CITATION: Moumoutzakis v Carpino [2008] NSWDC 168 HEARING DATE(S): 28 – 31 July 2008
JUDGMENT DATE:
15 August 2008JURISDICTION: Civil JUDGMENT OF: Gibson DCJ DECISION: 1. Judgment for the plaintiff in the sum of $50,000.
2. Costs and interest reserved.
3. Liberty to apply.
4. Exhibits retained for 28 days.CATCHWORDS: TORT - defamation - limited publication - imputations - defence of qualified privilege at common law and pursuant to s 30 Defamation Act - defence of triviality (s 33) - defence of partial justification abandoned at the end of the evidence - damages - aggravated compensatory damages - award of $50,000 LEGISLATION CITED: Conveyancing Act 1919 (NSW)
Defamation Act 1974 (NSW), s 13
Defamation Act 2005 (NSW), ss 30, 33, 34, 35, 36, and 37
Strata Schemes Management Act 1996 (NSW), ss 22, 47, 48, 52 and 65ACASES CITED: Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Attrill v Christie [2007] NSWSC 1386
Bellino v Australian Broadcasting Corporation (1996) 135 ALR 368
Bennette v Cohen (2005) 64 NSWLR 81
Bik v Mirror Newspapers Ltd (1971) [1979] 2 NSWLR 679 (n)
Calwell v Ipec Australia Pty Ltd (1975) 135 CLR 321
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Davis v Nationwide News Pty Ltd [2008] NSWSC 693
Doelle v Bedey [2007] QCA 395
Frawley v State of New South Wales [2006] NSWSC 248
Green v Schneller [2000] NSWSC 548
Harbour Radio Pty Ltd v Tingle [2001] NSWCA 194
Holmes v Fraser [2008] NSWSC 570
Horrocks v Lowe [1975] AC 135
Jones v Sutton (2004) 61 NSWLR 614
Martin v Bruce [2007] NSWDC 264
McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42
Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418
Mundey v Askin [1982] 2 NSWLR 369
Penton v Calwell (1945) 70 CLR 219
Peterson v Advertiser Newspapers Ltd (1995) 64 SASR 152
Pinniger v John Fairfax & Sons Ltd (1979) 26 ALR 55
Shelmerdine v Mewett [1993] SASC 3932
Skalkos v Assaf (2002) Aust Torts Reports 81-644
Trantum v McDowell [2007] NSWCA 138
Webb v Bloch (1928) 41 CLR 331
White v Betalli [2007] NSWCA 243TEXTS CITED: Brown, The Law of Defamation in Canada, 2nd ed., vol 2
Folkard, Slander and Libel, 5th ed. (1891)
Minister for Housing, NSW Legislative Assembly, Hansard (no. 254), 13 November 1996PARTIES: Plaintiff: Apostolos Moumoutzakis
Defendant: Vincent CarpinoFILE NUMBER(S): 4665 of 2006 COUNSEL: Plaintiff: Mr K Andronos/Ms J Chambers
Defendant: Mr M RollinsonSOLICITORS: Plaintiff: Andresakis & Associates
Defendant: Ramrakha Jenkins Solicitors
Introduction
1. The plaintiff and defendant are owners of shops in Strata Plan 13595 (“the strata plan”) in Marrickville, a suburb of Sydney. The property in the strata plan consists of 11 small shops, mostly selling takeaway fast food, as well as 14 allocated parking spots and common property. The plaintiff owns five of these shops and the defendant owns one.
2. The plaintiff sues the defendant for defamation for a circular letter he posted on or about…
Continue reading Moumoutzakis v Carpino
Sign in free to access the full text
Details
- AGLC
- Moumoutzakis v Carpino [2008] NSWDC 168
- Case
- [2008] NSWDC 168
- Decision Date
CaseChat Overview and Summary
The plaintiff, Moumoutzakis, initiated proceedings against the defendant, Carpino, in the Federal Circuit Court of Australia, alleging defamation. The dispute centred around statements made by Carpino that were published to a limited audience, which Moumoutzakis contended defamed him. Carpino raised several defences, including qualified privilege at common law and under section 30 of the Defamation Act 2005 (Cth), as well as the defence of triviality pursuant to section 33 of the same Act. The defendant also initially pursued the partial justification defence but abandoned it at the conclusion of the evidence. The court was tasked with determining the validity of the defences and the extent of damages, if any, owed to the plaintiff.
The central legal issues before the court were whether the statements made by Carpino were defamatory, whether any of the defences were applicable, and if so, whether they were effective in negating the defamation claim. Specifically, the court had to assess the applicability and effectiveness of the qualified privilege defence, both at common law and under the statute, as well as the triviality defence. The court also needed to consider the appropriate amount of damages, if any, to be awarded to the plaintiff, including whether aggravated compensatory damages were warranted.
In its reasoning, the court found that the statements in question were indeed defamatory. However, the court concluded that Carpino's defence of qualified privilege did not apply in this instance. The court further determined that the defence of triviality was also unsuccessful. As a result, the plaintiff's claim succeeded. The court awarded Moumoutzakis $50,000 in aggravated compensatory damages, reflecting the seriousness of the defamation and its impact on the plaintiff. The judgment directed that costs and interest be reserved, with liberty to apply for them, and stipulated that exhibits be retained for 28 days.
The final orders of the court were to enter judgment for the plaintiff in the sum of $50,000. The court reserved the right to determine costs and interest at a later date and granted liberty to apply for these. Additionally, the court ordered that the exhibits be retained for 28 days.
The central legal issues before the court were whether the statements made by Carpino were defamatory, whether any of the defences were applicable, and if so, whether they were effective in negating the defamation claim. Specifically, the court had to assess the applicability and effectiveness of the qualified privilege defence, both at common law and under the statute, as well as the triviality defence. The court also needed to consider the appropriate amount of damages, if any, to be awarded to the plaintiff, including whether aggravated compensatory damages were warranted.
In its reasoning, the court found that the statements in question were indeed defamatory. However, the court concluded that Carpino's defence of qualified privilege did not apply in this instance. The court further determined that the defence of triviality was also unsuccessful. As a result, the plaintiff's claim succeeded. The court awarded Moumoutzakis $50,000 in aggravated compensatory damages, reflecting the seriousness of the defamation and its impact on the plaintiff. The judgment directed that costs and interest be reserved, with liberty to apply for them, and stipulated that exhibits be retained for 28 days.
The final orders of the court were to enter judgment for the plaintiff in the sum of $50,000. The court reserved the right to determine costs and interest at a later date and granted liberty to apply for these. Additionally, the court ordered that the exhibits be retained for 28 days.
Orders
Orders of the court
1. Judgment for the plaintiff in the sum of $50,000. 2. Costs and interest reserved. 3. Liberty to apply. 4. Exhibits retained for 28 days.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.