Appeal against judgment awarding damages for defamation.
The respondent sued the appellant for defamation in three documents published in June 2011 to members of the Greek Orthodox Community of South Australia. The respondent pleaded that each publication conveyed the defamatory imputation that he is untrustworthy and one publication (the “Flyer”) conveyed the imputation that he does not care about GOCSA churches.
A District Court Judge awarded judgment in favour of the respondent, assessing damages at $75,000. The Judge found that each imputation was conveyed and each was defamatory. The Judge accepted that the publications were made on an occasion of qualified privilege and the defamatory words were sufficiently connected with the privileged occasion but found that qualified privilege was defeated by malice. The Judge rejected a defence of fair comment in respect of the untrustworthy imputation for similar reasons. The Judge ordered that the appellant pay 90 per cent of the respondent’s costs on an indemnity basis.
The appellant appeals against the judgment, contending that the Judge erred in finding that the pleaded imputations were conveyed and were defamatory and the defences of qualified privilege and fair comment were defeated by malice. The appellant appeals against the assessment of damages on the ground that it is manifestly excessive and against the costs order on the ground that the Judge erred by failing to have regard to the impact on him of the amount of the costs awarded.
The respondent cross-appeals against the costs order and contends by alternative contention that the Judge erred in finding that the publications were made on an occasion of qualified privilege and the defamatory words were sufficiently connected with the privileged occasion.
Held by the Court:
1. The publications did not convey an imputation that the respondent is untrustworthy (at [86], [94] and [106).
2. The Judge correctly found that the Flyer conveyed the imputation that the appellant does not care about GOCSA churches (at [100]).
3. The Judge correctly found that the “does not care” imputation was defamatory (at [120]).
4. It is not an independent element of the cause of action for defamation that the defamation imputation reach a minimum level of seriousness (at [125]).
5. The Judge did not err in not upholding a defence of triviality under section 31 of the Act (at [129]).
6. The Judge did not err in concluding that the Flyer was published on an occasion of qualified privilege and the defamatory words were sufficiently connected with the privileged occasion (at [156] and [161]).
7. The Judge did not err in finding that qualified privilege was defeated by malice (at [211] and [216]).
8. Judgment set aside. Parties to be heard…
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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AGLC
Lesses v Maras [2017] SASCFC 48
Case
[2017] SASCFC 48
Decision Date
CaseChat Overview and Summary
Mr Maras cross-appealed against a costs order and contended that the trial judge erred in finding that certain publications were made on occasions of qualified privilege and that the defamatory words were sufficiently connected to those occasions. He sought an order that Mr Lesses pay 100 per cent of his costs on an indemnity basis. The dispute concerned publications made by Mr Lesses about Mr Maras, who had held significant positions within the Greek Orthodox Community of South Australia (GOCSA) and the Federation of Greek Orthodox Communities of Australia.
The central legal issues before the Full Court were whether the trial judge correctly found that the publications were made on occasions of qualified privilege, and if so, whether the defamatory passages were sufficiently connected to those privileged occasions. The court also considered whether the trial judge erred in finding that malice was established, thereby defeating the defence of qualified privilege, and whether the defences of fair comment/honest opinion and justification/substantial truth were correctly rejected.
The Full Court found that the trial judge had erred in concluding that the publications were made on occasions of qualified privilege. The court reasoned that the recipients of the publications did not have a corresponding duty or interest to receive the information, which is a necessary element for qualified privilege. Consequently, the defence of qualified privilege failed. The court also upheld the trial judge's findings that the defences of fair comment/honest opinion and justification/substantial truth were not made out. The trial judge had found that the imputations conveyed by the publications were defamatory, that malice was established, and that Mr Lesses' conduct was unreasonable.
The Full Court set aside the trial judge's assessment of damages and remitted the matter to the trial judge for redetermination of damages, with the parties to be at liberty to make submissions on the quantum of damages.
