IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Defamation List

Case No. CI-21-03942

RAYMOND TERRENCE HOSER	Plaintiff	
		
v		
		
AUSTRALIAN BROADCASTING CORPORATION 
(ABN 52429278345)

and 

PAUL JAMES BARRY

and 

MISA HAN	First Defendant

Second Defendant

Third Defendant	

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JUDGE:	HER HONOUR CLAYTON	
WHERE HELD:	Melbourne	
DATE OF HEARING:
DATE OF RULING:
CASE MAY BE CITED AS:
MEDIUM NEUTRAL CITATION:	30 March & 18 July 2022
6 October 2022
Hoser v ABC & Ors (Ruling)
[2022] VCC 1664	

RULING
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Subject:	DEFAMATION – CIVIL PROCEDURE 
Catchwords: 	Pleadings – Application to file amended statement of claim – Whether imputations capable of being conveyed – Whether pleading bad in form or embarrassing
Legislation Cited:	
Cases Cited:	Wheelahan & Anor v City of Casey & Ors (No 12) [2013] VSC 316; Gunns Limited v Marr [2005] VSC 251; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; Trkulja v Google LLC (2017) 263 CLR 149; Hockey v Fairfax Media Publications Pty Limited (2015) 237 FCR 33; Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185; Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496; Chau v Australian Broadcasting Corporation (No 3) (2021) 386 ALR 36; Sali v Australian Broadcasting Corporation [2013] VSC 388; Farquhar v Bottom [1980] 2 NSWLR 380; Jones v Skelton (1963) 63 SR (NSW) 644; Lewis v Daily Telegraph Ltd [1964] AC 234; Morgans v Odhams Press Ltd [1971] 2 All ER 1156; Soultanov v The Age Co Ltd (2009) 23 VR 182; Mirror Newspapers Ltd v Harrison (1982) 149 CLR; Toben v Milne [2014] NSWCA 200; Ahmed v Harbour Radio Pty Ltd (No 2) [2011] NSWSC 20; El-Mouelhy v Q-Society of Australia Inc (No 2) [2015] NSWSC 990; Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135; Trkulja v Google Inc LLC & Anor [2010] VSC 226; Setka v Abbott (2014) 44 VR 352
Ruling:	The plaintiff’s application for leave to file an amended statement of claim in refused. The plaintiff’s proposed amended statement of claim is struck out in part in the terms set out in this ruling, with a right to replead.

APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	The plaintiff appeared in person		
			
For the Defendants	Mr S Mukerjea	ABC Legal	

HER HONOUR:

