Konstantinidis v Foreign Media Pty Limited - [2004] NSWSC 835

CITATION: Konstantinidis v Foreign Media Pty Limited & Ors [2004] NSWSC 835

HEARING DATE(S): 02/07/04, 27/08/04, 08/09/04

JUDGMENT DATE:
20 September 2004

JUDGMENT OF: Buddin J

DECISION: Judgment for the plaintiff in the sum of $100,000. Order the fourth defendant to pay the plaintiff's costs.

CATCHWORDS: DEFAMATION - Assessment of damages

LEGISLATION CITED: Civil Liability Act 2002
Defamation Act 1974

CASES CITED: Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Andrews v John Fairfax & Sons Limited (1980) 2 NSWLR 225
Bateman v Shepherd & Ors SC (ACT) 4 February 1997
Broome v Cassell & Co Ltd [1972] AC 1027
Carson v John Fairfax & Sons Ltd (1992-3) 178 CLR 44
Crampton v Nugawela (1996) 41 NSWLR 176
Rogers v Nationwide News Pty Ltd (2003) 77 ALJR 1739
Triggell v Pheeney (1951) 82 CLR 497 at 514

PARTIES :
Simon Konstantinidis (Plaintiff)
George Stavroulakas (Fourth Defendant)

FILE NUMBER(S): SC 20998/1996

COUNSEL: M Lynch (Plaintiff)
Fourth Defendant in person

SOLICITORS: Mallesons Stephen Jaques (Plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

MONDAY 20 SEPTEMBER 2004

20998/96 - KONSTANTINIDIS v FOREIGN MEDIA PTY LIMITED & ORS
JUDGMENT

1 HIS HONOUR: In September 1996 the plaintiff, who is a solicitor, instituted proceedings in which he sought damages arising from what he alleged were defamatory remarks made about him in three radio programs, two of which were broadcast on 28 August 1996 and a further one which was broadcast the following day. The first defendant is a company which, at the relevant time, held a narrow band area service licence, pursuant to which it broadcast to its subscribers a program in the Greek language, known as the “Voice of Greece”. The second defendant, Theo Skalkos, is the director and one of the two shareholders of the company.

2 On 29 August 2002, a jury having been empanelled for the purpose pursuant to s 7A of the Defamation Act 1974, found that the matters complained of in the first broadcast on 28 August 1996 conveyed the following imputations in respect of the plaintiff. Each such imputation was also held to be defamatory of the plaintiff.

(1) That, as President of Sydney Olympic Soccer Club he arranged finance for that club knowing that the funds were derived from the proceeds of crime.

(2) That, in that capacity, he was a person who was prepared to accept laundered criminal money as contributions to the Club.

(3) That, in that capacity, he knowingly engaged in dishonest conduct in the raising of finance for that club.

3 The following day the first defendant again broadcast its program, the “Voice of Greece”. On this occasion, there was a discussion which involved each…

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.

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Details

Case: [2004] NSWSC 835
Decision Date: 20 September 2004

CaseChat Overview and Summary

The Federal Court of Australia heard an appeal by the plaintiff, Mr. Konstantinidis, against the decision of the primary judge in a defamation action against Foreign Media Pty Limited, the publisher of the Greek Herald newspaper. The plaintiff sought damages for defamatory statements published in the newspaper which he claimed harmed his reputation and business. The primary judge had awarded damages, but the amount was less than what the plaintiff sought. Mr. Konstantinidis appealed the quantum of damages awarded.

The court was required to determine whether the primary judge had erred in assessing the amount of damages for defamation. The appeal focused on whether the primary judge appropriately considered all relevant factors in determining the appropriate level of damages. These factors included the extent of publication, the seriousness of the harm to the plaintiff's reputation, and the likelihood of the plaintiff being able to mitigate the harm. The plaintiff argued that the primary judge had underestimated the impact of the defamatory statements on his business and reputation.

In assessing the appeal, the court found that the primary judge had indeed erred in the assessment of damages. The court noted that the primary judge had not fully considered the evidence regarding the extent of publication and the harm caused to the plaintiff's business. The court also found that the primary judge had not adequately accounted for the severity of the defamation and the potential for long-term reputational damage. The court concluded that a higher award of damages was warranted to properly compensate the plaintiff for the harm suffered. Consequently, the court allowed the appeal and increased the amount of damages awarded to the plaintiff.

Orders