Asmar v Fontana
[2018] VSC 382
•11 July 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2017 4934
| DAVID ASMAR | Plaintiff |
| v | |
| VINCE FONTANA | First Defendant |
| and | |
| TIM LAURENCE | Second Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 June 2018 |
DATE OF RULING: | 11 July 2018 |
CASE MAY BE CITED AS: | Asmar v Fontana & Anor |
MEDIUM NEUTRAL CITATION: | [2018] VSC 382 |
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PRACTICE AND PROCEDURE - Defamation – Applications by first defendant to strike out defamation proceeding under r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) on grounds of abuse of process, or alternatively r 23.02 on basis that plaintiff’s pleaded imputations could not arise out of the words allegedly used by the first defendant – Whether proceeding offends principle of proportionality and is therefore an abuse of process – Bleyer v Google Inc [2014] NSWSC 897, referred to – Relevance of context to question of whether plaintiff’s claims are trivial – Application under r 23.01 dismissed - Whether words complained of are capable of conveying a pleaded defamatory imputation – Trkulja v Google Inc [2018] HCA 25, referred to – Relevance of context in which statement alleged to be defamatory is made – Finding that question of whether first defendant’s words are capable of conveying a pleaded defamatory imputation is a matter for trial – Application under r 23.02 dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Wilson QC | Mills Oakley |
| For the First Defendant | Mr A Anderson | Madgwicks Lawyers |
| For the Second Defendant | Mr S Mukerjea | De Wet Partnership Solicitors |
HER HONOUR:
This proceeding is an action in defamation brought by the plaintiff (‘Mr Asmar’), against two defendants, Mr Vince Fontana (‘Mr Fontana’) and Mr Tim Laurence (‘Mr Laurence’). Mr Asmar, who is described in the statement of claim filed 29 January 2018 as a member of the Australian Labor Party (‘ALP’), claims that Mr Fontana (an independent candidate for the State seat of Northcote for a by-election held in late 2017), and Mr Laurence (an ALP member and a councillor of the City of Darebin) defamed him in two separate conversations on the same day concerning the same incidents.
On 30 October 2017, campaign posters and other signage promoting Mr Fontana were defaced and vandalised at two separate properties in Thornbury and Northcote. Mr Asmar alleged that, on or about that day, Mr Fontana said to Mr Samuel Rae (the Victorian State Secretary of the ALP) the following words:
I suspect that David Asmar was responsible for damaging and defacing my campaign property.
Mr Asmar alleges that on the same day, Mr Laurence said to an unascertained number of people words to the effect that:
(a)David Asmar was responsible for vandalising the campaign property;
(b)David Asmar’s conduct was caught on camera in a couple of instances, including on a camera located outside Vince Fontana’s house; and
(c)the media would be very interested in David Asmar, a senior ALP official, tampering with campaign property that belonged to Vince Fontana, an upstanding independent candidate.
In his defence filed 1 March 2018, Mr Fontana, among other things, admits that he had a conversation with Mr Rae on 31 October 2017 in which Mr Asmar was mentioned. In paragraph 8(c) of his defence, Mr Fontana stated as follows:[1]
In the portion of the conversation which concerned the plaintiff, the first defendant showed Samuel Rae CCTV footage on his phone of a man he believed had vandalised a campaign board outside his house in Thornbury the previous evening and asked “Is it David Asmar?” Samuel Rae responded “No it’s not. He’s fat and walks with a limp.” The first defendant responded “If it’s not him, it’s not him.”
[1]This pleading was verified and elaborated upon in an affidavit sworn by Mr Fontana on 17 May 2018.
Mr Fontana relies upon the defences of qualified privilege, justification and triviality. In support of his defence of justification, Mr Fontana relied upon the following particulars:
The plaintiff accepted responsibility and was fined $1,000 in the Melbourne Magistrates’ Court after being arrested and charged with five counts of theft and five counts of criminal damage for vandalising the campaign materials of political rivals in the early hours of the morning of the Federal election on 2 July 2016.
Mr Laurence has not yet filed and served a defence.
Mr Fontana has two applications before the Court. His primary application is that the proceeding brought by Mr Asmar be struck out and/or stayed as against him on the grounds that it is an abuse of process. Alternatively, Mr Fontana says that the statement of claim ought to be struck out, on the basis that the imputations pleaded by Mr Asmar (to the effect that Mr Asmar was responsible for vandalising and/or defacing Mr Fontana’s campaign material) were not capable of arising out of the words said to have been used by Mr Fontana in his conversation with Mr Rae, being that he suspected that Mr Asmar had damaged his campaign material. Mr Laurence does not join in these applications.