Orders
Orders of the court
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Background
Background to the litigation
Mr Maras cross appeals against the costs order and contends by way of alternative contention that the Judge erred in finding that the publications were made on occasions of qualified privilege and the defamatory words were sufficiently connected with the privileged occasions. He seeks an order that Mr Lesses pay 100 per cent of his costs on an indemnity basis.Background Mr Maras was born in 1948 in Greece. His family migrated to Adelaide in 1952. He became a member of GOCSA in 1997. He was a member of the Executive and President from 2001 to 2007. From 2001 to at least 2010, he was a representative of GOCSA at annual general meetings of the Federation of Greek Orthodox Communities of Australia (the Federation).[3] Between 2002 and 2012, he was President of the Federation.[3] On appeal submissions were made by counsel for Mr Maras premised on Mr Maras having ceased to be a GOCSA representative in 2007 when he ceased to be President of GOCSA. However Mr Maras gave evidence that he was asked in 2007 when he ceased to be President of GOCSA to remain as a nominee of GOCSA at the Federation. Mr Elovaris gave evidence that, although he was President of GOCSA after 2007, he attended Federation meetings only as an observer. Mr Lesses’ family emigrated from Greece to South Australia in 1938/39. Mr Lesses was born in 1944. In 1965 he became a member of GOCSA. He was a member of the Executive and Assistant Secretary from 1971 to 1977. He was a member of the Executive and Assistant Secretary/General Secretary from 1991 to 1997. He was a member of the Executive and Vice President from 2005 to 2007. He was elected to the Executive in 2011 and elected as President in 2013. Vassilis Elovaris was a member of the Executive from 1991 to 2011. He was President from 2007 to 2011. From 2007 to 2011 he attended the general meetings of the Federation but only as an observer, with Mr Maras and Mr Mavrogiorgis acting as GOCSA’s representatives at those meetings. Elias Mavrogiorgis was a member of the Executive and Assistant Secretary of GOCSA between 2007 and at least 2011. He was also General Secretary of the Federation between 2007 and at least 2011. GOCSA was formed in 1930. It was formed to build a church in Adelaide, build and run schools and promote Greek cultural life. At that time, Greek Orthodox Church priests in Australia were under the immediate jurisdiction of a Metropolitan in Australia (although that office was then vacant) and the ultimate jurisdiction of the Ecumenical Patriarch of Constantinople (the Patriarch). GOCSA built a church in Franklin Street Adelaide (the Church of the Archangels Michael and Gabriel). Over the decades it established schools, community centres, an aged care home and a child care centre and engaged in numerous social, sporting and community activities. Until 1958 GOCSA had a good relationship with the Diocese and its Metropolitans. GOCSA employed the priests and provided the church and supporting infrastructure. The Metropolitan supervised the pastoral activities of the priests.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
On 3 July 2011 elections were held to elect the 17 members of the Executive. Mr Lesses and 16 other members of the Coalition Supporting the Community Institution stood for election. On 6 July 2011 the Executive elected the office holders. Mr Lesses was one of the nominees for President but Nick Portellos was elected President. Mr Bogias was elected Vice President.The trial and reasons for judgment Mr Maras gave evidence, called Mr Elovaris to give evidence and called Michael Abbott QC to give reputation evidence. Mr Lesses gave evidence and called Mr Bogias, Peter Ppiros, Mr Manos, Ms Vasilakis Starr, Mrs Lesses and his son Kosmas Lesses to give evidence. The Judge in his reasons for judgment set out a chronological narrative under the heading Background Facts. The Judge did not explicitly make credit or reliability findings about the evidence of the witnesses and did not refer, other than in passing, to the evidence of some of the witnesses. During the course of the chronological narrative the Judge made findings about disputed issues concerning Mr Lesses’ state of mind and, to a lesser extent, disputed objective facts. The Judge found that the untrustworthy imputation was conveyed by each of the three documents and the “does not care” imputation was conveyed by the Flyer. The Judge found that each of the untrustworthy and “does not care” imputations were defamatory. The Judge found that the documents were published on an occasion of qualified privilege and that the defamatory passages were sufficiently connected to the privileged occasion. The Judge found, however, that malice was established and the conduct of Mr Lesses was not reasonable because he knew the material was untrue or was reckless as to its truth. The defences of qualified privilege therefore failed. The Judge found that the untrustworthy imputation contained suggestions of a factual nature as opposed to opinion; no fair-minded person could honestly express the opinion on the proven facts; and the opinion was not honestly held. The defences of fair comment/honest opinion in respect of the untrustworthy imputation were therefore not made out. The Judge found that Mr Maras did care if GOCSA churches closed and hence the defences of justification/substantial truth in respect of the “does not care” imputation were not established. The Judge said that the untrustworthy imputation was the more serious of the two defamatory imputations found; summarised Mr Maras’ evidence about the effect of the defamation on him; found that he was deeply hurt by it; found that the gravity of the imputations was increased because they were not true (Mr Lesses not seeking to justify the untrustworthy imputation and his justification plea in respect of the “does not care” imputation having been rejected); the injury to Mr Maras’ feelings was exacerbated by their former close friendship and the fact that Mr Lesses took advantage of their relationship and personally insulted him about matters he knew Mr Maras was sensitive about; and Mr Lesses was actuated by malice. Taking these and other matters into account, the Judge assessed damages at $75,000.