Markisic v Today-Denes & Ors [2002] NSWSC 308 | Case summary

Supreme Court of NSW|2002-04-22|Before: Ethnic Publishers P, International Connection P, Kirby J, McClellan J, Simpson J

The Application for Summary Dismissal 8 The defendants point out that this is the twentieth interlocutory application. It is plain that the Amended Statement of Claim does not conform to requirements of the Supreme Court Rules. They argue that enough is enough. It is unreasonable to indulge a person who refuses or fails to comply with requirements of the Rules, allowing endless chances "to get it right". 9 There is some force in that argument. Whatever sympathy one may have for a litigant in person, especially one entering the minefield of defamation, there must be limits. The Amended Statement of Claim plainly does not comply with the Rules, for the reasons I will shortly identify. Having said that, it is clear that the plaintiff has made an effort to produce a document which does conform. The articles which he believes are defamatory, moreover, are plainly capable of giving rise to defamatory imputations, as I will shortly explain. In these circumstances, I do not believe that summary dismissal is appropriate, at least on this occasion. 10 I will therefore turn to the particular objections raised by the defendants in respect of the terms of the Amended Statement of Claim.

The Parties 11 The Amended Statement of Claim opens with the following paragraphs: "1. The first, sixth and seventh defendants, by court order, are removed as parties to the proceedings. 2. At the time of the events, published in the matters complained of, the plaintiff was a bachelor of economics, a computer professional, senior system analyst/programmer, a software developer and system integrator, a director of a company in Macedonia 'Markisoft International' and a partner in a business in Australia 'Markisoft International' together with his brother. 3. At the time of the events published in the matters complained of and at the time of publication of the matters complained of, the plaintiff was legally married to Katerina Markisic. 4. The plaintiff is biological father of Elena Markisic born 03.05.1997 the child concerned in the matters complained of." 12 These paragraphs are irrelevant. There is no issue concerning the capacity of the plaintiff to sue. It may be unobjectionable for the plaintiff to introduce the Statement of Claim with the following introductory paragraph, which I do not understand to be controversial: "1. The plaintiff was, in 1998, and at all material times, married to Katerina Markisic and is the father of Elena Markisic, born on 3 May 1997." 13 The plaintiff has taken the unusual course of suing not only the company said to be responsible for the publication of the newspaper, Today-Denes, but also persons said to be associated with that company, either as directors or editors of the newspaper. The third, fourth and fifth defendants complain that the mere fact of being the chairman of the publishing company, or a director, or even the editor, does not amount to publication. The plaintiff must identify the act or omission which would render such an individual liable as a joint tortfeasor. 14 The plaintiff responded by pointing to paragraph 9 in the Amended Statement of Claim, which is in these terms: "9. The third defendant is father of the fourth and fifth defendants and the fourth and fifth defendants are brothers. The third, fourth and fifth defendants owned and operated the publishing of the newspaper Today-Denes." 15 It was said by the plaintiff that the second defendant is a small family company. Those named as the third, fourth and fifth defendants are alleged to have been both the owners and the workforce which produced the newspaper. 16 The test in respect of publication is undemanding. However, some association with the production or dissemination of the material said to be defamatory must be demonstrated. Isaacs J in Webb v Bloch (1928) 41 CLR 331, adopted the following textbook definition which has since been reproduced in many cases: (at 364) "All who are in any degree accessory to the publication of a libel, and by any means whatever conduced to the publication, are to be considered as principals in the act of publication ... " (emphasis in the original) 17 Isaacs J added: (at 364) "In R v Paine (1695) 5 Mod 163 at 167, it is held: 'If one repeat and another write a libel, and a third approve what is wrote, they are all makers of it; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty' ..." (emphasis in the original) 18 See also Gillooly, "The Law of Defamation in Australia and New Zealand", page 75; cf Thompson v AC TV (1996) 186 CLR 574 at 481. 19 Merely holding the office of director of chairman, or even editor (where, as here, there are several editors) does not amount to publication. The person concerned must at least be aware of the article, so it might be inferred that, holding that office, they failed to prevent publication. I believe the Amended Statement of Claim in its present form is objectionable for the reasons given by the defendants. It is necessary that the plaintiff plead: · That the second defendant is a company duly incorporated, and the publisher of a newspaper known as Today-Denes which has a wide and extensive circulation (which should be identified in terms of location, and whether its circulation is within the Macedonian community or otherwise). · The matters which are set out in paragraphs 6, 7 and 8 of the Amended Statement of Claim. · That, on 3 November 1998, the second, third, fourth and fifth defendants published of and concerning the plaintiff in the newspaper Today-Denes (no. 420), the words which appear in Schedule A1. · And that the Statement of Claim include particulars of publication which may include a reference to the small size of the company, the role played by each person in the publication, and assert, at least (if it be the plaintiff's case), that each was aware of the article before publication. 20 The same objection is taken on behalf of the fifteenth defendant in respect of the publication, The Australian Macedonian Weekly. The publishers of that newspaper are said to be a company, Macedonian International Connection Pty Ltd (the eighth defendant), and various people (the ninth, tenth and fifteenth defendants) described as either editors or directors, or both. The Notice of Motion relates only to Mr Ljupco Stankovski, the fifteenth defendant, who is described in these terms: "18. At all material times the fifteenth defendant was a Editor of the newspaper Australian Macedonian Weekly and a Director of the eight defendant." 21 Again, the same problems arise. The Statement of Claim must be further amended to include the following: · That the eighth defendant was a company duly incorporated, and the publisher of the newspaper The Australian Macedonian Weekly which had a wide and extensive publication (which should be specified in terms of location and whether confined to the Macedonian community or otherwise). · The matters appearing in paragraphs 11, 12 and 18 should be set out. · That on 3 November 1998, the eighth, ninth, tenth and fifteenth defendants published of and concerning the plaintiff in the newspaper The Australian Macedonian Weekly, the words which appear in Schedule B1. · And to supply particulars of publication, which may include a reference to the size of the company, the role which each defendant is alleged to have played in the actual publication, or at least (if it be the plaintiff's case), that each was aware of the article published before circulation.

