Martin v Trustrum - [2003] TASSC 22

[2003] TASSC 22

CITATION: Martin v Trustrum [2003] TASSC 22

PARTIES:  MARTIN, Janine Marcia
  v
  TRUSTRUM, Thomas

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  836/2001
DELIVERED ON:  30 April 2003
DELIVERED AT:  Hobart
HEARING DATES:  25, 26 and 27 March 2003
JUDGMENT OF:  Underwood J

CATCHWORDS:

Defamation - Damages - General damages - Assessment - Aggravation - Conduct of the parties - Conduct of the defendant up to and at trial - Contumelious disregard for the rights and dignity of the plaintiff.

Avram v Inches [1999] TASSC 10; Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118; Carson v John Fairfax & Sons Limited(1993) 178 CLR 44, applied.
Aust Dig Defamation [91]

Defamation - Damages - General damages - Assessment - Aggravation - Exemplary or compensatory damages - Conduct of the defendant - Need to punish and deter.

Rookes v Barnard [1964] AC 1129, applied in part.
Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118; XL Petroleum (NSW) Proprietary Limited v Caltex Oil (Australia) Proprietary Limited (1984 - 1985) 155 CLR 448, applied.
Aust Dig Defamation [90]

REPRESENTATION:

Counsel:
             Plaintiff:  D J Gunson SC
             Defendant:  In Person
Solicitors:
             Plaintiff:  Gunson Williams
             Defendant:  In Person

Judgment Number: [2003] TASSC 22
Number of Paragraphs: 42

Serial No 22/2003
File No 836/2001

JANINE MARCIA MARTIN v THOMAS TRUSTRUM

REASONS FOR JUDGMENT UNDERWOOD J

30 April 2003

Introduction

The plaintiff is the Executive Director of the Law Society of South Australia. She took up that position on 25 January 2003. From 1 August 1997 until then, she was the executive director of the Law Society of Tasmania. In his evidence the defendant described himself as a "working journalist".

In July 2001, the plaintiff commenced proceedings against the defendant for damages for defamation arising out of three articles published by him. During the course of interlocutory proceedings, an order was made on 8 October 2002 that:

· within 21 days after personal service of the order upon him, the defendant is to file and serve an affidavit verifying his list of documents; and
· within the same time, the defendant is to file and serve his affidavit verifying his answers to interrogatories administered on or about 4 September 2002.

There was non-compliance with that order and, on 10 December 2002, another order was made (in the presence of the defendant) that upon the filing of an affidavit that by 5pm on 23 December 2002, there had been non-compliance with the orders made on 8 October 2002, judgment be entered for the plaintiff against the defendant for damages to be assessed. The defendant remained in default, an affidavit of non-compliance was filed on 24 December 2002, and judgment was entered that day for the plaintiff against the defendant for damages to be assessed. Thus, the only issue remaining for determination in these proceedings is the amount of damages that the defendant has to pay.

The events leading…

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 Martin v Trustrum

Details

AGLC: Martin v Trustrum [2003] TASSC 22
Case: [2003] TASSC 22
Decision Date: 30 April 2003

CaseChat Overview and Summary

The plaintiff, Janine Marcia Martin, who was the Executive Director of the Law Society of Tasmania, sued Thomas Trustrum for defamation. Trustrum, a self-described journalist, published three defamatory publications about Martin. The first publication was nine pages long and was titled "a vexatious complaint." The second publication was six pages and was titled "law society of Tasmania exposed." The third publication was three pages and was titled "list of Tasmanian solicitors." These publications were widely distributed among the legal community and other individuals. Martin claimed that the publications were defamatory and caused her distress and damage to her reputation. Trustrum admitted to publishing the materials but did not dispute the defamatory nature of the publications. The court found that the publications were defamatory and caused Martin distress and damage to her reputation. The court awarded Martin compensatory damages of $35,000 and exemplary damages of $5,000, for a total of $40,000. The court found that Trustrum's conduct was contumelious and that there was a need to punish and deter such conduct in the future.

Orders