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:

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.

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’.

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.

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.

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.

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…

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.

Continue reading Tsamis v Victoria (No 2)

Details

AGLC: Tsamis v Victoria (No 2) [2019] VSC 506
Case: [2019] VSC 506
Decision Date: 16 July 2019 (revised 29 July 2019)

CaseChat Overview and Summary

In the matter of Tsamis v Victoria (No 2), the respondent sought leave to file a further amended defence to the appellant’s statement of claim for defamation. The appellant, Mr Tsamis, claimed damages against the respondent, the State of Victoria, for defamation arising from comments allegedly made by a police officer in a newspaper article. The case was heard in the Supreme Court of Victoria.

The court was required to decide whether the respondent should be granted leave to file a further amended defence which included the defence of fair comment. The appellant opposed the application, arguing that the leave should be refused as the amendment would be an abuse of process and would cause substantial delay and prejudice. The court also had to consider whether the proposed defence of fair comment was viable under the Defamation Act 2005 (Vic).

The court found that the respondent was entitled to file a further amended defence. The judge noted that the respondent had shown good cause for the delay in filing the amendment and that the amendment did not cause substantial delay or prejudice. The court also considered that the defence of fair comment was a viable defence under the Defamation Act and that the respondent should be permitted to argue it. The court concluded that the respondent should be granted leave to file the further amended defence.

The court ordered that the respondent be granted leave to file the further amended defence. The respondent was directed to file the amended defence within 28 days of the judgment and serve it on the appellant. The case was to proceed to trial on the amended pleadings.

Orders