Dennis Denuto slur fails on damages appeal

THE jousting sticks have been out again after the Ipswich lawyer referred to as "Dennis Denuto" - the bumbling lawyer from 1997 Australian film The Castle - took his defamation case to the state's highest court.

Ipswich solicitor Brett Clayton Smith sued his daughter-in-law's former husband Kenneth Craig Lucht for defamation, claiming $250,000 in damages, because Mr Lucht called him "Dennis Denuto" in an email and during two conversations.

Denuto is a fictional character in The Castle who represented Dale Kerrigan during the legal fight against the compulsory acquisition of their home.

He famously described their home's compulsory acquisition as against the Australian Constitution's "vibe".

"In summing up, it's the Constitution, it's Mabo, it's justice, it's law, it's the vibe, and, no that's it. It's the vibe," he said in the film.

District Court judge Tony Moynihan, in a judgment handed down last year, found the film character was portrayed "as unprepared, lacking in knowledge and judgment, incompetent and unprofessional" in the film.

But he found Mr Lucht had a defence for the defamatory imputations on Mr Smith because it was trivial.

He dismissed Ms Smith's claims, finding publication of the defamatory material was limited and was unlikely to sustain harm.

Mr Smith took the case to the Queensland Court of Appeal this year, arguing harm should include hurt feelings as well as reputational harm.

The court entertained the appeal only to look at whether harm could extend to "hurt feelings" as well as reputation.

But appeal court president Margaret McMurdo said the primary judge had the right to conclude the circumstances surrounding these comments were unlikely to sustain any harm.

"In summary, the imputations were made in the heat of the moment to a very small audience who did not apprehend them as defamatory and in circumstances where all involved were in dispute over family matters," she said.

Justice Anthe Philippides said once it was conceded the action concerned reputational harm, it was "difficult to see what room there is to argue for a sweeping reform to accommodate a claim solely for harm to feelings".

She said damage was presumed in publication of defamatory matter but the trivial harm defence could be evoked when "there is no real probability of reputational harm".

"For that defence to operate the bar is set very high, but it was reached in the present case," she said.

Unlike Denuto, who won his fictional case, Mr Smith lost and must pay costs.