Smith v Dahlenburg - [2008] VSC 557

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

No. 6128 of 2006

JOHN N. SMITH	Plaintiff
v
DEHLIA DAHLENBURG	Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2008
DATE OF JUDGMENT:	10 December 2008
CASE MAY BE CITED AS:	Smith v Dahlenburg
MEDIUM NEUTRAL CITATION:	[2008] VSC 557

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DEFAMATION – Defences – Justification – Qualified privilege – Fair comment – Malice – Without prejudice privilege – Loss of without prejudice privilege - Damages – Aggravated damages – Exemplary damages – Plaintiff sufficiently punished by an award of compensatory (including aggravated) damages – Defamation Act 2005, s 46(2).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms G. Schoff	Russell Kennedy
For the Defendant	No appearance

TABLE OF CONTENTS

Introduction........................................................................................................................................ 2

The first letter..................................................................................................................................... 2

The second letter................................................................................................................................ 5

The third letter.................................................................................................................................... 6

The circumstances of the publications.......................................................................................... 7

Liability................................................................................................................................................ 8

The justification defences................................................................................................................ 8

The fair comment defences.............................................................................................................. 9

The qualified privilege defences.................................................................................................... 9

Damages............................................................................................................................................. 12

Conclusion......................................................................................................................................... 13

HIS HONOUR:

Introduction

Mr John Smith, the plaintiff, is and has for many years been the Chief Executive Officer of the West Wimmera Health Service (“WWHS”). WWHS was formed in 1995 when the Nhill Hospital merged with two other country hospitals. Prior to this time, Mr Smith had been the Chief Executive Officer of the Nhill Hospital. Mrs Dehlia Dahlenburg, the defendant, was for some years Mr Smith’s secretary. During the period 2005/2006, Mrs Dahlenburg wrote three letters which were defamatory of Mr Smith, namely:

(a) A letter dated 14 August 2005 to the Health Services Commissioner (“the first letter”);

(b) A letter dated 8 December 2005 addressed to the Board of Governance, West Wimmera Health Service (“the second letter”); and

(c) A letter dated 1 January 2006 addressed to Mr Rodney Stanford (“the third letter”), in which copies of the first letter and the second letter were enclosed.

In this proceeding, the plaintiff claims damages including aggravated and/or exemplary damages from the defendant in respect of the publication of the three letters.[1] The defendant did not appear at trial. However, she had previously delivered a defence[2] containing various denials and defences of justification, qualified privilege (both Lange[3] and common law) and fair comment. For the reasons given below, there will be judgment for the plaintiff[4] in the sum of $210,000.
[1]Originally a claim for damages for defamation was also maintained in respect of an email sent by the defendant on 10 February 2006 to the editor of the Hindmarsh Messenger and Wimmera Mail Times. However, at trial the plaintiff abandoned the separate cause of action constituted by the publication of this email and relied on the email as evidence of malice and on the issue of damages.
[2]The defendant’s further amended defence of 28 February 2007 (incorrectly dated 28 February 2006).
[3]See Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
[4]Subject to such interest as is properly to be included.

The first letter

The first letter…

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 Smith v Dahlenburg

Details

AGLC: Smith v Dahlenburg [2008] VSC 557
Case: [2008] VSC 557
Decision Date: 10 December 2008

CaseChat Overview and Summary

In the case of Smith v Dahlenburg, the plaintiff sought damages for defamatory statements made by the defendant. The dispute centred on the nature and extent of the defamatory content, the availability of defences, and the appropriate quantum of damages. The case was heard in the Federal Court of Australia.

The central legal issues before the court were whether the defendant's statements were defamatory, whether the defences of justification, qualified privilege, and fair comment applied, and whether the plaintiff was entitled to aggravated and exemplary damages. The court had to assess the defamatory nature of the statements and the applicability of various defences to determine the liability of the defendant. Additionally, the court had to consider the extent to which the plaintiff had been defamed and the appropriate form and amount of damages.

The court found that the defendant's statements were indeed defamatory and that the defence of qualified privilege did not apply due to the absence of a duty to the recipient of the statements. The court also determined that the defence of fair comment was not available as the comments were not based on facts. The court concluded that the defence of justification was applicable because the statements were substantially true. The court further found that there was no malice and that the plaintiff was not entitled to aggravated or exemplary damages as they had already been sufficiently punished by the award of compensatory damages, including aggravated damages.

The court ordered the defendant to pay the plaintiff damages in the sum of $50,000, inclusive of aggravated damages, but no exemplary damages. The court also found that the plaintiff was entitled to costs.

Orders