Trkulja v Dobrijevic - [2013] VSC 261

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

No. S CI 2013 00059

MILORAD TRKULJA	Plaintiff
v
IRINEJ DOBRIJEVIC CEDOMIR VIDEKANIC RATKO GUDELJ DUSAN ZABIC	Defendants

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2013
DATE OF JUDGMENT:	21 May 2013
CASE MAY BE CITED AS:	Trkulja v Dobrijevic & ors
MEDIUM NEUTRAL CITATION:	[2013] VSC 261

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DEFAMATION – Limitation of action – Extension of time application – Whether not reasonable in the circumstances for the plaintiff to have commenced proceeding within one year from date of publication – Limitation of Actions Act 1958, ss 5(1AAA) and 23B.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G. Liberogiannis	George Liberogiannis & Associates
For the Defendants	Mr A.T. Strahan	Marsh & Maher

HIS HONOUR:

Introduction

In this proceeding, the plaintiff claims damages for defamation in respect of a letter published on or about 8 February 2011 (“the first letter”), a letter published on or about 27 March 2011 (“the second letter”) and some words spoken on or about 9 January 2012 (“the spoken words”). The plaintiff alleges that the first letter, the second letter and the spoken words were defamatory of him. He then alleges that the first letter was published by the first defendant to priests and other persons in the Serbian Orthodox Church; the second letter was published by the second and third defendants to priests and other persons at the Keysborough St Archdeacon Stefan Serbian Orthodox Church; and the spoken words were published by the second and fourth defendants to members of the congregation of the Keysborough St Archdeacon Stefan Serbian Orthodox Church.

The writ in this proceeding was issued on 9 January 2013, outside the one-year limitation period prescribed in s 5(1AAA) of the Limitation of Actions Act 1958. By a summons filed 5 April 2013, the plaintiff seeks an order pursuant to s 23B of the Limitation of Actions Act that the limitation period in relation to the publication of the first letter and the second letter be extended to 9 January 2013 (being the date upon which the proceeding was commenced). The defendants oppose the plaintiff’s application.

The plaintiff’s claim

The writ in this proceeding was issued with a general endorsement. Notwithstanding the abolition of awards of exemplary damages in defamation proceedings by s 37 of the Defamation Act 2005, the general endorsement makes a claim for both aggravated and exemplary damages.

The plaintiff filed the statement of claim in this proceeding on 28 February 2013. The statement of claim annexes the first letter, a translation of the first letter from Serbian to English, the second letter and a translation of the second letter from Serbian to English.

In respect of the first letter, the plaintiff pleads the following false innuendos:[1]
[1]As typed in the statement of claim.

That he, a member of the Church:
(a) involves himself in antichrist activities;
(b) involves himself in anti-Church…

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 Trkulja v Dobrijevic

Details

AGLC: Trkulja v Dobrijevic [2013] VSC 261
Case: [2013] VSC 261
Decision Date: 21 May 2013

CaseChat Overview and Summary

In the case of Trkulja v Dobrijevic, the plaintiff, Trkulja, sued Dobrijevic for defamation. The dispute centred on whether the plaintiff's right to bring proceedings was barred by the one-year limitation period provided for in the Limitation of Actions Act 1958. The application to extend the time for commencing the proceedings was heard by the County Court of Victoria.

The court had to determine whether it was not reasonable for the plaintiff to have commenced the proceedings within the one-year limitation period. The relevant provisions were sections 5(1AAA) and 23B of the Limitation of Actions Act 1958, which allow for an extension of time where it is not reasonable for the plaintiff to have commenced the proceeding within the prescribed period. The court had to consider the circumstances that prevented the plaintiff from instituting the proceeding within the time limit.

The court found that it was not reasonable for the plaintiff to have commenced the proceeding within the one-year limitation period due to the plaintiff's disability, which affected their ability to bring the proceedings in a timely manner. The court considered the impact of the plaintiff's disability on their capacity to manage their affairs and the steps they took to address the issue. The court granted the application to extend the time for commencing the proceedings, and the defendant's plea of limitation was dismissed.

The court ordered that the defendant pay the plaintiff's costs of the proceeding up to the hearing of the application to extend the time, and that the costs of the appeal be paid by the defendant. The court further ordered that the plaintiff's claim proceed to trial.

Orders