Markisic v Today-Denes

[2005] NSWSC 1276

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 examination of the Court file, which by now is mountainous.

2 On 29 October 1999 the plaintiff, Dragan Markisic, filed in this Division a statement of claim. He claimed damages in defamation against fourteen named defendants, arising out of three separate (but virtually identical) publications. Each publication was in a Macedonian language newspaper published in November 1998. The plaintiff alleged that the second to fifth defendants were variously involved in the publication of a newspaper (in the Macedonian language) called “Today-Denes” (which was itself nominated as the first defendant); the eighth to eleventh defendants were involved in the publication of a similarly published newspaper called the “Australian Macedonian Weekly”, (which was named as the sixth defendant); and that the twelfth, thirteenth and fourteenth defendants were involved in the publication of a third Macedonian language newspaper called the “Macedonian Weekly Herald” (named as the twelfth defendant).

3 The subject matter of each article was certain conduct said to have been engaged in by the plaintiff. Each newspaper published the article under a different headline, and with an introductory synopsis in bold type of the account of events that followed. Each synopsis asserted that the plaintiff had kidnapped (or abducted) his baby daughter, Elena, while in Veles, Macedonia, without her mother’s knowledge or consent, and taken her to Australia. Each synopsis was followed by a more detailed account, reporting that, in April 1998, having obtained an Australian passport for her, the plaintiff took his daughter, purportedly for a visit, from her mother, from whom the plaintiff had separated. They reported that the plaintiff then flew to Australia with the child, and that, as a consequence, proceedings under “the Hague Convention” (the Hague Convention on the Civil Aspects of International Child Abduction) had been taken in Australia, and the child eventually restored to her mother.

4 The proceedings were allocated to the defamation list. On 7 July 2000 Kirby J ordered that the first defendant (a newspaper which was not a legal entity) be removed from the proceedings. At some point the fifteenth defendant was added. He was alleged to have been the editor of Australian Macedonian Weekly.

5 The statement of claim was amended a number of times – at least on 16 June 2000, 25 January 2002, 27 May 2002 and 1 July 2003.

6 On 11 June 2003 a trial of the issues committed by s7A of the Defamation Act 1974 to jury determination commenced before Hulme J. That trial involved only the second to fifth and ninth to eleventh defendants (although the ninth to eleventh defendants did not participate in the trial), and the publication in the newspapers Today-Denes, and the Australian Macedonian Weekly. Hulme J recorded that the plaintiff advised during the course of the trial that the trial was not proceeding against the twelfth, thirteenth or fourteenth defendants: Markisic v Today-Denes, unreported, 3 July 2003. The jury found that the plaintiff had not established that the third defendant was involved in the publication. Hulme J entered judgment in favour of that defendant. The jury found that each of the second, fourth and fifth defendants was involved in the publication and that the publication conveyed four imputations defamatory of the plaintiff. On 3 July 2003 Hulme J gave directions for the further progress of the proceedings. I have been unable to ascertain the outcome of the proceedings so far as they involved the twelfth to fourteenth defendants.

7 Between 10 and 12 December 2003 a second trial of the s7A issues took place, before Adams J and a jury. This trial involved the publication in the Australian Macedonian Weekly. By some process I have not been able to understand, the ninth to eleventh defendants, as well as the eighth, which does not appear to have been involved in the earlier trial, were also involved in this trial. On 12 December Adams J directed a verdict for the tenth and eleventh defendants. The jury found that each of the remaining defendants, that is, the eighth, ninth and fifteenth defendants, were involved in the publication and that the publication conveyed the same defamatory imputations of the plaintiff. (There was one exception to this; for some reason I do not understand, the jury found that one imputation was not conveyed by the ninth defendant.)

8 On 7 July 2000 Kirby J ordered that the sixth defendant be removed from the proceedings. Again, this was because “Australian Macedonian Weekly” is the name of a newspaper and is not a legal entity. For some reason, Levine J appears to have replicated that order on 13 October 2000. “Macedonian Weekly Herald” also appears not to be a legal entity. On the same day Levine J ordered that the proceedings against the seventh defendant be summarily dismissed; on 3 July 2003 Hulme J noted that the eighth defendant was in liquidation and that his Honour had been informed by the plaintiff’s brother, in the presence of the plaintiff, that leave to proceed against it had been sought and refused and that, in the circumstances, it was appropriate that he dismiss the proceedings against that defendant. (Although I have seen no evidence of a formal order to that effect, I propose to proceed on the basis that the eighth defendant is no longer involved in the proceedings.)

9 Thus, so far as I can ascertain, the defendants who remain on the record as part of the proceedings are: the second, fourth, fifth, ninth and fifteenth. The position of the thirteenth and fourteenth defendants is quite unclear. As far as I can ascertain, they have never been the subject of a trial under s7A and there are no relevant jury findings against (or for) them.

10 Following the two s7A trials some (but, it seems, not all) of the defendants filed defences. These have been amended from time to time. The second s7A trial, in 2003, was followed by an extraordinary saga of interlocutory applications and disputes. The Court file tells the story. I forebear to do so.

