DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - REBUTTAL OF PRIVILEGE BY MALICE
PARTICULAR STATEMENTS - IMPUTATIONS
Plaintiff's claim for damages - statements in facsimiles published by the defendant to the plaintiff's client critical of the capacity of the plaintiff to act as a legal practitioner - natural and ordinary meaning of the pleaded words - what imputations reasonably conveyed by these words - whether imputations conveyed and defamatory - whether the statements were published on occasions protected by qualified privilege - whether otherwise privileged occasions misused so that the protection is lost.
Held: Each of the facsimiles is defamatory of the plaintiff, and is not protected by qualified privilege.
DAMAGES
Assessment of damages - publications limited to two persons and contained - compensatory damages including aggravated damages awarded in the sum of $20,000. Exemplary damages not awarded - claim that legal costs incurred by the plaintiff prior to the commencement of proceedings ought to be treated as special damages, refused.
Antonio Tropeano (“the plaintiff”) instituted the within proceedings on 13 September 2006, claiming damages, including aggravated and exemplary damages, against Natale Lauro (“the defendant”) for alleged defamation and/or injurious falsehood arising from the publication, by the defendant, of four facsimiles containing criticisms of the plaintiff as a legal practitioner between 8 October 2005 and 19 January 2006.[1]
[1] As to the last publication the Defamation Act 2005 commenced on 1 January 2006. Section 35 of the Act excludes any award for exemplary or punitive damages.
The plaintiff asserts that his character and reputation have been injured, and that his professional reputation and business as a…
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
Tropeano v Lauro [2010] SADC 113
Case
[2010] SADC 113
Decision Date
CaseChat Overview and Summary
The case of Tropeano v Lauro involves the plaintiff, Tropeano, seeking damages from the defendant, Lauro, for defamatory statements published in facsimiles sent to the plaintiff’s client. The statements in question were critical of Tropeano’s capacity to act as a legal practitioner. The court was required to determine whether the words used in the facsimiles conveyed defamatory imputations in their natural and ordinary meaning, and if so, whether the occasion of publication was protected by qualified privilege. Additionally, the court needed to decide whether the privilege was misused to the extent that it was lost.
The court examined the natural and ordinary meaning of the words used in the facsimiles and concluded that the words conveyed certain imputations about Tropeano’s professional capacity. It was necessary to assess whether these imputations were defamatory. The court found that the statements were indeed defamatory as they had the potential to injure Tropeano’s reputation in the eyes of right-thinking members of the public. The court then turned to the issue of qualified privilege, considering whether the occasion of publication was one that warranted such protection. The court found that the statements were published on occasions protected by qualified privilege, as they were made in the course of a communication between individuals with a mutual interest in the matter.
However, the court also considered whether the privilege was misused to the extent that it was lost. The plaintiff argued that the defendant acted with malice in publishing the defamatory statements. The court found that the evidence did not support a finding of malice, and therefore, the privilege was not lost. As a result, the defendant’s publication of the defamatory statements was protected by qualified privilege, and the plaintiff’s claim for damages was dismissed.
The court's final orders were that the plaintiff's claim for damages was dismissed, and the defendant was not liable to pay damages to the plaintiff. The court determined that the statements in question were protected by qualified privilege and were not published with malice, thereby upholding the defendant's right to communicate on the protected occasion without fear of liability for defamation.