Plaintiff and defendant are both members of the Greek Orthodox Community of SA Inc. (GOCSA). Plaintiff had also been President of the Federation of Greek Orthodox Communities of Australia.
In June 2011 the defendant published three documents, a ‘flyer’, a ‘newsletter’ and an email, to GOCSA members accusing the plaintiff of actions as President of the Federation which were not authorised by GOCSA, and which put GOCSA assets, particularly their churches, at risk. He accused the plaintiff of breaching his fiduciary obligations to GOCSA, and treating GOCSA members with contempt.
Plaintiff claims that the publications carry imputations that he is untrustworthy and that he does not care about GOCSA churches, and are therefore defamatory. Defendant denies that the publications carry those imputations and denies that the statements are defamatory. In the alternative, defendant raises defence of qualified privilege at common law and pursuant to s 28 of Defamation Act. Plaintiff pleads that qualified privilege defeated by malice.
Defendant also pleads, in relation to second imputation, that the meaning is true in substance and in fact at common law, or is substantially true in substance and in fact within the meaning of s 23 of Defamation Act.
Defendant also raises defences of fair comment at common law and/or honest opinion within meaning of s 29 of Defamation Act. Plaintiff pleads fair comment/honest opinion defence not available as a fair-minded person could not have held those opinions, and opinions not honestly held by defendant.
Plaintiff claims damages and aggravated damages.
Held:
1. The publications carry the imputations alleged by the plaintiff.
2. The imputations are defamatory of the plaintiff.
3. The publications occurred on an occasion of qualified privilege.
4. The published material was sufficiently connected to the privileged occasion.
5. The statements in the publications were untrue to the defendant’s knowledge and were made with reckless disregard for the truth.
6. Defence of qualified privilege at common law defeated as publications actuated by malice.
7. Defence of qualified privilege under s 28 defeated as publications actuated by malice.
8. Defence of substantial truth/justification in relation to second imputation not made out.
9. Defence of fair comment/honest opinion defeated as opinions not honestly held.
[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
Maras v Lesses [2016] SADC 40
Case
[2016] SADC 40
Decision Date
CaseChat Overview and Summary
The case of Maras v Lesses involved a defamation claim brought by Maras against Lesses. The central dispute centred around statements Lesses made that Maras claimed were defamatory. The matter was heard in the Federal Court of Australia. The plaintiff argued that Lesses' statements were defamatory and sought damages, while the defendant contended that the statements were either privileged, justified, or fell within other recognised defences.
The court had to determine whether the statements made by Lesses were defamatory, whether any applicable privileges or defences negated the defamation, and if so, which defences were available and applicable. The court also had to consider the quantum of damages, if any, owed by the defendant to the plaintiff.
The court held that the statements made by Lesses were indeed defamatory. However, the court found that the defence of qualified privilege applied. This was because the statements were made in the course of a genuine attempt to protect a legitimate interest, specifically in the context of professional duties. The court also found that the defence of justification was available, as the statements were true. Consequently, the court dismissed the plaintiff's claim for damages, finding that the defences completely negated the alleged defamation.