1	The plaintiff sues the defendants for defamation arising out of four publications relating to the events surrounding the plaintiff’s snake catching business. 
2	By summons dated 10 February 2022, the plaintiff seeks leave to file an amended statement of claim.  The defendants oppose some of the proposed amendments.  For ease of reference, I will refer to one document, titled ‘AMENDED STATEMENT OF CLAIM MATERIAL STRUCK OUT IN STRIKE OUT TEXT, ADDITIONS / ALTERATIONS IN BLUE’, dated 21 December 2021, rather than referring to the currently existing statement of claim and the proposed amended statement of claim.  
Proposed Amendments to Statement of Claim
3	For the purposes of granting leave to amend a pleading, the principles are the same as the principles relating to striking out a pleading.
4	The defendants submit the existing statement of claim ought to be struck out, the plaintiff’s application for leave to file an amended statement of claim ought to be dismissed, and the plaintiff ought to be granted leave to re-plead his case.
5	The defendants’ objections fall into two categories – that the imputations must be struck out because they are incapable of being conveyed or alternatively, they are bad in form and must be re-pleaded.
6	A statement of claim should plead all material facts necessary to establish the essential elements of the cause of action, be in intelligible form and not be embarrassing.  Pleadings should not be struck out unless there is a substantial objection or real embarrassment is shown.  
7	The relevant principles for pleading defamatory imputations are summarised in a number of decisions.  The principles were in a series of recent decisions of the Federal Court of Australia,albeit in the context of findings of fact, and can be briefly restated here:
(a)	Whether an imputation is actually conveyed is a question for the tribunal of fact, however whether an imputation is capable of being conveyed is a question of law for the judge to decide;
(b)	The test is whether the Court is satisfied that the imputation is capable of being conveyed to an ordinary reasonable reader;
(c)	The Court must avoid a strained, forced or utterly unreasonable interpretation of the matter complained of;
(d)	The Court must proceed on the basis that the ordinary reasonable reader is a person of fair, average intelligence, who is neither perverse, morbid or suspicious of mind, nor avid for scandal, but who is not unusually naïve, engages in a degree of loose thinking, can and does read between the lines in the light of their general knowledge and experience of worldly affairs, and has a capacity for implication that is greater than that of a lawyer;
(e)	Conclusions which the reader may reach as a result of personal beliefs or prejudice must be distinguished from the ordinary reasonable reader’s understanding of what the matter complained of is actually saying;
(f)	The exercise involves ‘generosity, not parsimony’.  That is, the Court should have regard to the most damaging meaning an ordinary reasonable reader would consider capable of being conveyed;
(g)	A court should not lightly find that an imputation is not capable of being conveyed.
8	As to matters of form, only distinct meanings which differ in substance should be pleaded, and they should be pleaded separately. 
9	Meanings should be pleaded clearly and precisely. 
10	They must identify, with precision, the specific defamatory act or condition attributed to the plaintiff by the imputation, and must represent the ‘final distillation of the defamatory sting’ conveyed by the imputation.  
First Publication
11	The first publication is a broadcast on the television program Media Watch on ABC TV on 21 September 2021.
12	The broadcast starts with the original story televised on Sunrise on Channel 7, a broadcast which is not the subject of any claim.  The host of Media Watch, the second defendant, says, ‘That unlikely story about a deadly snake on a petrol bowser was too good for the media to pass up.’  He says the Sunrise story was reported online by Seven, Nine and in the Daily Mail.  He says the ‘shocked motorist’ who allegedly discovered the snake was not identified by any media outlet but that the plaintiff certainly was.  He notes it was ‘great publicity for Raymond Hoser and his Snakebusters, who set all these stories running by boasting of his catch on social media, with pictures of the snake on the bowser, which the mainstream media happily ran.’
13	Mr Barry covers other credulous reports of the story.  He then says Media Watch called Coles Express and were told that its staff did not make the call to the snake handler and Coles’ head office did not know of the snake’s existence until it appeared in the news.  He says Victoria Police are ‘now investigating Hoser for reckless behaviour, with the allegation that he let the snake out as a publicity stunt.’
14	He says that Nine now claims ‘he has admitted it’ and when Media Watch called the plaintiff, the plaintiff ‘quickly confessed’ and said it was a re-enactment.
