TRKILJA v Dobrijevic (No 2) - [2014] VSC 594

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2013 00059

MILORAD TRKILJA	Plaintiff
v
IRINEJ DOBRIJEVIC & OTHERS	Defendants

---

JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 NOVEMBER 2014
DATE OF RULING:	21 NOVEMBER 2014 (revised 25 November 2014)
CASE MAY BE CITED AS:	TRKILJA v DOBRIJEVIC & ORS (No 2)
MEDIUM NEUTRAL CITATION:	[2014] VSC 594

---

DEFAMATION – Pleadings – Whether leave to amend should be granted to plaintiff – Claim alleged against first defendant out of time – Extension of the limitation period refused – No tenable allegation of publication of defamation by first defendant - Amendments bad in form – Other discretionary consideration – Delay not explained – Costs an inadequate compensation for prejudice – Loss of imminent trial date (second listing) likely - s 5(1AAA), 23B Limitation of Actions Act 1958

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Appeared in person
For the Defendants	Ms G Schoff QC with Ms N Hickey

HIS HONOUR:

In this proceeding, the plaintiff claimed damages from the defendants for defamation. This application was for leave to further amend the plaintiff's amended statement of claim and to understand the ruling that I'm about to give it is necessary to give some background. Broadly speaking, the plaintiff's complaints against the defendants relate to three separate publications. The first incident concerns publication of letters that were written in 2011.

The first defendant wrote a letter in February 2011 and the second and third defendants wrote a letter in March 2011 (‘the first incident’). The plaintiff issued this proceeding based on these letters on 9 January 2013. His claim was commenced outside the one year limitation period prescribed in s 5(1AAA) of the Limitation of Actions Act 1958. Beach J (as his Honour then was) refused the plaintiff an extension of the limitation period to permit that cause of action to proceed. The circumstances of that publication and the defamatory imputations alleged to have been made that were the basis of that cause of action are set out Beach J’s judgment.[1] Those claims were struck out of the statement of claim.
[1]Trkulja v Dobrijevic & Ors (2013) VSC 261.

Two events occurred on 9 January 2012 at Keysborough during a religious ceremony. The first in time, but the third incident pleaded, was at a ceremony for the kissing of the cross and receiving the bread of communion. The publication was by words spoken under or near a tree during this ceremony and this incident is referred to in a shorthand way as the ‘tree incident’ or ‘the third incident.’ The particular circumstances of that cause of action were alleged in paragraphs 6A and 6B of an amended statement of claim dated 3 June 2013. This amended pleading was filed after the court refused to extend the limitation period in respect of the first incident and struck out those allegations.

The second incident is a separate cause of action…

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 TRKILJA v Dobrijevic (No 2)

Details

AGLC: TRKILJA v Dobrijevic (No 2) [2014] VSC 594
Case: [2014] VSC 594
Decision Date: 21 NOVEMBER 2014 (revised 25 November 2014)

CaseChat Overview and Summary

The case involved TRKILJA as the plaintiff and Dobrijevic as the first defendant. The dispute was a defamation claim, with a secondary defendant, the second defendant, who was not part of the issues on appeal. The matter was heard in the Supreme Court of Victoria. The plaintiff sought leave to amend the pleadings to add the first defendant, Dobrijevic, as a defendant in the defamation action. This was despite the claim against the first defendant being out of time, and the extension of the limitation period having been refused. The plaintiff's attempt to amend the pleadings was met with resistance from the defendants who argued that the amendments were bad in form and that the plaintiff had not adequately explained the delay.

The court had to decide whether to grant the plaintiff leave to amend the pleadings despite the claim against the first defendant being out of time and the refusal of the extension of the limitation period. The court also needed to consider whether the amendments were tenable and whether there were any other discretionary considerations that should be taken into account. The court had to balance the delay not being explained with the prejudice suffered by the plaintiff and the cost of an inadequate compensation for the loss of the imminent trial date.

The court held that the amendments were bad in form and that the plaintiff had not provided a tenable allegation of publication of defamation by the first defendant. The court also noted that the plaintiff had not explained the delay in bringing the claim. However, the court considered other discretionary factors, including the prejudice suffered by the plaintiff and the cost of an inadequate compensation for the loss of the imminent trial date. The court held that the costs would be inadequate compensation for the prejudice suffered by the plaintiff and that the loss of the imminent trial date was a significant factor in the decision. The court refused to grant leave to amend the pleadings.

The court ordered that the plaintiff's claim against the first defendant, Dobrijevic, be dismissed. The court also ordered that the plaintiff pay the costs of the defendants. The court held that the plaintiff's claim was out of time and that the amendments were bad in form. The court also held that the plaintiff had not adequately explained the delay in bringing the claim and that the costs would be inadequate compensation for the prejudice suffered by the plaintiff.

Orders