11 The final statement of claim, on which the matter proceeded to trial, was entitled a “Further Further Further Amended Statement of Claim”, and was filed on 7 May 2005. On 13 May 2005 the proceedings were fixed for trial, with a five day estimate, to commence on 28 November. On that date, the ninth and fifteenth defendants were represented (separately) by counsel. I was then informed that, although he was not present on that day, the fifth defendant, who is the director of and had authority to represent the second defendant, would be personally present on subsequent days. He did appear on the second, third and fourth days of the trial. No other defendant appeared.

12 The plaintiff appeared without legal representation and sought leave for his brother, Oliver Markisic, to assist and represent him as a “Mackenzie friend”. I declined to allow Mr Oliver Markisic to represent the plaintiff in the sense that a barrister or solicitor would represent him. In so determining, I had regard to the decision of the Court of Appeal in Teese v State Bank of NSW [2002] NSWCA 219.

13 The plaintiff then sought an order that the trial date be vacated. He supported this application by an affidavit sworn by himself. The principal reason he advanced was that he had no legal representation and felt unable, even with the help of his brother, competently to represent himself. He asserted that he had real prospects of obtaining legal representation, and gave the names of a solicitor and a barrister who, he said, would (or might) undertake his representation.

14 He also relied upon some medical evidence by way of reports annexed to his affidavit.

15 I refused the application, reserving reasons. I propose to give those reasons separately. I will simply note here that the experience of the days that followed the application established to my satisfaction that the plaintiff was well able to conduct his own case, that he had thoroughly familiarised himself with the relevant law and legal principles, and was ably assisted by his brother. The absence of legal representation was certainly not (in hindsight) a reason to delay the already far too long delayed hearing of this matter, to cause further expense to the other represented parties, or to impinge upon the rights of other litigants in this Court awaiting a hearing date.

16 The plaintiff then asked that I disqualify myself from further hearing the matter. I also refused that application, again reserving reasons which, again, I will deliver separately. This was the first of a number of such applications, all of which I refused.

17 There followed a series of applications, all except one (made by the plaintiff himself) made by third parties, concerning subpoenae that had been issued by the Court at the request of the plaintiff (or, in the case of the application made by the plaintiff, at the request of the ninth defendant). I dealt with those, and it is unnecessary further to mention them in this judgment.

18 At the commencement of the third day of trial, Wednesday 30 November, the plaintiff sought again that I disqualify myself, this time relying upon s34 of the Crimes Act 1914 (Cth). I refused. He then again sought an adjournment, this time until the following Monday, or possibly Friday. The first basis for this application was, again, his prospects of obtaining legal representation. He told me that he had, by chance, encountered in the street the counsel who he claimed would undertake his case, and that counsel had agreed to do so, but was unavailable until Monday 5 December. The plaintiff also claimed ill health. I again refused the adjournment. I invited the plaintiff to give or call evidence. At that point he declared that he would no longer participate and would leave the Court; I advised him that if he did so the case would proceed in his absence. He said that he intended to consult his psychiatrist, and either produce a report from his psychiatrist, or bring his psychiatrist to court to give evidence of his incapacity to conduct the proceedings. The plaintiff asked to be excused. I allowed him half an hour to consider his position. He again indicated his intention not to participate, and to leave the court, and again asked to be excused. I told him that he was free to go if he wished, but that the hearing would proceed in his absence. That is what occurred. The plaintiff and his brother left the court.

19 In my opinion, this action constituted an effective abandonment of the proceedings, which would have warranted the dismissal of the proceedings. However, there are issues raised on the pleadings of the ninth defendant on which he bore the onus of proof, and counsel asked to present the evidence in support of those defences. Given that the only witness to be called had travelled from overseas, this was a sensible and practical course to take.

20 The matter proceeded in the absence of the plaintiff and his brother. Those defendants who were participating presented their evidence and argument relevant to the defences they pursued.

* * *

21 I can now move to the substance of the matter.

22 The effect of the two jury verdicts is this: as against the second, fourth, fifth and fifteenth defendants, the following imputations were found to have been published, to have been conveyed, and to have defamed the plaintiff:

“(a) the plaintiff physically abused his wife;
(b) the plaintiff committed the criminal offence of kidnapping by removing his daughter from Macedonia to Australia;
(c)(i) the plaintiff is a bad parent, in that he selfishly removed his daughter from her mother's custody;
(d) the plaintiff dishonestly obtained a passport for his daughter, Elena, without the knowledge or consent of her mother when the plaintiff well knew that it was necessary to obtain the mother's consent.”

23 As against the ninth defendant the same imputations, with the exception of imputation (c)(i), were found to have been published, conveyed, and defamatory of the plaintiff.

defences

(i) the ninth defendant

24 The defence pleading upon which the ninth defendant proceeded to trial was an amended defence filed on 5 February 2004. He pleaded justification (s15 of the Defamation Act 1974); contextual justification (s16); comment (Division 7); and qualified privilege (s22, but not qualified privilege at common law). At the conclusion of the evidence, he abandoned reliance on the defences of comment and qualified privilege, and relied only upon justification and contextual justification. He raised certain other matters in mitigation of damages, to which I will come in due course.

