The appellant

John Setka is the Divisional Branch Assistant Secretary of the Victorian Branch of the Construction, Forestry, Mining and Energy Union (CFMEU). On 10 February 2012, the now Prime Minister (then Leader of the Opposition), attended a conference of the Masters Builders Association of Victoria (MBA) and said the following:

Question: “How do you propose the MBA actually move forward with, some sort of campaign to support the Australian Building and Construction Commission (ABCC)?”

Abbott: “…Because so many of you have got to go onto 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. Now the MBA is one step removed from that and it’s very very important that the MBA takes a forthright and uncompromising position and I’m pleased to say that in all my dealings with the Victorian MBA, particularly with your Executive Director Brian Welch, that is exactly what we’ve had. 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.”

Setka’s statement of claim alleged that the words carried the following imputations:

(a) the plaintiff engages in unlawful behaviour by visiting the homes of people working in the construction industry for the purpose of intimidating them;

(b) the plaintiff visits the home of people working in the construction industry for the purpose of making demands that amount to extortion;

(c) the plaintiff is a thug in that he visits the homes of people working in the construction industry for the purpose of intimidating them;

(d) 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 (a) and (b) above.

The defendants pleaded Polly Peck defences and alleged that the words meant that the plaintiff was a person who had engaged in:

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

Which the defendants alleged were true. The defendants provided particulars that referred to a rally that was

The First Respondent, on his way to court

alleged to have occurred on about 20 July 2010 outside the offices of the ABCC; a further blockade that it was alleged that the plaintiff participated in on 12 December 2008 and a second blockade on 18, 20 and 22 February 2009.

The plaintiff sought to strike out the Polly Peck defences, and the application was heard by Justice Beach on 31 October 2012. The plaintiff argued that the Polly Peck imputations were incapable of arising and that the imputations were not permissible variants on the plaintiff’s pleaded meanings. He also sought to strike out some particulars of truth as being unable to support the relevant plea of truth.

The plaintiff argued that the words were not capable of bearing the broader meanings submitted by the defendants, but Justice Beach found that they were arguable and were matters for the jury at trial. The meanings were capable of arising and not substantially different from the plaintiff’s meanings.

The plaintiff’s application was dismissed by Justice Beach on 12 November 2012.

Not set back by this, Setka filed a Notice of Appeal and took the matter to the Court of Appeal. A brave step, but the result was not good. The main problem faced by the legal representatives for Setka was that, on the appeal, they sought to argue 4 grounds which had not been argued before Justice Beach. They wanted to argue that the Polly Peck defence was not available in law and that the defence was bad in form because it was “entirely vague and general”.

The Court of Appeal were not impressed. They did not even answer the new grounds that were argued by the plaintiff and their decision was based virtually entirely on the proposition that the plaintiff should not be allowed to run the new grounds. That was it. The Court concluded that the plaintiff could bring the application before a single judge, and could even argued the points at trial, but not in the Court of Appeal when the points had not been run below. Harsh.

And so, after a year of waiting for the appeal to get on, Setka is back where he was more one year ago: the defences stand and he still does not know if his new grounds of appeal are any good or not. Whether he brings another application to run those new grounds remains to be seen. Maybe the Court of Appeal will like them better second time around.

As for Tony Abbott, he is Prime Minister: life could not be better.