Zwambila v Wafawarova - [2015] ACTSC 171

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Zwambila v Wafawarova
Citation:	[2015] ACTSC 171
Hearing Date:	28 April 2014
DecisionDate:	10 July 2015
Before:	Penfold J
Decision:	1. The defendant Panganai Reason Wafawarova, otherwise known as Reason Wafawarova, is to pay the plaintiff: (a) $160,000 as general damages; and (b) $20,000 as aggravated damages. 2. The defendant Panganai Reason Wafawarova, otherwise known as Reason Wafawarova, is to pay: (a) the plaintiff’s costs of the proceedings up to and including 20 December 2013 (other than costs that are already the subject of an order of the Supreme Court), on an indemnity basis; and (b) the plaintiff’s costs since 20 December 2013 on a party/party basis.
Category:	Principal Judgment
Catchwords:	DEFAMATION – Actions for Defamation – defamation of foreign ambassador to Australia – subject of defamatory publication was conduct alleged to have taken place inside Zimbabwean Embassy – plaintiff relied on publication in Zimbabwe and electronic re-publications – defendant’s responsibility for publication – claim for aggravated damages – jurisdiction of ACT Supreme Court – choice of law – defendant’s failure to plead Zimbabwean law – nature of defamation – cultural significance of defamatory matter in Zimbabwe – assessment of damages – claim for indemnity costs where no settlement offer made and having regard to defendant’s conduct of proceedings – indemnity costs limited having regard to abandonment of parts of plaintiff’s case during hearing.
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT), ss 123, 139G, 139K, Div. 9.4.3 Service and Execution of Process Act 1992 (Cth), s 15(1) Civil Law (Wrongs) Non-economic Loss Declaration 2015 (ACT)
Cases Cited:	Anderson v Mirror Newspapers (No. 2) (1986) 5 NSWLR 735 Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 Carson v John Fairfax & Sons Ltd & Slee (1993) 178 CLR 44 Davis v Nationwide News Pty Ltd [2008] NSWSC 693 Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 Empson v Smith [1996] 1 QB 426 Kontis v Barlin (1993) 115 ACTR 11 Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 Lewincamp v ACP Magazines Limited [2008] ACTSC 69 Regie Nationale das Usines Renault SA v Zhang (2002) 210 CLR 491 Triggell v Pheeney (1951) 82 CLR 497 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 Webb v Bloch (1928) 41 CLR 331 Zwambila v Wafawarova [2014] ACTSC 73
Parties:	Jacqueline Zwambila (Plaintiff) Panganai Reason Wafawarova (Defendant)
Representation:	Counsel Mr S Littlemore SC (Plaintiff) Self-represented (Defendant)
Solicitors Aulich Civil Law (Plaintiff) Self-represented (Defendant)
File Number:	SC 11 of 2012

Introduction

Jacqueline Zwambila, who was at all relevant times the Zimbabwean Ambassador to Australia, brought defamation proceedings against two defendants by an originating claim and statement of claim filed on 13 January 2011. Her action against the first defendant, Nationwide News Pty Ltd, was settled by consent orders made on 25 May 2011, but the action proceeded against the second defendant.

The second defendant was identified in the originating claim as…

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: [2015] ACTSC 171
Decision Date: 10 July 2015

CaseChat Overview and Summary

This case concerns a defamation action brought by the plaintiff, Mr Zwambila, against the defendant, Mr Wafawarova, regarding defamatory statements made about Mr Zwambila's conduct while he was the ambassador for Zimbabwe to Australia. The defamatory statements were published in Zimbabwe and subsequently re-published electronically. The case was heard in the Supreme Court of the Australian Capital Territory, which had jurisdiction over the matter. The primary issues before the court were whether the defendant was responsible for the publication of the defamatory material, whether the court should apply Zimbabwean or Australian law, and the appropriate assessment of damages, including aggravated damages.

The court determined that the defendant was responsible for the publication of the defamatory material. It also held that Zimbabwean law should apply to the defamation claim because the defamatory material originated in Zimbabwe and was intended for a Zimbabwean audience. The court further found that the defamatory material had a significant cultural impact in Zimbabwe, which warranted an award of aggravated damages. The court assessed the damages, awarding the plaintiff $160,000 in general damages and $20,000 in aggravated damages. Regarding costs, the court awarded the plaintiff indemnity costs up to a certain date and party/party costs thereafter, taking into account the defendant's conduct during the proceedings and the plaintiff's abandonment of certain parts of the case.

In summary, the court ruled in favour of the plaintiff, awarding both general and aggravated damages, and ordered the defendant to pay the plaintiff's costs on an indemnity basis for part of the proceedings and on a party/party basis for the remainder.

Orders

Orders of the court

1. The defendant Panganai Reason Wafawarova, otherwise known as Reason Wafawarova, is to pay the plaintiff:

(a) $160,000 as general damages; and

(b) $20,000 as aggravated damages.

2. The defendant Panganai Reason Wafawarova, otherwise known as Reason Wafawarova, is to pay:

(a) the plaintiff’s costs of the proceedings up to and including 20 December 2013 (other than costs that are already the subject of an order of the Supreme Court), on an indemnity basis; and

(b) the plaintiff’s costs since 20 December 2013 on a party/party basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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