25 The second, fourth and fifteenth defendants abandoned reliance on any defences other than matters they advanced in mitigation of damages.

the justification defence

26 Justification was pleaded by the ninth defendant as a defence to all imputations. However, after the evidence was concluded, counsel acknowledged that the defence could not succeed with respect to the third imputation he was found to have conveyed, which was the imputation with the letter (d).

27 S15 of the Defamation Act provides as follows:

“ 15 Truth generally

(1) Notwithstanding section 11, the truth of any imputation complained of is not a defence as to that imputation except as mentioned in this section.

(2) It is a defence as to any imputation complained of that:
(a) the imputation is a matter of substantial truth, and
(b) the imputation either relates to a matter of public interest or is published under qualified privilege.”

28 Accordingly, for the defence of truth (justification) to succeed in respect of any of the three imputations found against the ninth defendant, it is necessary that the ninth defendant establish that that imputation is substantially true, and that it relates to a matter of public interest (qualified privilege can be set aside: the ninth defendant abandoned reliance upon qualified privilege as an independent defence and did not attempt to rely upon it in the context of the justification defence).

truth

29 A good deal of documentary evidence was tendered. Oral evidence was given by Mrs Katerina Markisic, the plaintiff’s former wife. I accept in full the evidence she gave. She said that she met the plaintiff, an Australian citizen of Macedonian descent, in Macedonia in June 1996 and married him on 19 November of that year. They lived together in Veles for a time, initially at his sister’s home, and subsequently at her parents’ home. A daughter, Elena, was born on 3 May 1997. During Mrs Markisic’s pregnancy, she said, the plaintiff “was constantly abusing me”, both psychologically and physically. He was unpredictable. He used to hit her with his elbow in her stomach and she was admitted to hospital for a period.

30 After the birth of the child he threatened her and again abused her physically, by throwing her against the wall “like an animal” and causing a mark on her arm which she still retains. He pushed her out of bed with his legs, again, she said, “like an animal”. He constantly made threats and abused her. Mrs Markisic terminated the relationship and moved out. She took the child with her and retained her in her care until 12 April 1998.

31 It had been the intention of the couple to migrate to Australia. Mrs Markisic made an application to the Australian Embassy for a visa to enter Australia. By agreement between the plaintiff and his wife, an Australian passport was obtained for Elena. This was kept in a drawer in the apartment they occupied, together with Mrs Markisic’s passport and the plaintiff’s passport.

32 At some point Mrs Markisic discovered that Elena’s passport was not in the drawer. She asked the plaintiff about this. He said that he had taken it for safekeeping to his sister’s home.

33 The plaintiff obtained official permission, or orders, from the authorities in Veles for access to Elena. From time to time the plaintiff exercised the rights he was granted to see the child. He made an arrangement with Mrs Markisic to spend the day with Elena on 12 April 1998. He picked up the child in accordance with those arrangements and expressly promised to return her at 7.00 pm. He did not do so. Instead he travelled with Elena to Australia on a ticket he had previously purchased. He telephoned Mrs Markisic from Australia. Her evidence was that he said to her:

“Elena is finally home, there where she belongs with her father. You can’t do anything. You should have known who you were dealing with. I am the biggest kidnapping playboy.”

34 Mrs Markisic contacted the Macedonian authorities. She firstly approached an institution known as the Basic Court of Veles which, on 13 April 1998, made orders appointing her as Elena’s custodian.

35 Elena remained with the plaintiff in Australia until August 1998. At that time the NSW Director General of Community Services applied to the Family Court of Australia, in accordance with the Hague Convention on the Civil Aspects of International Child Abduction, seeking the return of Elena to Mrs Markisic. On 17 August 1998 an Order of that kind was made by a Judicial Registrar of the Family Court of Australia. The plaintiff sought judicial review of that Order, but the Order was confirmed; the plaintiff appealed unsuccessfully, and the Full Court of the Family Court of Australia also confirmed the Order. In the High Court of Australia on 13 October 1998 the plaintiff sought but was refused a stay of the Order.

36 The child was returned to the custody of Mrs Markisic. On 14 October 1998 they returned to Macedonia.

37 On the evidence outlined above I have no difficulty in finding that imputation (a) is substantially true. Mrs Markisic gave unequivocal evidence that the plaintiff had physically abused her. It remains to consider whether that imputation relates to a matter of public interest. This I will do when I have dealt with the substantial truth or otherwise of the second imputation.

38 The second imputation is that the plaintiff committed the criminal offence of kidnapping by removing his daughter from Macedonia to Australia. This creates some complications in determining whether the imputation has been shown to be substantially true. It is not clear whether the criminal offence is alleged to be against Macedonian law or the law of NSW. I do not think, in the circumstances, the imputation should be interpreted on too strict or technical a basis. I am also prepared to assume that the Macedonian law has some offence analogous to the NSW law of kidnapping.

39 Although they have both been repealed, by different statutes in 2001, s90A and s91 of the Crimes Act 1900 were in force at the time Elena was brought to Australia by the plaintiff and during the time she remained with him in this country. S90A bears the heading “Kidnapping”; s91 has the heading “Taking child with intent to steal etc”. I am prepared to treat both as being within the intention of the imputation as framed, that is, statutes creating offences commonly called kidnapping. Each is a statutory formulation of the conduct which would, in ordinary parlance, be called kidnapping. I do this, bearing in mind that any imputation found by the jury to have been conveyed encompasses any imputation not substantially different therefrom.

