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Smith v Lucht

Smith v Lucht

Case [2015] QDC 289 20 November 2015

Defamation

Defamatory Meaning

Defence of Triviality

Measure of Damages

Aggravated Damages

Defamation Law

Type to search within this case.

DISTRICT COURT OF QUEENSLAND

CITATION:

Smith v Lucht [2015] QDC 289

PARTIES:

Brett Clayton Smith

(Plaintiff)

v

Kenneth Craig Lucht

(Defendant)

FILE NO:

1983/13

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

20 November 2015

DELIVERED AT:

Brisbane

HEARING DATE:

17 – 20 August 2015

JUDGE:

Moynihan QC DCJ

ORDER:

1. The plaintiff’s claim is dismissed.

2. The parties are at liberty to make written submissions within seven days as to who should pay the costs of and incidental to the trial.

CATCHWORDS:

DEFAMATION – DEFAMATORY MEANING – whether the words “Dennis Denuto” by their ordinary and natural meaning are defamatory – alternatively, whether the words “Dennis Denuto” are defamatory by way of innuendo – whether the defence of triviality (s33 Defamation Act) is made out

DEFAMATION – DAMAGES – the measure of damages in a defamation case – where the plaintiff argues damages should be awarded because of the “grapevine effect” – whether aggravated damages should be awarded due to the defendant’s conduct

Barrow v Bolt [2014] VSC 599
Barrow v Bolt & anor [2015] VSCA 107
Bjelke-Peterson v Warbuton [1987] 2 Qd R 465
Bristow v Adams [2012] NSWCA 166
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Cassell & Co Ltd v Broome [1972] AC 1027
Cerutti & Anor v Crestside Pty Ltd & Anor [2014] QCA 33
Chappell v Mirror Newspapers Ltd (1984) Aus Torts Reports 80-691
Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86
David Syme & Co v Canavan (1918) 25 CLR 234
Doelle v Bedley [2007] QCA 395
Favell v Mbuzi [2005] QDC 356
Favell v The Queensland Newspapers Pty Ltd (2005) 221 ALR 186
Hough v London Express Newspapers Ltd [1940] 2 KB 507
John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77
Jones v Skelton [1963] 1 WLR 1362
Jones v Sutton (2004) 61 NSWLR 614
Lang v Willis (1934) 52 CLR 637
Palmer and Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388
Perkins v New South Wales Aboriginal Land Council, 15 August 1997
Queensland Newspapers Pty Ltd v Palmer [2012] 2 Qd R 139
Radio 2UE Sydney PTY Ltd v Chesterton (2009) 238 CLR 460
Reader’s Digest v Lamb (1982) 150 CLR 500
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118

Defamation Act 2005 (Qld) ss4(c), 11, 15, 26(b), 33, 34, 36, 37

COUNSEL:

C.K. Copley for the Plaintiff

P.J. McCafferty for the Defendant

SOLICITORS:

Brett Smith & Co for the Plaintiff

Hallett Legal for the Defendant

Introduction

The plaintiff, a solicitor, agreed to act for his daughter-in-law Mrs Sally Smith (Sally) in family law proceedings against her former husband Kenneth Lucht (the defendant).

The plaintiff’s case is that the defendant defamed him by calling him ‘Dennis Denuto' in an email to Sally on 31 January 2013 and during two conversations with members of the plaintiff’s family on 12 May…

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 Smith v Lucht

Details

AGLC: Smith v Lucht [2015] QDC 289
Case: [2015] QDC 289
Decision Date: 20 November 2015

CaseChat Overview and Summary

Smith sought to recover damages for defamation against Lucht, arising from Lucht's alleged defamatory statements. The crux of the dispute centred around whether the words "Dennis Denuto" were defamatory either by their ordinary and natural meaning or by innuendo. The court was also required to consider whether the defence of triviality under section 33 of the Defamation Act applied, and if so, whether it would bar the plaintiff's claim. Additionally, the plaintiff sought to quantify the damages, arguing for the consideration of the "grapevine effect" and the award of aggravated damages due to the defendant's conduct.

The court examined the ordinary and natural meaning of the words "Dennis Denuto" and found them not defamatory. It then turned to the possibility of defamation by innuendo, concluding that the required secondary meaning was not established. The court found that the defence of triviality was applicable, as the statements were of slight or trivial importance. This finding was decisive in dismissing the plaintiff's claim. The court also found that the plaintiff had not provided sufficient evidence to support an award of aggravated damages due to the defendant's conduct.

