Trkulja, Milorad v Trajkovska, Snezana

[2010] VCC 10

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
DAMAGES AND COMPENSATION LIST

DEFAMATION DIVISION

Case No. CI-09-01160

Milorad Trkulja	Plaintiff
v
Snezana Trajkovska	Defendant

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JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	22 January 2010
DATE OF JUDGMENT:	8 February 2010
CASE MAY BE CITED AS:	Trkulja, Milorad v Trajkovska, Snezana
MEDIUM NEUTRAL CITATION:	[2010] VCC 0010

REASONS FOR JUDGMENT

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Catchwords: DEFAMATION - Assessment of damages – spoken words – unrepresented plaintiff - no appearance by the defendant – interest - costs

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APPEARANCES:

For the Plaintiff	In person
For the Defendant	No appearance
HER HONOUR:

1          This is an application for assessment of damages. The plaintiff appeared in person and there was no appearance from the defendant.

2          The plaintiff submitted that a sum of $200,000 was an appropriate figure by way of damages. In his Affidavit in support of the application for judgment in default of appearance, sworn on 4 September 2009, the plaintiff also sought orders in relation to: interest from the date of issue to 4 September 2009 (being 125 days at 11%) in the sum of $7,350; legal fees “paid to Solicitor and Barrister to make Writ” in the sum of $5,000; court fees for issuing the writ ($491.40), effecting service of the writ ($228.30), and issuing ex-parte applications on 10 July 2009 ($120.40) and 24 August 2009 ($120.40); and his appearances on 21 August and 4 September 2009 ($1,000 per appearance).

The proceeding

3           The plaintiff issued a writ and a statement of claim alleging defamation on 24 March 2009.

4          The plaintiff attempted personal service of the writ and other documents without success. On 27 April 2009 the plaintiff filed an ex-parte application for substituted service of the writ. An order for substituted service of the writ by prepaid post to the defendant’s address was made on 10 July 2009. In an affidavit of service sworn on 11 August 2009 the plaintiff deposed to having served the writ in accordance with the order for substituted service.

5          On 13 August 2009 the plaintiff filed a summons seeking judgment in default of appearance in the sum of $200,000. The application was supported by an affidavit sworn on 11 August 2009 in which the plaintiff deposed to having had a telephone conversation with the defendant on 9 August 2009 in which she told him that she did not want to go to court. He also deposed to having received a text message from the defendant on 11 August 2009 to the effect that she would not be filing an appearance in the proceeding.

6          On 21 August 2009 the plaintiff filed a further ex-parte application for substituted service of the summons. According to an affidavit sworn by the plaintiff on 21 August 2009, he received a text message from the defendant’s mobile telephone on 10 August 2009 to the effect that the defendant had received the writ but would not be attending Court. He also deposed to sending the defendant a text message on 20 August 2009 advising her of the summons requiring her attendance at court on 21 August 2009.

7          An order for substituted service of the summons by express post to the defendant’s address was made on 24 August 2009. The hearing date on the summons was 4 September 2009.

8          According to an affidavit of service sworn by the plaintiff on 28 August 2009, service of the summons seeking judgment in default of appearance was effected in accordance with the orders for substituted service.

9          On 4 September 2009 there was no appearance by or on behalf of the defendant and judgment was entered for the plaintiff. The proceeding was listed for an assessment of damages on 15 October 2009 but was not reached and was re-fixed for hearing on 22 January 2010.

10        It is clear from the history of the proceeding and from the failure of the defendant to enter an appearance or to appear in Court at any hearing that the defendant has declined to take any part in the proceeding.

The Publications

11        The plaintiff claims to have been defamed on two separate occasions.

12        The first occasion was on or about 6 January 2003 at 14 Elizabeth Street, St Albans. The plaintiff alleges the defendant uttered defamatory words in the presence of a number of people not including the plaintiff. The words were spoken in the Serbian language. The English translation of the words as set out in the plaintiff’s statement of claim dated 24 March 2009 is as follows:

Gordana Djukanovic and I went to the Fox Video office to have coffee with Milorad Trkulka and Trkulja drugged my coffee. I was taken ill and lost sleep. I had to call Reverend Petrovic to my house so he could use his divine powers to cure me. I have heard from Reverend Petrovic that Trkulja is a sex maniac and that Reverend Petrovic can prove it.