Objections to Form and Capacity: Today-Denes 22 The Amended Statement of Claim, having referred to the publication, Today-Denes, then stated the following: "24. At the time of publishing of the first matter complained of there were proceedings at the Family Court of Australia in relation to: a) the Director-General of the DOCS of NSW application under the Family Law (Child Abduction Convention) Regulation 1986 for the return of the plaintiff's daughter Elena to Macedonia b) the plaintiff's application for custody of his daughter c) the plaintiff's application to commence divorce proceedings. 25. At the time of publishing of the first matter complained of there was a pending appeal at the High Court of Australia from a decision of the Family Court of Australia. 26. The statements in the first matter complained of in their natural and ordinary meaning and in the context in which they were published were false and defamatory of the plaintiff and were published maliciously and for an ulterior purpose." 23 Paragraphs 24 and 25 are irrelevant. They should be struck out. Paragraph 26 introduces the issue of falsity, which is irrelevant. The usual formulation should be used, namely: "The said publication of A1 contained the following imputations, each of which was defamatory of the plaintiff." 24 The Amended Statement of Claim isolated particular statements from the article, and thereafter set out the imputations said to arise. In doing so, there are irrelevant references to certain statements being false. The imputations relied upon include the following: · That the plaintiff caused Elena's nightmare. · That the plaintiff is a bad parent. · That the plaintiff is a bad husband. · That the plaintiff is a bad person. · That the plaintiff kidnapped his daughter. · That the plaintiff is a criminal. · That the plaintiff physically abused his wife. · That the plaintiff obtained a passport without his wife's knowledge. · That the plaintiff is a war criminal who committed crimes against humanity. 25 The defendants to the Notices of Motion object that such imputations are either bad in form, or are incapable of arising. The Rules require that the Statement of Claim should "specify each imputation" (Pt 67 r 11(2)(a)). 26 To specify is "to state categorically, explicitly or particularly the defamatory meaning" (per Samuels JA in Feros v West Sydney Radio Pty Limited (C of A, unreported, 22 June 1982)). The assertion that the plaintiff is a bad person, or a bad parent, or a bad husband, is, according to the defendants, too general. The plaintiff must specify the sense in which he employs those terms. 27 The argument, as I understand it, is not that the imputations are incapable of arising. Rather, the issue is whether the pleadings should be struck out under Pt15 r 26(1)(b) of the Rules, as tending to cause prejudice, embarrassment or delay in the proceeding (cf Priestley JA in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 154). 28 Gleeson CJ in Drummoyne Municipal Council (supra) said this: (at 137) "The requirement that a plaintiff must 'specify' the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology."

