Karzon v Pavlovic

Case [2022] QDC 187

DISTRICT COURT OF QUEENSLAND

CITATION:

Karzon v Pavlovic & Anor [2022] QDC 187

PARTIES:

GEORGE RAYMOND KARZON

(plaintiff)

v
RENEE PAVLOVIC

(first defendant)
WANDULLA PTY LTD
ACN 061 467 865

(second defendant)

FILE NO/S:

D92 of 2019

DIVISION:

Civil

PROCEEDING:

Hearing

DELIVERED ON:

19 August 2022

DELIVERED AT:

Southport

HEARING DATE:

25, 26 and 27 July 2022

JUDGES:

Jackson QC DCJ

ORDER:

The order of the court is that:

1.   The first and second defendants pay the plaintiff damages for defamation in the sum of $70,000 in respect of the publication of the imputations pleaded at paragraphs 5(b), (d), (e) and (f) and 7(a) and (c) of the amended statement of claim filed 12 April 2019.

2.   The first and second defendants pay the plaintiff interest in the sum of $8,279.18.

3.   The first defendant is permanently restrained by herself, and/or her servants or agents from publishing or causing to be published any of the matters complained of in paragraphs 5(b), (d), (e) and (f) and 7(a) and (c) of the amended statement of claim filed in this proceeding on 12 April 2019 or matters substantially to the same effect as those matters complained of.

4.   The second defendant is permanently restrained by itself, and/or its servants or agents from publishing or causing to be published any of the matters complained of in paragraphs 5(b), (d), (e) and (f) and 7(a) and (c) of the amended statement of claim filed in this proceeding on 12 April 2019 or matters substantially to the same effect as those matters complained of.

CATCHWORDS:





LEGISLATION:

CASES:

DEFAMATION – DEFAMATORY IMPUTATIONS – DEFAMATORY MEANING – Where there are two matters complained of – Where the matters were sent via email to members of a body corporate (that the plaintiff was chairperson of) – Whether the imputations alleged by the plaintiffs are made out – Whether they are defamatory.

DEFAMATION – DEFENCES – COMMON LAW DEFENCE OF QUALIFIED PRIVILEGE – Where the defendants claim that the publication was made in the interests of the body corporate – Whether the matters were published in the course of giving the recipients information – Whether the matters were published on a privileged occasion – Whether the first defendant was actuated by malice.

DEFAMATION – DEFENCES – STATUTORY DEFENCE OF QUALIFIED PRIVILEGE – Whether the recipients had an interest in receiving the information – Whether the matters were published in the course of giving the recipients information – Whether the conduct of the first defendant in publishing the matters was reasonable in the circumstances.

DEFAMATION – DAMAGES – ASSESSMENT OF DAMAGES – GENERAL DAMAGES – AGGRAVATED DAMAGES – Where the plaintiff seeks general compensatory damages – Where the plaintiff seeks aggravated damages – Where the defendants maintained the defence of justification until the morning of the trial – where the second defendant maintained that the first defendant was not an agent of the second defendant until closing addresses – Whether there has been malice – What measure damages should be…

Continue reading Karzon v Pavlovic

Sign in free to access the full text

Details
AGLC
Karzon v Pavlovic [2022] QDC 187
Case
[2022] QDC 187
Decision Date

CaseChat Overview and Summary

In the case of Karzon v Pavlovic, George Karzon sued the Pavlovic family for defamation, seeking damages and injunctions. The defendants, Ms Pavlovic and her husband, Mr Pavlovic, published emails to members of the body corporate, which Mr Karzon chaired, containing allegations about Mr Karzon's business ethics and integrity. The defendants claimed the publications were privileged, and Mr Pavlovic argued he was not an agent of Ms Pavlovic until the end of the trial.