13        The imputations relied upon by the plaintiff in the first publication are that the plaintiff drugged the defendant causing her to become ill and lose sleep and that the plaintiff is guilty of a serious crime.

14        The second occasion was on or about 7 January 2003 at a dinner dance held at St George Church at 6 Kate Street, St Albans. The plaintiff alleges the defendant uttered defamatory words in the presence of a number of people not including the plaintiff. The words were spoken in the Serbian language. The English translation of the words as set out in the plaintiff’s statement of claim dated 24 March 2009 is as follows:

Gordana Djukanovic and I went to the Fox Video office to have coffee with Milorad Trkulja and Trkulja drugged my coffee. I was taken ill and lost sleep. I had to call Recerend Petrovic to my house so he could resort to his devine powers to cure me. I have heard from Reverend Petrovic that Trkulja is a sex maniac and that Reverend Petrovic can prove it. Ladies should not visit Trkulja because he could try to drug them too. I have heard from Reverend Petrovic that Trkulja is selling illegal drugs, and that he once offered to sell his own daughters into prostitution at the ages of 5 and 6.

15        The imputations relied upon by the plaintiff in the second publication are that:

(a)	The plaintiff drugged the defendant without her knowledge, causing her to become ill and lose sleep;
(b)	The plaintiff is the sort of person who drugs women without their knowledge;
(c)	The plaintiff is a dealer in illegal drugs; and
(d)	The plaintiff offered to sell his own daughters into prostitution when they were 5 and 6 years old.

Evidence

16        The plaintiff gave viva voce evidence of the personal and social impact of the defamatory comments upon him. He also relied on his affidavit sworn on 21 August 2009.

17        In his viva voce evidence, the plaintiff said that the first publication comprised words spoken in Serbian about him at a private residence by the defendant in the presence of a couple and three other individuals. When he was told what had been said, the plaintiff said he felt hurt and insulted. He said that as a result of the statements made, the husband and wife who were present do not want contact with him anymore. The other three individuals who were present when the statements were made did not want to attend Court to give evidence.

18        The plaintiff gave evidence that the second publication consisted of words spoken at a table of approximately 24 people at a church function. The plaintiff said he did not hear the words but was told by several people who sat at the table and later rang him and told him what they heard. The plaintiff said that the second publication caused injury to his feelings and to his reputation. He said some people now avoid him and no longer talk to him and some people he has known for 20 to 30 years no longer greet him when they see him. The plaintiff said that because the words were spoken in front of the priest they were particularly hurtful as people were more likely to believe it.

19        The plaintiff said that rumours conveying the substance of the publications have spread through a number of ethnic communities (apart from the Serbian community) from the former Yugoslavia in Victoria and New South Wales. He has friends in these ethnic communities and has heard reports of the rumours from them. This is upsetting to him as he works as a promoter of singers from the former Yugoslavia.

20        The plaintiff said that the defamatory words concerning his daughters were particularly upsetting to him. He said that he got full custody of his two daughters in 1981 when they were 4 and 5, and that the suggestion that he sold them into prostitution was very upsetting to him and to his daughters.

21        In his affidavit sworn on 21 August 2009 the plaintiff stated that he is well- known and respected in the Yugoslav and Serbian community as a promoter and organizer of musical events from the former Yugoslavia. He has been an Elder of the Serbian Church St Stefan since 1986. He was the first father in Australia to be given full custody of his daughters in 1981 when they were 4 and 5 years old. He is a proud father and grandfather. He has no convictions for drug offences. The only matters recorded against him in Australia as at 13 July 1997 were a charge of selling liquor when unlicensed which was proven and dismissed at the Heidelberg Magistrates’ Court on 6 September 1994 and two charges of a disposing of property as a debtor, for which he received a $1,000 Good Behaviour Bond at the Melbourne Magistrates’ Court on 9 September 1982.