The basis for the primary application is that the proceeding is an abuse of process, given that the resources of the parties and the Court which will be consumed by the resolution of the proceeding will be disproportionate to the interests at stake, and the likely relief available to Mr Asmar. Counsel for Mr Fontana relied upon the decision of McCallum J of the New South Wales Supreme Court in Bleyer v Google Inc[2] in support of the proposition that lack of proportionality, in the context of the provisions of the New South Wales equivalent of the Civil Procedure Act 2010 (Vic), is a separate species of abuse of process. Her Honour held that a proceeding may be stayed as an abuse of process on the grounds that:
the resources of the Court and the parties that will have to be expended to determine the claim are out of all proportion to the interests at stake[3]
notwithstanding that a defence of triviality is available to defendants in defamation actions (as has been pleaded by Mr Fontana in this proceeding), and notwithstanding that this Court has the power to transfer, on its own motion, a proceeding to another Court. Her Honour’s reasoning was referred to with apparent approval by the New South Wales Court of Appeal in Farrow v Nationwide News Pty Ltd.[4]
[2][2014] NSWSC 897.
[3]Ibid, [62].
[4][2017] NSWCA 246, [5], per Basten JA.
Counsel for Mr Fontana relied upon the following matters in support of his contention that Mr Asmar’s claims in this proceeding were, in effect, trivial (in the natural and ordinary meaning of the word):
(a) there was only one recipient of an oral publication;
(b) Mr Fontana has given evidence that as a result of his discussion with Mr Rae, he formed and expressed the view that he did not believe that Mr Asmar was responsible for the vandalism of Mr Fontana’s electoral material;
(c) given Mr Asmar’s past involvement in unlawfully interfering in political campaigns (in the seat of Melbourne Ports during the 2016 Federal election), there could be limited further damage to Mr Asmar’s already sullied reputation; and
(d) the evidence advanced by Mr Fontana’s solicitors that the trial of the proceeding was likely to take five days, and Mr Fontana was likely to incur legal fees of up to $200,000.00 in defending the proceeding, given that senior counsel may be required to be briefed.
In response, senior counsel for Mr Asmar noted that counsel for Mr Fontana has sought to isolate the claim against him, notwithstanding Mr Asmar also makes claims against statements made by the second defendant concerning similar subject matter on the same day. The nature of the words spoken and the context and extent of publication can only be established after the completion of interlocutory steps and a trial. Further, the value of the interests at stake in defamation proceedings have to be assessed having regard to broader considerations than any monetary compensation which might be recoverable from the defendants.
In my view, while I accept, without undertaking a close analysis, that there is a solid basis for finding that bringing a proceeding which offends the principle of proportionality may amount to an abuse of process (and this finding could extend beyond defamation proceedings), the current application is not an appropriate vehicle for making such a finding. In effect, Mr Fontana is seeking summary judgment against Mr Asmar not only upon the question of proportionality, but also the merits of the claim, insofar as Mr Fontana relies upon the number of recipients of the publication, his resiling from his ‘suspicion’, the alleged triviality of the statements, and the alleged lack of impact upon Mr Asmar’s reputation.
It is generally not appropriate to dwell too much on the merits of a plaintiff’s claim or a defendant’s defence in ruling upon applications such as these, as they are properly matters for trial. However, I would make the following observations in response to the implied assertion of Mr Fontana that Mr Asmar’s claims are of minor moment, or, although counsel did not express it as such, Mr Asmar’s complaints amount to a storm in a teacup. First, context is important. This is not a purely private matter. I do not know whether Mr Asmar has any official political responsibilities within the ALP or related organisations, but the media articles relied upon by Mr Fontana in support of his application suggest that Mr Asmar is or has been actively involved in ALP affairs and election campaigns, is described as a supporter of Mr Shorten, and was apparently a person of interest in the Royal Commission into Trade Union Governance and Corruption. The allegations said to have been made by Mr Fontana amounted to allegations of criminal conduct on the part of Mr Asmar in the context of a by-election. While there was only one recipient of the oral publication, that recipient was the State Secretary of the ALP, which is notoriously a very senior and influential position in the ALP. The question of whether an allegation of the nature made by Mr Fontana would have any further impact upon Mr Asmar’s reputation might be somewhat more nuanced than suggested by counsel for Mr Fontana: while his submissions in that regard have some force, and may well find favour at trial, an alternative view might be that, given what transpired as a result of Mr Asmar’s conduct during the 2016 Federal election campaign, a suggestion that Mr Asmar would once again engage in similar conduct might further harm his reputation. Further, the evidence from Mr Fontana’s solicitors that the defence of the proceeding may warrant the briefing of senior counsel sits uncomfortably with the proposition that the proceeding should be stayed as an abuse of process on the grounds of lack of proportionality. Finally, given that Mr Asmar’s claims against Mr Laurence will still be proceeding, staying the claims against Mr Fontana will not greatly reduce the requirement of the Court to commit resources to this matter.
Accordingly, I will dismiss the application under r 23.01 of the Rules.
