Tsamis v The State of Victoria
[2017] VSC 496
•31 August 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2014 06898
| MARTHA TSAMIS | Plaintiff |
| v | |
| THE STATE OF VICTORIA | Defendant |
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JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 May, 20 June 2017 |
DATE OF RULING: | 31 August 2017 |
CASE MAY BE CITED AS: | Tsamis v The State of Victoria |
MEDIUM NEUTRAL CITATION: | [2017] VSC 496 |
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DEFAMATION – Pleading – Publication of radio interview – Whether material published is capable of giving rise to imputation pleaded in further amended statement of claim – Franchise Central & Ors v Fairfax Media & Anor [2011] VSC 379 – Whether pleading is impermissibly vague – Trkulja v Google Inc LLC [2010] VSC 226 – Whether imputation pleaded represented the final distillation of the alleged defamatory meaning.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Sowden | Gary Prince |
| For the Defendant | Mr P Hayes | Russell Kennedy |
HIS HONOUR:
Ms Tsamis is the manager of Inflation Nightclub and a sole director and shareholder of the company that owns the nightclub business and operates a liquor licence as part of that business. In January 2014, A Superintended with Victoria Police, gave an interview relating to Inflation and Ms Tsamis with a Herald Sun journalist.
The interview concerned an application to be made to temporarily vary the conditions of the Inflation liquor licence to reduce the trading hours from an 8.00 am closing to a 1.30 am lockout and 3.00 am closing. In the interview the Superintendent stated that the application was prompted by 59 incidents which occurred in and around the Inflation nightclub in the period 13 January 2013 to late October 2013, adding:
Almost all of those incidents involved drugs, people overdosing on either ecstasy or GBH. A lot of work has been done. A lot of these people have been interviewed and I’m happy for you to – to have a look at this stuff which is – it’s not part of the evidence, it’s just an incident summary.
The Superintendent went on to refer to ‘an interesting little twist’ about which he had been informed that afternoon, which he described as follows:
– – … the licensee has a Facebook page or Cloud Nine has a Facebook page which you’d be able to look at.
…
And a lot of these people who’ve made statements are actually friends, I think it is, or, you know, if they like it or something, there’s some link.
…
So the licensee has actually put out a message. You know, “Anyone’s who made a statement about this to the police, please call me. I want to talk about it.” And – and a number of them have done that – – –
…
– – – and a number of them have told the police that they’ve done that and, you know, she started cross-examining them about the contents of the statements about, you know, why they’ve made a statement and – – –
…
So she’s – she’s got – she’s asking these people – well, you know, she’s started to cross-examine them about the statement. Now, I can’t say that she’s threatened them or put the frighteners on ‘em and no-one has told me that, but the fact that she’s actually reached out and, you know, got them to contact her and started talking to them is a bit – a bit of an issue of concern for us.
…
Yeah, yeah. I mean, witnesses make statements to the police on the understanding that their information will be dealt with in the appropriate way and the appropriate way is for us to produce the statements in a brief of evidence or in an application like this – – –
…
– – – present it to the relevant authority and needed to be dealt with according to the law, not for interested parties to be making calls, you know – – –
…
To – to – to – to – you know, improper contact ……….
…
So, you know, there – there are ways that, you know, if – if people want witnesses to – you know – but she’ll have an opportunity, they’ll all have an opportunity to challenge evidence.
…
In this proceeding, Ms Tsamis alleges the interview was defamatory of her. The State of Victoria applied to strike out a number of the imputations pleaded in paragraph 7 of a further amended statement of claim filed for Ms Tsamis. That strike out application originally came on before me on 30 May 2017. Following discussions, Ms Tsamis was given the opportunity to make further changes to the pleadings. That was done. The one remaining objection of The State of Victoria relates to the imputation pleaded in subparagraph 7(a) of the further amended statement of claim, which reads as follows:
The Plaintiff … had interfered with the administration of justice by approaching potential witnesses in an application to vary the terms and conditions of the liquor licence of Inflation under the LRCA proceeding;
Particulars
The plaintiff relies on the whole of the transcript contained in Schedule A and in particular the statement at page 10 that the plaintiff “started cross-examining [potential witnesses] about the contents of the statements [and] why they’ve made them …”, at page 11 that it “was a bit of a concern for us,” that the plaintiff “had started talking to [potential witnesses]”, at page 12, that it was “not for interested parties to be making calls,” and at pages 11 to 12 that contact with potential witnesses was “improper.”
The State of Victoria applies to strike out the pleading on the following grounds:
(a)As a matter of form, the imputation as pleaded is impermissibly vague, as is evidenced by the use of the word ‘interfered’ and the phrase ‘administration of justice’; and
(b)As a matter of substance, the imputation is not capable of being defamatory of the Plaintiff.
The State of Victoria submits that both the phrase ‘the administration of justice’ and the word ‘interfere’ encompass a range of activity. Use of those words results in vagueness and the requirement for greater clarification in the pleading in three respects:
(a) In what aspect of ‘the administration of justice’ did the plaintiff ‘interfere’?
(b) In what way, and for what purpose did the plaintiff ‘interfere’?
(c) How is it that those interfering actions of the plaintiff impacted on ‘the administration of justice’ in a way which could be considered defamatory?