29 The Chief Justice then made it clear that the manner in which the defendant has expressed the defamatory publication is relevant to a determination of the requirement for specificity. The test to be applied is whether the formulation chosen by the plaintiff is likely to be a source of confusion. Gleeson CJ (at 138) agreed with the following test of Hunt J in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155: "… The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends." 30 The article is not expressed in generalities. It is quite specific. It makes a number of accusations against Mr Markisic. The article (Schedule A1) is in these terms: "Happy ending of the nightmare of eleven months old girl and her mother. HAPPINESS AND HOPE RETURNS WITH ELENA The Australian citizen Dragan Markesic, without the knowledge of his spouse Katerina, kidnapped then six months old daughter Elena and took her to Australia. If the morning tells what the day will bring, then nobody would wish the eleven months old Elena Markesic from Veles to have such life. Leaving the old saying aside, we have to say that the first few months of this girl's life - the young couple Dragan and Katerina Markesic's daughter, start as a nightmare, which luckily, thanks to her age, will not have psychological marks. It all started two years ago when Dragan Markesic from Sydney, Australia went back to Veles, the town on Vardar River, where he used to live before. His intention was to find himself a life companion, get married and go back to Australia. Before too long Markesic, a good looking young man, took a liking to the young and beautiful Elena Miovska, then a high-school student and now in the peak of her youth. It didn't take long before they met and after a few intimate dates in the evenings through the streets of Veles they decided to stay together, there in the town by Vardar River and after that to leave for Australia, since Dragan Markesic was already an Australian citizen. Their love of each other was crowned with marriage. The groom from Australia tries to find a job in the field of computer technology in Veles and it seemed tht he could be able to earn a living. But, it wasn't that easy. In the meantime their daughter, little Elena, was born, she was eagerly expected by both her parents. Little Elena was growing well and it seemed that she was going to have a happy and joyful childhood. But, during that time her parents grew apart and day after day their lives became hell. I still can't understand and find an explanation for the anger that now my ex-husband was manifesting towards me, says Katerina, the mother, talking to us and holding her daughter Elena tightly in her arms, with an expression of fear in her eyes that somebody might take her away, and continues: I don't know what happened to us, what was that that changed my husband and made him disdain and physically abuse me. At the beginning I kept it for myself and I was hiding it from my parents, I was doing everything to hide the shame from my parents and from my community. But, to no avail. What happened was something I hardly ever expected, something I could not even dream of. Everyone knows already, there is no need for me to hide it, at six months of age, Dragan simply kidnapped my daughter. It's a long story, but in short, he managed, without my knowledge, to obtain a passport for Elena on 23 April 1998. He came that afternoon at my parents' house, because we were already separated and asked if he could take little Elena for a walk. Only one hour after that, he flew away from Skopje Airport with my daughter to go for a long 'walk' to Australia, in Sydney. Few hours later after the enquiries the police had made, we were told unfortunately that I couldn't have my daughter beside me anymore. That moment, says Katerina, my journey through hell started. I went from door to door, from the police, through Department for Foreign Affairs. The department for Labor and Social Policy of Macedonia, to the International Court in Hague and the Australian authorities. I simply wanted justice, I could not accept my child to be taken away from me in this way. Well, as you can see now, I am happy again, I have my daughter Elena in my arms. The International Court and he judicial authorities in Australia, following the Hague Convention regulations, whose signatory is Macedonia, ruled in my favour. During the interview, Katerina's father, Goce Mioski was present, whom little Elena frequently calls 'dedo, dedo!' (grandpa', grandpa') ... He also would like to express his gratitude to all the people who made his granddaughter's return possible and says he will protect her like a 'pupil in his eye' This is in short the life story of the eleven months old Elena, the daughter of Katerina and Dragan Markesic who were once a married couple, with its epilogue in the Local Court in Veles, where on 21 of this month the dis marriage was dissolved. As for the people in Veles and outside, they can only talk about it, and for Katerina remains the hope to live her life, to find a job and to dedicate all her motherly love to her daughter." 31 In the context of that article, the imputations, as pleaded, are too general. They are liable to give rise to confusion. Some are not capable of arising. 32 One is naturally diffident about formulating, even with an unrepresented litigant, imputations that may arise. However, it is plainly desirable that the issues be identified in a way acceptable to both parties, so that a jury can determine the issues that arise under s7A of the Defamation Act 1974. With that in mind, it seems to me that the following imputations are capable of arising: (a) The plaintiff physically abused his wife. (b) The plaintiff committed the criminal offence of kidnapping by removing his daughter from Macedonia to Australia. (c) The plaintiff is a bad parent, In that he selfishly removed his daughter from her mother's custody when he well knew that her best interests were in remaining with her mother. (d) The plaintiff dishonestly obtained a passport for his daughter, Elena, without the knowledge or consent of her mother when the plaintiff well knew that it was necessary to obtain the mother's consent. 33 Mr Markisic drew attention to the references to the International Court in the Hague. He said that the ordinary reasonable reader would have the impression that he was a war criminal and had committed crimes against humanity. The Macedonian community, within which this newspaper would circulate, was especially sensitive to the role of that Court. It would be aware of the charges preferred against the former President Milosevic. 34 A reader may form that impression, simply by reading the paragraphs which refer to the International Court in the Hague. However, I do not believe that such an inference is open, taking the article as a whole, even assuming a certain account of loose thinking.

