DEFAMATION — Judge held that the appellant failed to prove on the balance of probabilities that the respondent had published a pamphlet and material on two websites that allegedly defamed the appellant — Whether the judge denied the appellant procedural fairness.
COURTS — Duty of judge to ensure a fair hearing where a party is self-represented at trial — Whether the judge breached this duty — Both the appellant and the respondent were self-represented at trial — Principles to be applied.
EVIDENCE — Rule in Jones v Dunkel (1959) 101 CLR 258 — Failure of respondent to give evidence — Principles to be applied where the evidence is insufficient to support an inference that the respondent published the material alleged to be defamatory of the appellant — Appeal dismissed.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr J A Ribbands with Dr K Weston-Scheuber
Counsel appeared pro bono
For the Respondent
Mr N A Andreou with Mr T W J Greenway
Rigby Cooke Lawyers
KYROU JA KAYE JA GINNANE AJA:
Introduction and summary
This is an appeal against a decision of a judge of the County Court dismissing the appellant’s defamation claim on the basis that the judge was not satisfied that there was sufficient evidence to establish that the respondent had published the material that was alleged to be defamatory.[1]
[1]Trkulja v Markovic [2013] VCC 1095, [97] (‘Reasons’). It is not clear whether this finding was made in response to a no case submission by the respondent or following a full hearing of all the evidence that the parties chose to adduce. Neither party to the appeal submitted that anything turned on this.
That material comprised a pamphlet containing a photograph of the appellant with accompanying English text about him and items on two websites which contained photographs or digitally altered images of the appellant with accompanying Serbian text about him. The pamphlet and the websites contained serious — and indeed vile — allegations against the appellant and there was no issue as to whether they were defamatory (‘defamatory material’). The sole issue — upon which the judge found against the appellant — was whether he had discharged the onus of establishing that the respondent had published the defamatory material.
At trial, both the appellant and the respondent appeared in person. On appeal, the respondent was represented by solicitors and counsel and the appellant was represented by counsel who appeared pro bono.
By his notice of appeal, the appellant did not seek to impugn any discrete factual finding or the ultimate decision of the judge on the basis that they were not open on the evidence. Rather, the grounds of…
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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AGLC
Trkulja v Markovic [2015] VSCA 298
Case
[2015] VSCA 298
Decision Date
CaseChat Overview and Summary
In Trkulja v Markovic, the respondent was accused of publishing defamatory material about the appellant, which the appellant sought to have proven in court. The case was heard in the Supreme Court of Queensland, where the appellant, who was self-represented, sought to establish that the respondent had published a pamphlet and online content that defamed them. The respondent, also self-represented, did not give evidence during the trial. The court was tasked with determining whether the appellant had successfully proven the alleged defamation and whether the judge had provided the appellant with a fair opportunity to present their case.
The primary legal issues addressed by the court were whether the appellant had demonstrated that the respondent had published the defamatory material and whether the judge had ensured a fair hearing given that both parties were self-represented. The court examined the evidence provided by the appellant and the absence of evidence from the respondent, applying the principles from Jones v Dunkel to assess the strength of the inference that the respondent had published the material. The court also considered whether the judge's conduct had breached the duty to ensure a fair hearing for the self-represented appellant.
The court found that the appellant had not proven on the balance of probabilities that the respondent had published the defamatory material. The judge's decision not to infer publication from the available evidence was upheld. The court also determined that the judge had not breached the duty to ensure a fair hearing for the self-represented appellant, as the principles guiding a fair trial were adhered to. The appeal was dismissed as the court found no grounds for overturning the original decision.
No further orders were made by the court beyond dismissing the appeal. The decision stands as it was, with the appellant's claims of defamation not substantiated by the evidence presented.