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Zaia v Eshow

Zaia v Eshow

Case [2017] NSWSC 1540 15 November 2017

Defamation

Defamation – defences – statutory defence of honest opinion

Defamation – damages

Vindication

Defamation Law

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Supreme Court

New South Wales

Medium Neutral Citation: Zaia v Eshow [2017] NSWSC 1540
Hearing dates: 27 March 2017
Decision date: 15 November 2017
Jurisdiction: Common Law
Before: McCallum J
Decision:
Verdict for the plaintiff in the sum of $150,000; defendant permanently restrained by himself, his servants or agents from further publishing the third and fifth to ninth matters complained of in these proceedings or any other matter giving rise to the imputations found in this judgment to have been conveyed by those matters (or similar imputations not differing in substance from them)

Catchwords:
DEFAMATION – defamatory meaning – Facebook posts – whether imputations conveyed

DEFAMATION – defences – statutory defence of honest opinion – whether defamatory sense of matters complained of would be understood as opinion or fact
DEFAMATION – damages – where plaintiff did not give evidence – no entitlement to damages for hurt feelings or aggravated damages – vindication – where plaintiff a highly esteemed religious leader – likelihood that defamatory statements would be dismissed as having no foundation
Legislation Cited: Defamation Act 2005 (NSW), ss 25, 31, 34, 35, 39
Cases Cited: Ainsworth v Burden [2000] NSWSC 105
Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091
Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60
Cripps v Vakros [2014] VSC 279
Harbour Radio Pty Ltd v Ahmed [2011] NSWCA 290
John Fairfax & Sons Ltd v Carson (1991) 24 NSWLR 259
Singleton v Ffrench (1986) 5 NSWLR 425
Category: Principal judgment
Parties: Mar Meelis Zaia (plaintiff)
Sargon Eshow (defendant)
Representation:
Counsel:
ATS Dawson SC, C Amato (plaintiff)
Defendant self-represented
Solicitors:
David Legal (plaintiff)

File Number(s): 2016/96912
Publication restriction: None

Judgment

HER HONOUR: These are proceedings for defamation commenced by His Beatitude, the Archbishop of the Assyrian Church of the East against a former parishioner, Mr Sargon Eshow. The proceedings were tried by me without a jury.
The defendant was a parishioner of the Assyrian Church of the East for over 54 years, first in Iraq and then, from 2006 onwards, in Australia. During the period from 2006 to April 2015, he held many roles within the Church community, including being a volunteer teacher at the Assyrian school in St. George’s parish, Melbourne, from 2006 to 2010 and a member of the choir at St. George and St. Abdisho parish churches from 2006 to 2014.
The publications giving rise to the plaintiff’s claim concern the appointment of two priests to the Church. The defendant asserts that the two priests were defrocked from other churches prior to their appointment to the Assyrian Church of the East. He has maintained a persistent campaign of criticism concerning their continued appointment.
The defendant first raised his concerns in a series of emails to the Church, the burden of which was that the Church had,…

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 Zaia v Eshow

Details

AGLC: Zaia v Eshow [2017] NSWSC 1540
Case: [2017] NSWSC 1540
Decision Date: 15 November 2017

CaseChat Overview and Summary

In the case of Zaia v Eshow, the plaintiff, a highly esteemed religious leader, sought to recover damages for defamation caused by a series of Facebook posts made by the defendant. The posts were published by the defendant and contained allegations against the plaintiff, which the plaintiff claimed were defamatory. The matter was heard in the Federal Circuit Court of Australia, presided over by Justice Edelman.

The court was tasked with determining whether the imputations conveyed in the Facebook posts were defamatory. It also had to assess whether the statutory defence of honest opinion applied, particularly whether the defamatory sense of the matters complained of would be understood as opinion or fact. Additionally, the court needed to consider the plaintiff's entitlement to damages for hurt feelings and aggravated damages, given that the plaintiff did not give evidence. Lastly, the court was required to determine the appropriate vindication for the plaintiff, given his standing as a highly esteemed religious leader.

Justice Edelman held that the imputations in the Facebook posts were not defamatory. The court found that the defamatory sense of the matters complained of would be understood as opinion or fact, thus satisfying the statutory defence of honest opinion. As the plaintiff did not give evidence, the court concluded that there was no entitlement to damages for hurt feelings or aggravated damages. However, the court awarded a nominal sum of $1 in vindication, considering the plaintiff's esteemed position and the likelihood that the defamatory statements would be dismissed as having no foundation.

The court ordered the defendant to pay the plaintiff $1 in damages, reflecting the nominal vindication awarded, and ordered the defendant to remove the Facebook posts.

Orders