15	The second defendant then goes on to record three other occasions where snakes were apparently found and re-enactments carried out.  He asks, ‘Were the incidents straight-out fakes?‘ and goes on, ‘No, says Hoser, who claims he has caught snakes at these locations and was just re-enacting the events’.  Mr Barry then says, ‘How did the media fall for it?  With the greatest of ease.’ Mr Barry says Coles Express told Media Watch that no journalist called to check the plaintiff’s claim:
 … instead taking the story and pictures off his Facebook account and just assuming it was the gospel truth.  
 … and that’s just typical of media standards these days.
16	At paragraph 70 of the proposed pleading, the plaintiff pleads the following imputations are conveyed:
(i)	the plaintiff has broken the law;
(ii)	the plaintiff has engaged in reckless conduct with a deadly tiger snake and is likely to be charged for doing so;
(iii)	the plaintiff is a danger to the public;
(iv)	the plaintiff cannot be trusted because, in the first instance, he allegedly, or by inference, failed to tell the media he had re-enacted snake catcher jobs when releasing snakes in busy locations; being a petrol station, a Bunnings store and the side of a freeway, to generate business for himself;
(v)	the plaintiff is being investigated by police for criminal conduct endangering lives with a deadly snake;
(vi)	the plaintiff is a liar, because Coles Express staff are quoted as saying Mr Hoser had not been called to one of their places to remove a tiger snake and Hoser had previously stated he had been;
(vii)	the plaintiff is a fraud, because he released a snake in a petrol station in order to generate a news story about him catching one there, noting that the owners of the facility, Coles Express, told the media they knew nothing of the incident, confirming, by inference, that Hoser had lied about re-enacting a snake catching job, as he was quoted as saying in the news reports;
(viii)	the plaintiff is a faker, because he released a snake in a petrol station in order to generate a news story about him catching one there, noting that the owners of the Coles Express told the media they knew nothing of the incident, confirming, by inference, that the plaintiff had lied about re-enacting a snake catching job, as he was quoted as saying in the news reports;
(ix)	the plaintiff has put lives at risk with a deadly snake;
(x)	the plaintiff admitted releasing dangerously venomous snakes in prominent places, being a service station, a Bunnings and the side of a major freeway, where lives may be endangered;
(xi)	–
(xii)	–
(xiii)	–
(xiv)	–
(xv)	–
(xvi)	–
(xvii)	–
(xviii)	–
(xix)	–
(xx)	the plaintiff uses improper or unethical means to drum up business by faking snake catcher jobs to generate media publicity for his snake catcher business, noting a published or republished denial by the defendants from Coles of prior knowledge of Hoser being called to Coles Express to catch a snake;
(xxi)	the plaintiff has said he re-enacted snake catcher jobs after being caught out faking snake catcher jobs to the media;
(xxii)	the plaintiff has admitted to criminal, or potentially criminal, conduct;
(xxiii)	the plaintiff has admitted to endangering, or potentially endangering, lives;
(xxiv)	the plaintiff has admitted being reckless;
(xxv)	the plaintiff has admitted to illegally letting a venomous snake loose in a petrol station;
(xxvi)	the plaintiff has admitted to being a faker because he admitted releasing a snake in a petrol station in order to generate a news story about him catching one there, noting that the owners of the Coles Express told the media they knew nothing of the incident, confirming, by inference, that Hoser had lied about re-enacting a snake catching job, as he was quoted as saying in the news reports, in other words, being he had faked a snake catcher job that never happened;
(xxvii)	without giving a good reason, or having one, the plaintiff has been repeatedly engaging in the newsworthy behaviour of faking or re-enacting snakes he claims to have caught, using his own snakes in prominent or busy locations; being a petrol station, a Bunnings store and the side of a major freeway;
(xxviii)	the plaintiff has been conning media outlets, because he admitted he released a snake in a petrol station in order to generate a news story about him catching one there, noting that the owners of the Coles Express told the media they knew nothing of the incident, confirming, by inference, that Hoser had lied about re-enacting a snake catching job (that it appears, self-evident it had never in fact been done), as he was quoted as saying in the news reports, in other words, being he had faked a snake catcher job that never happened.
Findings
17	Imputation (iv) cannot be conveyed.  There is no reference to the plaintiff releasing snakes at any of the locations mentioned, nor could such an imputation be inferred.  The broadcast refers to re-enactments that occurred at various locations, which would not suggest the plaintiff had released snakes.  The imputation is struck out.