40 At all relevant times s90A and s91 of the Crimes Act were in the following terms:

“90A Kidnapping

Whosoever leads takes or entices away or detains a person with intent to hold him or her for ransom or for any other advantage to any person shall be liable to penal servitude for twenty years or, if it is proved to the satisfaction of the judge that the person so led taken enticed away or detained was thereafter liberated without having sustained any substantial injury, to penal servitude for fourteen years.

This section does not apply to any person who shall, in good faith, have claimed a right to the possession of a person so led, taken or enticed away or detained.

91 Taking child with intent to steal etc

Whosoever:

by force or fraud, leads or takes away, entices away, or detains, any child under the age of twelve years, with intent to deprive any person having the lawful charge of such child of the possession of such child, or with intent to steal any article upon or about the person of such child, to whomsoever such article may belong, or

receives or harbours any such child, knowing such child to have been so led, taken, enticed away, or detained,

shall be liable to penal servitude for ten years:

Provided that this section shall not extend to any person who shall, in good faith, have claimed a right to the possession of such child.”

41 The elements of the offence are, relevantly:

S90A
(i) leading/taking/enticing away/detaining any person;
(ii) with intent to hold for ransom or other advantage.

S91
(i) by force or fraud;
(ii) leading/taking/enticing away/detaining any child under the age of 12;
(iii) with intent to deprive any person having the lawful charge of the child of the possession of the child.

42 In respect of s90A, I am satisfied that the plaintiff took away his daughter when she was handed into his custody for a paternal visit on what was agreed to be a temporary basis, and did not return her at the appointed time. At the very latest, he “took” the child at 7.00 pm on 12 April, when he should have returned her to her mother. He again “took” her away when he brought her to Australia. And he “detained” her from at least 7 pm. The first element, therefore, of an offence under s90A is established. The question which then arises is whether it has been shown that he did so “with intent to hold her ... for other advantage ... “. (There was, of course, no question that the child was held for ransom.)

43 There is little authority on the scope of the words “for other advantage”. Such as there is is entirely in accord with the view I would, in any event, have taken. In R v Robson; R v Collett [1978] 1 NSWLR 73, Maxwell J accepted that the words “are designedly of wide scope”. He expressly agreed with a decision, in a different case, of a District Court judge in R v Stuart, unreported, 20 May 1976, which concerned the taking or detaining of a baby with the intention of bringing it up as the offender’s own. The advantage to the offender there was held to be the satisfaction of the desire to bring up the child as the offender’s own. It would seem, from the observations in that case, that the offender was not the father of the child in question. That appears to be only point of distinction between that case and this case. I do not think it is a material difference. What the plaintiff here did was to take and detain his child with the intention of retaining her custody to the exclusion of the child’s mother. He obviously perceived that as an advantage. In taking that view, I think he was correct.

44 I am, accordingly, satisfied that the ninth defendant has established the substantial truth of the imputation that the plaintiff committed the criminal offence of kidnapping created by s90A by taking his daughter from her mother, by removing her from Macedonia, by detaining her in Australia, and there continuing to detain her.

45 I am even more comfortably satisfied that the substantial truth of that imputation has been established with respect to the provisions of s91. I am satisfied that s91, like s90A, creates the offence commonly known as “kidnapping”. I am satisfied that the plaintiff took away and detained the child by fraud, with intent to deprive Mrs Markisic who had the lawful charge of the child or possession of the child.

46 That the manner in which the plaintiff went about obtaining custody or possession of the child was fraudulent can be discerned from a number of circumstances. Firstly, he misled Mrs Markisic into believing that he intended only to keep the child for the day, and to return her at a specified time; secondly, he had previously removed the child’s passport; thirdly, he had made travel arrangements. The evidence yields only the inference that he had pre-planned the entire event and had engaged in a continuing process of deception. I am, accordingly, satisfied of the elements of the offence created by s91.

47 Each section contains a proviso, protecting a person who acts in good faith under a claim of right. I am prepared to assume or infer that the plaintiff acted under a claim of right. However, the evidence to which I have referred indicating fraud negates any possibility that he acted in good faith.

48 Realistically, counsel for the ninth defendant conceded that the evidence does not establish the truth of imputation (d).

public interest

49 In order to establish the defence of justification under s15, it is also necessary that the ninth defendant establish that any imputation to which the defence is pleaded relates to a matter of public interest. In London Artists Ltd v Littler [1969] 2 QB 375, Lord Denning MR held that what comes within the definition of a matter of public interest should not be confined within narrow limits. He said:

“Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment.”

50 In Bellino v Australian Broadcasting Corporation [1995] HCA 34; 185 CLR 183, the majority held that “a subject of public interest” means:

“... the actions or omissions of a person or institution engaged in activities that either inherently, expressly, or inferentially invited public criticism or discussion.”

