Lesses v Maras

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.