The recent Victorian Supreme Court decision in Amanatidis & Anor v Darmos [2011] VSC 163 illustrates how damages in defamation cases may be increased where a defence is conducted improperly at trial.

Facts

Various family members were engaged in an acrimonious dispute about their late father's estate. The court found that the defendant, who was the first plaintiff's sister, caused two letters (which had not been written by her) carrying defamatory imputations about the plaintiffs to be sent to another family member and the family's local priest. The defamatory allegations included that:

  • the plaintiffs were squandering the deceased's estate
  • one of the plaintiffs had stolen the deceased's car and gold Rolex watch
  • one of the plaintiffs had "robbed the dead" by taking a wallet, money, papers and "anything else she found" from the deceased's pockets.

Key issues

There was no dispute that the letters were defamatory of the plaintiffs. However, the defendant simply asserted that she did not publish the letters, or play any role in their delivery to third parties. Despite this "bare denial" defence, at the trial the defendant's counsel repeatedly attacked the credibility of the plaintiffs and made what Justice Sifris described as "a number of serious allegations". In particular, defence counsel, despite warnings from the bench, put to the plaintiffs that they had "concocted" the defamatory letters and that the defamation proceedings had been brought for an improper purpose. Statements such as these were made about the plaintiffs despite the defendant not having pleaded any form of justification defence.

The decision

The judge awarded the plaintiffs a total of A$15,000 in damages. This was said to include an element of aggravated damages, partially as a result of the "unjustifiable and improper" conduct of defence counsel at the trial.

Conclusion

A defendant to a defamation claim who simply denies publication ought to be very careful not to use the trial as an opportunity to impugn the plaintiff's character and reputation. To do so is irrelevant to the pleaded defence, unjustifiable and improper. Amanatidis emphasises the importance of sticking to one's pleadings in a defamation matter, especially in the context of a "bare denial" defence.

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