51 I considered the meaning of “relates to a matter of public interest” as it appears in the Defamation Act in Green v Schneller [2000] NSWSC 548, unreported, 19 June 2000. There I said:

“19 There is no precise line that divides matters that fall within the domain of public interest from those that do not. To a very large extent, whether an imputation relates to a matter of public interest or not is determined by value judgment, by the individual perception of the tribunal charged with the task of making the decision, and current mores and attitudes. Although the concept of public interest has existed in the law for many years, and a number of decisions of various courts throw some light on the practical application of the requirement, fewer have attempted to refine or define the language of the concept. Some assistance can no doubt be gained from the factual circumstances of the cases in which a publication has been held to fall on one side or the other of the public interest line.”

52 Two tests, therefore, have been posed: that by Lord Denning, whether the subject matter is such as to affect people at large, that they may be legitimately interested in or concerned at; and that in Bellino, of conduct or activity inherently, expressly or inferentially capable of inviting public criticism or discussion.

53 Here, the subject matter of the article published by the ninth defendant was the plaintiff’s conduct in, by deception, removing his child from her mother’s care, removing her from the country in which she lived, bringing her to Australia and detaining her in this country until compelled, by operation of judicial process, to return her. In my opinion that conduct is such that people at large may be legitimately interested in or concerned at; and it is conduct that inherently, expressly and inferentially invites public criticism or discussion. It therefore relates to a matter of public interest, whichever test is applied. I am satisfied that imputations (a) and (b) did relate to a matter of public interest.

54 Accordingly, in respect of each of those imputations, the s15 defence is made out.

contextual justification

55 The defence of contextual justification arises only in respect of imputation (d).

56 S16 of the Defamation Act provides as follows:

“16 Truth: contextual imputations

(1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of.

(2) It is a defence to any imputation complained of that:


(a) the imputation relates to a matter of public interest or is published under qualified privilege,

(b) one or more imputations contextual to the imputation complained of:


(i) relate to a matter of public interest or are published under qualified privilege, and

(ii) are matters of substantial truth, and

(c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff.”

57 (The “imputation complained of” mentioned in subs(2)(c) is, for present purposes, only imputation (d), that the plaintiff dishonestly obtained a passport for daughter without the knowledge or consent of her mother when he well knew that it was necessary to obtain her mother’s consent.)

58 Put briefly, the task to be undertaken when determining whether a s16 defence has been made out is to weigh the harm done to a plaintiff’s reputation by any defamatory imputation found to have been conveyed, but not justified, against the harm done by all defamatory imputations found to have been conveyed, but also to have been justified. To succeed in the defence the ninth defendant must establish that, by reason of the substantial truth of all defamatory imputations proven to have been substantially true, publication of the remaining defamatory imputation (imputation (d)) did not further injure the reputation of the plaintiff.

59 The ninth defendant relies upon the defence provided by s16 in two ways; firstly, he contends that each of the three imputations found to have been conveyed is, within the meaning of subs16(1), contextual to each other imputation found to have been conveyed; that each relates to a matter of public interest; and that, by reason of the substantial truth of imputations (a) and (b), imputation (d) does not further injure the reputation of the plaintiff. The first of these propositions is unanswerable. Each of the imputations found to have been conveyed was made by the same publication and is, accordingly, contextual to each other imputation.

60 Secondly, the ninth defendant pleads that each of two additional imputations defamatory of the plaintiff was conveyed by the same publication; that each of those imputations was substantially true; that each of those imputations relates to a matter of public interest; and that, by reason of the substantial truth of either or both of those contextual imputations, imputation (d) did not further injure the reputation of the plaintiff.

61 The imputations pleaded as contextual imputations by the ninth defendant are as follows:

(i) the plaintiff obtained a passport for his daughter without her mother’s consent;
(ii) the plaintiff removed his daughter from Macedonia to Australia without her mother’s consent.

62 As I have mentioned, the defence of contextual justification involves weighing any defamatory imputations that have been conveyed but have not been shown to be matters of substantial truth, against the combined effects of any contextual defamatory imputations that have been conveyed and have been shown to have been substantially true: Hepburn v TCN Channel 9 Pty Ltd [1984] 1 NSWLR 386. In doing so, the court focuses upon the facts, matters and circumstances that establish the truth of the contextual imputations and not the mere content of the contextual and true imputations: John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; 53 NSWLR 541.

63 The first step is to consider whether either of the imputations pleaded as contextual imputations by the ninth defendant were conveyed by the matter complained of; and, if so, whether either is, or both are, substantially true; and whether either relates to a matter of public interest.

64 Determining whether either imputation pleaded by the ninth defendant was conveyed requires recourse to the article published in the newspaper, as translated into English. (This was the publication in the Australian Macedonian Weekly, although it was in all material respects, except for the headline and synopsis, identical with the other two publications.) Contained in that article is the following:

“... Dragan simply kidnapped my daughter. It’s a long story, but in short he managed, without my knowledge, to obtain a passport for Elena on 23 April 1998 (sic). He came that afternoon at my parents’ house, because we were already separated and asked if he could take little Elena for a walk. Only one hour after that, he flew away from Skopje Airport with my daughter to go for a long ‘walk’ to Australia, in Sydney ....”

65 In this short passage, each imputation pleaded by the ninth defendant is clearly conveyed. Each is also clearly defamatory.