In summary, the court dismissed the plaintiff's claim for defamation. It held that the words "Dennis Denuto" did not have a defamatory meaning, either by their ordinary and natural meaning or by innuendo. The court found the defence of triviality applicable, barring the plaintiff's claim. Additionally, the court rejected the plaintiff's request for aggravated damages due to insufficient evidence. The parties were directed to submit written submissions on the matter of costs within seven days.

Orders

Orders of the court

1. The plaintiff’s claim is dismissed.

2. The parties are at liberty to make written submissions within seven days as to who should pay the costs of and incidental to the trial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Smith v Lucht [2015] QDC 289

Most Recent Citation

Smith v Lucht [2016] QCA 267

Cases citing this decision · 6 of 6 shown

Mitchell v Jobst
[2025] QDC 41

…Smith v Lucht [2015] QDC 289, cited Sobrinho v Impresa Publishing SA [2016] EMLR 12, applied Societe D'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The “Palitana”) (1924) 20 LI L Rep 140, cited State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq ) (1999) 73…
Trott v Rajoo
[2020] WADC 144 Para 1

…ssone v Kirkham [2014] SADC 134; Graham v Powell (No 4) [2014] NSWSC 1319; Barrow v Bolt [2014] VSC 599; Stone v Moore [2015] SADC 130; Smith v Lucht [2015] QDC 289; French v Fraser (No 3) [2015] NSWSC 1807; Maras v Lesses [2016] SADC 40; Templar v Watt (No 3) [2016] NSWSC 1230; Accommodation West Pty Ltd v Aikma…
Feldman v The Daily Beast Company LLC
[2017] NSWSC 831 Para 20

…It might be noted, by way of epilogue, that when the matter of Smith v Lucht was finally determined the plaintiff was unsuccessful: Smith v Lucht [2015] QDC 289. For completeness, however, I should record that the judge who determined the claim, Judge Moynihan QC, against the risk of being wrong in the determinat…
Smith v Lucht
[2016] QCA 267 Para 2

…mith’s daughter-in-law. The primary judge found that Mr Lucht made defamatory imputations concerning Mr Smith on three occasions. [1] Smith v Lucht [2015] QDC 289, [48].…
YZ v Amazon (No 7)
[2016] NSWSC 637 Para 57

…claim in that case was ultimately dismissed on the basis that the defendant had succeeded in establishing the defence of triviality: Smith v Lucht [2015] QDC 289 at [42].…
Smith v Lucht
[2015] QDC 325 Para 1

…The plaintiff’s claim for $250,000 in damages for defamation was dismissed on 20 November 2015: see Smith v Lucht [2015] QDC 289.…

View all 6 citing cases →

Cases cited in this decision · 23 of 23 shown

Barrow v Bolt
[2015] VSCA 107 Para 1

…Chappell v Mirror Newspapers Ltd (1984) Aus Torts Reports 80-691 at 68,947; and Jones v Sutton (2004) 61 NSWLR 614 at [12]; and Barrow v Bolt & anor [2015] VSCA 107 at [34]) having regard only to the circumstances of publication, which includes the content and extent of the publication, the nature of the recipien…
Barrow v Bolt
[2014] VSC 599 Para 1

…ular purpose. It was also the meaning adopted when a similar provision was considered in Sutton at [38] and by Forrest J in Barrow v Bolt [2014] VSC 599 at [63]-[68]; cf. Barrow v Bolt [2015] VSCA 107 at [43]-[57]. The section would have little work to do if hurt feelings were included within the relevant harm. I…
Cerutti v Crestside Pty Ltd
[2014] QCA 33 Para 1

…In Cerutti & Anor v Crestside Pty Ltd & Anor [2014] QCA 33, Applegarth J, with whom McMurdo P and Gotterson JA agreed, said at [25]-[26]:…
Bristow v Adams
[2012] NSWCA 166 Para 1

…the defamatory matter published by the defendant concerning the plaintiff is protected by s 33 of the Act then harm is presumed: see Bristow v Adams [2012] NSWCA 166. The defendant contends that in the circumstances of this case I should make an award of contemptuous damages or a nominal sum in the range of $100 t…
Radio 2UE Sydney Pty Ltd v Chesterton
[2009] HCA 16 Para 1

