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Markisic v Today-Denes

Markisic v Today-Denes

Case [2005] NSWSC 1276 9 December 2005

Abandoned Proceedings

Defamation Law

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CITATION:
Markisic v Today-Denes & Ors [2005] NSWSC 1276

HEARING DATE(S): 28, 29 and 30 November 2005, 1 December 2005

JUDGMENT DATE :

9 December 2005

JUDGMENT OF:
Simpson J

DECISION:
1. Plaintiff’s claim against the second, fourth, fifth, ninth and fifteenth defendants dismissed; 2. verdict in favour of each of those defendants; 3. judgment accordingly.

CATCHWORDS:
claim in defamation - Defamation Act 1974 - fifteen defendants - three publications - defamatory imputations found by jury to have been conveyed - plaintiff absented himself from hearing - defences - justification - imputations substantially true - imputations relate to matters of public interest - contextual justification - mitigation of damages - no evidence on quantification of damages - abandonment of proceedings - publication on internet of related material - relevance of proceedings against other defendants - common publication - verdict for the defendants - statement of claim dismissed - alternatively, nominal damages only

LEGISLATION CITED:
Crimes Act 1900 s90A, s91
Crimes Act 1914 (Cth) s34
Defamation Act 1974, s7A, s15, s16, s22, s48

CASES CITED:
Bellino v Australian Broadcasting Corporation [1995] HCA 34; 185 CLR 183
Green v Schneller [2000] NSWSC 548, unreported, 19 June 2000
Hepburn v TCN Channel 9 Pty Ltd [1984] 1 NSWLR 386
John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; 53 NSWLR 541
London Artists Ltd v Littler [1969] 2 QB 375
Markisic v Today-Denes, unreported, 3 July 2003
Markisic & Anor v Nicholson CJ [2001] NSWSC 811 Markisic & Anor v Nicholson CJ [2002] NSWSC 771
Markisic & Anor v Vizza & Ors [2001] NSWSC 1155
Markisic & Anor v Commonwealth [2001] NSWSC 533
Markisic & Anor v Commonwealth of Australia [2002] NSWSC 698
Markisic & Anor v Vizza & Ors [2002] NSWCA 243
Markisic & Anor v Vizza & 16 Ors [2002] NSWCCA 53
R v Robson; R v Collett [1978] 1 NSWLR 73
R v Stuart, unreported, 20 May 1976
Teese v State Bank of NSW [2002] NSWCA 219
Webb v Bloch (1928) 41 CLR 331

PARTIES:
Dragan Markisic - Plaintiff
AEA Ethnic Publishers Pty Ltd - Second Defendant
Toni Pavlovski - Fourth Defendant
Igor Pavlovski - Fifth Defendant
Zlatko Blajer - Ninth Defendant
Ljupco Stankovski - Fifteenth Defendant

FILE NUMBER(S):
SC 20492/99

COUNSEL:
Dr MJ Collins - Ninth Defendant
MK Rollinson - Fifteenth Defendant

SOLICITORS:
Plaintiff - in person
2nd & 4th Defendants represented by 5th Defendant
5th Defendant in person
MCP Commercial Lawyers - 9th Defendant
DC Chambers & Associates - 15th Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

SIMPSON J

Friday 9 December 2005

20492/99 Dragan MARKISIC v TODAY-DENES & Ors
JUDGMENT

1 HER HONOUR: Although the issues in these proceedings are relatively narrow, they are to be determined in the context of a lengthy and complicated litigation history. It is, I think, worth attempting to recount some (but far from all) of that history. What follows is the best I can do from…

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.

Continue reading Markisic v Today-Denes

Details

AGLC: Markisic v Today-Denes [2005] NSWSC 1276
Case: [2005] NSWSC 1276
Decision Date: 9 December 2005

CaseChat Overview and Summary

The case involved a defamation claim brought against fifteen defendants by the plaintiff. The plaintiff alleged that three publications made by the defendants were defamatory. The jury found that the defamatory imputations were conveyed by the publications. The plaintiff did not attend the hearing and the proceedings were subsequently abandoned. The defendants raised various defences, including justification, substantial truth, public interest, and contextual justification. The court considered whether the imputations were substantially true and whether they related to matters of public interest. The court also considered the defence of mitigation of damages. However, there was no evidence on the quantification of damages. The court found that the defendants were not liable for the defamatory imputations and dismissed the plaintiff's statement of claim. In the alternative, the court awarded the plaintiff nominal damages only.

The court examined the evidence and submissions to determine whether the defendants were liable for the defamatory imputations. The court found that the imputations were substantially true and related to matters of public interest. The court also found that the defendants had established the defence of contextual justification. The court considered the evidence of the plaintiff's absence from the hearing and found that the abandonment of the proceedings did not affect the defendants' liability. The court also considered the relevance of the proceedings against other defendants and found that the publication on the internet of related material did not establish common publication. The court found that the defendants were not liable for the defamatory imputations and dismissed the plaintiff's statement of claim. In the alternative, the court awarded the plaintiff nominal damages only.

Orders