Stephens v Vass
[2003] VSC 269
•19 June 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. 4804 of 2003
| JOHN STEPHENS | Plaintiff |
| v | |
| ANTHONY VASS | Defendant |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 June 2003 | |
DATE OF JUDGMENT: | 19 June 2003 | |
CASE MAY BE CITED AS: | Stephens v Vass | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 269 | |
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TORT – defamation – pleadings – capacity of imputations to arise
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr JB Davis | Corrs Chambers Westgarth |
| For the Defendant | Mr D Klempfner | Garland Hawthorn Brahe |
HIS HONOUR:
By a writ issued on 8 March 2003 John Stephens sued Anthony Vass in respect of an alleged libel published in hard copy and on a web site called Greyhound Hotline concerning him and, in particular, concerning him in his capacity as the Chief Executive Officer of Greyhound Racing Victoria, the regulatory body which controls the sport of greyhound racing in this State. By way of defence to that claim, Mr Vass has taken various defences to the libel and has launched a counterclaim. The counterclaim is also for libel and is based upon two letters which Mr Vass he alleges were written by the plaintiff to various people.
The first of those letters, which is pleaded in paragraph 16 of the defendant's Defence and Counterclaim was allegedly published to a Mr Graham Ashton and a Mr Ross Kennedy. The first of those persons is said to be a senior Federal Police officer. The letter contains a reference to Mr Vass as having been making various allegations for some time to members of Greyhound Racing Victoria and its staff and other industry participants. It notes that there are defamation proceedings on foot and goes on to say, and I quote:
"The purpose of this letter is to draw attention to possible terrorist activity as outlined by Mr Vass. On Thursday September 13, 2001, at approximately 10.30 a.m. Mr Vass in conversation to me said 'It won't be long before a plane crashes into GRV'. These threats have now been repeated today on an Internet chat site entitled Global Greyhounds".
The writer of the letter then proceeds to say something as to what steps have been taken and finishes the letter by saying:-
"It is the feeling of GRV that such behaviour has crossed the boundary of verbal abuse, representing a real threat to the safety of our personnel".
Mr Vass alleges that that letter, in its natural and ordinary meaning was defamatory of him and meant and was understood to mean that he (a) engaged in possible terrorist activity and (b) engaged in very serious irresponsible criminal behaviour.
The second letter sued upon, which is set out in full at paragraph 20 of the pleading, was allegedly written by Mr Stephens to a Mr Brian Williams who is a steward of Greyhound Racing Victoria. It contains reference to the same conversation between Stephens and Vass and it contains the same quote. It informed Williams that the matter had been placed in the hands of the Federal Police and that Mr Stephens was available for further evidence if required.
Mr Vass pleads that in its ordinary and natural meaning that letter was defamatory of him and was meant and was understood to mean that he had engaged in criminal activity and that he engaged in conduct meriting review by the chief steward of Greyhound Racing Victoria.
The plaintiff has issued a summons seeking to strike out the imputations pleaded in respect of the letter set out in paragraph 16 of the defence and the first of the imputations pleaded as arising from the letter set out in paragraph 20.
Mr Davis of counsel who appeared for the plaintiff made the point, in respect of the first letter, that it did not suggest any actual activity on the part of Vass; that it was a complaint of only possible future activity and that it could not mean that Vass had engaged in possible terrorist activity. Similarly Mr Davis submitted that it could not mean that Vass engaged in very serious irresponsible criminal activity. He made the point that the imputations pleaded were allegations of present activity but in any event the phrase "possible terrorist activity" is a logical nonsense in that activity either occurs or it does not, it cannot be possible. He further submitted that, in any event, one should have regard to the proposed receiver of the information in interpreting the letter, that is to say that it should be read carefully and not peremptorily.
In respect of the imputation alleged in respect of the second letter he makes similar points. In particular he says that the imputation that Mr Stephens had engaged in terrorist activity is not open in as much as the letter does not suggest that he was presently engaging in or had engaged in such activity. Indeed, said Mr Davis, it was simply a report as to something that might occur in the future whether involving Mr Vass or not.
Mr Klempfner, in a very cogent and well argued defence of his pleading, referred to Jones v. Skelton[1], and Keays v. Murdoch Magazines Limited[2] and in particular the statement by Neill, L.J. in that case at p.1191:-
“It has been suggested that sufficient protection is given to defendants by the existence of the right to apply to strike out a pleaded meaning which is considered extravagant and unfit to be considered by the jury. But according to the law as clearly stated by Lord Guest and Lord Pearson in Morgan v. Odhams Press 1971 1 WLR 1239 at 1257 and 1268 on the hearing of an application to strike out the question to be determined is not whether the words are capable of bearing a defamatory meaning but whether they are arguably capable of bearing such meaning. It is, I believe, the experience of practitioners that it is rare for an application of this nature to succeed".
[1](1963) 1 WLR 1362
[2](1991) 1 WLR 1184
Whilst not in any sense dissenting from the general statement of principle set out by Neill, L.J. I do not entirely agree with the proposition that it is rare for an application of this nature to succeed. In this list it is not unusual for the question of whether a pleaded imputation is reasonably capable of being argued to be determined at this point for the purpose of ensuring that the pleadings which go to trial are matters which can properly be the subject of evidence and be put before the tribunal of fact for determination by it.
Mr Klempfner emphasised the point that both letters relate to Vass and that the activity described in them is arguably activity in which he has engaged.
I was initially tempted to accede to the plaintiff's application on the narrow basis that it is difficult to argue that in fact the allegations relate to Vass at all, but on reflection it seems to me that that proposition is just arguable, that is to say the proposition put by Mr Klempfner that the allegations relate to Vass is just arguable and I would not strike out the imputations on that basis. However, notwithstanding that, I consider that there is merit in the submission made by Mr Davis that in fact the allegation that Vass had engaged in or did engage in possible terrorist activity, or had engaged or did engage in very serious irresponsible criminal activity, or had engaged or did engage in terrorist activity are not arguably open from the letters pleaded. Allegations of actual activity or possible activity of a terrorist nature said to have already been engaged in, cannot be, even arguably made out of these letters.
That is not to say that there might not be other defamatory imputations which could be pleaded as a result of a careful scanning of these letters, but they would not be imputations which alleged past activity. As I say, I am not prepared to say that it is not arguable that the letters relate to some activity by Vass, but not past activity. It might be future activity. Even then I think it is a thin case. But it might be able to be argued.
In the circumstances the plaintiff is entitled, in my opinion, to have these imputations struck out, that is the imputations contained in paragraphs 18(a) and (b) and the imputation in paragraph 22(a), but that the defendant should be given leave to recast those imputations if he is so advised. Accordingly there will be an order that the imputations contained in the defendant's Defence and Counterclaim filed 14 May 2003 paragraphs 18(a) and (b), and paragraph 22(a) are struck out. It is further ordered that the defendant have leave to deliver an amended defence and counterclaim if he be so advised by 4 July 2003.
[Discussion ensued regarding costs]
The defendant will be ordered to pay the plaintiff's costs to be taxed.
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