JUDGE:	GILLARD J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 and 13 May 2005
DATE OF JUDGMENT:	20 May 2005
CASE MAY BE CITED AS:	Tankard v Chafer
MEDIUM NEUTRAL CITATION:	[2005] VSC 171

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APPEAL FROM MAGISTRATE – Defamation – Defence of qualified privilege – Malice – Error of law by Magistrate –Failure to properly describe privileged occasion leading to error of motive relevant to malice – Error ordering damages in nature of interest to be calculated from date of first publication – Observations about increasing allowance for counsel’s fees - Set aside orders – Remitting of proceeding to Magistrates’ Court to decide malice.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C. Maxwell, Q.C. with Dr K. Emerton	Arnold Bloch Leibler
For the Respondent	Mr J. Kewley with Mr D. C. Harrison	Robert D. Taylor and Associates

TABLE OF CONTENTS

Parties................................................................................................................................................... 2

Proceeding in Magistrates’ Court................................................................................................... 2

Appeal to this Court.......................................................................................................................... 4

Agreed Summary of Facts................................................................................................................. 6

Qualified Privilege and Malice....................................................................................................... 8

Points of Law.................................................................................................................................... 12

Interest on judgment....................................................................................................................... 25

Costs.................................................................................................................................................... 26

Remit to Magistrates’ Court........................................................................................................... 28

HIS HONOUR:

This is an appeal by an unsuccessful defendant in a proceeding brought against him in the Magistrates’ Court alleging that he had defamed the plaintiff. The Magistrate held that the plaintiff had proven that the words complained of, written in three letters, were defamatory of him, found against the defendant’s defences and awarded the plaintiff the sum of $40,000 together with interest, and ordered the defendant to pay the costs. The defendant appeals the orders made.

Parties

The defendant/appellant, Ian Douglas Tankard (“Mr Tankard”) is a retired farmer who at all relevant times resided in Creamery Road, Toolern Vale which is in the Shire of Melton.

The plaintiff/respondent, John Forest Chafer (“Mr Chafer”) was at all relevant times the Local Laws Manager of the Shire of Melton.

Proceeding in Magistrates’ Court

On 30 April 2003, Mr Chafer issued a complaint against Mr Tankard in the Magistrates’ Court sitting at Sunshine seeking damages in the sum of $40,000 which included claims for aggravated and exemplary damages, for defamation arising out of three letters sent by Mr Tankard. The three letters were –

(i)a letter dated 8 October 1998 addressed to the then Commissioners of the Shire of Melton;
(ii)a letter dated 2 December 2001 addressed to Emma Healey, General Manager of the Shire of Melton; and
(iii)a letter addressed to Neville Smith, Chief Executive Officer of the Shire of Melton dated 23 June 2002.

In his statement of claim Mr Chafer alleged that some of the words in each letter were defamatory of him, and pleaded a number of defamatory imputations. The imputations were based on the natural and ordinary meaning of the words complained of. The publication of each letter was a separate cause of action.

In his defence, Mr Tankard denied…

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 Tankard v Chafer

Details

AGLC: Tankard v Chafer [2005] VSC 171
Case: [2005] VSC 171
Decision Date: 20 May 2005

CaseChat Overview and Summary

Tankard v Chafer is a case that has its origins in a defamation matter that came before the Court of Appeal. The appellant, Tankard, sued the respondent, Chafer, for defamation in the Magistrates’ Court. The dispute arose from comments Chafer made about Tankard, which Tankard claimed were defamatory and unjustified. Chafer argued in defence that the comments were privileged and not made with malice. The case was heard and decided by the Magistrates’ Court, and Tankard appealed the decision to the Court of Appeal.

The central legal issues in this case pertained to the application of the defence of qualified privilege in a defamation context and the assessment of malice. The court had to determine whether Chafer's comments were indeed privileged and, if so, whether they were made with malice. Additionally, the court needed to address whether the Magistrate had erred in calculating the damages for interest and in setting the allowance for counsel's fees. These issues were pivotal in resolving the dispute and ensuring that the correct legal principles were applied.

In its decision, the Court of Appeal found that the Magistrate had made several errors in law. Firstly, the Magistrate failed to properly describe the occasion that gave rise to the privileged communication, which was critical in assessing the absence of malice. Secondly, the Magistrate incorrectly ordered that the damages in the nature of interest be calculated from the date of the first publication, rather than the date of the judgment. The court also noted an increase in the allowance for counsel's fees, which was not adequately justified. Given these errors, the Court of Appeal set aside the orders made by the Magistrate and remitted the proceeding to the Magistrates’ Court to decide the issue of malice afresh. The court's decision underscores the importance of correctly applying legal principles in defamation cases and the need for careful consideration of the facts and evidence in such matters.

Orders