Defence references to hyperlinked article struck out however go away to replead (Vic) | Lexology

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A lawyer who commenced defamation proceedings against the Herald Sun and 2 journalists has succeeded in having paragraphs of the defendants’ pleading referring to a hyperlinked article struck out, although the Victorian Supreme Court has allowed the defendants to replead.

The lawyer, Mr Lennon, claimed the defendants had made defamatory publications in an online article, including the defamatory meanings that he was a disgraced professional, had defended drug traffickers, and was living a secret double life as a lawyer and drug trafficker. The defendants pleaded in mitigation that the reasonable reader would also have read a hyperlinked article in the original publication (para 13(a) of the Defence) and that his bad reputation was already well known within the legal profession after he was chastised by a Victorian County court judge (para 13(b) of the Defence).

The lawyer argued that para 13(a) contravened the single meaning rule — he had chosen to rely only on the original publication, not the hyperlinked article which formed a discrete publication. Her Honour Daly AsJ agreed and struck out the paragraph. However, she gave the defendants leave to replead their mitigation of damages pleading in conformity with the Burnstein principle, particularly since the lawyer’s plea of aggravated damages has put the defendants’ state of mind relating to malice in issue. This required specifically pleading matters directly relevant background context affecting the harm to a plaintiff’s reputation: see Burstein v Times Newspapers Ltd [2001] 1 WLR 579.

Her Honour struck out para 13(b), finding that it focused upon an incident rather than expressly pleading how the incident was notorious in the legal profession. She granted leave to replead, since Channel Seven Sydney Pty Ltd v Mohammed (2010) Aust Torts Reports ¶82-075; [2010] NSWCA 335 demonstrated that judicial findings which are in the public domain may be admissible as evidence in mitigation of damage.

Source: Lennon v Herald & Weekly Times Ltd [2021] VSC 147, 30 March 2021, accessed 14 April 2021.

Dive deeper? Explore commentary about mitigation of damages in defamation proceedings:

  • • Factors in mitigation of damages: ¶41-670.