The State of Victoria submits the imputation offends the third and fourth propositions set out by Beach J (as his Honour then was) in Franchise Central & Ors v Fairfax Media & Anor,[1] where his Honour stated:
(c)Thirdly, an imputation must express the precise act or condition asserted of or attributed to the plaintiff or of which the plaintiff is charged.
(d)Fourthly, an imputation should represent the final distillation of the alleged defamatory meaning.[2]
[1][2011] VSC 379 (‘Franchise Central’).
[2]Ibid [23] (citations omitted).
Ms Tsamis submits that the pleaded words ‘interfered with the administration of justice’ must be considered in the context of the interview. Given the content of the interview it is not an imputation capable of further refinement, but matches the level of generality of the words used by the Superintendent in the interview itself. In support of this proposition Ms Tsamis relies on the judgment of Beach J in Gant v The Age & Ors,[3] where his Honour said in respect of an imputation that read ‘the plaintiff was a knowing participant in illegal conduct’:
In part, the matter falls to be assessed by reference to the level of generality in the publication complained of (in this case, the second article). It would be hard for a defendant to complain about an imputation such as 7(c) if it was pleaded in respect of an article that made high level and very general allegations of criminal conduct against a plaintiff. [4]
[3][2011] VSC 169.
[4]Ibid [58].
In Trkulja v Google Inc LLC,[5] Kaye J said in respect of the issue of whether an imputation was properly pleaded or was impermissibly vague or imprecise:
… First, the question, whether an imputation has been properly pleaded, is to be determined as a matter of practical justice, rather than as an exercise of close semantic or linguistic refinement. Secondly, the question whether a particular imputation is sufficiently specific depends, essentially, on the context in which it is pleaded. In some publications, the allegation about a plaintiff may be so unspecific as to give rise only to the most general imputation. For example, a billboard alleging that a particular plaintiff is “corrupt” may, in an appropriate case, only give rise to an imputation pleaded in the most general form. On the other hand, and by contrast, a publication may, by its context, give rise to one or more possible meanings of a particular condition attributed to the plaintiff. In such a case, where the plaintiff pleads that the publication imputed that condition to him, the plaintiff is obliged to specify how and in what respects that condition is conveyed in the imputation.
Those two propositions can be derived from the leading judgment of Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation. In that case, the primary judge had struck out three imputations in a statement of claim, which alleged “corrupt” conduct or acts of the plaintiff council. The Court of Appeal (by majority) upheld that decision. In doing so, Gleeson CJ stated the principle as follows:
“The requirement that a plaintiff must ‘specify’ the act or condition which he claims was attributed to him, that is to say, the statement which he says is made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology. ... Furthermore, whilst the principles relevant to the plaintiff’s obligation remain constant their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter. Defamation may come in the form of snide insinuation or robust denunciation, or something in between those two extremes. The attribution to a person of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and non-specific abuse. ... If a defendant has posted in a public place a sign that simply says ‘X is disgusting’, the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter.”
[5][2010] VSC 226 [19]–[20] (citations omitted).
Subparagraph 7(a) of the pleading is directed to that part of the interview set out in paragraph [3] above in which the Superintendent describes the actions of Ms Tsamis in issuing a Facebook invitation for police witnesses to contact her, and ‘cross-examining’ those witnesses about their statements to police. Arguably, the interview could be read as the Superintendent contrasting the actions of Ms Tsamis in contacting witnesses with the ‘appropriate way’ witnesses and witness statements are to be dealt with on such an application, which is described by the Superintendent as statements being produced as part of ‘a brief of evidence or in an application like this’ to the ‘relevant authority’, and that witnesses and statements ‘needed to be dealt with according to the law’.
Having already described Ms Tsamis’ actions in contacting witnesses and ‘cross examining them about the contents of their statements’, the Superintendent adds that it is ‘not for interested parties to be making calls’, and then refers to ‘improper contact’.
Arguably, a reader could understand that by making the contrast to which I have referred the Superintendent was conveying that Ms Tsamis’ actions in contacting and ‘cross-examining’ witnesses were not appropriate, not according to law, or unlawful and improper. I agree there is a relatively high level of generality in that aspect of the interview which might justifiably or necessarily be reflected in the imputation pleaded. However, in my view, for two reasons the imputation as pleaded should not be allowed to stand. First, the imputation that Ms Tsamis ‘interfered with the administration of justice’ is, even in the context of the interview to which I have referred, impermissibly vague. Secondly, and more importantly, the imputation does not express the precise act or condition asserted, and does not represent the final distillation of the alleged defamatory meaning. In this case an allegedly defamatory meaning might be distilled from the contrast the Superintendent drew between Ms Tsamis’ actions and the ‘appropriate’ way to deal with witnesses who have made statements to police, to which I have referred above, rather than the broader ‘interference with the administration of justice’ currently pleaded.
I will strike out paragraph 7(a) of the further amended statement of claim as currently pleaded, and give leave to the plaintiff to re-plead. Subject to argument, I will order that the plaintiff pay the defendant’s costs of and incidental to the application. Other directions orders will be made in terms consistent with the consent minute provided to the Court on 20 June 2017.
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