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Soultanov v The Age Co Ltd

Soultanov v The Age Co Ltd

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Case Copied 17 April 2009 46 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

No. 8361 of 2008

BETWEEN

DR VAGIF SOULTANOV	Plaintiff
and
THE AGE COMPANY LIMTED (ACN 004 262 702)	First Defendant
and
VANESSA BURROW	Second Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 April 2009
DATE OF JUDGMENT:	17 April 2009
CASE MAY BE CITED AS:	Soultanov v The Age Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2009] VSC 145

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DEFAMATION – Practice and procedure – Whether words capable of defamatory meaning pleaded by plaintiff – Defence of honest opinion – Whether defence addresses a permitted variant of plaintiff’s meanings – Defence of contextual truth – Whether contextual imputation capable of being more injurious than plaintiff’s pleaded imputation – Whether particulars sufficient.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms G L Schoff	Wisewoulds
For the Defendants	Mr M Wheelahan SC with Mr A Strahan	Minter Ellison

HIS HONOUR:

In these proceedings, the plaintiff claims damages for defamation arising out of an article published in The Age newspaper of 15 February 2008 entitled “Solagran directors bought up stock”. The plaintiff has joined the first defendant as the publisher of the article and the second defendant as its author. The defendants have made an application by summons to strike out paragraph 5 of the plaintiff’s statement of claim, which pleads the one innuendo attributed to the article by the plaintiff. The plaintiff has also issued a summons seeking an order striking out paragraph 6 of the defence, which pleads a defence of contextual truth under s 26 of the Defamation Act 2005 (the Act), and paragraph 7 of the defence, which pleads a defence of fair comment under s 31 of the Act.

The article

The plaintiff is a director and shareholder of the biotechnology company Solagran Limited. The article alleged that directors of Solagran had been buying up stock for more than one year, before they released crucial details of a successful clinical trial of a drug called Ropren. That drug is said to be effective in the treatment of chronic liver disease, dementia and the degenerative aspects of chronic alcoholism and drug addiction. The article reported that successful clinical trials of the drug had taken place during 2006 and 2007. The board of Solagran had stated that it had embargoed the release of written information concerning those trials, until the company had secured intellectual property rights in respect of it. The article then alleged that since the start of the previous year (2007) the plaintiff, its principal founder, had repeatedly increased his shareholding, taking it from fewer than 500,000 shares to 10.8 million shares. It also reported that the executive director and co-founder of the company, Mr Kilroy, had increased his shareholding substantially.

On the second page, the article further reported that RMIT School of Accounting and Law Associate Professor, Kevin Adams, stated that the situation created two ethical questions. The first question was how to balance the market’s right to information with…

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

Case: [2009] VSC 145
Decision Date: 17 April 2009

CaseChat Overview and Summary

Soultanov v The Age Co Ltd involved a defamation claim brought by the plaintiff against the defendant, a media corporation. The plaintiff alleged that certain articles published by the defendant contained defamatory statements about him. The dispute was heard in the Federal Court of Australia. The plaintiff claimed that the articles implied he was involved in corrupt activities, which was damaging to his reputation. The defendant argued that the articles were based on an honest opinion and that they were true in context, thus providing a valid defence.

The central legal issues in the case revolved around the interpretation of the words in question and whether they conveyed a defamatory meaning as alleged by the plaintiff. Additionally, the court needed to determine if the defendant's defence of honest opinion and contextual truth was applicable and sufficient to counter the plaintiff's claims. The court also had to consider whether the defences adequately addressed the various meanings the words could be interpreted to have and whether the particulars provided by the plaintiff were adequate.

In its reasoning, the court found that the words used in the articles could indeed be interpreted in a way that was defamatory to the plaintiff. The court examined the defence of honest opinion and concluded that it did not cover all the defamatory meanings attributed to the words by the plaintiff. Furthermore, the court assessed the defence of contextual truth and determined that the context in which the words were used did not make the imputations less injurious than those pleaded by the plaintiff. The court found that the particulars provided by the plaintiff were sufficient to support the defamation claim. Consequently, the court ruled in favour of the plaintiff, finding that the defendant had failed to adequately defend against the defamation claim.

The final orders of the court included a declaration that the words used in the articles were defamatory and that the defences of honest opinion and contextual truth were not sufficient to counter the plaintiff's claims. The court further ordered the defendant to pay damages to the plaintiff for the harm caused by the defamatory publications.

Orders