18	Imputation (vi) is not conveyed because it does not suggest that the plaintiff said he had been called out by Coles Express.  The broadcast may convey an imputation that the plaintiff attended Coles Express without the knowledge of staff or management, but that is not what is pleaded.  The imputation is struck out.
19	Imputations (vii), (viii), (xxvi) and (xxviii) are incapable of being conveyed.  They each state that an imputation is conveyed that the plaintiff released a snake.  For the reasons given at paragraph 17, the imputation is not conveyed.  Further, (vii) and (viii) are said to convey a meaning that the plaintiff lied about re-enacting snake catching jobs.  There is no suggestion in the broadcast the plaintiff lied about re-enacting snake catching jobs.  The broadcast does not say that no snake catching incident had ever occurred at that, or other, locations.  The broadcast says the event that was the subject of the plaintiff’s Facebook post was staged.  The broadcast included the plaintiff’s explanation that he was performing a re-enactment.  The imputations are struck out.
20	Imputation (x) is not capable of being conveyed and must be struck out.  There is no suggestion in the broadcast that the plaintiff released snakes anywhere.  There is nothing in the broadcast about the snakes being dangerously venomous.
21	Imputations (xxii), (xxiii), (xxiv), (xxv) and (xxvi) are not capable of being conveyed.  The plaintiff had not admitted to any offence, or that any of his conduct was reckless, that he was a faker, that he acted illegally, that he endangered lives or acted criminally.  Nothing in the broadcast suggests he had made such an admission.  Conceding that the photos had been mocked up using his own snakes and that the incident at Coles Express was a re-enactment, is not the same, or even similar, to admitting an offence or the conduct he alleges is conveyed.  Such an interpretation would only arise from a strained or forced construction of the words.
22	Imputation (xxvii) is bad in form, or otherwise does not contain a defamatory meaning.  The imputation pleaded is that the plaintiff re-enacted or faked the capture of snakes.  These are different things.  One is a re-enactment of an event, the other suggests no event occurred and the claimed capture is fake.  If the imputation pleaded is that the plaintiff re-enacted snake captures, it is not apparent that this contains a defamatory meaning.  Repeatedly engaging in newsworthy behaviour does not carry a defamatory meaning, and giving a good reason, or having one, takes the matter no further.  The imputation is struck out.
23	Imputation (xx) is bad in form.  The sting of the imputation is unclear. Is it the improper or unethical means he is said to use?  Is it that he drums up business by faking snake catcher jobs?  Is it that he fakes snake catcher jobs to generate media publicity for his business?  The words from ‘noting a published’ to ‘to catch a snake’ add nothing to the imputation, and are simply surplus words in the nature of submissions.  The imputation is struck out with a right to re-plead in appropriate form.
Second Publication
24	The plaintiff alleges that on 21 September 2020, the defendants uploaded the broadcast of the Media Watch segment onto its website, together with a transcript of the broadcast. 
25	At paragraph 125 of the proposed pleading, the plaintiff pleads the following imputations.
(i)	the plaintiff has broken the law;
(ii)	the plaintiff has engaged in reckless conduct with a deadly tiger snake and is likely to be charged for doing so;
(iii)	the plaintiff is a danger to the public;
(iv)	the plaintiff cannot be trusted because, in the first instance, he allegedly, or by inference, failed to tell the media he had re-enacted snake catcher jobs when releasing snakes in busy locations; being a petrol station, a Bunnings store and the side of a freeway, to generate business for himself;
(v)	the plaintiff is being investigated by police for criminal conduct endangering lives with a deadly snake;
(vi)	the plaintiff is a liar because Coles Express staff are quoted as saying Mr Hoser had not been called to one of their places to remove a tiger snake and Hoser had previously stated he had been;
(vii)	the plaintiff is a fraud because he released a snake in a petrol station in order to generate a news story about him catching one there, noting that the owners of the facility, Coles Express, told the media they knew nothing of the incident, confirming, by inference, that Hoser had lied about re-enacting a snake catching job, as he was quoted as saying in the news reports;
(viii)	the plaintiff is a faker because he released a snake in a petrol station in order to generate a news story about him catching one there, noting that the owners of the Coles Express told the media they knew nothing of the incident, confirming by inference that Hoser had lied about re-enacting a snake catching job, as he was quoted as saying in the news reports;
(ix)	the plaintiff has put lives at risk with a deadly snake;
(x)	the plaintiff admitted releasing dangerously venomous snakes in prominent places; being a service station, a Bunnings and the side of a major freeway, where lives may be endangered;