66 The next question, therefore, is whether either has been shown to be substantially true. I return to the evidence given by Mrs Markisic. She said:

“Well, this is how it was. Dragan was saying that Elena has a right to Australian citizenship and Australian passport because he himself was an Australian citizen. I obviously couldn't get citizenship. I could get just an Australian visa. One morning he said we have to go to the post office. We had to go to speak with the people regarding the issue of an Australian passport. When we got there he was contacting, he was talking from a telephone booth. He was calling the Australian Embassy. After that I was speaking with one of the clerks in the embassy. They asked me my name and surname and whether I am the real mother to Elena. I confirmed to them that I am Elena's mother and later they asked me whether I allow Elena, whether I give my consent to Elena to get an Australian passport. I agreed then, but obviously that one day we would all leave and we would get an Australian visa.”

67 Plainly, on this evidence, the first imputation pleaded by the ninth defendant has not been shown to be substantially true.

68 However, the other evidence that I have already recounted, and to which it is not necessary to refer again, establishes beyond doubt the truth of the second contextual imputation.

69 The balancing exercise therefore is of imputations (a) and (b) as pleaded by the plaintiff, together with contextual imputation (ii), as pleaded by the ninth defendant, against imputation (d) as pleaded by the plaintiff. That is, the question is whether it has been established that, by reason of the substantial truth of the facts and circumstances establishing:

imputation (a): that the plaintiff physically abused his wife; and
imputation (b): that the plaintiff committed the criminal offence of kidnapping by removing his daughter from Macedonia to Australia; and
contextual imputation (ii): that the plaintiff removed his daughter from Macedonia to Australia without her mother’s consent;
that publication of imputation (d) that the plaintiff dishonestly obtained a passport for his daughter, Elena, without the knowledge or consent of her mother when he well knew that it was necessary to obtain the mother’s consent, did not further injure the reputation of the plaintiff.

70 Once the matters to be weighed are set out in this way, the question virtually answers itself. In my opinion it is clear, by reference only to the content of the imputations, that, by reason of the substantial truth of imputations (a), (b) and (ii), the publication of imputation (d) did not further injure the reputation of the plaintiff. That conclusion is even more strongly drawn when all of the facts, matters and circumstances that establish the substantial truth of imputations (a), (b) and (ii) are borne in mind. It is unnecessary to repeat those matters.

71 The defence of contextual justification to imputation (d) succeeds.

72 There will accordingly be a verdict for the ninth defendant.

(ii) the second, fifth and fifteenth defendants

73 As I have indicated above, the fifteenth defendant raised no substantive defences but merely sought to mitigate the damages payable to the plaintiff. The second and fifth defendants took the same course. The defence filed on behalf of the fifth defendant was obviously drafted by a lay person, presumably the fifth defendant himself. Counsel who appeared for the fifteenth defendant relied, essentially, upon two circumstances. The first of these raised s48 of the Defamation Act, the second matter concerned publicity given to the matters the subject of the publications as a result of other legal proceedings. In this respect, particular reference was made to a series of judgments of this Court, the Court of Appeal, and the Court of Criminal Appeal involving the plaintiff and, in one case, his brother and mother.

74 The issue of damages is complicated by the deficiency of evidence on a number of issues with respect to which one would ordinarily expect evidence to be produced by the plaintiff. Because he chose to absent himself from the proceedings, that evidence has not been forthcoming. There is, for example, (except for that provided by the fifth defendant, in respect of the publication in the Australian Macedonian Weekly) no evidence of the circulation numbers, or the geographical distribution of the newspapers. There was no evidence of the plaintiff’s reputation, before or after the publications; there was no evidence of injury to his feelings. Notwithstanding this, it was not contended on behalf of the fifteenth defendant that the damages are mitigated out of existence. It was accepted that the plaintiff is entitled to an award of damages of some dimension, although the proposition was put that the damages to which the plaintiff is entitled in the circumstances are “very severely mitigated”.

75 The fifth defendant gave evidence which is here relevant. He said that his newspaper is published in Cyrillic script and is written for the Macedonian community in Australia which, in 1996 (the date of census figures nearest to the date of the publication) was 42,199. Two thousand and eighty copies of each edition were sold, nine hundred of which were in the NSW area, but covering all cities. The article was published on page 17 of the newspaper, with no pointer on the front page to its existence further inside. He said that only about ten copies were sold in the area where the plaintiff was living at the time of publication, and that before that the plaintiff had lived in an area where the paper was not distributed at all. This was intended, presumably, to lay the foundation for an inference that the number of recipients of the publication who actually knew the plaintiff was very limited indeed, and that actual damage to his reputation must have been similarly limited. The fifth defendant pointed out that the action was not commenced until one year after publication.

