Tsamis v The State of Victoria (No 2)
[2018] VSC 209
•30 April 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2014 06898
| MARTHA TSAMIS | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 April 2018 |
DATE OF RULING: | 30 April 2018 |
CASE MAY BE CITED AS: | Tsamis v The State of Victoria (No 2) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 209 |
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DEFAMATION – Pleading – Justification defence – Whether particulars sufficient – Fair comment defence – Whether words capable of being understood as opinion – General Steel Industries Inc v Commissioner for Railways (New South Wales) [1964] HCA 69; (1964) 112 CLR 125; State of New South Wales v IG Index plc & Ors [2007] VSCA 212 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Sowden | Gary Prince |
| For the Defendant | Mr P Hayes QC Mr J Hooper | Russell Kennedy |
HIS HONOUR:
The plaintiff is the manager of Inflation nightclub and 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 Superintendent with Victoria Police was interviewed by a Herald Sun journalist in relation to the nightclub and the plaintiff (‘the interview’). The plaintiff alleges the interview was defamatory of her.
The plaintiff has applied to strike out, on various grounds, parts of paragraphs 14 and 18 of the amended defence to the further amended statement of claim (‘defence’) filed on 8 March 2018.
Paragraph 14 – Justification
In paragraph 14 of the defence the defendant pleads justification in respect of defamatory meanings pleaded in paragraph 7(b)-(f) of the further amended statement of claim. The defamatory meanings pleaded are, in summary, that the plaintiff operated the nightclub in a manner which resulted in drug dealing in or around the venue, allowed minors to enter the venue in breach of the Liquor Control Reform Act 1998, and was conducive to drug trafficking, drunkenness and violence. In paragraph 14 of the defence, the defendant particularises numerous drug-related incidents attended by Victoria Police which it alleges occurred in or in the vicinity of the nightclub, eleven incidents in which it says Victoria Police identified underage patrons on the premises, and six incidents which involved allegations of assault or drunkenness. Particularisation of many of the incidents follows a pattern demonstrated by the following example:
13 January 2013: the arrest of RS (for possession of a drug of dependence) and who during a recorded interview with Victoria Police stated that he had purchased a small vial of 10ml of GHB (an illicit drug) for $30 from another person at Inflation nightclub that evening.
The plaintiff argued the information pleaded was obtained by Victoria Police from individuals such as RS using coercive powers, or was voluntarily given to the police in the course of an investigation. It was submitted that in either case, it is arguable an implied undertaking is imposed on Victoria Police not to use the information for a different purpose, such as its defence in this proceeding, and that particulars of the incidents should be struck out. It was conceded by the plaintiff that the prohibition, if it applies, is not absolute because a person who has provided information or a statement in a criminal investigation can consent to that information being used in a later civil proceeding.
The plaintiff’s submissions do not justify striking out the particulars of incidents relied on by the defendant. The questions raised go to the admissibility of evidence on which the defendant might ultimately rely to prove the matters particularised. Those are matters for the trial judge.
The substance of the justification defence is that the plaintiff knew of the drug-related incidents, underage patrons on premises, assaults and drunkenness soon after those incidents occurred, and failed to prevent further such incidents. Particulars, (a)(v) and (vi) to paragraph 14 of the defence read:
The plaintiff in her capacity as manager and as an operator of Inflation nightclub knew or was likely to have known of the drug related incidents (at the time of or shortly after each drug related incident occurred) and of drug-dealing or the likelihood or drug-dealing incurring at Inflation nightclub between 13 January 2013 and 7 January 2014.
The plaintiff in her capacity as manager and as an operator of Inflation nightclub failed to prevent any or all of the drug related incidents and drug dealing from occurring at Inflation nightclub between 13 January 2013 and 7 January 2014.
The plaintiff submitted the particulars fail to establish a causal link between the activity of drug-dealing and the manner in which the plaintiff operated the nightclub. Facts which might establish how the plaintiff knew of the incidents, when she knew, and how she failed to manage the nightclub to prevent further similar incidents are not pleaded.