The court had to decide whether the publications were defamatory, if a qualified privilege defence applied, the appropriate measure of damages, and whether injunctions should be granted. The court found the imputations were defamatory, that no qualified privilege defence applied, and that an award of $70,000 in damages, including aggravated damages, was appropriate. The court also granted permanent injunctions preventing the defendants from repeating the defamatory statements.

The court held that the publications were defamatory, as they lowered Mr Karzon in the estimation of right-thinking members of society and exposed him to hatred, contempt or ridicule. The court rejected the defendants' claim that the publications were privileged, finding that they were not made in the interests of the body corporate and that the defendants were actuated by malice. The court awarded Mr Karzon $70,000 in damages and $8,279.18 in interest. Finally, the court granted permanent injunctions preventing the defendants from repeating the defamatory statements.

Orders

Orders of the court

The order of the court is that:

1. The first and second defendants pay the plaintiff damages for defamation in the sum of $70,000 in respect of the publication of the imputations pleaded at paragraphs 5(b), (d), (e) and (f) and 7(a) and (c) of the amended statement of claim filed 12 April 2019.

2. The first and second defendants pay the plaintiff interest in the sum of $8,279.18.

3. The first defendant is permanently restrained by herself, and/or her servants or agents from publishing or causing to be published any of the matters complained of in paragraphs 5(b), (d), (e) and (f) and 7(a) and (c) of the amended statement of claim filed in this proceeding on 12 April 2019 or matters substantially to the same effect as those matters complained of.

4. The second defendant is permanently restrained by itself, and/or its servants or agents from publishing or causing to be published any of the matters complained of in paragraphs 5(b), (d), (e) and (f) and 7(a) and (c) of the amended statement of claim filed in this proceeding on 12 April 2019 or matters substantially to the same effect as those matters complained of.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The issues remaining in dispute between the parties are:(a)what meaning ought to be attributed to the statements published by the defendants;(b)whether a defence of qualified privilege arises in respect of matters which might be defamatory of the plaintiff;(c)the appropriate measure of damages;(d)whether injunctions should be ordered. The evidence There was little dispute about most of the evidence during the trial. For example, the plaintiff (and a number of witnesses called by him) gave evidence as to the hurt to Mr Karzon following the publication. None of this evidence was challenged. There was much evidence as to what the defendants regarded as petty issues taken by the body corporate (lead by Mr Karzon) in relation to their use of their lots. There was evidence as to litigation concerning this. Again, there was no real issue with any of this. While at first it may seem necessary to decide whether this was petty or justified or whether it was a mix of the two, the issue seems to me to matter little in terms of the determination of this matter. What is probably most significant about this issue is that the defendants clearly strongly considered it to be petty, whether that was right or wrong. The defendants’ perception as to being unfairly targeted could be relevant as a factor motivating the publications. I consider this further below. Given that most of the evidence was uncontroversial it is enough to record some aspects relevant to matters I consider further below and my impression of the witnesses. George Karzon The plaintiff gave evidence: (a)that he owned two lots at the Broadwater Plaza at Hope Island, one of which was leased to a Thai massage shop; (b)that he was voted chairperson of the body corporate over Mr Kaucic for the Broadwater Plaza at Hope Island at the AGM on 27 April 2017. At this meeting, there was heated discussion as to suggested misuse by the second defendant of common property for food trucks and a car wash. Proceedings were brought regarding this;(c)that there was a conversation between he and Mr Kaucic after the 2017 AGM where Mr Kaucic said that he thought that the Thai massage business was a brothel. Mr Kaucic said that some woman had said her husband was offered some kind of sexual service there. Mr Karzon’s view at the time was that he knew that this matter was false and that Mr Kaucic was making it up. In his mind it was clearly untrue. It followed the heated discussion at the AGM as to the activities of the second defendant to which I have already referred. That matter caused friction between Mr Kaucic and the rest of the committee. Mr Karzon considered that if there was any genuine concern it would have been raised at the AGM rather than after it or reported to the police;(d)that after the first email, he felt hurt, distress and embarrassment. It made him anxious just reading it. He regarded it as very dirty and disgusting; (e)as to the importance to him of his reputation and his business ethics. He said that the attack on his integrity was painful as he had always conducted his business well above board. He also stated that he was not aware of any criminal activity or involvement from QPS in relation to the massage parlour and that he made his own enquiries with the Coomera police station;(f)about the apology from Ms Hachem, and that while he felt relief after receiving it, he still felt a cloud knowing that people had been given the wrong impression about his character and who he was as a person; (g)describing the impact upon him of the second email. He said that it was a lot more painful to read coming as it did after Ms Hachem’s apology and statement that she had contacted the police, there had been no raid and they were not aware of any illegal activity from this particular tenancy. He also spoke about the further allegations that were made about him and that they were made to sound like fact or truth;(h)that he had not received an apology from the defendants;(i)that when the emails were sent the tenancy had been vacant for about 2 weeks since the tenants had vacated the premises at the end of their lease; (j)when describing the effect upon him, that he was impacted every day in his interactions with family, business and friends and he was affected by what he saw as a direct personal attack on his character and integrity. This was aggravated in his mind by it taking four years for the defendants to get to the point that they abandoned the allegation that these matters were true.