76 As I have mentioned, counsel for the fifteenth defendant relied upon publicity concerning the events the subject of the publications brought about other than by reason of the publication in the three newspapers the subject of the statement of claim. In support of this, he tendered a series of judgments of this Court, the Court of Appeal and the Court of Criminal Appeal, all of which are readily available on the internet. The point of this was that the general factual scenario has been set out in public many times. The judgments tendered are:

(1) Markisic & Anor v Nicholson CJ [2001] NSWSC 811 (17 September 2001). This was a decision of Sperling J. His Honour struck out a summons filed by the plaintiff purporting to commence criminal proceedings in the summary jurisdiction of this Court against the then Chief Justice of the Family Court of Australia;
(2) Markisic & Anor v Nicholson CJ [2002] NSWSC 771. This was a decision of Dunford J of 28 August 2002. The plaintiff again sought to commence a criminal prosecution against the Chief Justice of the Family Court of Australia in the summary jurisdiction of this Court. Dunford J dismissed the summons;
(3) Markisic & Anor v Vizza & Ors [2001] NSWSC 1155. This was a decision of McClellan J (as the Chief Judge then was) of 14 December 2001. The plaintiff had brought proceedings against seventeen defendants, again alleging various offences against Commonwealth and State statutes. Again, the summons was struck out;
(4) Markisic & Anor v Commonwealth [2001] NSWSC 533. This was a decision of Master Harrison (as the Associate Judge then was) of 28 June 2001. The plaintiff had purported to commence proceedings by statement of claim against the Commonwealth of Australia alleging misfeasance in the public office against certain employees of the NSW Department of Community Services, and various members of the Australian Federal Police and the Judiciary. The proceedings involved the removal of Elena and the proceedings in the Family Court of Australia. Master Harrison dismissed the statement of claim;
(5) Markisic & Anor v Commonwealth of Australia [2002] NSWSC 698. This was a decision of Bell J on 13 August 2002, on appeal from the previously mentioned decision of Master Harrison. Bell J granted some limited relief. She nevertheless struck out the statement of claim but granted leave to file a further amended statement of claim;
(6) Markisic & Anor v Vizza & Ors [2002] NSWCA 243. This was a decision of Giles JA in the Court of Appeal of 22 July 2002. The subject matter was an appeal from the earlier mentioned judgment of McClellan J. Giles JA dismissed the notice of motion but made some other orders of some benefit to the plaintiff;
(7) Markisic & Anor v Vizza & 16 Ors [2002] NSWCCA 53. This was a decision of the Court of Criminal Appeal constituted by Stein JA and Dowd and Barr JJ of 4 March 2002. This matter also concerned the decision of McClellan J of 14 December 2001 and was a purported appeal against his Honour’s orders. The Court dismissed the appeal.

77 In five of these judgments there was reference to the circumstances in which the plaintiff brought his daughter to Australia. The amount of detail given varied. For example, in the judgment numbered (3) McClellan J set out a condensed history of the circumstances in which the plaintiff brought his daughter to Australia, and the consequent Family Court litigation. A similar condensed history appeared in the judgment numbered (7), delivered in the Court of Criminal Appeal. In others, particularly the judgments numbered (1) and (6), the references to the circumstances are so general as to be anodyne.

78 The point made on behalf of the fifteenth defendant is that the facts and matters that gave rise to the imputations have now legitimately been published, not least over the internet, as judgments of this Court are, and that, in effect, the circumstances are now well and truly within the public domain. No doubt that is true. If I may attempt to anticipate what answer the plaintiff might have made to this submission, it would be this: firstly, legal judgments published on the internet, while theoretically in the public domain, are unlikely to come to the attention of the general population; they are particularly unlikely to come to the attention of the Macedonian speaking population, unless that population has particular reason to search them out; secondly, that publication of the judgments post-dated, by a considerable margin, publication of the matter complained of so that damage to his reputation caused by the second, fifth and fifteenth defendants was not affected in any material way by the later publications; and, thirdly, that the judgments would indicate that the plaintiff was seeking to vindicate himself in the actions he took, and to challenge the appropriateness of the Family Court orders.

79 The first two propositions are, I think, correct. The third may be answered by analysis of the results of each of the cases brought by the plaintiff. He has consistently failed in his attempts to establish any impropriety in the conduct of the relevant authorities, or error in the orders made. While it is always possible that a court makes a wrong decision, or makes a decision for wrong reasons – the appeal process exists for that very reason – it is unlikely that every court before whom the plaintiff has brought his case or cases is wrong.

80 I am prepared to give the judgments some weight in the overall assessment of what damage was done by the publication of the article in Today-Denes to the plaintiff’s reputation.

81 The other matter relied upon on behalf of the fifteenth defendant was the proceedings issued by the plaintiff against other defendants. S48 of the Defamation Act provides as follows:

“ 48 Other recoveries

In proceedings for damages for defamation in respect of the publication of any matter, evidence is admissible on behalf of the defendant, in mitigation of damages, that the plaintiff:

(a) has already recovered damages,

(b) has brought proceedings for damages, or

(c) has received or agreed to receive compensation,

for defamation in respect of any other publication of matter to the same purport or effect as the matter complained of in the proceedings.”

82 There was no evidence that the plaintiff had already recovered damages in respect of any of the publications nor that he had received or agreed to receive compensation. The point that was made was that not to take into account the action by the plaintiff against the other defendants, whether successful or not, would create the risk of the plaintiff being multiply compensated for any damage to his reputation.

