Asmar v Fontana - [2018] VSC 382

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Asmar v Fontana

Details

AGLC: Asmar v Fontana [2018] VSC 382
Case: [2018] VSC 382
Decision Date: 11 July 2018

CaseChat Overview and Summary

In the case of Asmar v Fontana, the first defendant, Fontana, sought to have the defamation proceedings brought against her by the plaintiff, Asmar, dismissed on two grounds. The first was under rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2015, which deals with abuse of process. The second was under rule 23.02, which pertains to the court’s power to determine if the pleaded imputations could arise from the words allegedly used by the defendant. The dispute involved allegations of defamatory statements made by Fontana against Asmar, which Asmar claimed had damaged her reputation.

The legal issues before the court were whether the defamation proceeding constituted an abuse of process under rule 23.01, and if the words allegedly used by Fontana were capable of conveying the pleaded defamatory imputations under rule 23.02. The court had to consider the principle of proportionality and the relevance of context in defamation claims. The first defendant argued that the proceeding was trivial and an abuse of process, while the plaintiff maintained that the context and the words used were sufficient to establish defamation.

The court found that the proceeding did not offend the principle of proportionality and was not an abuse of process. The judge noted that the question of whether the defendant's words were capable of conveying a defamatory imputation was one for the trial, and not for determination at the interlocutory stage. The court also considered the relevance of context, as highlighted in relevant cases such as Bleyer v Google Inc and Trkulja v Google Inc, to determine whether the plaintiff’s claims were trivial. The application under both rule 23.01 and rule 23.02 was dismissed, leaving the defamation claims to be determined at trial.

The final orders of the court were to dismiss both applications by Fontana to have the defamation proceeding against her struck out. The court determined that the matter would proceed to trial, where the issues of whether Fontana's words were defamatory and if they had caused harm to Asmar's reputation would be fully examined.

Orders