Zuchowski v Howe (Ruling)
[2020] VCC 1281
•31 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| DEFAMATION LIST |
Case No. CI-20-00493
| SAM ZUCHOWSKI | Plaintiff |
| v | |
| CAMERON HOWE | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 July 2020 | |
DATE OF RULING: | 31 July 2020 | |
CASE MAY BE CITED AS: | Zuchowski v Howe (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1281 | |
RULING
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Subject: DEFAMATION
Catchwords: Application by defendant for summary judgment and in the alternative, for defence to be struck out
Legislation Cited: Civil Procedure Act 2010, s62; County Court Civil Procedure Rules 2008, r23.02; Wrongs Act 1958, s24AA
Cases Cited:Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27; Triguboff v Fairfax Media Publications [2018] FCA 845; Harplex Pty Ltd v Konstandellos (2018) 54 VR 147
Ruling: The defendant’s Summons dated 18 June 2020 be dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Castelan | Sutton Laurence King Lawyers |
| For the Defendant | Mr T Sowden | William Mulholland & Co Lawyers |
HIS HONOUR:
1 By Summons dated 18 June 2020, the defendant seeks orders that:
·There be summary judgment for the defendant against the plaintiff pursuant to s62 of the Civil Procedure Act 2010.
·Alternatively, an order pursuant to Rule 23.02 of the County Court Civil Procedure Rules 2008 (“the Rules”) that the plaintiff’s Amended Statement of Claim dated 29 May 2020 be struck out.
·Alternatively, an order pursuant to Rule 23.02 of the Rules, that paragraphs 1(b), 3, 4, 5, 6, 9, 10, 15, 21, 27, 33, 39, 45, 51 and 57, be struck out.
·The plaintiff pay the defendant’s costs of the proceeding on an indemnity basis.
·Alternatively, the plaintiff pay the costs of and incidental to the defendant’s Summons dated 6 April 2020 (heard on 27 April 2020).
·The plaintiff pay the defendant’s costs of and incidental to this application on an indemnity basis.
·The defendant’s costs be taxed forthwith.
·Such further or other orders as the Court considers appropriate.
2 The plaintiff pleads, in his Amended Statement of Claim, that he is a property developer and a director of Cavendish Properties Pty Ltd (“Cavendish”), which is the developer of properties in and around Patterson Lakes in Victoria, and in particular, the Patterson Lakes Marina.
3 The plaintiff alleges that the defendant is the administrator, operator and creator of a Facebook webpage, the Carrum Patterson Lakes Forum, the CPLF.
4 The plaintiff has alleged that he has been defamed in ten publications made on various dates between 10 February 2019 and 15 December 2019. Each is alleged to have been published on the CPLF Facebook page.
5 Most, but not all of the publications, were a combination of a post on the Facebook site allegedly by the defendant and various statements made by other persons in response to the post – they amount to a comment upon the post.
6 The plaintiff alleges that the defendant published each of the posts the subject of the proceeding and was a secondary publisher of each of the published comments concerning the post.
7 The defendant submits that the publications are not of and concerning the plaintiff. He is not named or referred to in any of them. Further, he submits that some of the publications are not defamatory of the plaintiff.
8 With regard to the application for summary judgment in favour of the defendant, the relevant principles governing such an application are that the defendant must satisfy the Court that the plaintiff’s claims have no real prospect of success and are not merely fanciful.[1]
[1]Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27 at paragraphs [29] and [35]
9 As I see it, there are three issues to be determined. Has the defendant established that the plaintiff’s claims have no real prospects of success on the basis that:
(a)The publications are not “of and concerning” the plaintiff?
(b)The publications are not defamatory of the plaintiff?
(c)The plaintiff’s claim, insofar as it concerns published statements made by Andrew and/or Michelle Doran, would amount to double recovery?
10 The defendant submits that the plaintiff has not shown that any of the ten publications referred to the plaintiff himself, either directly, or by reasonable inference, as opposed to Cavendish itself.
