Lesses v Maras (No 2)

Case [2017] SASCFC 137

Supreme Court of South Australia

(Full Court: Civil)

LESSES v MARAS (NO 2)

[2017] SASCFC 137

Judgment of The Full Court

(The Honourable Justice Blue, The Honourable Justice Parker and The Honourable Justice Hinton)

20 October 2017

DEFAMATION - DAMAGES - GENERAL DAMAGES - ASSESSMENT - IN GENERAL

EVIDENCE - ADMISSIBILITY - EXCLUSIONS: PRIVILEGES - PUBLIC INTEREST PRIVILEGE - SETTLEMENT NEGOTIATIONS

Appeal against judgment awarding damages for defamation.

A District Court Judge awarded judgment in favour of the respondent in respect of two pleaded imputations, namely that three documents published by the respondent to members of the Greek Orthodox Community of South Australia (GOCSA) conveyed the imputation that the respondent is untrustworthy and that one of the publications conveyed the imputation that he does not care about GOCSA churches.  The Judge assessed damages at $75,000.

On appeal, this Court upheld the judgment in respect of the ‘does not care’ imputation but allowed the appeal in respect of the untrustworthy imputation: Lesses v Maras [2017] SASCFC 48.

On the assessment by this Court of damages in respect of the ‘does not care’ imputation, the respondent seeks to rely on offers of an apology made as part of communications between the parties before action with a view to settling the respondent’s claim  for defamation.

Held by the Court:

1. As the respondent does not contend that he made an offer to make amends or that he made an apology within the meaning of the Defamation Act 2005 (SA), the communications between the parties were protected by settlement privilege pursuant to s 67C of the Evidence Act 1929 (SA) (at [51] - [55]).

2.  Damages assessed at $25,000 (at [76]).

3.  The parties to be heard as to costs (at [78]).

Defamation Act 2005 (SA) ss 13, 15, 18, 19, 20, 32, 33, 34 and 36(1)(a); Evidence Act 1929 (SA) s 67C, referred to.
Broome v Cassell & Co [1972] AC 1027; Broome v Cassell & Co [1972] AC 1027; Carson v John Fairfax and Sons Limited (1993) 178 CLR 44; Coyne v Citizen Finance Limited (1991) 172 CLR 211; Herald and Weekly Times Limited v McGregor (1928) 41 CLR 254; Triggell v Pheeney (1951) 82 CLR 497, discussed.

LESSES v MARAS (NO 2)
[2017] SASCFC 137

Full Court: Blue, Parker and Hinton JJ

THE COURT:

  1. This is an appeal against a judgment for the plaintiff in an action for defamation.

  2. The respondent Theo Maras sued the appellant John Lesses in the District Court for defamation. Mr Maras alleged that three documents published by Mr Lesses in June 2011 to certain members of the Greek Orthodox Community of South Australia (GOCSA) conveyed the defamatory imputation that Mr Maras is untrustworthy (the untrustworthy imputation) and that one document (the Flyer) also conveyed the defamatory imputation that he does not care about GOCSA churches (the does not care imputation).

  3. The Judge upheld Mr Maras’ claim in respect of both imputations…

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Lesses v Maras (No 2) [2017] SASCFC 137
Case
[2017] SASCFC 137
Decision Date

CaseChat Overview and Summary

This case concerned an appeal before the Full Court of the Supreme Court of South Australia, brought by Mr Lesses against Mr Maras. The dispute arose from defamatory imputations made by Mr Maras concerning Mr Lesses, relating to their differing views on the reconciliation between the Greek Orthodox Archdiocese of Australia and the Greek Orthodox Community of Sydney. The appeal specifically addressed the assessment of damages awarded to Mr Lesses.

The primary legal issue before the court was the assessment of general damages for defamation, considering the statutory cap on non-economic loss. A secondary issue arose regarding the admissibility of correspondence between the parties, which Mr Lesses sought to tender as evidence of offers to apologise that would mitigate damages. Mr Maras objected to this evidence, arguing it did not meet the criteria for fresh evidence on appeal and was protected by settlement privilege under section 67C of the *Evidence Act 1929* (SA).

The Full Court first considered the admissibility of the tendered correspondence. It determined that the communications were subject to settlement privilege, as they constituted offers made in the context of resolving the dispute. Therefore, this evidence was excluded from consideration for the purpose of assessing damages. The court then proceeded to make a holistic assessment of general damages, taking into account all relevant circumstances, including the nature of the defamatory imputations and the impact on Mr Lesses.

The Full Court assessed the general damages payable to Mr Lesses at $25,000. The court indicated that it would hear further submissions from the parties regarding the costs of the action and the costs of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

