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Avram v Inches

Avram v Inches

Case [1999] TASSC 10 17 February 1999

Defamation

Aggravated & Exemplary Damages

Limitation Periods

Specific Performance

Defamation

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[1999] TASSC 10

PARTIES:  AVRAM, John
  v
  INCHES, Brian Maxwell

TITLE OF COURT:              SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 26/1998
DELIVERED:  17 February 1999
HEARING DATE/S:              25, 26 August 1998
JUDGMENT OF:  Underwood, Crawford and Slicer JJ

CATCHWORDS:

Damages - General principles - Exemplary, punitive and aggravated damages - Aggravated compensatory and exemplary damages distinguished - Exemplary damages only awarded if aggravated compensatory damages inadequate punishment - Need to show restraint.

Rookes v Barnard [1964] AC 1129, followed in part.
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; XL Petroleum (NSW) Proprietary Limited v Caltex Oil (Australia) Proprietary Limited (1984 - 1985) 155 CLR 448, applied.
Backwell v AAA (1997) 1 VR 182, followed.
Aust Dig Damages [3]

Defamation - Damages - Assessment - Special matters to be considered by jury - Aggravation - Exemplary or compensatory damages - Exemplary damages only awarded if aggravated compensatory damages inadequate punishment - Need to show restraint - Need for direction to the jury.
Aust Dig Defamation [90]

REPRESENTATION:

Counsel:
             Appellant:  P G Wood
             Respondent:  S J Holt
Solicitors:
             Appellant:  Piggott Wood & Baker
             Respondent:  Murdoch Clarke

Judgment category classification:
Court Computer Code:
Judgment ID Number:  [1999] TASSC 10
Number of pages:  25

Serial No 10/1999
File No FCA 26/1998

JOHN AVRAM v BRIAN MAXWELL INCHES

REASONS FOR JUDGMENT FULL COURT

UNDERWOOD J
CRAWFORD J
SLICER J (Dissenting in part)
17 February 1999

Order of the Court

Hearing of the appeal with respect to terms of final order adjourned sine die.

Serial No 10/1999
File No FCA 26/1998

JOHN AVRAM v BRIAN MAXWELL INCHES

REASONS FOR JUDGMENT FULL COURT

UNDERWOOD J
17 February 1999

Introduction

The appellant was a councillor for the Municipality of Sorell and the respondent was the general manager of the Sorell Council. On 20 February 1997, the respondent commenced proceedings against the appellant for damages for defamation. The respondent pleaded that he had been defamed at a meeting of the Sorell Council on 23 December 1996. The statement of claim, par2 alleged that at the meeting the appellant said:

"Both the Mayor and the General Manager have lied and are liars.
The Mayor and the General Manager are liars."

By his defence, the appellant:

·   put in issue the making of the defamatory statement; alternatively,
·   pleaded that the words were said in circumstances in which the plaintiff was not likely to be injured;
·   claimed that the words were published in good faith in the course of the discussion of a subject of public interest, the public discussion of which was for the public benefit; and/or
·   claimed that the words were true and their publication was, in the circumstances, for the public benefit.

The reply alleged malice.

The trial of the action commenced before Wright J and a jury on 23 March 1998. On 2 April 1998, the jury answered in the affirmative all the questions on the issue of whether the words relied…

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 Avram v Inches

Details

AGLC: Avram, John v Inches, Brian Maxwell [1999] TASSC 10
Case: [1999] TASSC 10
Decision Date: 17 February 1999

CaseChat Overview and Summary

In Avram v Inches, the Full Court of the Supreme Court of Tasmania considered the appeal against the damages awarded to the respondent, Brian Maxwell Inches, following a finding of defamation by the appellant, John Avram. The primary legal issues were the sufficiency of the damages awarded and the directions given to the jury regarding the assessment of compensatory and exemplary damages. The Court held that while the award of $15,000 for compensatory damages was not excessive, the jury had not been adequately directed to exercise restraint and moderation when assessing the exemplary damages. The omission of this direction was considered a misdirection that led to a potential miscarriage of justice, warranting a new trial or reassessment of damages. The Full Court allowed the appeal and ordered a new trial or reassessment of the exemplary damages awarded.

Orders