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Barry Lane
12 May, 2009  
A touch of hermeneutic exposition from VicAppeals

Defamation cases have never been simpler. With the assistance of “hermeneutic exposition” the defence of comment can be batted up and down the supply chain almost indefinitely. Heaven help a jury that misconstrues the subtlety of the hendiadys

imageThe Herald Sun published three articles on December 5, 2007 linking UltraTune supremo and horse flesh fancier Peter Sean Buckley to Tony Mokbel.

Mokbel was variously described by The Hun as a “drug czar … drug lord [and] drug boss”.

Mokers is currently waiting trial for murder.

The page one headline screamed, “Exclusive: Horse tycoon’s cash trail to drug lord – Mokbel $1Mil mate”.

The article alleged that Buckley “handed about $1 million in cash to drug czar Tony Mokbel in a series of weekly payments”.

In June 2007 Mokers was arrested in Greece wearing a particularly bad wig (pic), which The Hun reported in August last year came from Buckley’s Ultra Hair Studios in Flinders Lane.

The headline for that one was: “REVEALED Final Piece of Mokbel’s Getaway Puzzle MOP TOP MYSTERY SOLVED”.

imageBuckley has brought defamation proceedings against The Hun and journalist Russell Robinson.

Justice Stephen Kaye has the docket.

The terms of the page one story are set out in paragraph 13 of Kaye’s judgment on a pleading dispute.

Buckley has also provided an explanation on his web site.

He is pleading a whole heap of imputations, including that he was illicitly and criminally involved in the activities of underworld drug baron Tony Mokbel; that he concealed illicit and illegal payments to Mokbel through false contracts; and as part of his illicit and improper dealings with drug baron Mokbel, the plaintiff acquired Mokbel’s (country) property at gross undervalue.

The Hun pleaded fair comment. Buckley applied to have the defence struck out on the basis that the front page article consisted of allegations of fact, not comment.

HH agreed and called in aid the High Court’s recent illuminating decision in Channel Seven Adelaide v Manock.

“A statement may be regarded as an expression of opinion, and not an allegation of fact, ‘if it appears to be a deduction, inference, conclusion, criticism, judgment, remark or observation come to by the writer or speaker from facts stated or referred to by him, or in the common knowledge of the person writing or speaking and those to whom the words are addressed, and from which his conclusion may reasonably be inferred’.

“In order to qualify as comment, the publication complained of must be reasonably capable of being understood, by the ordinary reasonable reader or listener, as constituting the expression of the writer’s opinion, and not an allegation of fact by the writer”

Blah, blah blah. And there followed a fairly tortuous word by word analysis of the article.

The Hun and its reptile successfully appealed, with Nettle, Ashley and Weinberg drawing quite different inspiration from the High Court’s Manock foray into the world of comment.

The appeal judges said the newspaper could shift its focus from the terms of the article itself to the imputations.

The phrase “illicitly and criminally”, for instance, came in for some intense examination, after which a metamorphosis was observed.

“The words ‘illicitly and criminally’ are intrinsically judgmental. To say of an act that it is ‘illicit’ is to convey that it is improper, and by and large the assessment of impropriety requires an element of judgment. Similarly, to pronounce an act ‘criminal’ is to suggest a process of decision or conclusion as to its criminality deduced from something else… But the idea of judgment is implicit in both ‘illicit’ and ‘criminal’ and the use of the hendiadys tends to colour each term with the qualities of the other.”

Que? Hendiadys*.

imageThe facts in the article from which the imputations were derived were:

1. Buckley (seen here, centre) made payments of large amounts of cash to Mokbel.

2. Buckley handed over those moneys in brown paper bags.

3. The moneys were sourced, not from franchises but from Buckley’s own business outlet.

4. The moneys were collected by unsavoury people.

5. The fact that Mokbel’s attendance at Buckley’s premises was camouflaged by a bogus contract between the parties.

“It follows,” the CA said, “that a reader of the first article would infer from those stated facts that the publisher of the first article intended to convey that the payments were illicit and illegal or, perhaps more precisely, were made for purposes which were illicit and illegal and, therefore, were made illicitly and illegally”.

Just when you think it can’t get more painful than that, it does.

The article said that:

“The exact reasons for the transactions are unknown, but it is estimated about $1 million passed to Mokbel.”

This meant that readers of the article were on notice:

“that any imputation that the payments were made illicitly and illegally could logically have been no more than a conclusion to which the publisher of the article had come on the basis of the facts alleged – an inference or evaluation or judgment which the publisher had derived or inferred from the stated facts – and thus was a comment.”

There was also a statement in the article being considered that, “The Herald Sun has pieced together the strong association between Mokbel and Mr Buckley”.

On and on they banged, arriving at this conclusion:

“The question for present purposes is not whether such a reader would judge the implication to be one of fact or opinion, but simply whether the imputation is one which a jury might reasonably conclude would be construed by an ordinary reasonable reader as one of opinion.

And logically, the fact that indicators of opinion can be identified by a process of hermeneutic exposition implies the existence of a reasonable possibility that those indicators may have operated subconsciously on the mind of the ordinary reasonable reader.”

VicAppeals has taken a lead from the High Court’s masterful clarification of the defence of comment.

Recently the appeal judges led us around the rocky coastline of “casuistical reasoning”.

Now we’ve got the intriguing role played by the hendiadys and the challenges of hermeneutic exposition.

Wouldn’t you love to be a fly on the jury room wall when six of Victoria’s ordinary honest toilers work out by a process of hermeneutic** exposition what was going on in the subconscious mind of the mythical ordinary reasonable reader of The Hun and whether that gave rise to a defence of comment?

*Hendiadys: a figure in which a complex idea is expressed by two words connected by a copulative conjunction.

**Hermeneutic: interpretive; explanatory.