Plaintiff v Defendants

Plaintiff v Defendants - [2015] VSC 364 - VSC 2015 case summary — Zoe

[35]

Not just any old outlaws - The Outlaws, one of the oldest 'one percenter' biker clubs around. They have two local chapters - one in Shepparton and one across the river at Kyabram. The whisper is these bands of brothers disagree on the issue of manufacturing and selling drugs.

They certainly have no objections to the local strip joint, Club Rawhide, set up in an industrial building next to a car yard overlooking the railway line.

It's around the corner from two of Shep's biggest pubs - and the police station, which is handy if members need to attend in either professional or pleasure-seeking capacity.

Police were called there late on the night of December 7, because a prominent local footballer and his mates were filmed punching and 'stomping' some other rocket surgeons, in a brawl a magistrate called 'extreme violence' when he sentenced them this month.

They appealed and got bail. If they lose, they will go inside. This would interfere with the local hero's footy career but it might not do any harm to membership of his other club, which happens to be The Outlaws.

In a case spookily like the cult television series Sons of Anarchy, it turns out the local hero and his dad are both in the biker club.

In fact, he was excused attending a football coaching camp last season because he had a prior social engagement with The Outlaws.

It was an invitation he couldn't refuse.

Of course, it's good that police arrested the bikies and brawlers so efficiently at Club Rawhide. Madam Black Mercedes, who runs the place, will be grateful.

It's unlikely our 'hero' will hold too many grudges, as The Outlaws and a few country police officers seem to have a healthy mutual respect. Locals suggest Rawhide is a convenient common ground for the two groups to unwind after a hard day at the office. As drinkers do the world over, they probably talk shop and swap business cards and phone numbers.

That might or might not explain why so many police raids around the Goulburn Valley have drawn blanks in recent times.

A former local detective has heard that at least eight search warrants have resulted in police finding no guns, no drugs and, sometimes, nobody home. When the law came knocking, The Outlaws were outdoors. In one case, huge cannabis plants vanished overnight.

Suspicious minds have pointed investigators toward a person who allegedly got a heads-up from a superior that Taskforce Eagle was circling.

Whether Eagles dare wreck the chummy Club Rawhide ambience is yet to be seen.

[112]

It is not in dispute that persons may be defamed in their business reputation. The common law has for some time recognised that words may not only reflect adversely upon a person's private character, but may injure a person in his or her office, profession, business or trade. This may be so where the words reflect upon the person's fitness or ability to undertake what is necessary to that business, profession or trade. But in each case the injury spoken of is that to the person's reputation.

The remedy which the law provides for injury to a person's business or professional reputation must be distinguished from that for malicious statements which result in damage not to the reputation but to the business or goods of a person. The former is provided by an action for defamation, the latter by that for injurious falsehood. Lord Esher MR explained the distinction in South Hetton Coal Co Ltd v North-Eastern News Association Ltd. A false statement that a wine merchant's wine is not good, which is intended to and does cause loss to the wine merchant's business, is an injurious (or 'malicious') falsehood. A statement reflecting upon that person's judgment about the selection of wine, and therefore upon the conduct of his business, may be defamatory of him. Gummow J observed in Palmer Bruyn & Parker Pty Ltd v Parsons that the action for injurious falsehood is more closely allied to an action for deceit.

The distinction between defamation and injurious falsehood has some relevance to these proceedings, which are brought under the Defamation Act 1974 (NSW). That Act repealed the Defamation Act 1958 (NSW). The 1958 Act imported a meaning of defamation from the Criminal Code (Qld), which was extended beyond that of the common law and included injurious falsehood. The common law requirement that the plaintiff's reputation be disparaged, for matter to be found defamatory, was thereby removed. It was sufficient, relevantly, that an imputation concerned the plaintiff and was likely to injure the plaintiff in his or her profession or trade. The 1974 Act reverted to the common law requirements of what is defamatory. Accordingly for present purposes, a publication must have an effect upon the reputation of the plaintiff rather than upon the business, trade or profession of the plaintiff as such.[41]

[200]

Defence of qualified privilege for provision of certain information

(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that -

(a) the recipient has an interest or apparent interest in having information on some subject; and

(b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and

(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.

(2) For the purposes of sub-section (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.

(3) In determining for the purposes of sub-section (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account -

(a) the extent to which the matter published is of public interest; and

(b) the extent to which the matter published relates to the performance of the public functions or activities of the person; and

(c) the seriousness of any defamatory imputation carried by the matter published; and

(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and

(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously; and

(f) the nature of the business environment in which the defendant operates; and

(g) the sources of the information in the matter published and the integrity of those sources; and

(h) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; and

(i) any other steps taken to verify the information in the matter published; and

(j) any other circumstances that the court considers relevant.

(4) For the avoidance of doubt, a defence of qualified privilege under sub-section (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.

(5) However, a defence of qualified privilege under sub-section (1) is not defeated merely because the defamatory matter was published for reward.

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