The matter emerged from a family dispute. The father of one party to the dispute was a lawyer named Barry Smith. Mr Smith claimed he was defamed when the other side, the ex partner of Mr Smith’s daughter, referred to Mr Smith as “Dennis Denuto from Ipswich”, amongst other things.
Mr Smith didn’t take kindly to being compared to the lovable, if incompetent lawyer from The Castle, and immediately threatened defamation proceedings if a full apology and retraction was not made. Unsurprisingly, no apology surfaced and Mr Smith filed a claim for defamation seeking damages of $250,000.
The solicitors for the defendant served an exceptionally amusing defence in the proceedings, the highlights of which included:
- Referring to Mr Smith by his initials “BS”, seemingly as much as possible;
- Referring to Mr Smith’s practice as “The BS Practice”;
- Making a brilliant point by point comparison of the similarities of Denis Denuto’s fictional law practice and the “BS Practice”; and
- Arguing that no one could be defamed by comparison to Mr Denuto since Mr Denuto successfully argued his client’s case in the film.
The defence sadly missed the chance to note that the film’s celebrated legal argument, “the vibe” has been cited in the New South Wales Court of Appeal decision of Harris v Digital Pulse and in a Canadian text concerning constitutional law.
The District Court did not seize as much opportunity for merriment in deciding the matter, but did note:
- Mr Smith had conceded that, at the time he was compared to Dennis Denuto, it was arguable that it did not cause him any injury at the time it was said, and the publication (being an email) did not impugn the character of Mr Smith or the BS Practice;
- The original defamatory words were in a private email and, prior to the media attention over the case, had very limited reach; and
- While the international media had reported on the case once it had been commenced, Mr Smith could not complain that these publications had caused him further damage as “by making the claim [he had] called in an airstrike on his own position”.
While the Court found that an award of $10,000 damages would be appropriate, section 33 of the Defamation Act 2005 (Qld) provided the defendant with a complete defence on the grounds of triviality. On that basis the Mr Smith’s claim was dismissed.
One might say that “the vibe” of the Defamation Act saved the day for the defendant. Others might say it was good old fashioned statutory interpretation that prevailed. In any event, while submissions on costs are still to be completed, it would appear that the defendant will ultimately have the last laugh as the decision has been picked up by local and international media.
For more information contact ERA Legal.