Setka Setback against Liberal’s Libel: Setka v Abbott & Anor [2012] VSC 534

On 10 February this year, Tony Abbott, (yes the leader of the Coalition) spoke at a conference of the Masters Building Association. He spoke about the Australian Building and Construction Commission and his words were republished by Sky News. He said this: 


Tony Abbott

Question: How do you propose the MBA actually move forward with, some sort of campaign to support the ABCC?


Abbott: … Because so many of you have got to go into sites every day and you’ve got to deal with the John Setkos of this world every day and the last thing you need is home visits from some of the gentlemen associated with some of the industrial organisations that you have to deal with every day and those home visits we know take place…

…I can remember when I first proposed the establishment of the Cole Royal Commission, senior building industry managers who knew just how bad things were, who knew just how much intimidation their workforce were exposed to, who knew how many tens and hundreds of millions of cost overruns their projects were liable to because of unlawful behaviour and thuggery were against it. They were against the establishment of the Cole Royal Commission. They said this was a problem that could not be fixed. Well it was fixed, if not entirely, then in large measure and it was getting better all the time. It was getting better all the time and in some ways it was getting better because the companies themselves were being told `You’ve got to lift your game’ as well the union officials being told `You’ve got to lift your game’. If the manager says `Look I just can’t do this anymore because I will go to jail if I do it’ well then it’s that much harder for the union official to get away with demands bordering, or indeed that are in fact, extortion, so I think the MBA has a very important role and I’m confident that Brian Welch knows exactly what it is. Welch by name but not Welch by nature.”

The plaintiff, a senior member of the Construction, Forestry, Mining and Energy Union, the CFMEU, sued Tony Abbott and the broadcasters of Sky News. The imputations he has pleaded are these:

  1. the plaintiff engages in unlawful behaviour by visiting the homes of people working in the construction industry for the purpose of intimidating them;

    John Setka
  2. the plaintiff visits the homes of people working in the construction industry for the purpose of making demands that amount to extortion;
  3. the plaintiff is a thug in that he visits the homes of people working in the construction industry for the purpose of intimidating them;
  4. the plaintiff is a self-confessed thug, who has admitted visiting the homes of people working in the construction industry for the purpose of engaging in the conduct referred to in paragraphs 1 and 2 above.

 The defendants pleaded a number of defences, including Polly Peck defences at common law, contextual imputation defences under s.26 of the Defamation Act and Sky News also pleaded qualified privilege on the grounds that the words were discussion of government and political matter. The plaintiff applied to strike out these defences.

 The defendants pleaded that the words meant and were understood to mean that the plaintiff was a person who had engaged in:

  • intimidation;
  • unlawful behaviour;
  • thuggery; and
  • extortion.

 The defendants provided particulars to prove the truth of these meanings, including:

  • reference to a rally on 20 July 2010 outside the offices of the ABCC;
  • reference to a blockade in which the plaintiff is alleged to have participated on 12 December 2008;
  • reference to a second blockade in which the plaintiff is alleged to have participated on 18, 20 and 22 February 2009;
  • three legal proceedings and their underlying facts.

The plaintiff also claimed that these facts were insufficient to support a justification plea and tried to strike out that defence as well.  The matter came before Justice Beach and His Honour basically asked the question: whether the meanings pleaded by the defendants were reasonably open to a jury. Only if they were not, could the Polly Peck and contextual imputation defences be struck out.

The plaintiff argued that:

  • the defendants’ meanings were not permissible variations of the plaintiff’s meanings; and/or
  • because his imputations were pleaded in the present tense and the defendants were pleaded in the past tense, that this meant that the Polly Peck meanings were impermissible; and/or
  • the defendants’ imputations should be struck out because a jury could not reasonably conclude that the plaintiff’s meanings do not further harm the plaintiff’s reputation because of the substantial truth of the defendants’ meanings; and/or
  • the discussion was not of government and political matter; and/or
  • the particulars were incapable of supporting the pleas of justification;

Dealing with the questions swiftly, basically, the Judge was not interested. His Honour concluded that the meanings were all questions for the jury, a jury could reasonably find that any of the meanings were made out, all of the meanings were arguable and so they all comprised triable issues.  Application struck out.

How the case proceeds will be interesting. It certainly looks like one that could well be headed for a few more preliminary stoushes and then on to a trial. How that impacts on Abbott’s campaign next year to become Prime Minister remains to be seen, although many Victorians will remember in 1999 how Jeffrey Kennett, who was then the staunch Liberal Premier of the State, lost a defamation trial and a couple of months later, unexpectedly lost the State election.