Solicitor’s defamation action dismissed for lacking ‘The Vibe’

The District Court of Queensland has dismissed a solicitor’s claim for defamation based on an imputation conveyed by the words ‘Dennis Denuto’. ‘It’s just the vibe of the thing, Your Honour’ says Dennis Denuto, the fictional solicitor-hero of the classic Australia legal drama, The Castle, as he bumbles his way to a victory in the High Court. In Smith v Lucht [2015] QDC 289, the claim was dismissed because the plaintiff was ‘unlikely’ to sustain any harm to his reputation, with Judge Moynihan finding at [42] the statements were only conveyed to two family members who were able to make their own assessment of the imputation.The extraordinary facts of Smith arise from a family separation and a subsequent break-down in relations. A series of escalating exchanges related to this separation occurred between the plaintiff’s daughter-in-law (for whom the plaintiff was acting in separate proceedings) and the defendant, who was her ex-husband. During three of these exchanges the Court found the defendant referred to the plaintiff as ‘Dennis Denuto’ – once in an email and twice verbally. The plaintiff solicitor then brought a defamation action claiming $250 000 in damages.

The Defamation Act 2005 (Qld) forms part of the Australian uniform defamation law. These Acts effectively retain the position at common law, where a publication will be defamatory if it causes an ordinary reasonable person to think less of the plaintiff (see, eg, Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460). Therefore at issue in Smith was the characterisation of Denuto in The Castle. Was he ‘unprofessional, inexperienced, unethical, incapable and incompetent’ as the plaintiff contended, or was he ‘heroic, chivalrous, courageous and altruistic’ as submitted by the defendant?

The defendant’s pleadings were somewhat hilarious, with Part B arguing there were ‘Favourable Comparison Grounds’ between the plaintiff and Dennis Denuto. For example, the plaintiff gave evidence that he did all court work himself, and the defendant argued at [18] of his pleadings that ‘save for an appeal to the Full Court of the High Court of Australia, Dennis Denuto did all court work himself’. The judge however chastised the defendant for these ‘improper’ references in the pleadings that ridiculed the plaintiff. On the point of characterisation the judge found (at [31]) that in the film, Denis Denuto was ‘not characterised as unethical; however he was portrayed as incompetent and unprofessional in the scene set in the Federal Court’.   The reasonable reader would understand that the natural and ordinary meaning of the words ‘Dennis Denuto’ did indeed ‘include by implication or inference the defamatory imputation that the plaintiff is incompetent and unprofessional’. In the alternative, his Honour found that the true innuendo of the words conveyed a defamatory meaning.

However the defence of triviality, prescribed in s 33 of the Act, was successfully engaged in this case. To succeed in the defence of triviality, the defendant must show that the plaintiff was unlikely to sustain any harm by the publication of the defamatory matter. The judge held that the s 33 defence operated because ‘[a]t the time they were made, the statements did not cause Sally and Jarrad to think less of the plaintiff and there was little chance of republication’ [41]. Subsequent media publication of the imputation did not constitute a circumstance of publication by the defendant for the purposes of s 33 of the Act.

Judge Moynihan went on to make extensive obiter comments on the issue of damages if on appeal it was found that the s 33 defence did not apply. The plaintiff had argued for award of damages for reputational vindication due to the ‘grapevine’ effect, which concerns the natural and probable result of the original publication. That is, once the defamatory proceedings were filed, newspapers, professional journals and numerous websites made reference poking fun at the claim. On this point, however, his Honour concluded that in reality the plaintiff, by making the claim, ‘called in an airstrike on his own position’ [52]. One wonders whether this judicial quip is paying homage to the classic line in The Castle when Daryl Kerrigan, Dennis Denuto’s client, says of Denuto that by instructing him, he is ‘going to hit them with the big artillery’. The judge would have awarded $10 000 damages, which included an amount for aggravated damages, were it not for the engagement of the s 33 defence.  The judge noted that the defendants had not apologised and had made unjustifiable claims during the course of the proceeding.

This case highlights how circumstances surrounding the publication of imputations may be determinative of whether defamation is made out in law. On the facts of this case, the very limited publication of the defamatory imputation and the low likelihood of harm meant that the words of Daryl Kerrigan in The Castle ring true – ‘tell him he’s dreaming!