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Hoser v Pelley [No 4]

Hoser v Pelley [No 4]

Case [2023] VSCA 319 14 December 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0031

RAYMOND HOSER	First Appellant
KOTABI PTY LTD (ACN 007 395 048)	Second Appellant
v
MARK DAVID PELLEY [NO 4]	Respondent

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JUDGES:	McLEISH and WALKER JJA and ELLIOTT AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2023
DATE OF JUDGMENT:	14 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 319
JUDGMENT APPEALED FROM:	[2021] VCC 1425 (Judge Smith)

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DAMAGES – Appellants succeeded in challenging findings that one publication of ten was defamatory of respondent – Trial judge awarded $150,000 general damages, $15,000 aggravated damages and $14,000 interest – Grounds of success relatively insignificant, modest reduction in damages warranted – Damages reassessed at $140,000 general damages, $10,000 aggravated damages and $21,000 interest.
OPEN COURTS – Whether Court’s reasons to be published – Court mindful to avoid breaches of Family Violence Protection Act 2008, s 166 – Parties made no submissions as to proper construction – Parties did not seek order under s 169 – Court to apply redactions to matters touching on any proceedings under Act to avoid potential breach of s 166 – Redactions applied with view to making public as much of Court’s reasoning as possible.
OPEN COURTS – Trial judge made suppression order under Open Courts Act 2013, s 17 to comply with Family Violence Protection Act, s 166 – Order varied to extent required to permit publication of appellate Court’s reasons.
PRACTICE AND PROCEDURE – Costs – Modest success of appellants – Costs order in favour of respondent for 80 per cent of costs – Appeal and application for leave to appeal not wholly without merit – Respondent not entitled to indemnity costs – Costs awarded on standard basis.
APPLICATION FOR STAY – Exceptional circumstances not established – Damages to be deposited into trust account of respondent’s solicitor pending resolution of any application for special leave to appeal.
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Counsel
First Appellant:		In person
Second Appellant:		Mr R Hoser
Respondent:		Mr I Robertson, solicitor for the respondent
Solicitors
First Appellant:	--
Second Appellant:	--
Respondent:	Ian Robertson Legal

MCLEISH JA
WALKER JA
ELLIOTT AJA:

On 1 November 2023 the Court delivered judgment in an appeal from an order made in the County Court. The Court did not publish its reasons at that time, except to the parties. The reason for taking that course was that the Court was concerned that a person publishing those reasons would risk breaching s 166 of the Family Violence Protection Act 2008 (‘the Act’). That provision prohibits a person from publishing, or causing to be published, a report of a proceeding, or about an order made in a proceeding, under the Act if the report contains certain identifying particulars.
The proceeding in the County Court was a defamation action brought by the present respondent, Mark Pelley, against the appellants Raymond Hoser and Kotabi Pty Ltd. It was not a proceeding under the Act, but proceedings under the Act formed an important part of the background to the…

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 Hoser v Pelley [No 4]

Details

AGLC: Hoser v Pelley [No 4] [2023] VSCA 319
Case: [2023] VSCA 319
Decision Date: 14 December 2023

CaseChat Overview and Summary

The appeal arose from a defamation action where the respondents, Hoser, successfully challenged findings that one of ten publications was defamatory. The appellant, Pelley, sought to appeal the damages awarded by the trial judge, which amounted to $150,000 in general damages, $15,000 in aggravated damages, and $14,000 in interest. The court was tasked with reassessing the quantum of damages awarded, taking into account the relatively insignificant grounds of success by the appellants.

The court held that given the modest nature of the appellants' success in the defamation challenge, a reduction in the damages awarded was warranted. The court reassessed the general damages to $140,000, the aggravated damages to $10,000, and the interest to $21,000. Regarding the publication of the court's reasons, the court applied necessary redactions to avoid potential breaches of the Family Violence Protection Act 2008. The suppression order made by the trial judge under the Open Courts Act 2013 was also varied to permit the publication of the appellate court’s reasons.

In terms of costs, the court ordered that the appellants pay 80 per cent of the respondent’s costs, reflecting the modest success of the appeal and the application for leave to appeal not being wholly without merit. The court also ruled that the respondent was not entitled to indemnity costs but that the costs should be awarded on a standard basis. Finally, the court denied the application for a stay of the damages pending any application for special leave to appeal, directing that the damages be deposited into the trust account of the respondent's solicitor.

Orders