22        The plaintiff also stated that he had issued defamation proceedings against the priest, Rev Borislav Petrovic, in the Supreme Court (No. 4999 of 2004) in respect of the publications. He stated that he had settled a defamation claim in this Court against Mr Nenad Markovic (CI-08-0889), a member of the St George Church where Rev Petrovic is the priest, on 23 March 2009, for the sum of $10,000 and an apology to be placed in the Serbian newspaper. Mr Markovic also agreed to give evidence in the Supreme Court proceeding. The third publication alleged in that proceeding is in similar terms to that part of the second publication in the current proceeding: that the plaintiff “once offered to sell his own daughters into prostitution at the ages of 5 and 6”. The plaintiff exhibited the relevant orders of His Honour Judge Shelton dated 23 March 2009.

Legal Principles

23 Under s. 7 of the Defamation Act 2005 (Vic) (“the Defamation Act”), the common law distinction between slander and libel is abolished and publication of defamatory matter of any kind is actionable without proof of special damage.

24        In an action for defamation, the wrongful act is damage to the plaintiff’s reputation. The injuries sustained by the plaintiff can be classified as either the consequences of the attitude adopted towards him by other persons as a result of the defamatory statement (being shunned and avoided) and the grief or annoyance caused by the defamatory statement to the plaintiff himself.[1]

[1] McCarey v Associated Newspapers Ltd (No. 2) [1965] 2 QB 86 per Diplock LJ at [107]; Coyne v Citizen

25        Once the publication is proved, the law presumes damage to the plaintiff’s reputation, and the Court must award at least nominal damages for the uttering of the defamatory words. The award of compensatory damages serves two functions – vindication and consolation[2] and the plaintiff is entitled to damages for injury to his feelings and, where relevant, for related effects on his health.[3] However, damages should not be awarded for loss in value of the plaintiff’s reputation as though the reputation were itself a tangible asset.[4]

[2] See Uren v John Fairfax & Sons Pty Ltd (1996) 117 CLR 118, at [150]; Cassell & Co Ltd v Broome [1972]

[3] See Mirror Newspapers Ltd v Jools (1985) 65 ALR 174 at 177 per Fox J.

[4] See Carson v John Fairfax & Sons Ltd (1993) 113 ALR 577 at [596]; Dingle v Associated Newspapers Ltd

26        The purpose of an award of damages in defamation cases is not only to enable the plaintiff to recover the estimated sum of past and future losses, but also to enable him, should the libel emerge at some future date, to point to a sum awarded sufficient to convince a bystander that the libel is baseless. In assessing the gravity of the defamation, consideration is to be given to the extent to which the plaintiff’s personal integrity is impugned, as well as to the method of publication.

27 Under section 37 of the Defamation Act, a plaintiff cannot be awarded exemplary or punitive damages for defamation.

28 Under section 34 of the Defamation Act, in determining the amount of damages to be awarded in any defamation proceedings, “the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded”.

29 Under section 35(1) of the Defamation Act, the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250,000, unless the court is satisfied that the circumstances of the publication warrant an award of aggravated damages.

30 Under section 39 of the Defamation Act, where the court finds for the plaintiff as to more than one cause of action, the court may assess damages in a single sum.

31        Generally a successful plaintiff in defamation is entitled to interest on damages he is awarded for the period from publication of the defamatory material until verdict.[5] The function of an award of interest is to compensate a plaintiff for the loss or detriment which he or she has suffered by being kept out of his or her money during the relevant period.[6]

[5] David Syme & Co Ltd v Maher [1977] VR 516.

[6] MBP (SA) Pty Ltd v Gogic (1991) 98 ALR 193 at [196].

32 In Victoria, the County Court’s power to award interest in defamation cases comes from section 60(1) of the Supreme Court Act 1986, which provides that unless good cause is shown to the contrary, the Court should not award damages in the nature of interest at a rate exceeding the rate fixed under s.2 of the Penalty Interest Rates Act 1983, which, as at the period from 23 February to 31 January 2010, was 11% per annum. Such interest as the Court determines appropriate may be ordered from the commencement of the proceeding to the date of the judgment.

