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Tavakoli v Imisides (No 4)

Tavakoli v Imisides (No 4)

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Case Copied 24 June 2019 32 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Tavakoli v Imisides (No 4) [2019] NSWSC 717
Hearing dates: 4 December 2018
Date of orders: 24 June 2019
Decision date: 24 June 2019
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)   The first defendant shall pay the plaintiff $530,000 as damages for the defamation published and referred to in these reasons for judgment as the first Google review;

(2)   The first defendant shall pay the plaintiff’s costs of and incidental to the proceedings on an indemnity basis;

(3)   Neither defendant shall create a website of or concerning the plaintiff;

(4)   The first defendant shall not publish or allow to remain published her Google review, first published on or about 1 September 2017;

(5)   Neither defendant shall publish, re-publish or allow to remain published any matter containing imputations in or to the effect of those contained in the Google review and prescribed in [40] of the Statement of Claim, filed in these proceedings on 15 September 2017, being:

(a)   any allegation that the plaintiff charged the first defendant for a buccal fat procedure that he did not perform;

(b)   any allegation that the plaintiff acted improperly in relation to a buccal fat procedure for the first defendant;

(c)   any allegation that the plaintiff acted incompetently in relation to a buccal fat procedure for the first defendant;

(6) The first defendant shall pay to the plaintiff interest at 4% per annum on $530,000 from 1 September 2017 until the date of judgment and thereafter at the rate prescribed by the Uniform Civil Procedure Rules 2005 (NSW), r 36.7 for post-judgment interest;
(7) The first defendant shall pay to the plaintiff interest on the costs at the rate prescribed in the costs agreement between the plaintiff and his legal representatives or at the rate prescribed by the Uniform Civil Procedure Rules 2005 (NSW), r 36.7, for post-judgment interest, whichever is the lesser rate.
Catchwords:
DEFAMATION – assessment of damage – plastic surgeon – continuing malicious vilification – aggravated damages – injunctive relief made permanent – one award for non-economic damages, including aggravated damages – interest – discussion on interest

TORT – Injurious falsehood – elements – injunctive relief – malice – permanent injunctive relief granted
COSTS – Defamation – indemnity costs awarded
Legislation Cited: Defamation Act 2005 (NSW), ss 34, 35, 37
New South Wales Government Gazette, No 66, 29 June 2018, at 3970
Uniform Civil Procedure Rules 2005 (NSW), r 36.7
Cases Cited: ABC v O’Neill (2006) 227 CLR 57; [2006] HCA 46
Al Muderis v Duncan (No 3) [2017] NSWSC 726
Bauer Media Pty Ltd v Wilson (No 2) (2018) 361 ALR 642; [2018] VSCA 154
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31
Cerutti & Anor v Crestside Pty Ltd & Anor [2016] 1 Qd R 89; [2014] QCA 33
Crampton v Nugawela (1996) 41 NSWLR 176 at 193; [1996] NSWSC 651
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230…

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.

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Details

Case: [2019] NSWSC 717
Decision Date: 24 June 2019

CaseChat Overview and Summary

In the case of Tavakoli v Imisides, the plaintiff, a plastic surgeon, brought proceedings against the defendant, who had made defamatory statements about the plaintiff on various platforms, including social media. The plaintiff sought damages for defamation, including aggravated damages for continuing malicious vilification, and an injunction to prevent the defendant from repeating the defamatory statements. The case was heard in the Supreme Court of Victoria, where the plaintiff was ultimately successful.

The court was required to decide several legal issues, including whether the defendant's statements were defamatory, whether the plaintiff had suffered damages as a result of the defamation, and whether the plaintiff was entitled to aggravated damages and injunctive relief. The court also had to determine whether the plaintiff was entitled to indemnity costs.

In its reasoning, the court found that the defendant's statements were indeed defamatory and had caused the plaintiff damage, including reputational harm. The court accepted the plaintiff's evidence that the defendant's statements were made with malice and that the defamation was continuing. The court also found that the plaintiff was entitled to aggravated damages for the malicious vilification, as well as permanent injunctive relief to prevent the defendant from repeating the defamatory statements. In relation to the interest on the damages, the court found that the plaintiff was entitled to interest from the date of the writ until judgment, but not beyond. The court also found that the plaintiff was entitled to indemnity costs.

The court made an order for the defendant to pay the plaintiff damages, including aggravated damages, interest, and costs. The court also made the injunctive relief permanent, preventing the defendant from repeating the defamatory statements. The court's decision provides guidance on the assessment of damages in defamation cases, including the award of aggravated damages and permanent injunctive relief.

Orders