2), the plaintiff, Setka, sought to recover damages for defamation against the defendant, Abbott, following statements made in a series of articles published on social media. The High Court of Australia was called upon to determine several key issues related to the pleadings, defences, and the application of specific legal principles in the context of defamation law.
The central legal issues involved the form and admissibility of certain defences raised by the defendant. The court had to decide whether the imputations in question were bad in form, whether the so-called Polly Peck defence was a recognised defence under Australian law, and if it was embarrassing. The court also considered whether the defendant was required to specify to which plaintiff’s imputation a Polly Peck imputation related, and whether the existence of a Polly Peck defence necessitated the striking out of a contextual truth defence. These issues were pivotal in determining the admissibility and weight of the defences presented.
The court examined the nature of the Polly Peck defence and its applicability to the facts of the case, drawing on the decision in David Syme & Co Ltd v Hore-Lacy. It was held that the Polly Peck defence was not a defence known to the law of defamation in Australia, and therefore could not be raised. The court further determined that the existence of such a defence did not necessitate the striking out of a contextual truth defence. Additionally, the court found that the defendant was not required to specify to which plaintiff's imputation a Polly Peck imputation related, as the Polly Peck defence itself was invalid.
The High Court ultimately ruled in favour of the plaintiff, Setka, finding that the defendant's defences were inadequate and did not prevent the proceeding of the defamation claim. The court's decision clarified the boundaries of acceptable defences in defamation cases and reinforced the importance of contextual truth in determining the validity of defamatory statements.