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Tsamis v Victoria (No 7)

Tsamis v Victoria (No 7)

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Case Copied 18 December 2019 71 min read

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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
DATES OF HEARING (BEFORE JURY):	5-9, 12-16, 19-23, 26-28 August 2019
JURY VERDICT:	30 August 2019
DATES OF HEARING (DAMAGES):	16 September 2019
DATE OF JUDGMENT:	18 December 2019
CASE MAY BE CITED AS:	Tsamis v Victoria (No 7)
MEDIUM NEUTRAL CITATION:	[2019] VSC 826

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DEFAMATION – Damages – Trial by jury – Eight imputations alleged – Defendant justified four imputations – Mass media distribution of seven imputations – One imputation published to a journalist but diluted when republished – Grapevine effect – Whether justified imputations mitigated the damages by lowering the plaintiff’s true reputation – Seriousness of imputations – Whether injury to feelings caused by the true imputations – Whether aggravated damages warranted by conduct in publication and since publication – Defamation Act2005 (Vic) s 34.

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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

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

The jury’s verdict............................................................................................................................... 2

Applicable principles........................................................................................................................ 3

Evidence relevant to general damages........................................................................................... 6

The plaintiff.................................................................................................................................... 6
Plaintiff’s character witnesses................................................................................................... 14

Plaintiff’s submissions................................................................................................................... 17

Defendant’s submissions............................................................................................................... 19

Did the true imputations mitigate the impact of the false imputations............................... 23

Analysis of the verdict................................................................................................................ 26
Specific evidence of true character........................................................................................... 32
Conclusion on status of plaintiff’s reputation........................................................................ 36

Republication of imputation 7(a).................................................................................................. 37

Hurt feelings..................................................................................................................................... 41

Aggravation....................................................................................................................................... 43

Conclusion......................................................................................................................................... 46

Introduction

The plaintiff, Ms Martha Tsamis, is the manager of Inflation Nightclub (‘Inflation’), in Melbourne. The State of Victoria is liable for police torts and is the named defendant pursuant to ss 74 and 75 of the Victoria Police Act 2013 (Vic).

On 30 January 2014, Brett Guerin (then a Superintendent of Victoria Police) spoke with Mark Buttler, a journalist of the Herald Sun, in relation to Inflation. The conversation was primarily in respect of an application to the Victorian Commission for Gambling and Liquor Regulation (VCGLR) by Victoria Police to limit Inflation’s trading hours under the Liquor Control Reform Act 1998 (Vic) (‘LCRA proceeding’).

On 6 February 2014, the Herald Sun published an article online quoting Mr Guerin. On 7 February 2014, the article was reproduced on the front page of the Herald Sun newspaper. On the same day, Mr Guerin participated in an interview on 3AW’s ‘Breakfast’ radio programme with Ross Stevenson and John Burns.

Ms Tsamis alleged that publications, being the statements Mr Guerin made to Mr Buttler, republished in the Herald Sun, and his statements on 3AW (‘the publications’), were defamatory of her personally and the way that she managed Inflation, and had greatly injured her credit and reputation.

The proceeding was tried before a jury of six and its verdict was taken…

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 826
Decision Date: 18 December 2019

CaseChat Overview and Summary

Tsamis v Victoria (No 7) was a case involving the plaintiff, Mr Tsamis, who sought damages for defamation against the defendant, the state of Victoria. The dispute centred on various imputations made against Mr Tsamis through mass media and other channels, which he claimed had severely damaged his reputation. The matter was heard in the Supreme Court of Victoria.

The court was tasked with determining several legal issues, including whether certain imputations were justified and could serve as a defence under the Defamation Act 2005 (Vic). Additionally, the court needed to assess the extent of damages caused by the defamatory statements, including whether the imputations that were deemed justified could mitigate the damages awarded for the unjustified ones. The court also considered the seriousness of the defamatory imputations, the extent of injury to Mr Tsamis' feelings, and whether aggravated damages were warranted based on the conduct of the defendant in publishing and subsequently.

The court found that four out of the eight alleged imputations were justified and thus could not form the basis for an award of damages. However, the remaining imputations were found to be defamatory and were widely distributed through mass media, with one instance involving a diluted version being republished through a journalist. The court noted the "grapevine effect" of defamation, where the diluted imputation still carried weight due to its initial defamatory nature. The court concluded that the unjustified imputations had indeed harmed Mr Tsamis' reputation and warranted an award of damages. Furthermore, the court determined that aggravated damages were appropriate due to the manner in which the defamatory material was published and the conduct of the defendant post-publication.

The court ordered the defendant to pay damages to the plaintiff for the defamatory imputations that were not justified, along with aggravated damages. The specifics of the financial compensation were left to be determined in subsequent proceedings.

Orders