Petrov v Do

[2012] NSWSC 1382

Supreme Court

New South Wales

Medium Neutral Citation:

Petrov v Do [2012] NSWSC 1382

Hearing dates:

1 February 2012

Decision date:

19 November 2012

Before:

Simpson J

Decision:

(1)Verdict for the plaintiff against each defendant in the sum of $175,000;

(2)The defendants pay the costs of the proceedings.

Catchwords:

DEFAMATION - claim by plaintiff for damages in defamation - default judgment entered - assessment of damages - Defamation Act 1995

Legislation Cited:

Defamation Act 1995

Category:

Consequential orders

Parties:

Mise Petrov also known as Mila Petrovski (Plaintiff)
Most Do (First Defendant)
Peco Ivanovski (Second Defendant)

Representation:

Counsel:
D Sachs (Plaintiff)
No appearance (Defendants)
Solicitors:
Sachs Gerace Lawyers (Plaintiff)
N/A (Defendants)

File Number(s):

2008/289678

Judgment

1. In these proceedings the plaintiff, Mise Petrov (aka Mila Petrovski), claims damages in defamation arising out of a publication in a Macedonian language newspaper ("Utrinski Vesnik") on or about 14 February 2008.

1. Mr Petrov sues Most Do, a corporation that was the publisher of Utrinski Vesnik, and Peco Ivanovski, as the source of material contained in the newspaper which Mr Petrov claims was defamatory.

1. Although both defendants have been duly served, neither has entered an appearance or filed a defence. Accordingly, default judgment has been entered, and the matter has proceeded by way of assessment of damages. I can recite the facts briefly.

1. Mr Petrov is of Macedonian origin. He migrated to Australia in January 1970, at the age of 19. He was married to Magdalena Petrov. In Australian he settled in the Illawarra region where he worked as a labourer and then as a machine fitter, for which he apparently had obtained qualifications in Macedonia. At some time in the 1990s he was injured in an accident and has since been in receipt of an invalid pension.

1. There is a large Macedonian community in the Illawarra region. Mr Petrov has devoted his time, at least since retirement, to giving assistance of various kinds to members of that community, especially those with limited (or no) English language skills. He acted as interpreter for the Bishop of the Macedonian Church, including during a five week special delegation from Macedonia. Mr Petrov was well known, well respected, and well liked.

1. One of the persons to whom Mr Petrov rendered assistance was Mrs Trena Ivanovska, who Mr Petrov appears to have met in about 2003, at the request of a local shop owner concerned for her welfare. Mrs Ivanovska was aged about 75 years, and was in poor health and somewhat neglected, undernourished and emaciated. Mr Petrov assisted her by doing her shopping, cleaning, gardening, and taking her to medical appointments, and providing companionship to her. He purchased food for her which he paid for out of his own limited funds. He arranged for relatives living in Macedonia to visit her, and appears to have arranged for her, on one occasion, to travel to Macedonia. Although Mrs Ivanovska had two sons living very close to her home, Mr Petrov was not aware of their visiting or providing any care or assistance to her.

1. In 2008 Mrs Ivanovska died. On 14 February the first defendant published an article in Utrinski Vesnik, in the Macedonian language. Utrinski Vesnik is an extremely well known and widely circulated (both online and in hard copy) newspaper. It is available in at least one Illawarra newsagency, and is extensively read by members of that Macedonian community.

1. The article has been translated into the English language. It appeared under the headline:

"Deceased Lady from Bitola has not been Buried for Two Weeks due to Property Quarrels"

and included the following:

"The deceased Trena Ivanovska has been lying in a Chapel for 15 days due to a row between her children and her legal guardian in Australia

... Even after 15 days from her death, the Australian gastarbeiter Trena Ivanovska (86) from Bitola cannot be buried in a dignified manner. The row between her children and her legal guardian from Australia about who should inherit her property has left the deceased in Bitola's Chapel. In Wollongong, Australia, the woman owned a house worth $400,000, $300,000 savings in the local banks obtained from the compensation that her husband received for a work related injury, as well as money from her Australian pension of $1,200 a month.

Trena's youngest son, Peco Ivanovski from Bitola, blames the next door neighbour of his mother in Australia, Mile Petrovski, who looked after her, for not only illegally seizing all of her savings, but also for wanting to return the now dead woman abroad so he could also inherit her property.