11 I was referred to Triguboff v Fairfax Media Publications,[2] where Bromwich J said:
“A reference to a company is not automatically a reference to the natural person or persons running it, or the person or persons who own it. An article about a company alone, and without more, is not an article about its owner, however notorious the fact of that ownership. More is required. The legal entities are separate unless there is something in the publication to bridge that vital and fundamental legal gap … .”[3]
[2][2018] FCA 845
[3](ibid) at paragraph [82]
12 I consider that his Honour’s use of the words “not automatically” is indicative that, depending on the circumstances, there could be references to a company which are references to the natural person or persons running it or owning it. His Honour’s statement is merely that this is not an automatic assumption or conclusion. In order to determine whether the publication is a reference to the person or persons running or owning the company, and hence “of and concerning” the owner or owners, consideration would need to be given to all of the evidence relating to the identification matters and all of the evidence and circumstances of the case in question.
13 Here, there is affidavit evidence before the Court sworn by the plaintiff’s son, Mark Zuchowski, on 25 June 2020, that he was informed by two named people that they and others had identified the plaintiff as being the subject of the Facebook posts in question.
14 Further, the plaintiff relies on certain “identification matters” set out in paragraph 5 of the Amended Statement of Claim and alleged to be applicable to the identification of the plaintiff in each of the ten publications. These, in my opinion, if established at trial, may enable the plaintiff to establish that the reasonable reader of the publications understood them to be of and concerning the plaintiff.
15 In essence, the identification matters, summarised, are that:
(a)The plaintiff was well-known as the owner and principal of Cavendish;
(b)Since 1994, Cavendish has been the owner of land at and around the Patterson Lakes Marina;
(c)Since around 1994, Cavendish has developed and sold approximately one hundred and thirty apartments and subdivided approximately one hundred lots of land in and around the Patterson Lakes Marina;
(d)Patterson Lakes is a small area with a small population;
(e)The plaintiff attended a meeting held by the City of Kingston concerning the Patterson Lakes Marina district on 29 February 2019, answered questions on behalf of Cavendish at that public meeting, is a regular attendee at the Patterson Lakes Marina district during the week and often on weekends, and is personally known as the developer and owner of the properties in the Patterson Lakes Marina district by many individuals who uploaded statements onto the relevant Facebook page;
(f)The majority of persons who purchased land from Cavendish dealt personally with the plaintiff;
(g)Cavendish had previously applied for numerous planning permits in relation to the Patterson Lakes Marina district (eleven of which are set out under paragraph (5)(f) of the identification matters and which include the permit application KP 2018/459, specifically the subject of the first publication (‘First Publication’)).
16 It is submitted by the plaintiff that the identification matters pleaded are sufficient to enable readers to identify the plaintiff as the subject of each of the ten publications. I consider that this is likely to depend on evidence at trial.
17 Whilst there might well be various defences available to the defendant, this is unclear on the material before me.
18 I have carefully read each of the posts and statements the subject of the publications. I do not consider it necessary here to work through each of them. It suffices to deal with the First Publication by way of example.
19 The First Publication involves a post allegedly published by the defendant, marked and annexed to the Amended Statement of Claim as Schedule A. The post expresses concerns about reduced car parking conditions under a particular City of Kingston permit – KP-2018/459.
20 Beneath the post is a statement by one Billy Zeitourne which consists of three dollar signs followed by the word “talks”. I consider that a reasonable reader would interpret this as meaning simply as “Money Talks”.
21 Neither the post nor Zeitourne’s statement expressly refers to either the plaintiff or to Cavendish; however, the plaintiff alleges that, by reason of the identification matters set out in paragraph 5, they were “of and concerning” the plaintiff. I accept that a reasonable reader, especially one from the Patterson Lakes/Carrum area, could come to that conclusion.
22 The imputations pleaded in relation to the First Publication are that in its natural and ordinary meaning, it meant and was understood to mean, that:
· The plaintiff was using money to taint the planning process with respect to a planning application by Cavendish to the City of Kingston KP-2018-459.
· The plaintiff was acting in a corrupt manner in relation to that application.
23 I am unable to agree with, and reject, the submissions of the defendant that the plaintiff could not prove at trial that the First Publication was of and concerning him. Neither do I accept that the publication was not defamatory of him. Whilst there might be differences of opinion about both these matters, I do not consider that it could be said that the plaintiff’s claim had no prospects of success or could properly be described as fanciful.