I agree. Particulars (a)(v) and (vi) are not sufficient to enable the plaintiff to understand how it is said she knew of the drug-related incidents, when she gained that knowledge, and how she then operated the nightclub in a manner that resulted in drug dealing in and around the venue. Particulars (c)(iv) and (v), and (e)(iii) and (iv) suffer the same vice. I will order that the defendant properly particularise the allegations of knowledge and failure.
Paragraph 18 – fair comment
In paragraph 7(a) of the further amended statement of claim, the plaintiff pleads as a defamatory imputation arising from the interview that she:
had approached and cross-examined witnesses in the LCRA proceeding in a manner that was improper, inappropriate and unlawful.
The defendant pleads in paragraph 18 of the defence that if the paragraph 7(a) meaning is defamatory, then the words spoken by the Superintendent were fair comment on a matter of public interest.
The plaintiff submitted that, while an attack on a defence of fair comment commences with an analysis of the imputation as pleaded, it is permissible for the Court to look to the defamatory publication to ascertain whether it is an expression of opinion or fact, or a mixture of both. Here, the Superintendent said:
... she’s asking these people – well, you know, she 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.
The plaintiff submitted there was nothing in the text that would suggest the Superintendent was expressing an opinion. The assertion that approaching witnesses was improper or wrong is a statement of fact or, if not, was so inextricably intermingled with the publication of factual matter as to render it a statement of fact in the mind of an ordinary reasonable reader.[1]
[1]Channel 7 Adelaide Pty Ltd v Manock (2007) 232 CLR 245.
Analysis
The jurisdiction to strike out part of the defence should be exercised sparingly and with caution.[2] The starting point on this application is to consider the comment in the context of the publication as a whole.[3] The question is whether the comment was reasonably capable only of being or implying statement of fact.[4]
[2]General Steel Industries Inc v Commissioner for Railways (New South Wales) [1964] HCA 69; (1964) 112 CLR 125.
[3]State of New South Wales v IG Index plc & ors [2007] VSCA 212, [54].
[4]Ibid, [58].
In a previous ruling in relation to an application by the defendant to strike out paragraph 7(a) of the statement of claim as it was then pleaded, I set out more fully the words said by the Superintendent which arguably have the defamatory meaning now pleaded.[5] In that ruling I concluded it was arguable that part of the interview could be understood as the Superintendent contrasting the actions of the plaintiff in contacting witnesses and ‘cross-examining them about the contents of their statements’, with the ‘appropriate way’ witnesses and witness statements were to be dealt with ‘according to the law’.
[5]Tsamis v The State of Victoria [2017] VSC 496, [3].
The question is whether the statements made by the Superintendent may be understood as an opinion, deduction, inference, conclusion, criticism, judgment, remark or observation based on facts stated or referred to.[6] Here, the facts stated relate to the manner of approach by the plaintiff to witnesses from whom statements had been obtained by Victoria Police. The imputation pleaded by the plaintiff is that the manner of approach to witnesses by her was ‘improper, inappropriate and unlawful’. Whether what was said by the Superintendent leading to that defamatory meaning was a statement of fact or expression of opinion depends on the words used and the context in which they are used. In my view, the words used by the Superintendent were capable of being understood as an expression of his opinion as to the “appropriate way” witnesses and witness statements were to be dealt with “according to the law”. Whether the Superintendent was making a statement of fact, or expressing an opinion, is a question which should be left for determination by a jury.
[6]State of New South Wales v IG Index plc & ors [2007] VSCA 212, [51].
The plaintiff’s application to strike out particular (a)(i) to paragraph 18 of the defence will be dismissed.
Conclusion and costs
I will order that the defendant properly particularise paragraphs (a)(v) and (vi), (c)(iv) and (v) and (e)(iii) and (iv) to paragraph 14 of the defence. The plaintiff’s application will be otherwise dismissed. The plaintiff has enjoyed some success on her application in relation to the defendant’s pleading. No additional costs were incurred in respect of the arguments made by the plaintiff which I rejected. In the circumstances, I consider it appropriate to order that the defendant pay the plaintiff’s costs of and incidental to the application.
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