New South Wales
Court of Appeal
CITATION: Goyan v Motyka [2008] NSWCA 28
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 15 November 2007
JUDGMENT DATE:
12 March 2008JUDGMENT OF: Giles JA at 1; Tobias JA at 2; Handley AJA at 119 DECISION: Appeal dismissed with costs. CATCHWORDS: Defamation – Defences – Qualified privilege – Common law – Reciprocity of duty or interest between publisher and recipient – Whether recipient is ‘interested in’ the information – Reciprocity of duty or interest within an ethnic community – Whether publication actuated by improper motive – Malice – Express malice – Whether qualified privilege destroyed by malice – Delay between events subject of defamation and defamatory publication – Damages – Single sum of damages assessed in respect of multiple publications – Whether damages were excessive LEGISLATION CITED: Defamation Act 1974 ss 7A, 9, 13, 46 and 46A. CATEGORY: Principal judgment CASES CITED: Adam v Ward (1917) AC 309
Andreyevich v Kosovich and Publicity Press (1947) 47 SR (NSW) 357
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366
Beach v Freeson [1972] 1 QB 14
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183
Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142
Broome v Cassell & Co Ltd [1972] AC 1027
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Howe and McColough v Lees (1910) 11 CLR 361
Horrocks v Lowe (1975) AC 135
Moit v Bristow [2005] NSWCA 322
Motyka v Gojan [2007] NSWSC 31
Reynolds v Times Newspapers Ltd [2001] 2 AC 127
Roberts v Bass (2002) 212 CLR 1
Skalkos v Assaf [2002] NSWCA 14; (2002) Aust Torts Reports 81-644
Stephens v Western Australian Newspapers Limited (1984) 182 CLR 211
Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632
Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044PARTIES: Maria Goyan
Michael Goyan
Wolodymyr Motyka
Edvokia OstrowskyjFILE NUMBER(S): CA 40068/07 COUNSEL: A: C Evatt / L Evans
R: J HmelnitskySOLICITORS: A: Horowitz & Bilinsky, Sydney
R: Bale Boshev, Toronto 2283
LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 20154/00 LOWER COURT JUDICIAL OFFICER: James J LOWER COURT DATE OF DECISION: 7 February 2007 LOWER COURT MEDIUM NEUTRAL CITATION: Motyka v Gojan [2007] NSWSC 31
CA 40068/07
SC 20154/00Wednesday 12 March 2007GILES JA
TOBIAS JA
HANDLEY AJA
GOYAN & ANOR V MOTYKA & ANOR
Judgment
1 GILES JA: I agree with Tobias JA.
2 TOBIAS JA: On 1 May 2000 the respondents, Dr Wolodymyr Motyka (Dr Motyka) and his mother-in-law Mrs Edvokia Ostrowskyj (Mrs Ostrowskyj), together “the respondents”, commenced proceedings against the appellants, Maria Goyan (Mrs Goyan) and Michael Goyan (Mr Goyan), together “the Goyans”, alleging that they had published certain defamatory matters relating to the appellants in 1999 and 2000. At a hearing in 2002 pursuant to s 7A of the Defamation Act 1974 (the Act), a…
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- AGLC
- Goyan v Motyka [2008] NSWCA 28
- Case
- [2008] NSWCA 28
- Decision Date
CaseChat Overview and Summary
The appeal concerned a defamation action brought by the respondent, Mr. Motyka, against the appellant, Mr. Goyan. The dispute arose from a letter published by Mr. Goyan concerning Mr. Motyka's alleged misconduct within the Polish community in Sydney. The matter was heard in the Court of Appeal of New South Wales.
The primary legal issues before the Court of Appeal were whether the defence of common law qualified privilege was available to Mr. Goyan, and if so, whether that privilege was defeated by malice. Specifically, the court had to consider whether there was a reciprocity of duty or interest between Mr. Goyan and the recipients of the letter, and whether the publication was actuated by an improper motive. The court also considered the impact of delay between the alleged misconduct and the publication, and whether the damages awarded were excessive.
The Court of Appeal found that while there was a reciprocity of duty and interest within the Polish community regarding the conduct of its members, Mr. Goyan's publication was actuated by malice. The court determined that the evidence established that Mr. Goyan was motivated by personal animosity towards Mr. Motyka, rather than a genuine belief in the truth of the allegations or a proper discharge of a duty or interest. This malice defeated the defence of qualified privilege. The court also found that the damages awarded were not excessive, considering the nature of the defamatory statements and their impact.
The appeal was dismissed, and Mr. Goyan was ordered to pay the costs of the appeal.
The primary legal issues before the Court of Appeal were whether the defence of common law qualified privilege was available to Mr. Goyan, and if so, whether that privilege was defeated by malice. Specifically, the court had to consider whether there was a reciprocity of duty or interest between Mr. Goyan and the recipients of the letter, and whether the publication was actuated by an improper motive. The court also considered the impact of delay between the alleged misconduct and the publication, and whether the damages awarded were excessive.
The Court of Appeal found that while there was a reciprocity of duty and interest within the Polish community regarding the conduct of its members, Mr. Goyan's publication was actuated by malice. The court determined that the evidence established that Mr. Goyan was motivated by personal animosity towards Mr. Motyka, rather than a genuine belief in the truth of the allegations or a proper discharge of a duty or interest. This malice defeated the defence of qualified privilege. The court also found that the damages awarded were not excessive, considering the nature of the defamatory statements and their impact.
The appeal was dismissed, and Mr. Goyan was ordered to pay the costs of the appeal.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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