83 What happened in this case is that three publications, two on 3 November 1998, and the third on 18 November 1998, in substance identical, were made. Obviously, publication was confined to what might be called a closed section of the community – those who are able to and do read newspapers in the Macedonian language. It is impossible to identify with particularity any damage done by any one of the three publications. Even if the damage to the plaintiff’s reputation could be quantified (which it can’t because of the absence of evidence), unless evidence were called to establish the circulation of the newspapers, or their readership, or the impact they have had on a particular section of the community, then the assessment of the damage attributable to any one would be no more than mere speculation.

84 I think counsel is here on strong ground. In my opinion, in this case, assuming that damages are to be awarded, it will be necessary to make some global assessment of the damage to the plaintiff’s reputation caused by the combination of all three publications. If there were evidence of the circulation of publications other than Today-Denes, the division of the damages would be a relatively simple mathematical calculation. But there is no such evidence. There is no evidence of the extent of circulation or distribution of the Australian Macedonian Weekly, the newspaper with which both the ninth and fifteenth defendants were associated.

85 I return to the concession made on behalf of the fifteenth defendant. I am not satisfied that it was properly made. The concession was that, because the fifteenth defendant had not set out to justify the imputations pleaded against him, he could not obtain the benefit of the defences established on behalf of the ninth defendant. Two of the imputations held to have been conveyed by the fifteenth defendant (and the second and fifth defendants) I have held to be substantially true, and to relate to a matter of public interest. A third imputation I have held did not, for reasons I have given, further injure the reputation of the plaintiff. I am not persuaded that, merely because he did not plead the defence, and did not call evidence to establish it, the fact that those defences have been established is not material on which the fifteenth (and the second and fifth) defendants can rely on the question of entitlement to damages. Both the ninth and the fifteenth defendants were alleged to have been editors of the same newspaper, Australian Macedonian Weekly. There is something highly incongruous about awarding damages to a plaintiff against one defendant in respect of the very publication which has been successfully defended by another, where there is nothing that in any way distinguishes between defendants. That the fifteenth defendant did not set out to establish the truth of the imputations does not make them any less true; that he did not set out to establish that they relate to a matter of public interest does not detract from the finding that they did. By analogy with the reasoning of the High Court in Webb v Bloch (1928) 41 CLR 331, in my view, the fifteenth defendant is entitled to the benefit of the defences established on behalf of the ninth defendant.

86 I have not overlooked the fact that the fifteenth defendant faced a fourth imputation, that the plaintiff is a bad parent in that he selfishly removed his daughter from her mother’s custody. On the material before me, had substantial truth been pleaded to that imputation, I would have had no difficulty in finding that imputation also to be substantially true. However, I accept that it is not open to me to do so in the circumstances. Nor is it open to me to find that it comes within the contextual justification defence as provided by the Defamation Act.

87 It is, however, open to me to find on an assessment of damages, that publication of the imputations not justified by the ninth defendant did not, in the light of the two imputation pleaded by the plaintiff found to have been substantially true, further injure the plaintiff’s reputation, and I expressly make that finding.

88 There will be a verdict for the fifteenth defendant.

89 As to the second and fifth defendants, the publication for which they were responsible was identical, in material respects, to the publication for which the ninth and fifteenth defendants were responsible. It was in a different newspaper, but the content was the same. Because they were not joint tortfeasors, they cannot avail themselves of the Webb v Bloch analogy. But common sense dictates that they are able to take the benefit of the establishing by the ninth defendant of the justification defence to imputations (a) and (b). And I am equally satisfied that publication of the remaining imputations did not further injure the reputation of the plaintiff.

90 Further, the purpose of an award of damages in defamation is the vindication of the plaintiff’s reputation. In the case brought against the ninth defendant, the plaintiff has failed to achieve vindication, because that defendant has successfully established that the publication of the imputations was justified. That must have an impact upon the reputation of the plaintiff. If he is not entitled to vindication in respect of the publication of imputations (a), (b) and (d) by the ninth defendant, how can he be entitled to vindication of his reputation in respect of the publication of the same imputations by the second and fifth defendants, particularly where that publication is identical to the publication of the ninth defendant? It simply does not make sense.

91 For those reasons, I propose to enter a verdict for each of the second and fifth defendants.

92 As I have indicated above, the plaintiff abandoned the proceedings. He chose to call no evidence on which a finding of damages, or quantification thereof, could be made. This Court cannot assess damage in a vacuum. It cannot pluck evidence from the air. As I have also indicated above, it would have been open to the Court, when the plaintiff left the court, simply to dismiss the proceedings. The second and fifth defendants cannot be worse off because they took the sensible course of using the time available, and presenting their evidence relevant to damages. This is another, independent reason for entering verdicts for the second, fifth and fifteenth defendants.

93 The only remaining defendant, the fourth, is in no different position. Because of the plaintiff’s abandonment of the proceedings, and, independently, because of the success of the justification defence, there will be a verdict for the fourth defendant.

94 In case I am wrong about this, I note that, at most, the plaintiff is, in my opinion entitled to nominal damages in respect of the publication of imputations (c)(i) and (d).

95 I assess those damages at $10. If I were ordering damages I would further order that payment be shared equally between the second, fourth, fifth and fifteenth defendants.

96 The orders I make are:

1. the plaintiff’s claim against the second, fourth, fifth, ninth and fifteenth defendants is dismissed;

2. verdict in favour of each of those defendants;

3. judgment accordingly.

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