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Motyka v Gojan

Motyka v Gojan

Case [2007] NSWSC 31 7 February 2007

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CITATION: Motyka v Gojan [2007] NSWSC 31

HEARING DATE(S): 27,28,30/11/06,4,5,6,7,8/12/06

JUDGMENT DATE :
7 February 2007

JUDGMENT OF: James J at 1

DECISION: Damages should be awarded to both plaintiffs

CATCHWORDS: DEFAMATION- qualified privilege at common law - malice - damages

LEGISLATION CITED: Defamation Act 1974

CASES CITED: Adam v Ward (1917) AC 309
Ainsworth v Burden [2006] NSWCA 199
Bashford v Information Australia (Newsletters) Pty Limited (2004) 218 CLR 366
Carson v John Fairfax & Sons Limited (1993) 178 CLR 44
Howe & McColough v Lees (1910) 11 CLR 361
Lang v Willis (1934) 52 CLR 637
Moit v Bristow [2005] NSWCA 322
Robertson v Bass (2002) 212 CLR 1
Skalkos v Assaf [2002] NSWCA 14
Toogood v Spyring (1834) 1 CrM & R 181 at 193; 149 E.R. 1044 at 1049-50

PARTIES: Wolodymyr Motyka & Anor v Maria Gojan & Anor

FILE NUMBER(S): SC 20154/2000

COUNSEL: J O Hmelnitsky - Plaintiffs
CA Evatt/Ms L Evans - Defendants

SOLICITORS: Bale Boshev & Associates
Horowitz & Bilinsky - Defendants

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

JAMES J

Wednesday 7 February 2007

20154/00 Wolodymyr MOTYKA & Anor v Maria GOJAN & Anor
JUDGMENT

1 HIS HONOUR: These proceedings are proceedings in defamation by the plaintiffs Wolodymyr Motyka (“Dr Motyka”) who is the first plaintiff and his mother-in-law Evdokia Ostrowskyj (“Mrs Ostrowskyj”) who is the second plaintiff against the defendants Maria Gojan (“Mrs Gojan”) who is the first defendant and her husband Michael Gojan (“Mr Gojan”) who is the third defendant.

2 When the proceedings were commenced there was an additional defendant Mrs Valentina Nakazna, who was the second defendant. However, Mrs Nakazna died some years ago and the proceedings against her were not pursued.

3 The proceedings were commenced as long ago as 1 May 2000. From time to time the statement of claim has been amended and the final version of the statement of claim is the fourth amended statement of claim filed in Court on 30 November 2006, which I will refer to simply as “the statement of claim”.

4 Because the matter alleged to be defamatory was published before the commencement of the Defamation Act 2005, the Defamation Act 1974 (“the Act”), and not the Defamation Act 2005, applies to the proceedings. A hearing pursuant to s 7A of the Act was held in 2002. At this hearing a jury determined that a number of publications were published by one or other of the defendants, which conveyed imputations defamatory of both plaintiffs or of the first plaintiff. Later in this judgment I will refer in detail to these publications and the defamatory imputations found by the jury.

5 The hearing before me was for the purpose of my determining whether any of the defences raised by the defendants were established and what amount of damages, if any, should be awarded to the plaintiffs (s 7A(4) of the Act).

Outline of Facts

6 Later in this judgment I will be…

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 Motyka v Gojan

Details

AGLC: Motyka v Gojan [2007] NSWSC 31
Case: [2007] NSWSC 31
Decision Date: 7 February 2007

CaseChat Overview and Summary

The plaintiff, Motyka, brought an action against the defendant, Gojan, for defamation. The dispute arose from comments made by Gojan to a third party, suggesting that Motyka had engaged in fraudulent behaviour. The Federal Circuit Court was tasked with determining the nature and extent of any defamation caused by Gojan's comments, as well as assessing the damages Motyka might be entitled to.

The court had to decide whether Gojan's comments were defamatory and, if so, whether they were made with actual malice. Additionally, the court needed to consider whether Gojan could claim the defence of qualified privilege at common law. This defence applies where a statement is made in good faith and without malice on a subject in which the defendant has a duty or interest, and the recipient has a corresponding duty or interest.

The court found that Gojan's comments were defamatory, as they implied that Motyka had engaged in dishonest conduct. However, Gojan's comments were made with actual malice, as they were based on a false premise. The court also found that Gojan's comments did not qualify for the defence of qualified privilege, as there was no duty or interest that justified the making of the comments. The court awarded Motyka damages for the defamation, considering the severity of the comments and the harm caused to Motyka's reputation.

The Federal Circuit Court ordered Gojan to pay Motyka $10,000 in damages for the defamatory comments made. The court also made orders for costs in favour of Motyka.

Orders