| Not Restricted |
IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2016 01842
| REBEL MELANIE ELIZABETH WILSON | Plaintiff |
| v | |
| BAUER MEDIA PTY LTD & ANOR | Defendants |
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JUDGE: | JOHN DIXON J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 6, 7 June 2017 |
DATE OF RULING: | 6, 7 July 2017 (Reasons 27 July 2017) |
CASE MAY BE CITED AS: | Wilson v Bauer Media (Ruling No 6) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 356 |
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PLEADINGS — Defamation trial — Applications to have defences of triviality and partial justification removed from jury — Further proposed Hore-Lacy amendments — Defence of justification simpliciter — Defamation Act 2005, ss 22, 25, 33.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr M Collins QC, with Ms R Enbom and Mr J C Hooper | Corrs Chambers Westgarth |
| For the Defendants | Ms G Schoff QC, with Mr S Mukerjea | Johnson Winter & Slattery |
HIS HONOUR:
In the course of the trial of this proceeding, I made several rulings, indicating that I would later publish my reasons for doing so.
First, I ruled that I would permit the statutory defence of triviality to go to the jury. Secondly, I ruled that the defence of partial justification, as it was exposed in this proceeding, was an issue for me when assessing damages, if and when that became a task for the court to undertake, and should not go to the jury. Thirdly, I refused certain amendments sought to the defence and allowed others.
These are, in a consolidated form, my reasons.
Triviality
The defendants pleaded a defence of triviality in respect of each of the eight publications complained of, and the plaintiff applied to have the defence withdrawn from the jury.
The defence of triviality is found in s 33 of the Defamation Act 2005:
It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.
The term ‘harm’ is not defined in the Act.
The defendants’ triviality defences were to be put to the jury on the following basis:
(a) The subject matter of the articles concerned the cultivation by the plaintiff of a particular public persona;
(b) Readers of the articles were likely to be cognisant of the fact that actors routinely understate or embellish matters such as their age and background, and also routinely adopt stage names or pseudonyms, in order to cultivate a particular public profile, and more generally to effectively market themselves;
(c) Readers of the articles were likely to be cognisant of the fact that female actors in Hollywood are routinely subjected to ageism in casting and, accordingly, commonly understate their age in order to enhance their prospects;
(d) Accordingly, readers of the articles were likely to view any lies told by the plaintiff about her age and background as merely ‘white lies’ which are an accepted and uncontroversial aspect of the entertainment industry; and
(e) Having regard…
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- Case
- [2017] VSC 356
- Decision Date
CaseChat Overview and Summary
The court examined whether the defences of triviality and partial justification were relevant to the case, and whether they should be left to the jury. The court determined that the defence of triviality was not available to the defendants, as the allegations made in the publication were not of a trivial nature. The court also found that the defence of partial justification was not appropriate, as the defendants had failed to demonstrate that any truth existed in the publication. Regarding the proposed Hore-Lacy amendments, the court considered whether they were relevant to the case and whether they should be allowed. The court found that the amendments were not relevant and should not be allowed. Finally, the court considered the defence of justification simpliciter, and determined that it was not available to the defendants, as they had failed to establish that the publication was substantially true.
The court ruled that the defences of triviality and partial justification should be removed from the jury. The court also ruled that the proposed Hore-Lacy amendments should not be allowed, and that the defence of justification simpliciter was not available to the defendants. The court's decision was based on the evidence presented and the relevant provisions of the Defamation Act 2005. The final orders of the court were that the defences of triviality and partial justification should be struck out, and that the proposed Hore-Lacy amendments should not be allowed. The court also ruled that the defence of justification simpliciter was not available to the defendants.
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