Batounas v Kordatos - [1994] QCA 477

IN THE COURT OF APPEAL	[1994] QCA 477
SUPREME COURT OF QUEENSLAND	Appeal No. 13 of 1994
Brisbane
Before	Fitzgerald P. McPherson J.A. Derrington J.

[Kordatos v. Batounas]

BETWEEN:

MICHAEL THEODOSIOU BATOUNAS

(Defendant) Appellant

AND:

STEVE KORDATOS

(Plaintiff) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 11/11/1994

The material facts are set out in the judgments of the other members of the Court.

There was no evidence that the appellant's statements to the police officer were not made in good faith except the general animosity between the parties, and the statement made by the appellant to the respondent when they met a few days after the appellant had spoken to the police. Even if the evidence referred to be considered in isolation and the appellant's failure to give evidence might more readily enable an adverse inference to be drawn against him, it does not support a finding of absence of good faith.

When the context is examined, it is even more apparent that such a finding is untenable. The respondent had borrowed and then failed to return the appellant's tools, engaging instead in obfuscation and prevarication. Understandably, the appellant sought legal advice, which he acted on. When he did so, he expressed himself in accurate, moderate terms.

To find absence of good faith in these circumstances would
be to impose unreasonable requirements, and unjustifiably
restrict the concept of privileged communications: cf.
Calwell v. Ipec Australia Ltd (1975) 135 C.L.R. 321, 332-
323.

The appeal should be allowed and the judgment below set aside. The respondent must pay the costs of the proceedings, including this appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 13 of 1994

Brisbane

Before

Fitzgerald P.
McPherson J.A.
Derrington J.

[Batounas v. Kordatos]

BETWEEN

MICHAEL THEODOSIOU BATOUNAS

(Defendant) Appellant

AND

STEVE KORDATOS

(Plaintiff) Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 11th day of November 1994

It is regrettable that the dispute out of which this appeal has arisen should have reached the courts at all. The matters which led the learned judge to give judgment for damages against the defendant are in some respects finely balanced; however, I do not consider that the result arrived at by his Honour should be disturbed.

The statement which gave rise to the plaintiff's action for damages for defamation was the defendant's report to the police in April 1991 that in 1988 he had lent some power tools and associated equipment to the plaintiff, who had failed to return them. By a letter dated 13 March 1991 (ex. 2), the defendant made a demand for their return within 7 days. The plaintiff replied by letter dated 18 March 1991 (ex. 3), in which he contested the defendant's title to the tools; in it he qualified his preparedness to give them up by attaching conditions which he was probably not entitled to impose.

It seems to me that the defendant's subsequent action in reporting the matter to the police is more likely than not…

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 Batounas v Kordatos

Details

AGLC: Batounas v Kordatos [1994] QCA 477
Case: [1994] QCA 477
Decision Date: 11/11/1994

CaseChat Overview and Summary

The case of Batounas v Kordatos involved a dispute regarding defamation arising from a complaint made by the plaintiff to the police. The plaintiff alleged that the defendant's actions and statements were defamatory. The dispute was heard in the Federal Court of Australia, where the plaintiff sought damages for defamation. The legal issues at the heart of this case centred on whether the defendant's complaint to the police was made in good faith and whether the plaintiff could prove that the defendant acted with malice. The court had to consider the nature and reasonableness of the terms of the complaint, as well as any relevant prior conduct between the parties. The court also needed to determine whether the general mutual ill-will between the parties was relevant to, but not necessarily decisive of, the question of malice.

In reaching its decision, the court examined the evidence and arguments presented by both parties. The court found that the defendant's complaint to the police was made in good faith, as it was reasonable and in accordance with the law. The court also held that the plaintiff had failed to prove that the defendant acted with malice, even when considering the later threat made by the defendant in reference to the complaint. The court emphasised that the nature and reasonableness of the terms of the complaint were crucial in determining good faith. Additionally, the court noted that while prior conduct and general mutual ill-will between the parties could be relevant factors, they were not determinative of malice. The court was hesitant to infer malice retrospectively from a later emotional remark made by the defendant.

Based on the court's reasoning and findings, the plaintiff's claim for defamation was dismissed. The court held that the defendant's complaint to the police was privileged, and the plaintiff could not prove that the defendant acted with malice. Consequently, the plaintiff's claim for damages was unsuccessful. The court's decision in Batounas v Kordatos underscores the importance of good faith and the objective reasonableness of the terms of a complaint when assessing defamation claims, particularly in the context of complaints made to the police. The court's reluctance to infer malice retrospectively from later remarks further highlights the need for clear and contemporaneous evidence in such cases.

Orders