Tsamis v Victoria (No 2)

[2019] VSC 506

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:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 July 2019
DATE OF JUDGMENT:	16 July 2019 (revised 29 July 2019)
CASE MAY BE CITED AS:	Tsamis v Victoria (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 506

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PLEADINGS —Application for leave to file further amended defence — Defence of fair comment — Defamation Act 2005 (Vic) s 31.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Sowden	Mr Gary Prince
For the Defendant	Mr J C Hooper	Russell Kennedy

HIS HONOUR:

1. By summons dated 28 May 2019 the defendant seeks leave to file a further amended defence to the plaintiff’s amended statement of claim dated 10 October 2017. The amendments add to the particulars provided to paragraph 18 of the amended defence. That paragraph alleges that if the ‘Herald Sun meanings’ were defamatory of the plaintiff, then the words spoken by Superintendent Guerin were fair comment on a matter of public interest.

1. In paragraphs 19 and 20 of the amended defence essentially the same point is made in relation to the defence under s 31 of the Defamation Act 2005 (Vic) (‘Act’) in relation to both the ‘Herald Sun meanings’ and the ‘3AW meanings’.

1. The meanings are relevantly set out in paragraphs 7 and 11 of the plaintiff’s further amended statement of claim, and I do not think it is presently necessary to recite them. One particular meaning is sought to be defended on this basis, and it reads:

In their natural and ordinary meaning or alternatively by reason of the matters set out below, the words were defamatory of the plaintiff and of the plaintiff in the manner in which she manages inflation and meant and were understood to mean that the plaintiff had approached and cross-examined witnesses in the LCRA proceedings in a manner that was improper, inappropriate and unlawful.

1. The alleged meaning involves firstly the proposition that the plaintiff approached witnesses, secondly, that she cross‑examined witnesses, and thirdly, that the manner in which she did so was improper, inappropriate and unlawful.

1. The defence of honest opinion under s 31 of the Act is substantially similar to the defence of fair comment at common law, and the relevant principles that apply to make out those defences are well established.

1. In Channel Seven Adelaide Pty Ltd v Manock, Chief Justice Gleeson stated:

It is more accurate, therefore, to describe as conventional a case where the facts upon which the comment is based are stated in the terms of the communication, or are sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to identify it as comment on those facts and to assess for themselves whether the facts support the comment If the purported facts upon which the comment is based are not true, the defence does not lie. Hence, Bingham LJ’s summation that ‘comment may only be defended as fair if it is comment on facts (meaning true facts) stated or sufficiently indicated’.[1]

[1](2007) 232 CLR 245, 253 (Gleeson CJ) (citation omitted), 268-284 (Gummow, Hayne and Heydon JJ) (‘Manock’).

1. For the purpose of considering the pleading of the defence, I note the relevant principles of the common law defence of fair comment identified by Kyrou J, as his Honour then was, in Cripps v Vakras:[2]

   [2][2014] VSC 279 [344]-[354].

(a)   the imputation must be a comment as opposed to a statement of fact;

(b)   the comment must relate to a matter of public interest;

(c)    the comment must be based on fact, stated or referred to in the article so that those considering the defamatory material can judge for themselves how far the opinion expressed in the comment is well founded;

(d)  the facts on which the comment is based must be true;

(e)   the comment must be one that an honest person, however so prejudiced, might reasonably form upon the facts;

(f)     the defence can be defeated by malice.

1. In relation to the defence under s 31 of the Act, in Herald & Weekly Times Pty Ltd v Buckley, the Court of Appeal rejected the proposition that under the statutory defence of honest opinion, it is necessary only to show that the opinion is honestly based on proper material that need not be known to the reader.[3]

   [3](2009) 21 VR 661, 680-681 [84] (‘Buckley’).

1. The Court of Appeal said:

we do not consider that there is any difference between the common law and the statute as to the need for facts on which a comment or opinion is based to appear in the publication or otherwise be apparent to the reader. The idea of expanding the defence of comment or opinion to cases where the facts are unspecified and unknown was rejected by the Law Reform Commission (on whose report the legislation is largely based), and there is nothing in the proposal for uniform defamation laws released by the States and Territories in July 2004 or in the proposed Bill which they released in November 2004, or in the explanatory memorandum or second reading speech which suggests any difference in that respect. To the contrary, all the indications are that the two were meant to be the same.[4]

[4]Ibid.

1. In Harbour Radio Pty Ltd v Ahmed, the New South Wales Court of Appeal, without referring to the Victorian Court of Appeal's decision in Buckley, expressed substantially the same view.[5] In doing so,  the Court cited the passage from Gleeson CJ in Manock referred to above.

   [5](2015) 90 NSWLR 695, 704 [41]-[42]

1. The defendant’s proposed particulars would allege a series of communications between witnesses and police officers in relation to statements that had been taken for various purposes including the LCRA application. Some 13 separate communications are particularised. It is clear that none of these circumstances or facts appear in the publication, either by direct statement or by reference.

1. It follows, then, that whether these particularised facts are true is a collateral issue. For the purposes of the defence, the facts that must be alleged and proved to be true must be the facts upon which the comment is based, and they must be the facts that are stated in the published material, referred to in that material, or otherwise notorious.

1. There are allegations of notoriety in relation to other facts, but the pleading does not suggest that the facts and circumstances in respect of this particular defamatory meaning could be said to be notorious. The final particular, sub-paragraph (N), states that Superintendent Guerin had a telephone conversation with another police officer when he received particular information, that information being that the plaintiff had been contacting witnesses via Facebook. The plaintiff raises no particular objection to particular (N), and for that reason, I will permit the amended pleading with the addition of particular (N). However, the preceding particulars from sub-paragraph (A) to sub-paragraph (M), in my view, raise collateral issues that are not necessary to be particularised, and ought not be pressed forward in this manner.

1. Accordingly, leave to amend the further amended defence to the further amended statement of claim in the form proposed by the defendant is refused, subject to the indication that I have given, that if a version of it is presented that includes sub‑paragraph (N) only, I would grant leave for that amendment to be made.

1. By a second summons, the plaintiff sought, and obtained, further particular discovery.

1. The plaintiff seeks her costs on each summons, submitting that she has been substantially successful, both in seeking the relief by way of further discovery, and in opposing the defendant’s application for leave. The defendant, on the other hand, submits that effectively each party gained relief on her/its summons and the costs on each summons should be costs in the cause.

1. Dealing, firstly, with the defendant's summons, the defendant sought an indulgence from the court in the form of leave to further amend a pleading in order to add additional particulars. The defendant failed to get leave for the substantial part of the particulars that it has advanced, and as the particular that has been permitted was not opposed by the plaintiff a more confined amended pleading would not have required a contested application for leave.

1. The ordinary basis for exercise of the costs jurisdiction is that costs follow the event. The order that I will make is that the defendant pay the plaintiff's costs of the defendant's summons dated 28 May 2019.

1. In respect of the plaintiff's summons seeking further discovery, I accept, first, that the plaintiff succeeded in obtaining an order for further discovery, and while that may be partial success in respect of the totality of the plaintiff's claims, nevertheless, the defendant also produced in court a further affidavit of documents that was affirmed yesterday, 15 July 2019, and which is yet to be filed. The plaintiff's summons has resulted in the defendant further reviewing its discovery obligations.

1. Again, on the basis of the usual rule that costs follow the event, as the plaintiff has enjoyed sufficient success on her summons, the defendant should pay the plaintiff's costs of the plaintiff's summons filed 12 June 2019.