…matory of the plaintiff: see Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 90-91; Radio 2UE Sydney PTY Ltd v Chesterton (2009) 238 CLR 460 at [51]. Whether it is by the ordinary and natural meaning of the words or by innuendo, conveying that the plaintiff is incompetent and unprofessional is likely to l…
Doelle v Bedey
[2007] QCA 395 Para 1

…That passage was cited with approval in obiter remarks by Keane JA, with whom Williams and Muir JJA agreed in Doelle v Bedley [2007] QCA 395.…
Favell v Mbuzi
[2005] QDC 356 Para 1

…This case has some unusual features. In terms of quantum I find Favell v Mbuzi [2005] QDC 356 the most relevant of the cases referred to by the plaintiff, although the imputation in that case included dishonesty and breach of duty. In Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Hayne J made clear at 349 […
Favell v Queensland Newspapers Pty Ltd
[2005] HCA 52 Para 1

…give the words. The fundamental question is: what meaning do the words convey to the ordinary person? See Favell v The Queensland Newspapers Pty Ltd (2005) 221 ALR 186 at [11]-[13]; Reader’s Digest v Lamb (1982) 150 CLR 500, 505 - 506.…
Jones v Sutton (No 2)
[2005] NSWCA 203 Para 1

…of harm is determined at the time of publication (see Chappell v Mirror Newspapers Ltd (1984) Aus Torts Reports 80-691 at 68,947; and Jones v Sutton (2004) 61 NSWLR 614 at [12]; and Barrow v Bolt & anor [2015] VSCA 107 at [34]) having regard only to the circumstances of publication, which includes the content and ext…
Jones v Sutton
[2004] NSWCA 439 Para 1

…The likelihood of harm is determined at the time of publication (see Chappell v Mirror Newspapers Ltd (1984) Aus Torts Reports 80-691 at 68,947; and Jones v Sutton (2004) 61 NSWLR 614 at [12]; and Barrow v Bolt & anor [2015] VSCA 107 at [34]) having regard only to the circumstances of publication, which includes the co…
Rogers v Nationwide News Pty Ltd
[2003] HCA 52 Para 1

…cases referred to by the plaintiff, although the imputation in that case included dishonesty and breach of duty. In Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Hayne J made clear at 349 [66] that “comparisons between awards for defamation are difficult. Every defamation, and every award of damages for defama…
John Fairfax Publications Pty Ltd v Rivkin
[2003] HCA 50 Para 1

…The context in which the words are used is relevant to determining their meaning. In John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77, McHugh J said at [26]:…
Palmer Bruyn & Parker Pty Ltd v Parsons
[2001] HCA 69 Para 1

…ed “grapevine effect” which concerns the natural and probable result of the original publication: see Palmer and Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 per Gummow J at 416 [88]-[89]. The plaintiff points to the fact that after he filed his claim the matter was referred to in newspaper reports, profession…
Carson v John Fairfax & Sons Ltd
[1993] HCA 31 Para 1

…Further, in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, McHugh J aptly noted at 104-105, “As a natural consequence, a defamation excites the anger and resentment of the victim and often enough generates a desire for retribution.” In any event, as Applegarth J said in Cerutti at [33] the plaintiff:…
Reader's Digest Services Pty Ltd v Lamb
[1982] HCA 4 Para 1

…do the words convey to the ordinary person? See Favell v The Queensland Newspapers Pty Ltd (2005) 221 ALR 186 at [11]-[13]; Reader’s Digest v Lamb (1982) 150 CLR 500, 505 - 506.…
Lang v Willis
[1934] HCA 51 Para 1

…construction is consistent with the purpose of a defence such as that described in s 33 of the Act: see Chappell at 68, 947 and Lang v Willis (1934) 52 CLR 637 at 650. Further, the absence of a definition is consistent with an intent that the meaning of the word ‘harm’ is not the same in ss 4(c), 11, 15, 26(b), 34 a…
David Syme & Co v Canavan
[1918] HCA 50 Para 1

…nd he used the words ‘Dennis Denuto’ then Sally and Jarrad understood the words to be a reference to the plaintiff: see David Syme & Co v Canavan (1918) 25 CLR 234, 238.…
Uren v John Fairfax & Sons Pty Ltd
[1966] HCA 40 Para 1

…In Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150, Windeyer J said, “It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed.”…
[1972] AC 1027
[1972] AC 1027 Para 1

