JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	26-28, 31 October, 2, 3, 4 November 2011
DATE OF JUDGMENT:	15 November 2011
CASE MAY BE CITED AS:	Szanto v Melville
MEDIUM NEUTRAL CITATION:	[2011] VSC 574	First Revision: 16 November 2011

---

DEFAMATION – Letter by defendant to plaintiff – Copied to solicitors for three parties in related dispute – Publication to others – Imputations – Qualified privilege – Statutory qualified privilege – Malice – Whether triviality defence applied – Offer of amends – Defamation Act 2005 (Vic) ss 14, 15, 18, 30, 33.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Lapirow	Lewis Allen Janover
For the Defendant	Ms G Schoff SC and Ms R Sion	Millens

HIS HONOUR:

The plaintiff and the defendant are both practising solicitors. The plaintiff claims damages for defamation in respect of a letter, which the defendant wrote to the plaintiff on 13 August 2010, and copies of which the defendant sent to three other solicitors.

At the time at which the defendant wrote that letter, the plaintiff was acting on behalf of a receiver, who had been appointed by a second ranking secured creditor of a company, which was involved in a commercial development of apartments at a property in Ascot Vale. The plaintiff acted on behalf of the receiver in relation to the sale of those apartments. The defendant was the director of the third ranking secured creditor of the same company. In that capacity, the defendant had, two months previously, provided releases, referred to as “ASIC releases”, in order to enable the sales of the apartments to be completed. In late July 2010, the defendant made a number of demands of the plaintiff that he return to him the remaining ASIC releases. On 6 August 2010, the plaintiff, as the solicitor for the vendor, completed the sale of an apartment (Apartment 113) in the development, using an ASIC release.

In response, the defendant wrote the letter dated 13 August 2010, which is the subject of this proceeding. He forwarded copies of the letter to the solicitor who was acting in commercial matters for the receiver appointed by the second ranking debenture holder, to the solicitor for the third ranking debenture holder, and to the solicitor acting for a receiver appointed by the third ranking debenture holder. The letter, which I shall set out fully later in these reasons, asserted that the plaintiff’s actions, in not returning the ASIC releases to the defendant as requested, and in using an ASIC release to complete the settlement of Apartment 113, were conscious breaches of the plaintiff’s duties as a lawyer and as an officer of the court. The defendant also stated, in the letter, that he proposed to write to ASIC to inform it that the plaintiff was “illegally” retaining the ASIC releases.

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 Szanto v Melville

Details

AGLC: Szanto v Melville [2011] VSC 574
Case: [2011] VSC 574
Decision Date: 15 November 2011

CaseChat Overview and Summary

The case of Szanto v Melville was heard in the County Court of Victoria. The plaintiff, Szanto, sought damages for defamation against the defendant, Melville. The crux of the dispute was a letter Melville sent to Szanto, which was also copied to the solicitors of three parties involved in a related legal matter. The letter contained imputations that were alleged to be defamatory. The court was tasked with determining whether the letter constituted defamation, whether Melville had a qualified privilege to publish the letter, and whether the statutory qualified privilege applied. Additionally, the court had to consider whether the defence of triviality was applicable, as well as the effect of any offer of amends made by Melville.

The legal issues before the court included the interpretation and application of the defamation statutes, specifically sections 14, 15, 18, 30, and 33 of the Defamation Act 2005 (Vic). The court had to analyse the nature of the imputations made in the letter and whether they were defamatory. It also needed to examine whether the letter was protected by a qualified or statutory qualified privilege, and whether Melville acted with malice. Furthermore, the court considered whether the defence of triviality was available to Melville and the impact of any offer of amends on the defamation claim.

The court found that the letter contained defamatory imputations regarding Szanto's professional conduct. It determined that while the letter was protected by a qualified privilege, the statutory qualified privilege did not apply. The court also found that there was no malice on the part of Melville. In relation to the defence of triviality, the court held that the imputations were not trivial given the context and seriousness of the allegations. Finally, the court considered the offer of amends made by Melville, which was found to have some mitigating effect on the damages awarded to Szanto.

The court awarded damages to Szanto for the defamation caused by the letter. The specific amount of damages was determined after taking into account the mitigating effect of Melville's offer of amends. The court also made an order for costs in favour of Szanto.

Orders