These reasons address the assessment of damages, leaving issues of costs to be addressed at the third and final stage of the appeal.Background The background is set out in detail in the Court’s previous reasons. Mr Maras and Mr Lesses had been fellow members of GOCSA since 1997 and had been friends for many years. In 1960 there was an acrimonious split between GOCSA (and subsequently other members of the Federation of Greek Orthodox Communities of Australia (the Federation)) and the Greek Orthodox Archdiocese of Australia (the Archdiocese). Thereafter the Federation and the Archdiocese operated their own churches independently of and in competition with each other. In 2010 the Greek Orthodox Community of Sydney (the Sydney Community) unilaterally commenced discussions with the Archdiocese with a view to reconciliation. In December 2010 there was a meeting of the Federation attended amongst others by Mr Maras together with Vasillis Elovaris (President of GOCSA) and Elias Mavrogiorgis (Assistant Secretary of GOCSA). It was resolved according to the English version of the minutes of the meeting that “in future, a group of representatives from the Federation should also participate in the negotiations with the Archdiocese”. An English version published by the Greek Community Tribune of a press release issued by the Federation in Greek about the meeting included a statement that “[t]he Federation renewed its old decision regarding the church issue and unanimously resolved to include a delegation of [the Federation] in future negotiations with [the Archdiocese]”. Mr Lesses and certain other members of GOCSA who ultimately formed the Coalition Supporting the Community Institution were opposed to negotiation with the Archdiocese and were concerned about the Federation resolution. They comprised or were sympathetic to a conservative group within GOCSA insofar as relations with the Archdiocese were concerned.[2][2] The terms “conservative” and “moderate” are adopted herein as a convenient description of the attitude of the respective groups towards the Archdiocese. It is not intended to suggest that the labels reflect the views of the respective groups on any wider issues. Mr Maras and certain other members of GOCSA were in favour of negotiation with the Archdiocese. They comprised or were sympathetic to a moderate group within GOCSA insofar as relations with the Archdiocese were concerned.[3][3] The terms "conservative" and "moderate" are adopted herein as a convenient description of the attitude of the respective groups towards the Archdiocese. It is not intended to suggest that the labels reflect the views of the respective groups on any wider issues. In late January or February 2011 Evangelia Lesses telephoned Mr Maras. She told him that people were afraid that the Goodwood church was going to close because it was always the first church to be targeted. Mr Maras was initially calm but became angry and raised his voice. Mr Maras said:I don’t care if all the churches close except for one [understood to be the Cathedral in Franklin Street].[4][4] Mr Maras said in evidence that he did not recall the phone call and denied saying these words but the Judge found that he did and that finding is not challenged on appeal.

Evidence

Evidence Before The Court

Section 33 prescribes the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings (except when aggravated damages are warranted) at an annually prescribed amount which was $366,000 at the relevant time. It is common ground that this operates as a cap and not so at to require a court to scale the damages awarded against the maximum amount.[24] [24] Contrast Civil Liability Act 1936 (SA) section 52 and Return to Work Act 2014 (SA) section 58.Evidence of offers before action On the hearing of the submissions on appeal on this Court’s assessment of damages, Mr Lesses tendered correspondence between the parties including letters by his solicitors to Mr Maras’ solicitors that he contends comprise offers to apologise that mitigate damages. Mr Maras opposes the reception of this evidence on several grounds including that the evidence to be received must meet, but does not meet, the criteria for the reception of fresh evidence on appeal and that the communications are the subject of settlement privilege under section 67C of the Evidence Act 1929 (SA) (the Evidence Act). We address the privilege issue first. We address the question on the hypothetical basis that the Judge decided liability in the manner now decided on appeal, invited submissions from the parties on the basis of the does not care imputation alone (the parties’ submissions at trial having been limited to the combined imputations) and Mr Lessees had tendered the correspondence at a hearing of submissions on quantum. For reasons that will appear, this is the appropriate basis to ensure that Mr Lesses is not unfairly placed in a superior position on appeal to the position in which he would have been if he had tendered the correspondence in the court below. We begin by summarising the relevant communications. Because they were disclosed to the Judge on the costs argument and will be considered by this Court in any event when we address costs at the final stage of the appeal, there is no harm in disclosing relevant details of the communications for the purpose of ruling on Mr Maras’ objection. The first communication in the bundle of documents tendered by Mr Lesses is a letter dated 28 November 2011 from Mr Maras’ solicitors to Mr Lesses alleging the defamatory imputations, demanding an apology and retraction be published and stating that the letter was a concerns notice[25] under the Act. Mr Lesses’ solicitors responded requesting particulars and stated that the letter constituted a further particulars notice[26] under the Act. On 23 December 2011 Mr Maras’ solicitors replied providing the requested particulars.[25] Subsection 14(2) of the Act provides that a concern notice is a written notice informing the publisher of the defamatory implications that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question. The relevance of the giving of a concerns notice under the Act is that it triggers the commencement of a time limit for the making of an offer to make amends. Subsection 14(1)(a) provides that an offer to make amends cannot be made after 28 days have elapsed since the publisher was given a concerns notice by the aggrieved person. [26] Subsection 14(3) of the Act provides that if an aggrieved person gives the publisher a concerns notice, but fails to particularise the imputations of concern adequately, the publisher may give the aggrieved person a written notice requesting the aggrieved person to provide reasonable further particulars about the imputations of concern as specified in the further particulars notice, Subsection 14(5) provides that an aggrieved person who fails to provide the reasonable further particulars specified in a further particulars notice within 14 days (or any further period agreed by the publisher and aggrieved person) after being given the notice is taken not to have given the publisher a concerns notice for the purposes of section 14.

Decision

Reasons for decision

Ultimately it is necessary to make a holistic assessment of the appropriate amount of damages to reflect the three overlapping aspects of compensation summarised at [19] above. Having regard to all the circumstances, we assess damages at $25,000.Conclusion We assess damages at $25,000. We will hear the parties as to costs of the action and costs of the appeal.

Ratio Decidendi

Legal Principle Established

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