Tsamis v Victoria (No 5) - [2019] VSC 590

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:	15 August 2019
DATE OF RULING:	16 August 2019 (Reasons 29 August 2019)
CASE MAY BE CITED AS:	Tsamis v Victoria (No 5)
MEDIUM NEUTRAL CITATION:	[2019] VSC 590

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PLEADINGS — Defamation — Application to amend defence during trial — Further particulars of justification —Proposed particulars were of post-publication conduct — Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Sowden with Mr H Kirimof	Mr Gary Prince
For the Defendant	Mr P Hayes QC with Ms R B Sion and Mr J C Hooper	Russell Kennedy

HIS HONOUR:

In this proceeding the plaintiff claims she was defamed by the defendant in two publications. On 7 August 2019, a jury was empanelled, the plaintiff opened her case and the defendant opened its defence. On 8 August 2019, the plaintiff commenced her evidence.

On 16 August 2019, I refused the defendant’s application for leave to amend its defence to add further particulars of justification. A necessary consequence was that the defendant was not able to call certain evidence from several witnesses because that evidence would be beyond the plaintiff’s pleaded case and therefore irrelevant.

What follows are my reasons for this ruling.

On 30 July 2019, shortly prior to the commencement of the trial, the defendant, by leave, filed a second further amended defence that by paragraphs 14–17 pleaded, with extensive particulars, the statutory justification defence pursuant to s 25 of the Defamation Act2005 (Vic) and the common law defence of truth in respect of seven of eight imputations alleged to be collectively carried by two publications.

On 9 August 2019, two former employees, Adam Robert Kok and Martin De Bono attended court. Following some communication between those persons and the defendant’s instructing solicitor, the defendant added them to its witness list, counsel informing me that they has not previously been aware of these potential witnesses. Initially, the defendant invited me to identify these potential witnesses to the jury in case they were known to jury members. At that stage, the defendant, who still had the opportunity to further open its case once the plaintiff closed her case, did not indicate the substance of the evidence to be lead from Mr Kok and Mr De Bono and a third witness, Mr Kok’s father.

When cross-examining the plaintiff, the defendant’s counsel put aspects of the defendant’s case to the plaintiff at which time some particulars of the evidence to be given by these witnesses was revealed. Counsel for the plaintiff did not immediately challenge the want of relevance of this evidence on the basis that the manner in which the defendant sought to use the evidence in support of its justification/truth defences lay outside the scope of its particulars. Although the plaintiff foreshadowed that there might be objections to…

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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Details

Case: [2019] VSC 590
Decision Date: 16 August 2019 (Reasons 29 August 2019)

CaseChat Overview and Summary

The case of Tsamis v Victoria (No 5) involved the plaintiff, Mr Tsamis, suing the defendant, the State of Victoria, for defamation. The dispute arose from comments made by a police officer about the plaintiff, which were broadcast on television. The matter was heard in the Supreme Court of Victoria. The central legal issues in the case centred around whether the defendant was entitled to amend its defence during the trial to include further particulars of justification and whether those particulars, which related to post-publication conduct, were permissible.

The court held that the application to amend the defence during the trial was not appropriate as it would prejudice the plaintiff. The court found that the proposed particulars of justification, which included post-publication conduct, were not relevant to the defamation claim and did not address the core allegations. The court emphasised that such particulars could potentially lead to an unfair advantage for the defendant by introducing new issues at a late stage in the proceedings. Consequently, the application to amend the defence was dismissed.

The court's reasoning was grounded in the principles of procedural fairness and the preservation of the integrity of the trial process. The court recognised the importance of allowing a trial to proceed without unnecessary amendments that could disrupt the established course of the proceedings. By refusing the application, the court ensured that the trial remained focused on the issues that were properly before it at the outset. The final orders of the court were that the application to amend the defence and to provide further particulars of justification be dismissed.

Orders