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Griffin v Kotsifas

Griffin v Kotsifas

Case [2011] SASC 161 29 September 2011

Defamation Act 2005 (SA)

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SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
GRIFFIN v KOTSIFAS & ANOR
[2011] SASC 161
Reasons of Judge Lunn a Master of the Supreme Court
29 September 2011
PROCEDURE
Pleading defence - 6R 100 - held permissible under R 100 to plead the material facts for several special defences together and the basis for the defences separately and unrelated to the pleaded facts.

PROCEDURE
Application to strike out under 6R 104 the pleading of facts for special defence - held sub-r 104(b) not usually satisfied where those facts were admissible for other pleaded defences.

DEFAMATION
Defence of fair report under s 27 of the Defamation Act 2005 - what are "proceedings" - held not to include communications between persons involved in the dispute and where not part of the activities of the association in reaching its decision or adjudication.

GRIFFIN v KOTSIFAS & ANOR
[2011] SASC 161
JUDGE LUNN:
Reasons on plaintiff’s application to strike out the Defence
Background

In this action the plaintiff claims damages for defamation. The Statement of Claim pleads 11 defamatory imputations from the publications complained of. The Defence denies those imputations, but pleads in its paragraph 4 in the alternative, if the imputations are made out, defences of justification, qualified privilege, fair comment and fair reporting of a proceeding of public concern.[1] These four defences are stated in paragraph 4.48. Sub-paragraphs 4.1 to 4.47 plead various facts and matters on which the four defences are based. Counsel for the defendants contended that all of 4.1 – 4.47 were relevant pleadings for each of the four defences in 4.48, but counsel for the plaintiff disputed this. However, counsel for the plaintiff did not suggest that any of 4.1 – 4.47 were not a relevant and proper pleading for at least one of the four defences.[2] Paragraph 5 of the Defence was a plea of contextual truth pursuant to s 24 of the Defamation Act 2005 (“the Act”) and paragraph 8 was a plea of a defence of triviality pursuant to s 31 of that Act.
[1] Those defences, apart from the last, are raised both at common law and pursuant to various sections of the Defamation Act 2005, but unless otherwise stated, it is not necessary here to differentiate between the common law and the statutory defences.
[2] In view of my striking out some of those defences, the striking out of some of the facts may need to be revisited, unless similar defences are re-introduced by amendment.
By an application of 6 June 2011, FDN4, the plaintiff sought to have the whole or parts of the Defence struck out under 6R 104 and, in the alternative, further particulars of the Defence ordered under 6R 102.
In the course of his submissions, counsel for the defendants sought to submit that the plaintiff had unreasonably pursued FDN4 before attempting to exhaust the available alternative dispute resolution processes. However, at a directions hearing on 6 July 2011 the solicitor then appearing for the defendants had expressly waived any…

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 Griffin v Kotsifas

Details

AGLC: Griffin v Kotsifas [2011] SASC 161
Case: [2011] SASC 161
Decision Date: 29 September 2011

CaseChat Overview and Summary

In Griffin v Kotsifas, the plaintiff sought to have the whole or parts of the Defence struck out under 6R 104 of the Supreme Court Rules 1936 (SA) (Sup Ct R). The plaintiff argued that the defendants' Defence did not comply with the relevant pleading Rules, was an abuse of process, or prejudiced the proper conduct of the action. The defendants argued that their Defence complied with the Rules and that the plaintiff's application should be dismissed. The court held that the Defence did not contravene the Rules and that the plaintiff had not satisfied the requirements of 6R 104(a) and (b). The court struck out sub-paragraphs 4.48.3 and 4.48.4 of the Defence, which related to the defences of fair comment and fair report, respectively. The court dismissed the balance of the plaintiff's application, including the request for further particulars. The court adjourned the case for a directions hearing.

The court held that the defendants were not required to specifically relate the facts pleaded in sub-paragraphs 4.1 - 4.47 to each of the four defences pleaded in 4.48 and to each of the 11 imputations pleaded in the Statement of Claim. The court found that the defendants had sufficiently pleaded the defences of justification and qualified privilege. The court held that the Defence did not comply with the Rules in relation to the defence of fair comment because the defendants had not identified the comments which were the subject of this defence. The court held that the Defence did not comply with the Rules in relation to the defence of fair report because the Letter was not part of any decision or adjudication process by the AOC. The court held that the Defence did not prejudice the proper conduct of the action or cause substantial prejudice to the plaintiff. The court dismissed the plaintiff's application for further particulars, finding that the Defence gave fair notice of the case at trial in general terms.

Orders