Decision

Reasons for decision

While I accept that some increase should be applied to some of the comparables to take account of the passage of time I do not consider that there is any particular mathematical precision that is able, or ought, to be applied to that exercise. I do not accept that that factor together with the imputations in this matter being more serious in those in Cerutti[71] suggests an award of as much as $120,000. [71][2016] 1 Qd R 89.Conclusion on damages Having regard to the factors that I have identified in paragraphs [65], [80] and [82] above, in my view, an appropriate award of damages including aggravated damages is $70,000. Interest In addition, the plaintiff claims simple interest at the rate of 3 percent pursuant to s 58 of the Civil Proceedings Act 2011. The defendants make no alternative submission as to the rate of interest. In the circumstances, there will be an order that the defendants pay the plaintiff interest on the sum of $70,000 at 3 percent from 12 September 2018 until 19 August 2022 being a period of 1,439 days for a total of $8,279.18. Injunctive relief? The final matter to consider is the plaintiff’s claim for permanent injunctions restraining the defendants from repeating the meanings or meanings to similar effect to the imputations I have found. The defendants submit that no injunctions are appropriate as there is (so it is submitted) no evidence that the first defendant would be likely to make such a statement again. It this respect it is submitted that to the contrary the statement was last made in 2018 and the first defendant was not cross-examined as to whether she intended or had any interest in saying it to anyone ever again. In addition, it was submitted an injunction might inadvertently serve as an unnecessary restraint on what would otherwise be permissible body corporate discussions by members of the committee. As I indicated during addresses, I consider it is possible to militate against that risk with careful drawing of the form of injunction. The plaintiff relies upon the behaviour of the first and second defendant during the course of the proceeding in running an unmeritorious truth defence up until the morning of the commencement of the trial as well as the agency defence which was abandoned in closing submissions. Further, the plaintiff relies upon the reasons identified by Ms Pavlovic as to why she made the statements including her anger at the time. It is submitted that where there were ongoing commercial relationships between the plaintiff’s company and the second defendant (which are clearly tense) there is a risk of the matters being repeated. While it is true that the first defendant was not specifically cross-examined as to whether or not she intended or had any interest in saying anything again, given the matters I have just referred to as well as those referred to in the section above on malice, I consider that evidence gives rise to an inference that the risk remains. Accordingly, there will be orders in this respect that:(a)The first defendant is permanently restrained by herself, and/or her servants or agents from publishing or causing to be published any of the matters complained of in paragraphs 5(b), (d), (e) and (f) and 7(a) and (c) of the amended statement of claim filed in this proceeding on 12 April 2019 or matters substantially to the same effect as those matters complained of.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.