Moumoutzakis v Carpino

Moumoutzakis v Carpino - [2008] NSWDC 168 - NSWDC 2008 case summary — Zoe

Parties

Applicant/Plaintiff:

Moumoutzakis

Respondent/Defendant:

Carpino

Legislation Cited (4)

Conveyancing Act 1919(NSW)

Defamation Act 2005(NSW)

Defamation Act 1974(NSW)

Strata Schemes Management Act 1996(NSW)

Cases Cited (24)

CITATION: Moumoutzakis v Carpino [2008] NSWDC 168

Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Attrill v Christie [2007] NSWSC 1386 Bellino v Australian Broadcasting Corporation (1996) 135 ALR 368 Bennette v Cohen (2005) 64 NSWLR 81 Bik v Mirror Newspapers Ltd (1971) [1979] 2 NSWLR 679 (n) Calwell v Ipec Australia Pty Ltd (1975) 135 CLR 321 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Davis v Nationwide News Pty Ltd [2008] NSWSC 693 Doelle v Bedey [2007] QCA 395 Frawley v State of New South Wales [2006] NSWSC 248 Green v Schneller [2000] NSWSC 548 Harbour Radio Pty Ltd v Tingle [2001] NSWCA 194 Holmes v Fraser [2008] NSWSC 570 CASES CITED: Horrocks v Lowe [1975] AC 135 Jones v Sutton (2004) 61 NSWLR 614 Martin v Bruce [2007] NSWDC 264 McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42 Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 Mundey v Askin [1982] 2 NSWLR 369 Penton v Calwell (1945) 70 CLR 219 Peterson v Advertiser Newspapers Ltd (1995) 64 SASR 152 Pinniger v John Fairfax & Sons Ltd (1979) 26 ALR 55 Shelmerdine v Mewett [1993] SASC 3932 Skalkos v Assaf (2002) Aust Torts Reports 81-644 Trantum v McDowell [2007] NSWCA 138 Webb v Bloch (1928) 41 CLR 331 White v Betalli [2007] NSWCA 243

There is a helpful summary of cases concerning a defendant's liability for a publication which is put on public view in Frawley v State of New South Wales [2006] NSWSC 248. Strictly speaking, it is not a prerequisite for liability for publication to show that the defendant personally was responsible for the placing of a copy of his circular letter on the electricity cabinet, where it was in public view.

Imputations are no longer the cause of action in New South Wales under the Defamation Act 2005 (NSW). Where a judge-alone trial on all issues takes place, how should the judge approach this issue? I have adopted the approach taken by Simpson J in Holmes v Fraser [2008] NSWSC 570 at [22] - [28] and I have approached the question of whether each imputation was conveyed and defamatory in accordance with paragraphs [31] - [45] of her Honour's judgment.

Matters that are the private affairs of an individual or relatively small group of people have generally not been considered matters of public interest. It is not sufficient if the opinion has a relationship to matters of public interest only in the most peripheral way. In Green v Schneller [2000] NSWSC 548 Simpson J at [24] set out the test as follows:

Malice may be shown if it is proven the defendant used the occasion upon which the immunity is founded for some wrong or improper purpose or motive, other than the interest which gave rise to the privileged occasion, or that he or she spoke dishonestly or in knowing or reckless disregard for the truth. It may be proved that inferences can be drawn from the language of the matter complained of or by extrinsic evidence on matters such as the relationship between the parties, the mode and extent of publication and the conduct of the defendant in publishing it: Brown The Law of Defamation in Canada , 2nd ed., vol 2, [16.1]. Malice is essentially a state of mind and it is the defendant's primary or predominant motive in publishing that is determinative: Horrocks v Lowe [1975] AC 135 at 149. Proof of malice involves, in almost every case, the drawing of inferences from proved facts ( McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42 at 51 per Clarke JA). Its proof is not confined to the four corners of the publication (Brown, at [16.4(1]).

[2007] QCA 395

[1993] SASC 3932

(1996) 135 ALR 368

(2005) 64 NSWLR 81

(1975) 135 CLR 321

(1993) 178 CLR 44

(2004) 61 NSWLR 614

(1990) 20 NSWLR 42

(1945) 70 CLR 219

(1995) 64 SASR 152

(1979) 26 ALR 55

(1928) 41 CLR 331