NEWS

Counsel for the defendants acknowledged to the Master that the plaintiff had filed some particulars of aggravated damages for proving against the first and second defendants that were legitimate in law, but owing to them being formulated in a fashion that was difficult to understand, by consent they were struck out with leave given for them to be re-formulated in a simpler fashion. Costs were made in the cause, i.e., costs that will be paid by the party who ultimately bears the costs of the action.

As a matter of law, due to the non consent of the defendants, the plaintiff was unsuccessful in his application to amend the endorsement of claim (the writ) to include the media release cause of action in the current proceedings, as the media release cause of action arose after the issue of the writ. The washup of that is that the plaintiff will need to sue Rene Hidding in a fresh separate action if he wishes to pursue the media release cause of action. The plaintiff can do this as of right. Rene Hidding received an order for costs in any event, i.e., he will receive those costs in any event after the final outcome of the action.

The defendants allege a defense (amongst other defenses) that the plaintiff cannot succeed in the action because he has identified himself to the public. They do this in the first instance by saying that the plaintiff told his family that he was constructing the website before the defamatory article was published on 21 November 2002. The plaintiff admits that he told his family that he was constructing the website Discover-Tasmania.com prior to the publication of the article but contends that such a proposition by the defendants is so ridiculous that it is unworthy of comment as it can never succeed.

Then the defendants allege that the plaintiff sent a "letter to the editor" of the Examiner (which the Examiner didn't publish) regarding a Rene Hidding attack on Peg Putt of the Tasmanian Greens (published in the Examiner on 22 November 2002, now removed from its website) which identified himself to the Examiner and by doing this has become the publisher of the subsequent newspaper and internet publication by Heather Long. The plaintiff admits that he identified himself as the author of the Discover-Tasmania.com website to the Examiner in the letter because he had to by the nature of the letter and a "letter to the editor" of the Examiner requires the identity of its author. The plaintiff denies that he authorised or consented in any way to the subsequent newspaper and internet publication by Heather Long by his letter to the editor and relies on various sections of the Commonwealth Copyright Act 1968 to assert copyright and moral rights in that letter thus prohibiting it being used for something other than it was intended.

The defendants also allege that the plaintiff willingly volunteered his identification to the Mercury Newspaper and that the Mercury Newspaper then published the identity of the plaintiff in its Saturday 23 November 2002 edition (which the plaintiff says is also to be the subject of litigation by the Mercury Newspaper's unauthorised and derogatory use of the word "bogus") which mitigated the effect the latter subsequent newspaper and internet publication. The plaintiff strongly rebuts the allegation that he willingly volunteered any such identification and he says that he will be providing affidavit evidence to the Court that the disclosure of his identity to the Mercury Newspaper was in circumstances of receiving a perceived threat from a Mercury staff member that she would publish the name the plaintiff's daughter as being associated with the website Discover-Tasmania.com (in circumstances of the Mercury staff member being told that the plaintiff's daughter was not associated) unless the plaintiff co-operated in dispensing with his desired anonymity, (see the principle of consent @ sec. 195AWB(1) Copyright Act 1968).

And further, the defendants allege that by publishing his name on his own website, the plaintiff has identified himself and thus cannot claim damages for his own conduct of identification. The plaintiff believes that such an argument is preposterous, as it would be an infringement of a publisher's fundamental rights if he or she could never publish his or her own name to his or her own work for fear of being automatically defamed (to which, according to the defendants there was no remedy) by the existence of a defamatory publication that another has chosen to previously publish that was pointing to the publisher's work.

The plaintiff believes that the facts of the USA authority (Scelfo v Rutgers University) that the defendants rely on, are facts that are totally different to the facts in the current proceedings. In the Scelfo matter the plaintiffs themselves published the defendant's publication sued upon directly to the public while at the same time identifying themselves as the persons defamed in the publication, i.e., there was no third person involved in the identification, such as the Examiner. In the current circumstances the plaintiff contends that Scelfo cannot be applied because he says it is obvious that he did not publish the matter sued upon and will be establishing that he did not identity himself directly to the public, as at its own discretion without the plaintiff's authority or consent, it is the Examiner that decided to identify the plaintiff in its own separate publication, i.e., the subsequent newspaper and internet publication.

Further, the plaintiff says that as there appears to be no direct Australian authority on the identification matters in issue, he believes that it may even end up at the High Court.

With the consent of all the parties an order was made for a separate trial of identification issues (which would take about 2 days) before the main trial held later on (which would take about 2 weeks), as if the defendants win on the identification issues (as they believe they will) it will bring a quicker end to the litigation. The trial is to be before a judge without a jury on a date yet to be decided.

The stakes appear high, as if the plaintiff wins the final outcome he will have proved that he has been defamed to the Examiner Newspaper circulation of around 86,000 readers predominantly in the north of Tasmania which has the potential for the awarding of substantial damages. According to the further amended statement of claim, exemplary damages are also claimed.