'The neighbour from Australia threatened to beat my mother unless she presented him to the bank as her son. Of this, I have witnesses. Before I returned from Australia I checked at the bank that she signed over all the money to him. And now for two weeks we cannot take her and bury her. I am heartbroken, to have a parent lying on ice for entire two weeks. I am the youngest son of five children and I regret that we cannot bury her in a Christian way', her son Peco explains through tears.

The problem started a year ago, after the neighbour from Australia sent Trena off for a visit in Bitola. Her son looked after her at the beginning but when the old lady became ill, Peco who had been on sick leave for three years and had no money to cover her medical expenses asked the legal guardian's relatives in Bitola for assistance. Immediately after the medical intervention, Mile's brother, Petar Dimitrovski, had taken over the care for the ill woman, took her to his home and nursed her until her death. Contrary to her son's accusations, the Dimitrovski family reciprocates that they looked after Trena for humane reasons, not for money. According to his brother in Australia, Trena's last wish was to rest along her husband at the cemetery in Wollongong.

'Everyone knows how she was cared for by us. We did it because of respect for the woman. Not one of her sons offered her a glass of water. Her wish was for Mile to bury her in Australia and therefore we wanted to send the deceased body back. We don't want her to burden our souls but to respect her last wish', says Peco Dimitrovski.

..."

1. The article was accompanied by a photograph bearing the caption:

"DISPUTE Peco Ivanovski lays an accusation that his mother's next door neighbour in Australia, Mile Petrovski, who looked after her, had forcefully seized her savings".

1. Mr Petrov claims that the article conveyed the following defamatory imputations:

"i. That [Mr Petrov] stole all of the savings of Trena Ivanovska.

ii. That [Mr Petrov] wanted the return of the body of Trena Ivanovska in order that he could inherit all of her property.

iii. That [Mr Petrov] made threats to assault the mother of Peco Ivanovski unless she agreed to participate in a fraudulent scheme, namely to present herself and [Mr Petrov] to a bank upon the pretence that [Mr Petrov] was the son of Peco Ivanovski's mother.

iv. That [Mr Petrov] defrauded Trena Ivanovska by making her sign documents to transfer all of the money that she once had to him.

v. That [Mr Petrov] has deprived the family of the late Trena Ivanovska of funds such that they could not afford to bury her.

vi. That [Mr Petrov] has stolen money to which Peco Ivanovski had an entitlement.

vii. That [Mr Petrov] is unnecessarily stopping the burial of Trena Ivanovska.

viii. [Mr Petrov] is a thief.

ix. [Mr Petrov] exploits elderly women for financial gain."

To the extent that it is necessary to do so (given that default judgment has been entered) I find that imputations i-viii were conveyed and were defamatory of Mr Petrov. I am not able to find that imputation ix was conveyed. It is in general terms. There is nothing in the publication that suggests that Mr Petrov exploited elderly women other than Mrs Ivanovska.

1. The publication had an immediate and enduring affect on Mr Petrov, and on his reputation. Evidence was given of the extent to which it was discussed in the Illawarra Macedonian community. The Bishop called Mr Petrov to inquire about the article. Others made comments to his friends and to his wife. Mr Petrov became withdrawn and refused to socialise. He suffers from depression for which he takes medication, and has done for about four years. His family (he has three adult children) have been affected.

1. Evidence was given that the Macedonian community was divided. Those who knew Mr Petrov were unconvinced about the truth of the imputations. Others were curious and suspicious. Mr Petrov refused to answer the telephone, and this no doubt entrenched the suspicion.

1. Mr Petrov is entitled to an award of damages. I was informed that the maximum permitted by the Defamation Act 1995 is $324,000.

1. The imputations were serious and were extremely damaging to Mr Petrov and their publication had a severe affect upon his wealth and well-being. They were given wide circulation in the community in which he lived and worked and in which he had previously enjoyed a fine reputation.

1. I have concluded that the publication calls for an award of damages against each defendant in the sum of $175,000.

1. The orders I make are:

(1)Verdict for the plaintiff against each defendant in the sum of $175,000;

(2)The defendants pay the costs of the proceedings.

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Decision last updated: 19 November 2012