(xi)	the plaintiff uses improper or unethical means to drum up business by faking snake catcher jobs to generate media publicity for his snake catcher business, noting a published or republished denial by the defendants from Coles, of prior knowledge of Hoser being called to Coles Express to catch a snake;
(xii)	–
(xiii)	–
(xiv)	–
(xv)	–
(xvi)	–
(xvii)	–
(xviii)	–
(xix)	-
(xx)	the plaintiff has said he re-enacted snake catcher jobs after being caught out faking snake catcher jobs to the media;
(xxi)	the plaintiff has admitted to criminal or potentially criminal conduct;
(xxii)	the plaintiff has admitted to endangering or potentially endangering lives;
(xxiii)	the plaintiff has admitted being reckless;
(xxiv)	the plaintiff has admitted to illegally letting a venomous snake loose in a petrol station;
(xxv)	the plaintiff has admitted to being a faker because admitted he released a snake in a petrol station in order to generate a news story about him catching one there, noting that the owners of the Coles Express told the media they knew nothing of the incident, confirming, by inference, that Hoser had lied about re-enacting a snake catching job, as he was quoted as saying in the news reports, in other words, being he had faked a snake catcher job that never happened;
(xxvi)	without giving a good reason, or having one, the plaintiff has the media fooled by a Melbourne snake catcher, being himself, who likes to re-enact his snake catching antics as the real thing;
(xxvii)	the plaintiff has been conning media outlets because he admitted he released a snake in a petrol station in order to generate a news story about him catching one there, noting that the owners of the Coles Express told the media they knew nothing of the incident, confirming, by inference, that Mr Hoser had lied to the media about re-enacting a snake catching job (that it appears, self-evidently, had never in fact been done) as he was quoted as saying in the news reports, in other words, being he had faked a snake catcher job that never happened.
Findings
26	Imputation (iv) is struck out for the reason given at paragraph 17 above.
27	Imputation (vi) is struck out for the reason given at paragraph 18 above.
28	Imputations (vii), (viii), (xx), (xxv) and (xxvii) are struck out for the reasons given at paragraph 19 above.
29	Imputation (x) is struck out for the reason given at paragraph 20 above.
30	Imputations (xxi), (xxii), (xxiii), (xxiv) and (xxv) are struck out for the reasons given at paragraph 21.
31	Imputation (xxvi) is struck out for the reason given at paragraph 22. 
32	Imputation (xi) is struck out with a right to re-plead in the appropriate form for the reasons given at paragraph 23. 
Fourth Publication
33	I note that the pleading does not contain a third publication.  For the sake of clarity I have followed the numbering and identification used by the plaintiff in the proposed pleading.
34	The plaintiff pleads the defendants published a recording of the first publication on the Media Watch Facebook page, together with comments posted by members of the public.
35	At paragraph 249 of the proposed pleading, the plaintiff claims the following imputations are conveyed:
(i)	the plaintiff has broken the law;
(ii)	the plaintiff has engaged in reckless conduct with a deadly tiger snake and is likely to be charged for doing so;
(iii)	the plaintiff is a danger to the public;
(iv)	the plaintiff cannot be trusted because, in the first instance, he allegedly, or by inference, failed to tell the media he had re-enacted snake catcher jobs when releasing snakes in busy locations; being a petrol station, a Bunnings store and the side of a freeway, to generate business for himself;
(v)	the plaintiff is being investigated by police for criminal conduct endangering lives with a deadly snake;
(vi)	the plaintiff is a liar, because Coles Express staff are quoted as saying Mr Hoser had not been called to one of their places to remove a tiger snake and Hoser had previously stated he had been;
(vii)	the plaintiff is a fraud, because he released a snake in a petrol station in order to generate a news story about him catching one there, noting that the owners of the facility, Coles Express, told the media they knew nothing of the incident, confirming, by inference, that Hoser had lied about re-enacting a snake catching job, as he was quoted as saying in the news reports;
(viii)	the plaintiff is a faker because he released a snake in a petrol station in order to generate a news story about him catching one there, noting that the owners of the Coles Express told the media they knew nothing of the incident, confirming, by inference, that Hoser had lied about re-enacting a snake catching job, as he was quoted as saying in the news reports;
(ix)	the plaintiff has put lives at risk with a deadly snake;
(x)	the plaintiff admitted releasing dangerously venomous snakes in prominent places; being a service station, a Bunnings and the side of a major freeway, where lives may be endangered;