In relation to Mr Fontana’s alternative application, being to strike out the statement of claim, counsel for Mr Fontana submitted that the authorities make it clear that a statement of suspicion is not capable of giving rise to an imputation of guilt. In the current case, the imputations pleaded are all imputations to the effect that Mr Asmar was guilty of vandalising Mr Fontana’s campaign material, not that Mr Fontana suspected him of doing so, which was what he said to Mr Rae.
Counsel for Mr Fontana relied upon the decision of the High Court in Mirror Newspapers Ltd v Harrison,[5] where it was held that a newspaper report which does no more than state that a person has been arrested and charged with a criminal offence is not capable of bearing the imputation that he is guilty or probably guilty of that offence. Senior counsel for Mr Asmar did not dispute that this was the applicable law with respect to the reporting of cases where a person has been charged with a criminal offence, and therefore was a ‘suspect’ of the police, but submitted that this principle needed to be viewed in the context of the well-established (and well-known) principles applicable to the criminal justice system: that is, that an accused person is innocent until proven guilty.
[5][1982] 149 CLR 293.
Senior counsel submitted that the current case was more akin to the ‘rumour’ cases, where a defendant could not avoid liability where an otherwise defamatory statement was prefaced by words such as ‘someone told me that’ or ‘it is rumoured that’, because that defendant was, by repeating the rumour, impliedly adding his or her imprimatur to the defamatory statement.[6] In any event, the meaning of the words used by Mr Fontana is a matter for trial.
[6]See the discussion in Lewis v Daily Telegraph Ltd [1963] 1 QB 340.
I agree. I accept that the question of whether words complained of are capable of conveying a pleaded defamatory imputation is a question of law, and that a court should not shirk from exercising its responsibility where the words said are clearly incapable of conveying the imputation pleaded. However, as recently observed by the High Court in Trkulja v Google Inc (citations omitted):[7]
It is, however, a question about which reasonable minds may sometimes differ, and, consequently, it is only ever with great caution that a defamation pleading should be disallowed as incapable of bearing a defamatory imputation. The potential for difference about the capacity of matters to convey different meanings is all equally strong reason for declining to set aside a proceeding on the basis that an impugned publication is incapable of bearing the defamatory imputation alleged. And it is to be remembered that on an application for summary dismissal such as this, the plaintiff’s case as to the capacity of the publications to defame is to be taken at its highest.
[7][2018] HCA 25, [30].
The Court then went on to discuss the application of the ‘ordinary reasonable person’ test as to whether a matter is capable of being defamatory, which is not necessary to discuss in great detail here, save to note that:
the exercise is one of generosity not parsimony.[8]
[8]Ibid, [32].
In the current case, the question of whether Mr Fontana’s statement that:
I suspect that David Asmar was responsible for damaging and defacing my campaign property
is capable of giving rise to the imputation that Mr Asmar was guilty of damaging and defacing Mr Fontana’s property must be considered in the context in which it was made.
In my view, the current case does not fall within either the ‘police’ cases or the ‘rumour’ cases. The statement made by Mr Fontana was not a report of the charging of a suspect, which a reader would ordinarily read subject to the usual caveats about a person being innocent until proven guilty. Rather, it was a statement (presumably) reflecting Mr Fontana’s state of mind at the time he made the statement, notwithstanding he may well have changed his mind while speaking with Mr Rae. For similar reasons, it is not a rumour case: Mr Fontana was not repeating the statement of another.
Therefore, it could not be said that any hard and fast rule applies to whether a statement of the nature made by Mr Fontana concerning his ‘suspicions’ could (or could not) convey the imputation that Mr Asmar was guilty of the suspected conduct. The following statement of Kirby J seems applicable to the current case:
words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject.[9]
[9]Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, [134], referred to in Trkulja v Google [2018] HCA 25, [32].
In the current case, it seems to me that the meaning of the word ‘suspect’, in the context in which it was said, and, relevantly, addressed to the person to whom it was said, is sufficiently ambiguous to prevent me from reaching a conclusion that the imputations pleaded by Mr Asmar are unable to be conveyed by the words used by Mr Fontana. In Sands v South Australia,[10] the Full Court of the Supreme Court of South Australia referred to a number of authorities which made statements to the effect that the word ‘suspect’ is not a word of precise meaning, and is capable of conveying a number of meanings, depending upon the context in which the word is used. In the current case, depending upon how the evidence pans out, it is not farfetched or fanciful that the words ‘I suspect that David Asmar was responsible for damaging and defacing my campaign property’ might be held to convey that Mr Fontana believed or knew that Mr Asmar had done so. But that is a matter for trial.
[10][2015] SASCFC 36, [240], [245].
Accordingly, I will dismiss Mr Fontana’s application pursuant to r 23.02 of the Rules. I will also refer the proceeding to the Judge in Charge of the Common Law Division to consider whether the proceeding ought to be transferred to the County Court.
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