The “Dennis Denuto” Case: Defence filed in Smith v Lucht

Please Note: It is noted that neither Counsel or the instructing solicitor appearing at the trial in Smith v Lucht, or on appeal, had any involvement in drafting or filing the defence linked in this article. The writer is informed that upon those lawyers taking carriage of the matter the defence was amended, properly, in significant respects.

It is also noted that criticism of the defence, which is discussed in the below article, was directed to the defence in its original form, and was in no way directed to Counsel or the solicitor who conducted the trial and appeal.

Published in the link at the bottom of this article is a sealed copy of the notice of intention to defend & defence filed by Kenneth Lucht to a defamation claim by the Ipswich solicitor, Mr Brett Smith.

Whilst the defence is a cracker, it is somewhat extraordinary that it was actually filed.

The gist or essence of Mr Smith’s claim was that he had been defamed, as a result of defamatory imputations comparing him to “Dennis Denuto”, the protagonist in the popular Australia film, The Castle.

The publications giving rise to the defamatory imputations were described by the President of the Court of Appeal in the following terms:

[2] The applicant, Mr Brett Smith, a respected Ipswich solicitor, brought a claim for damages in defamation against the respondent, Mr Kenneth Lucht, the former husband of Mr Smith’s daughter-in-law. The primary judge found that Mr Lucht made defamatory imputations concerning Mr Smith on three occasions.

[3] The first was in an email from Mr Lucht to Mr Smith’s daughter-in-law concerning access arrangements for one of their children in which he wrote: “…everything was fine until your pathetic email of 21 December and the barrage I received from Dennis Denuto from Ipswich about stupid things….”

 [4] The second was on 12 May 2013, Mother’s Day, when Mr Lucht and Ms Smith met outside a restaurant in the course of access arrangements concerning their children. Mr Lucht called out, referring to Ms Smith’s husband as “Dennis Junior,” and said words to the effect, “Say hello to Dennis Denuto and Jenny.” The third was later that day when Mr Lucht and Ms Smith and her husband met again over access arrangements. During an argument between Mr Lucht and Ms Smith’s husband, Mr Lucht said, more than once, words to the effect, “Just get Dennis Denuto to sort it out, Dennis Junior.”

The trial judge’s decision is available [here], and the appeal [here].

Mr Smith was unsuccessful, both at first instance and on appeal, upon the defendant establishing the “defence of triviality” – namely, “the circumstances of a defamatory publication were such that [Mr Smith] was unlikely to sustain any harm”.

Despite being successful, the defence filed by Mr Lucht was scrutinised and admonished by both the trial judge at first instance, and by the President on appeal. (Again, as noted in the precis, that criticism was directed to the defence as filed, not the amended version – nor was the criticism directed towards the Counsel who had conduct of the trial and the appeal).

The trial judge described the defence as “improper”, and the President as “offensive”, with the trial judge stating that the defence would have entitled Mr Smith to aggravated damages if he had been successful on his claim.

The defence, amongst other things:

  1. Pleaded that a favourable comparison could be made between Mr Smith and Dennis Denuto, including on allegations that Mr Smith and Dennis Denuto shared similar premises and legal expertise.
  2. Defined Mr Smith by his initials (“BS” – for Brett Smith), which were then used throughout the pleading to refer to Mr Smith’s legal practice and website, respectively as the “BS Practice” and “BS Website”.

[Click here to download the defence]