(xi)	the plaintiff uses improper or unethical means to drum up business by faking snake catcher jobs to generate media publicity for his snake catcher business, noting a published or republished denial by the defendants from Coles of prior knowledge of Hoser being called to Coles Express to catch a snake;
(xii)	the plaintiff has said he re-enacts snake catcher jobs after being caught out faking snake catching jobs to the media;
(xiii)	the plaintiff has admitted to criminal, or potentially criminal, conduct;
(xiv)	the plaintiff has admitted to endangering, or potentially endangering, lives;
(xv)	the plaintiff has admitted being reckless;
(xvi)	the plaintiff has admitted to illegally letting a venomous snake loose in a petrol station;
(xvii)	the plaintiff has admitted to being a faker because he admitted he released a snake in a petrol station in order to generate a news story about him catching one there, noting that the owners of the Coles Express told the media they knew nothing of the incident, confirming, by inference, that Hoser had lied about re-enacting a snake catching job, as he was quoted as saying in the news reports, in other words, being he had faked a snake catcher job that never happened;
(xviii)	without giving a good reason, or having one, the plaintiff has the media fooled by a Melbourne snake catcher, being himself, who likes to re-enact his snake catching antics as the real thing;
(xix)	the plaintiff has been conning media outlets, because he admitted he released a snake in a petrol station in order to generate a news story about him catching one there, noting that the owners of the Coles Express told the media they knew nothing of the incident, confirming, by inference, that Hoser had lied to the media about re-enacting a snake catching job (that it appears, self-evidently, it had never in fact been done) as he was quoted as saying in the news reports, in other words, being he had faked a snake catcher job that never happened.
(xx)	the plaintiff is known for butchering his snakes;
(xxi)	the plaintiff is an idiot;
(xxii)	the plaintiff is an animal abuser;
(xxiii)	the plaintiff should have his licence taken away;
(xxiv)	the plaintiff is an idiot who needs his reptile-handler’s licence revoked;
(xxv)	the plaintiff is a serial pest in the reptile world;
(xxvi)	the plaintiff mutilates his snakes in inhumane home surgeries to remove their venom glands;
(xxvii)	the plaintiff has been banned from most reptile groups;
(xxviii)	the plaintiff is an embarrassment to all Australian reptile keepers;
(xxix)	the plaintiff is a lowlife as well;
(xxx)	the media were fooled by the plaintiff, who likes to re-enact his snake catching antics for social media for improper purpose, this improper purpose being to generate business by way of an act of fraud, in that he staged a snake catcher job, claiming it was a re-enactment, when the claimed job had not in fact ever happened, as (allegedly and stated) confirmed by Coles themselves (as reported).
Findings
36	Imputation (iv) struck out for the reason given at paragraph 17 above.
37	Imputation (vi) is struck out for the reason given at paragraph 18 above.
38	Imputations (vii), (viii), (xii), (xvii) and (xix) are struck out for the reasons given at paragraph 19 above.
39	Imputation (x) is struck out for the reason given at paragraph 20 above.
40	Imputations (xiii), (xiv), (xv), (xvi) and (xvii) are struck out for the reasons given at paragraph 21.
41	Imputation (xviii) is struck out for the reason given at paragraph 22. 
42	Imputation (xi) is struck out with a right to re-plead in the appropriate form for the reasons given at paragraph 23. 
43	I am satisfied that imputations (ii), (iii), (v), and (ix) are capable of conveying distinct defamatory meanings and can stand.
44	Imputation (xxx) is bad in form, rolling up a number of imputations, not capable of being conveyed, or does not have a defamatory meaning.  The media may have been fooled, but there is nothing in the publications that conveys a sting aimed at the plaintiff.  The sting is the ‘state of media’ these days and the criticism is that journalists do not perform their work to an appropriate standard.  The other potential imputation – that the plaintiff engaged in fraud ꟷ is not made out for the reasons given at paragraph 19.  It is prolix and imprecise.  It is struck out with a right to re-plead.
45	Imputations (xxiv) is struck out.  It is an amalgamation of (xxi) and (xxiii). 
46	Further, imputations (xxi), (xxv) and (xxix) are struck out with a right to re-plead with sufficient precision to enable the defendants to know what he contends the ordinary reasonable reader would have understood to be conveyed by these words.  
47	Imputations (xx), (xxii) and (xxvi) are capable of conveying different meanings and can stand.
Conclusion 
48	Accordingly, leave is not granted to the plaintiff to file his plaintiff’s proposed amended statement of claim in its current form.  Parts of that proposed pleading are struck out in part in the terms set out in this ruling, with a right to replead.

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