24 Based on the material put before me, I am not satisfied that the defendant has established that the plaintiff has no real prospect of success on the issue of identification of him in the publications in question. I do not consider that the defendant has established that plaintiff has merely a “fanciful” as opposed to a real chance of success in the proceeding.
25 I consider that it is often the case that, where a plaintiff is not actually named in a publication, it may be difficult to determine whether the plaintiff has made out the identification issue. It is often the case that the Court would need to carefully consider the evidence led at trial in order to decide such matters.
26 I consider that the plaintiff has an arguable case on the identification issue on the basis of the “identification matters” set out in paragraph 5 of the Amended Statement of Claim and applicable to each of the ten publications.
27 Further, and on the assumption that the Court, having heard the evidence, is satisfied that the publications are of and concerning the plaintiff, I am not satisfied the defendant has established that the plaintiff has no real prospect of successfully proving that the publications are defamatory of him. I do not consider that the defendant has established that plaintiff has merely a “fanciful” as opposed to a real chance of success on that aspect of the claims.
28 I have come to the same conclusions in respect of each of the other publications.
29 In the alternative to summary judgment, the defendant seeks orders that certain paragraphs of the Amended Statement of Claim be struck out. This alternative application was not referred to in written or oral submissions submitted by the defendant. I consider there is no basis upon which the nominated paragraphs should be struck out.
30 It follows that I am satisfied each of the causes of action pleaded has a real prospect of success and could not be described as fanciful.
31 It does not follow from these findings that the plaintiff is likely to succeed, let alone bound to succeed, on any of the causes of action pleaded.
The publications involving the Dorans
32 The seventh publication referred to in the Amended Statement of Claim involves a number of statements by Andrew Doran and Michelle Doran, which are alleged to be defamatory of the plaintiff.
33 None of the other publications are alleged to involve either Andrew or Michelle Doran.
34 There is evidence before me that:
(a) In a separate proceeding, the plaintiff had earlier sought damages from Mr and Mrs Doran in relation to the same statements as set out in paragraph 39(b) of the Amended Statement of Claim.
(b) His claim against them has been settled pursuant to terms of settlement which involved, inter alia, payment of money by Mr and Mrs Doran to the plaintiff and the withdrawal of the plaintiff’s earlier proceeding against them.
35 The defendant alleges that that earlier settlement agreement between the plaintiff and Mr and Mrs Doran amounts to a settlement agreement with joint tortfeasors and involves the whole of the plaintiff’s loss and that he cannot now seek to recover from any of the defendants.
36 I do not accept such admission. I accept the submissions of counsel for the plaintiff that s24AA of the Wrongs Act 1958 provides an answer to such an allegation. It provides that:
“Proceedings against persons jointly liable for the same debt or damage
Judgment recovered against any person liable in respect of any debt or damage shall not be a bar to an action, or to the continuance of an action, against any other person who is (apart from any such bar) jointly liable with the first-mentioned person in respect of the same debt or damage.”
37 I further note the decision of the Court of Appeal in Harplex Pty Ltd v Konstandellos, where it was said:[4]
“There is … no principle that a release of one of a number of co-debtors who are jointly, or jointly and severally, liable for the same debt releases all of them.”[5]
[4](2018) 54 VR 174
[5](ibid) at paragraph [64]
38 Here, the plaintiff does not bring a further claim against the Dorans. Instead, the plaintiff now brings a claim against Mr Howe. I consider that the plaintiff’s claim against the defendant in respect of the seventh publication and the involvement of the statements by Mr and Mrs Doran are not, in my view, fanciful. Notwithstanding, I consider that any damages awarded to the plaintiff in respect of the seventh publication in this proceeding would be reduced by the amount already received by him from the Dorans.
Orders
39 I propose to make the following orders:
(1) The defendant’s Summons dated 18 June 2020 be dismissed.
(2)The defendant pay the costs of the plaintiff of and incidental to the defendant’s Summons dated 18 June 2020.
40 In the event that either party wishes to submit that some different order ought be made in respect of costs, my associate should be notified by 1.00pm on Monday, 3 August 2020 and I will list the matter for further submissions on Tuesday, 4 August 2020 at 9.30am.
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