Eshow v Bishop Mar Meelis Zaia - [2019] VSC 465

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2017 02842

SARGON ESHOW	Plaintiff
v
BISHOP MAR MEELIS ZAIA	Defendant

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 and 18 June 2019
DATE OF JUDGMENT:	23 July 2019
CASE MAY BE CITED AS:	Eshow v Bishop Mar Meelis Zaia
MEDIUM NEUTRAL CITATION:	[2019] VSC 465

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TORTS – Defamation – Publication – Online publication of Facebook posts – Whether the defendant published the Facebook posts – No meaningful challenge to the defendant’s denial of any involvement in publication – Failure to prove publication by the defendant – Claim for damages dismissed.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	In person
For the defendant	Mr A Macauley	Mason Black Lawyers Pty Ltd

HIS HONOUR:

The plaintiff alleges that he was defamed by three Facebook posts made by the defendant on 26 January 2017. The defendant is the head of the Australian, New Zealand and Lebanon Diocese of the Holy Apostolic Catholic Assyrian Church of the East (‘Assyrian Church’). The primary issue in the present proceeding is whether the defendant published the Facebook posts. I have concluded that the plaintiff has not established that the defendant did publish the Facebook posts. As a result, his claim must be dismissed.

The Facebook posts

The three Facebook posts were accurately described in the defendant’s submissions:

The first post consisted of a photograph of Mr Eshow seated on a couch. The photo had been altered to display (what appears to be) a hand-drawn halo or aureole around Mr Eshow’s head and a hand-drawn cross through Mr Eshow’s face. Additionally, the words “church reformer” were scrawled (in handwritten Arabic) across the portion of the photo displaying Mr Eshow’s torso. The text accompanying the photo by the relevant profile user (claiming to be Mar Meelis Zaia) in the Facebook post section read (on the translation supplied, adopting the proposed intended meanings proffered by the translator):
“Look at his face, what do you feel? Don’t you feel as if you’re seeing a devil? He is the devil himself in human form, as the devil does not come from nothing! He uses others to worship him, including Sargon Eshow who is in the photo. Watch out for him because he is abnormal. He knows about that better [than anyone else] and he wants to be a church reformer. What a funny person you are Sargon.”

The second post consisted of a portrait photograph of Mr Eshow. That photo had, again, been altered so that it contained a hand-drawn cross through Mr Eshow’s face and the words “no shame” handwritten in English. The text accompanying the photo by the relevant profile user in the Facebook post section read (on the translation supplied, adopting the proposed intended meanings proffered by the translator):
“Sargon Eshow is a character that became prominent into a milieu void of religious as well as social awareness as all those who are on his friends’…

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.

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Details

Case: [2019] VSC 465
Decision Date: 23 July 2019

CaseChat Overview and Summary

In the matter of Eshow v Bishop Mar Meelis Zaia, the court was tasked with examining the validity of a defamation claim brought by the plaintiff against the defendant. The plaintiff alleged that the defendant had published defamatory content on Facebook, which led to harm to the plaintiff’s reputation. The case was heard in the relevant court where the plaintiff sought damages for the alleged defamation.

The primary legal issue before the court was whether the defendant had indeed published the defamatory content on Facebook. The plaintiff bore the onus of proving that the defendant was responsible for the publication. The defendant, on the other hand, denied any involvement in the publication of the posts and provided evidence to support their claim of non-involvement. The court needed to determine the credibility of the evidence presented by both parties and decide if the plaintiff had successfully discharged the burden of proof.

After reviewing the evidence, the court found that the plaintiff had not provided sufficient proof to establish that the defendant published the Facebook posts in question. The plaintiff’s case relied heavily on the content of the posts themselves but failed to meaningfully challenge the defendant's denial of any involvement. Consequently, the court dismissed the claim for damages, concluding that the plaintiff had not proven the essential element of publication against the defendant.

The court's decision resulted in the dismissal of the plaintiff's defamation claim, with no damages awarded to the plaintiff. The court's ruling was based on the plaintiff's inability to prove the defendant's responsibility for the publication of the allegedly defamatory content on Facebook.

Orders