A-S v Statewide Roads Limited - [2007] NSWSC 1472

CITATION: A-S v Statewide Roads Limited [2007] NSWSC 1472

HEARING DATE(S): 3/12/07 & 4/12/07; 11/12/07 & 12/12/07

JUDGMENT DATE :
12 December 2007

JURISDICTION: Common Law

JUDGMENT OF: Walmsley AJ

EX TEMPORE JUDGMENT DATE: 12 December 2007

DECISION: Verdict for the first defendant with costs.; Verdict for the plaintiff against the second defendant in respect of imputations 13 (a), (b), (c), (d), and (e).; Verdict for the second defendant in respect of imputation 13 (f).; Costs between the plaintiff and second defendant reserved.

CATCHWORDS: DEFAMATION – identification – whether publication identifies plaintiff – where plaintiff development engineer employed by local council – where council commissioned report into plaintiff’s work as engineer – where plaintiff not named in report - DEFAMATION – publication – whether publication published by defendant – where report written by employee of company – where defendant parent company of company whose employee wrote report – where companies in corporate group had common officers, common offices, and common fax number – where companies in corporate group produced consolidated financial statements – whether defendant and subsidiary in partnership – whether subsidiary agent of defendant – whether defendant positively accepted responsibility for publication by subsidiary – whether defendant vicariously liable for publication by subsidiary - DEFAMATION – imputations – whether imputations arise from matter complained of – whether imputations defamatory – whether imputations more than an insult – where plaintiff development engineer employed by local council – where council commissioned report into plaintiff’s work as engineer – where report uses words such as “inappropriate”, “not necessary”, “exceeded his role as an approving and checking engineer”, “unsuitable outcome”, “poor understanding of basic hydraulics”, “basic misunderstanding or incorrect application of council’s requirements”, “basic inability to understand geometry is exhibited”, “serious breach of the staff member’s obligation to provide proper engineering conditions”, “engineering process has not been thought through properly”, and “difficult, if not impossible, to defend the actions of a fellow engineer” – whether imputations pleaded arise – whether imputations that arise are defamatory - DEFAMATION – trial under s 7A Defamation Act 1974 – trial by judge alone

LEGISLATION CITED: Defamation Act 1974
Partnership Act 1982

CASES CITED: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449
Briggs v James Hardie and Co Pty Ltd (1989) 16 NSWLR 549
Byrne v Deane [1937] 1 KB 818
Gardiner v John Fairfax and Sons (1942) 42 SR (NSW) 171
Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165
Mirror Newspapers Limited v World Hosts Pty Limited (1979) 141 CLR 632
Mundey v Askin [1982] 2 NSWLR 369
Singleton v Ffrench [1986] 5 NSWLR 425
Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Reports 81-127
Webb v Bloch (1928) 41 CLR 331

PARTIES: A A-S (Plaintiff)
Statewide Roads Limited (First Defendant)
Bill Woodcock (Second Defendant)

FILE NUMBER(S): SC 20208/05

COUNSEL: Plaintiff appeared in person
M S White (Defendants)

SOLICITORS: Plaintiff appeared in person
Deacons (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH…

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: [2007] NSWSC 1472
Decision Date: 12 December 2007

CaseChat Overview and Summary

The matter of A-S v Statewide Roads Limited involved a defamation claim brought by an engineer against a company. The plaintiff, a development engineer employed by a local council, sought damages for defamatory statements contained in a report commissioned by the council into the plaintiff's work as an engineer. The report, while not naming the plaintiff, contained numerous critical comments about the plaintiff's professional capabilities and conduct. The defendant, Statewide Roads Limited, was the parent company of the entity whose employee authored the report. The plaintiff contended that the defendant was liable for the report's contents either through direct publication, vicarious liability, or agency.

The legal issues before the court were whether the report identified the plaintiff, whether the defendant was responsible for the publication of the report, and whether the comments in the report were defamatory. The court had to determine if the report's critical language conveyed meanings that lowered the plaintiff in the estimation of right-thinking members of the community, and if those meanings went beyond mere insult to constitute defamation. Additionally, the court examined whether Statewide Roads Limited was liable for the report's contents by virtue of being the parent company, vicarious liability, or agency of the subsidiary that employed the report's author.

In resolving these issues, the court found that the report did not specifically identify the plaintiff, but the content was sufficiently specific to be understood as referring to the plaintiff. The court also concluded that Statewide Roads Limited was not directly responsible for the publication of the report by its subsidiary, nor was the subsidiary acting as an agent of the defendant. The critical language in the report was found to be defamatory, as it conveyed serious criticisms about the plaintiff's professional competence and conduct, which went beyond mere insult. The court awarded damages to the plaintiff, recognising the defamatory nature of the comments and the harm caused to the plaintiff's reputation.

Orders