33        In MBP (SA) Pty Ltd v Gogic[7] the High Court held that that an award of interest at commercial rates was inappropriate for cases of pre-trial non- economic loss and approved the 4% per annum figure chosen by the Full Court of the Supreme Court of South Australia in Wheeler v Page[8] for interest on pre-trial damages for personal injuries. The High Court held that:

the loss or detriment which a plaintiff suffers by being kept out of his or her damages for pre-trial pain and suffering cannot be equated with the amount which those damages, invested at the commercial rate of interest, could have earned during the relevant pre-trial period.[9]

[7] (1991) 98 ALR 193.

[8] (1982) 31 SASR 1.

[9] MBP (SA) Pty Ltd v Gogic (1991) 98 ALR 193 at [196].

34        The High Court also noted that:

No doubt whatever interest rate is used to compensate a plaintiff, it can be at best only a
rough guide as to the value of the plaintiff’s loss during the period when he or she was
deprived of the use of his or her money.[10]

The conclusion of Brooking J in O’Sullivan v Komesaroff SC (Vic)[11] was that the approach to calculating interest “comes close to being an instinctive synthesis based on various rough calculations and broad assessments”.[12]

[10] Ibid.

[11] 22 April 1983, unreported.

[12] Also quoted by McHugh JA (with whom Kirby JA agreed) in John Fairfax and Sons Ltd v Kelly (1987) 8

Compensatory Damages

35        I accept that the imputations that the plaintiff is guilty of serious criminal offences (selling drugs, prostituting his daughters) were particularly hurtful to the plaintiff. I accept his evidence that as a result of the publications, some people he knows well have ceased greeting him. On the other hand, the method of publication, words spoken to 5 people at one private gathering and to a table of 24 at another gathering, is very different to a libel published to millions on the internet or in the television or print media.

36        In Popovic v Herald and Weekly Times Ltd (No 2),[13] Bongiorno J awarded Magistrate Popovic the sum of $210,000 in compensatory damages for defamatory imputations contained in an article in the Herald Sun, which had a paid circulation of half a million readers. In that case, His Honour emphasised the need for a sitting Magistrate to have her reputation vindicated permanently. In Winn v Goodwin,[14] on the other hand, His Honour Judge Shelton awarded $30,000 to a plaintiff in relation to defamatory statements which were repeated by the defendant in correspondence with VCAT. In Gluyas v Tenana[15] His Honour Judge Campbell awarded $20,000 to a plaintiff defamed on the worldwide web.

[13] [2002] VSC 220.

[14] [2008] VCC 1507.

[15] [2008] VCC 1161.

37        In this case, in all the circumstances, I assess the plaintiff’s total compensatory damages at $3,000.

Other Orders

38        In relation to interest, I consider it appropriate to determine interest not at the penalty interest rate but at the lower rate of 4% per annum, which I calculate over 322 days from the date of filing of the writ until the date of judgment (8 February 2010) to be in the sum of $104.40.

39        In relation to the item relating to fees paid to the solicitor and barrister for the writ, I note that the statement of claim filed in this proceeding was drafted by the plaintiff himself. I understand that the plaintiff had a solicitor acting for him in an earlier proceeding in this Court, proceeding No CI-1471 of 2004 (“the defunct proceeding”), and that counsel drew the amended statement of claim in that proceeding on 16 August 2004. The defunct proceeding was struck out pursuant to a self-executing order of Her Honour Judge Lawson made on 27 August 2004. The current proceeding is in respect of the same matters, and I accept that the statement of claim is based almost entirely on the amended statement of claim drafted by counsel in the defunct proceeding. Nonetheless, the plaintiff did not brief counsel to draw the statement of claim relied upon in this proceeding. Accordingly, I decline to make the order sought in this proceeding in respect of solicitor’s and barristers fees incurred in the defunct proceeding.

40        The plaintiff appeared in person, and there is therefore no basis upon which to make orders compensating him financially for those appearances. I decline the make the orders sought in respect of his appearances on 21 August and 4 September 2009.

41        However, I consider it appropriate that the plaintiff be compensated for his court costs in the sum of $960.50.

Conclusion

42        I assess compensatory damages in the sum of $3,000 together with interest in the sum of $104.40 and costs in the sum of $960.50.

Finance Ltd (1991) 99 ALR 252.

AC 1027 at [1071], per Lord Hailsham LC.

[1961] 2 QB 162.

NSWLR 131.