Damages for deformation are:

(1)   Compensatory damages, including

• Injury to reputation,
• Social damage,
• Injury to feelings,
• Injury to health, and

(2)   Aggravated compensatory damages

This damage may be increased by the conduct of the party and therefore increase the damages awarded, while other conduct could decrease the injury and therefore decrease the damages. Under section 34 of the Defamation Act 2005 (Vic) in determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

Under the section 35, the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250 000 or any other amount adjusted in accordance with this section from time to time (the maximum damages amount) that is applicable at the time damages are awarded. A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages[1]. In awarding damages the state of mind of the defendant is not a relevant matter. Under legislation however the plaintiff cannot be awarded exemplary or punitive damages for deformation[2].

The Defamation Act 2005 (Vic) states that certain factors may be taken into account in mitigation of the damages.  Under section 38, evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that:

(a) the defendant has made an apology to the plaintiff about the publication of the defamatory matter; or

(b) the defendant has published a correction of the defamatory matter; or

(c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or

(d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or

(e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.

Under rule 29.02(1) of the Supreme Court (General Civil Procedure) Rules 2005 material documents which once were but no longer are in the possession of the party making discovery must be disclosed in the party’s affidavit of documents. The fact that the document cannot be produced does not mean the document should be omitted from the affidavit. Rule 29.04(c) states that the party having disposed of the material document must state when he parted with the document and his belief of what become of it. The destruction by a party of material documents in its possession prior to the commencement of the instant litigation to the prejudice of the other party will ordinarily be irrelevant. However, apart from possibly affording a basis for the drawing of adverse inferences, such conduct may warrant the intervention of the court if it amounts to an attempt to pervert the course of justice: British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524. A party who has parted with possession of material documents is obliged to make proper inquiries from the persons in whose possession they are now in order to be able to identify the documents and then describe them in the affidavit of documents: Re McGorm; Ex parte Co-op Building Society of South Australia (1989) 20 FCR 387

• You are entitled to prune branches, trees and plants encroaching your property.
• Take care not to kill the tree or make it unstable. If the tree is needlessly damaged or becomes unstable and causes damage to other property you may be liable for damages.
• You must not enter your neighbour’s property without permission.
• You are responsible for the costs associated with pruning.
• The branches, roots and/or limbs pruned remain the property of the owner of the tree. These must be returned to the owner or disposed of by agreement between the affected property owners.

Do Tree Owners have responsibility for leaves falling on neighbour’s land?

• Generally tree owners do not have responsibility for leaves falling on their neighbour’s land unless they cause damage or injury or have fallen branches overhanging the boundary.

What can I do in relation to a neighbouring tree that is causing physical damage to my property?

• You can apply to the Magistrates Court for an order requiring your neighbour to remove the tree.
• You may be entitled to recover compensation for damages.
• Legal proceedings should be a last resort. You may wish to speak to a lawyer so that they can advise on your legal rights and obligations and discuss alternative dispute resolution options with you.

You should not act only on the basis of material contained in this article because the contents are of a general nature only and may be liable to misinterpretation. Do not act on any of the contents of this article without first obtaining specific advice from a lawyer. 

High Court of Australia – www.hcourt.gov.au

Federal Court of Australia – www.fedcourt.gov.au

Family Law Court – www.familycourt.gov.au

Federal Magistrates Court – www.fmc.gov.au

Victorian Courts & Tribunals

Supreme Court of Victoria – www.supremecourt.vic.gov.au

County Cout of Victoria – www.countycourt.vic.gov.au

Magistrates Court of Victoria – www.magistratescourt.vic.gov.au

Victims of Crim Assistance Tribunal – www.vocat.vic.gov.au

Victorian Civil and Administrative Tribunal – www.vcat.vic.gov.au

 For further information about company insolvency see:

Australian Securities and Investments Commission – www.asic.gov.au

Insolvency Practitioners Association of Australia – www.ipaa.com.au

The Law Institute of Victoria website contains information regarding debts and bankruptcy: www.liv.asn.au/public/legalinfo/debts/