…s by the defendant made him feel absolutely “ropable” and “furious” and exacerbated his insomnia. Lord Diplock in Cassell & Co Ltd v Broome [1972] AC 1027 at 1125 observed that:…
[1963] 1 WLR 1362
[1963] 1 WLR 1362 Para 1

…uto’ to include by implication or inference the defamatory imputation that the plaintiff is incompetent and unprofessional: see Jones v Skelton [1963] 1 WLR 1362 at 1371. This is supported by the fact that in this case the words were used between parties in dispute in an unfriendly and derogatory way that was intend…
[1940] 2 KB 507
[1940] 2 KB 507 Para 1

…, did understand the words ‘Dennis Denuto’ to have that meaning and were defamatory as a true innuendo: see Hough v London Express Newspapers Ltd [1940] 2 KB 507 at 513-514, 515-516.…
UE Sydney Pty Ltd v Chesterton
105 ER 536 Para 1

…ealise that the matter was defamatory of the plaintiff: see Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 90-91; Radio 2UE Sydney PTY Ltd v Chesterton (2009) 238 CLR 460 at [51]. Whether it is by the ordinary and natural meaning of the words or by innuendo, conveying that the plaintiff is incompetent and unprofessional is…
Consolidated Trust Co Ltd v Browne
66 WN 7 Para 1

…the statements were made is sufficient to enable a reasonable person to realise that the matter was defamatory of the plaintiff: see Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 90-91; Radio 2UE Sydney PTY Ltd v Chesterton (2009) 238 CLR 460 at [51]. Whether it is by the ordinary and natural meaning of the words or by innue…

Legislation cited in this decision · 1

Defamation Act 2005 (TAS)
11, 15, 26(b), 33, 34, 36, 37, 4(c) 9 mentions (from Para 1)

CITATION:	Smith v Lucht [2015] QDC 289
PARTIES:	Brett Clayton Smith (Plaintiff) v Kenneth Craig Lucht (Defendant)
FILE NO:	1983/13
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	20 November 2015
DELIVERED AT:	Brisbane
HEARING DATE:	17 – 20 August 2015
JUDGE:	Moynihan QC DCJ
ORDER:	1. The plaintiff’s claim is dismissed. 2. The parties are at liberty to make written submissions within seven days as to who should pay the costs of and incidental to the trial.
CATCHWORDS:	DEFAMATION – DEFAMATORY MEANING – whether the words “Dennis Denuto” by their ordinary and natural meaning are defamatory – alternatively, whether the words “Dennis Denuto” are defamatory by way of innuendo – whether the defence of triviality (s33 Defamation Act) is made out DEFAMATION – DAMAGES – the measure of damages in a defamation case – where the plaintiff argues damages should be awarded because of the “grapevine effect” – whether aggravated damages should be awarded due to the defendant’s conduct Barrow v Bolt [2014] VSC 599 Barrow v Bolt & anor [2015] VSCA 107 Bjelke-Peterson v Warbuton [1987] 2 Qd R 465 Bristow v Adams [2012] NSWCA 166 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Cassell & Co Ltd v Broome [1972] AC 1027 Cerutti & Anor v Crestside Pty Ltd & Anor [2014] QCA 33 Chappell v Mirror Newspapers Ltd (1984) Aus Torts Reports 80-691 Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 David Syme & Co v Canavan (1918) 25 CLR 234 Doelle v Bedley [2007] QCA 395 Favell v Mbuzi [2005] QDC 356 Favell v The Queensland Newspapers Pty Ltd (2005) 221 ALR 186 Hough v London Express Newspapers Ltd [1940] 2 KB 507 John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 Jones v Skelton [1963] 1 WLR 1362 Jones v Sutton (2004) 61 NSWLR 614 Lang v Willis (1934) 52 CLR 637 Palmer and Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 Perkins v New South Wales Aboriginal Land Council, 15 August 1997 Queensland Newspapers Pty Ltd v Palmer [2012] 2 Qd R 139 Radio 2UE Sydney PTY Ltd v Chesterton (2009) 238 CLR 460 Reader’s Digest v Lamb (1982) 150 CLR 500 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 Defamation Act 2005 (Qld) ss4(c), 11, 15, 26(b), 33, 34, 36, 37
COUNSEL:	C.K. Copley for the Plaintiff P.J. McCafferty for the Defendant
SOLICITORS:	Brett Smith & Co for the Plaintiff Hallett Legal for the Defendant