Moot speech media law assessment PDF

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Asked to the benchThank you, your honour, may it please the court, I have three submissions to make. Your honour Firstly, I will submit that particulars of identification, per the uniform civil procedure rules are satisfied. Secondly, it will be my submission that the defence of triviality does no...

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Asked to the bench Thank you, your honour, may it please the court, I have three submissions to make.  Your honour Firstly, I will submit that particulars of identification, per the uniform civil procedure rules are satisfied.  Secondly, it will be my submission that the defence of triviality does not apply.  And finally, it will be my submission that aggravated damages can be awarded.

Particulars of Identification Firstly, your honour, in reference to the uniform civil procedure rules, namely part 15 rules 1 and 19 1 (a), it is my submission that the matter complained of clearly and expressly identifies the plaintiff, using his first and last name. this is the clearest example of material referring to the plaintiff as seen in Barbaro and Amalgamated Television Services PTY LTD, the 1985 decision reported in volume 1 of the New South Wales Law Reports at page 30. If I may refer you the matter complained of, the defendant states the following: The comments by Liberal candidate Reiner Wolfcastle are among the most extreme examples of antiGovernment rhetoric. They constitute nothing more than discredited conspiracy theories and downright falsifications on the efficacy of vaccines. His comments bring discredit to both him and the party he is representing. Mr Wolfcastle has publicly expressed support for “the current Liberal policy” but has acted in a way to undermine our goals of vaccination rates and faith in Government systems. We have seen in other countries what happens when political parties turn to a blind eye towards fanatics and conspiracy theorists in their ranks. It is incumbent on the Liberal leadership to ensure Australia does not follow the same route. In their natural and ordinary meanings, the meanings conveyed are that: a. The plaintiff is anti- government. b. The plaintiff is a liar. c. The plaintiff is a conspiracy theorist. d. The plaintiff has discredited the party he represents. e. The plaintiff is a hypocrite. f.

The plaintiff is a fanatic.

With reference to rule 19 1 (c) of the uniform civil procedure rules the matter complained of contains defamatory meaning other than its natural and ordinary meaning. By way of false innuendo, the matter complained of conveys the following imputation: a. The plaintiff is against any/all government initiatives and does not like the government.

b. The plaintiff is inconsiderate. c. The plaintiff has no faith in the government and undermines its goals. d. The plaintiff must be stopped before he takes his conspiracy theories too far. And by way of true innuendo the following defamatory imputation is conveyed: a. The plaintiff is anti-government, and completely undermines the government and the goals it has. His running for preselection bares an ulterior motive. He is on a path of destruction; he is comparable to the likes of Hitler and must be stopped. The particulars of extrinsic facts relied upon in order to establish true inuendo are a. The plaintiff is a member of his local liberal party and has made it known he will run for preselection. b. The plaintiff is a rights advocate. c. The Plaintiff is of German descent. d. Readers of the matter complained of are aware of the facts set out in 9 (b)-(d) above. In Mawe and Pigott, the 1869 decision found in the Irish reports common Law series volume 4 page 54, it was held that while the published material itself is incapable of giving rise to a defamatory meaning, it does so when it is considered in conjunction with the extrinsic facts. With this your honour I submit that all members of the cabinet and the PR person were aware of these facts and hence were able to draw this imputation from the matter complained of.

If I may refer your honor to Radio 2UE v Chesterton, the 2009 decision found in volume 238 of the common law reports at page 460 held before Chief Justice French, and Justice’s Gummow, Heydon, Kiefel and Bell. It was stated by the majority at paragraph 11 that “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.” The comments made by the defendant in the matter complained of did not target his speech alone, they targeted his reputation, making these comments defamatory to him. Further, your honour, at paragraph 36 the majority state “In principle therefore the general test for defamation should apply to an imputation concerning any aspect of a person's reputation. A conclusion as to whether injury to reputation has occurred is the answer to the question posed by the general test, whether it be stated as whether a person's standing in the community, or the estimation in which people hold that person, has been lowered or simply whether the imputation is likely to cause people to think the less of a plaintiff.”

Your honour I submit that the imputations I have presented to this court are defamatory in nature as they cause people to think less of the plaintiff and tarnish his reputation among the members of the liberal party.

Defence of Triviality Per rule 14.40 of the Uniform Civil Procedure Rules 2005, the defence of triviality applies to a defence under section 13 of the defamation act 1974 that is “a defence that the circumstances of the publication of the matter complained of were such that the person defamed was not likely to suffer harm.” And a defence under section 33 of the defamation act 2005, which has been repealed. Your honor as my learned had explained earlier the plaintiff in this matter has sustained significant harm, harm to his reputation, his career and his mental. The plaintiff suffered embarrassment by having to explain the contents of the email before the liberal party cabinet, he has been subject to discrimination due to the contents of the email, his character has been criticized and it not unlikely to say that that his application for preselection was rejected after the matter complained of was published. The defence of triviality cannot be raised, the plaintiff has suffered extreme harm, namely psychological and emotional harm due to the contents of the matter complained of. It was Justice Fagan in Smith and Lucht, the 2016 decision found in the Queensland reports, volume 2 at page 489, paragraph 38 who agreed with the reasoning of Justice Beazley in Jones and Sutton, namely her honours statement that “ in order to prove harm is unlikely the defendant must show there is an absence of “a real chance” or “a real possibility” of any harm, and it is my respectful submission your honour that my learned friends cannot, with absolute certainty, say that there was an absence of such a possibility. Say the plaintiff did not suffer harm.

Aggravated Damages Aggravated damages in the matter, your honour, can be claimed by way of the following: a. The conduct of the defendant in failing to make an offer of amends. b. The conduct of the defendant in failing to issue to issue an apology in an attempt to undo the harm caused. c. The conduct of the defendant in not addressing her concerns with the plaintiff before making rash decisions. d. The conduct of the defendant in not clarifying any information made by the plaintiff that may have been misinterpreted. e. The conduct of the defendant in not issuing a corrected email. f. The conduct of the defendant in inferring that the plaintiff possessed qualities comparable to likes of Hitler given his German descent. g. The conduct of the defendant in failing to privilege the matter complained of so that it could only be viewed by those it was intended for.

h. The detriment to the plaintiff’s professional reputation, his career and character in light of the class of persons – being members of the cabinet and members of the Liberal Party’s PR team – the matter complained of was published to. I submit that the defendant has engaged in conduct, which is otherwise improper or unjustifiable, the defendant, whether intentionally or recklessly, has inflicted damage on the reputation of the plaintiff. This damage has caused the plaintiff hurt and distress, he is less able to enjoy being a member of the liberal party, his opportunities in the liberal party have been jeopardised and his goals have been ruined, similarly to Stokes and Ragless, the 2017 decision found in south Australia supreme court volume 159, where aggravated damages were awarded to facts similar to these. If it pleases the court, may I continue my submissions? Conclude: If I can be of no further assistance to the court that concludes the submissions for the plaintiff. Wait till he says, “Thank you council, I have no further questions”. End: May it please the court....