JUDGES:	BEACH, LYONS JJA, J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2024
DATE OF JUDGMENT:	4 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 56
JUDGMENT APPEALED FROM:	[2022] VCC 1604 (Judge Lauritsen)

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DEFAMATION – Identification – Plaintiff not named in publications – Whether publications of and concerning plaintiff – Whether plaintiff identified in publications to those who knew extrinsic facts – Whether ordinary reasonable readers armed with requisite knowledge would understand defamatory imputations directed at plaintiff.

DEFAMATION – Defences – Innocent dissemination – Whether defendant was a subordinate publisher – Whether defendant did not know that publications were defamatory – Defence of innocent dissemination not made out.

DEFAMATION – Defences – Broadcasting Services Act 1992 (Cth), cl 91 of Sch 5 – Whether defendant was an internet content host – Whether defendant was not aware of nature of internet content published in third party comments on Facebook page – Defence not made out.

DEFAMATION – Damages – Extent of publication – Whether judge erred in conclusions about extent of publication – Grapevine effect – Whether judge erred in conclusions about the extent of grapevine – Damages assessed at $205,000 – Whether damages assessed manifestly excessive – Appeal allowed – Damages re-assessed at $70,000.

DEFAMATION – Defences – Qualified privilege – Public meeting – Whether what was said at public meeting on topic of controversy was said on occasion of qualified privilege – Whether what was said was excessive or not relevant to occasion of qualified privilege – Words said on privileged occasion covered by defence of qualified privilege – Appeal allowed – Trial judge’s judgment against defendants set aside.

Broadcasting Services Act 1992 (Cth), clauses 3, 90 and 91 of Sch 5, Defamation Act 2005, ss 30 and 32.

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Counsel
Applicant in proceeding S EAPCI 2023 0003/Respondent in proceeding S EAPCI 2023 0011	Mr T Sowden
Respondent in proceeding S EAPCI 2023 0003/First and Second Applicants in proceeding S EAPCI 2023 0011	Mr JA Castelan with Ms P Wakhlu
Solicitors
Applicant in proceeding S EAPCI 2023 0003/Respondent in proceeding S EAPCI 2023 0011	William Mulholland + Co Lawyers
Respondent in proceeding S EAPCI 2023 0003/First and Second Applicants in proceeding S EAPCI 2023 0011	Sutton Laurence King Lawyers

BEACH JA
LYONS JA
J FORREST AJA:

There are two applications for leave to appeal before the Court. They arise from orders made following the trial of two related defamation proceedings.
In the first proceeding (‘the Zuchowski proceeding’), Sam Zuchowski successfully sued Cameron Howe in respect of ten publications which variously appeared for periods of time in 2019, on a Facebook page (‘the Forum Facebook page’) then administered by Mr Howe. In the Zuchowski proceeding, the plaintiff (Mr Zuchowski) was awarded damages in…

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 Howe v Zuchowski

Details

AGLC: Howe v Zuchowski [2024] VSCA 56
Case: [2024] VSCA 56
Decision Date: 4 April 2024

CaseChat Overview and Summary

The case of Howe v Zuchowski involved a defamation claim brought by the plaintiff, who was not directly named in the publications but sought to establish that the publications were defamatory and directed at him. The defendants, Zuchowski and others, published comments on a Facebook page which were critical of the plaintiff. The plaintiff argued that the comments were defamatory and that he was identified in the publications to those who knew certain extrinsic facts. The court was tasked with determining whether the ordinary reasonable readers, armed with the requisite knowledge, would understand the defamatory imputations as directed at the plaintiff.

The primary legal issues in this case included whether the defendants' defence of innocent dissemination was valid, whether the defendants qualified for the defence under the Broadcasting Services Act 1992 (Cth), and whether the defence of qualified privilege applied to the comments made at a public meeting. The court also needed to assess the extent of the publication and the damages awarded.

The court found that the defence of innocent dissemination did not apply as the defendant was not a mere subordinate publisher and was aware that the comments were defamatory. The defence under the Broadcasting Services Act 1992 (Cth) was also not applicable as the defendant was not an internet content host and was not aware of the nature of the defamatory content. Regarding the defence of qualified privilege, the court determined that the comments made at the public meeting were on a topic of public interest and were relevant to the occasion of the meeting, thus being covered by the defence. The court found that the trial judge had erred in concluding that the defendants were liable for defamation, and set aside the judgment against them. The court also re-assessed the damages, reducing them from $205,000 to $70,000, as the original amount was deemed manifestly excessive.

Orders