Objections to Form and Substance: The Australian Macedonian Weekly 35 Since the article B1, allegedly published by The Australian Macedonian Weekly, was in the same terms as that said to have been published by Today-Denes, amendments along similar lines will be necessary in respect of that publication.

Particulars 36 In respect of each publication, and each imputation pleaded, particulars must be supplied, identifying those parts of the matter complained of relied on in support of each pleaded imputation (Pt 67 r 12(1)(e)). It is usual for the plaintiff in such cases to assert that he relies upon the whole of the article, and then to identify particular passages, or words, which are said to support each imputation. These particulars should be incorporated into the Statement of Claim.

Damages 37 A number of irrelevant paragraphs were included in respect of damages. A claim is made for exemplary damages, whereas exemplary damages cannot be claimed (s46(3)(a) Defamation Act 1974). Paragraphs 27 to 34 and paragraph 36 are bad in substance or form. They are struck out. The plaintiff should simply allege, in the conventional way, the following: "That, by reason of the publication by the second, third, fourth and fifth defendants of the material in Schedule A1, the plaintiff has been greatly injured in his reputation, and has been held up to ridicule and contempt, and has suffered and continues to suffer loss and damage." 38 Particulars of aggravated damages should be supplied. The form of paragraph 35 has not been debated. I therefore make no comment upon it. 39 The second publication, the Australian Macedonian Weekly, has been pleaded in similar terms, so far as damages are concerned. The same comments therefore apply. Paragraphs 42 to 49 and paragraph 51 are bad in substance or form. They are struck out. The plaintiff should instead complete this aspect of the pleading in the conventual way, namely: "That, by reason of the publication by the eighth, ninth, tenth and fifteenth defendants of the material in Schedule B1, the plaintiff has been greatly injured in his reputation, and has been held up to ridicule and contempt, and has suffered and continues to suffer loss and damage." 40 Particulars of aggravated damages must also be incorporated.

The Notice of Motion of 12 March 2002 on behalf of the second, third, fourth and fifth defendants is dismissed.

The Notice of Motion of 12 March 2002 on behalf of the fifteenth defendant is dismissed.

Paragraphs 1, 2, 3, 4, 22, 23, 24, 25, 26, 27 to 34, 36, 41, 42 to 49 and 51 of the Amended Statement of Claim are struck out, including the Particulars of Defamation accompanying paragraph 26, and the Particulars of Defamation accompanying paragraph 41.

The plaintiff is given leave to file a Further Amended Statement of Claim incorporating appropriate amendments. Such Statement of Claim should be filed and served upon the defendants by 27 May 2002.

The matter to be relisted before the Registrar in the Defamation Directions List on 14 June 2002 for further directions.

Balancing wins and losses, the plaintiff should pay half the defendants' costs. **********

Last Modified: 04/23/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Markisic v Today-Denes & Ors [2002] NSWSC 308 CURRENT JURISDICTION: Common Law Division Defamation List FILE NUMBER(S) : SC 20492/99 HEARING DATE(S) : 15/04/02 JUDGMENT DATE : 22 April 2002

Markisic v Today-Denes & Ors

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Judgment (14 paragraphs)

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