New South Wales
Court of Appeal
CITATION: Al-Shennag v Statewide Roads Ltd [2008] NSWCA 300 HEARING DATE(S): 28 October 2008
JUDGMENT DATE:
12 November 2008JUDGMENT OF: Beazley JA at 1; Tobias JA at 2; Bell JA at 110 DECISION: 1. Extend the time for the filing by the appellant of his summons for leave to appeal up to and including 13 March 2008.
2. Grant the appellant leave to appeal.
3. Dismiss the appeal.
4. The appellant to pay the respondents’ costs of the appeal.
5. Grant the cross-appellants leave to appeal.
6. Dismiss the cross-appeal.
7. The second respondent to pay the disbursements, if any, incurred by the appellant in respect of the summons for leave to cross-appeal and the cross-appeal.
8. Set aside the orders made by Walmsley A-J on 12 December 2007 and in lieu thereof order:
(a) that the proceedings against the first respondent be dismissed with costs;
(b) that there be judgment for the appellant against the second respondent to the effect that the imputations pleaded in paragraph 13(a), (b), (c), (d) and (e) of the amended Statement of Claim filed on 29 May 2007 were conveyed by the matter complained of and were defamatory of the appellant.CATCHWORDS: DEFAMATION – Whether imputations of and concerning appellant – Whether imputations conveyed by matter complained of – Report of consultant engineer in relation to work of appellant as professional engineer – Whether imputations were defamatory of appellant – Imputations disparaging of appellant in professional context – Publication – Whether imputations were published by first respondent – First respondent parent company of employer of report’s author – Whether employer of report’s author was agent of first respondent – Whether first respondent and employer of report’s author were in partnership – Whether first respondent vicariously liable for publication by employer of report’s author - CORPORATIONS – Group of companies – Whether parent company and wholly owned subsidiary in partnership – Whether parent vicariously liable for publication of report by subsidiary – Whether subsidiary was agent for parent in publishing report – Whether ‘corporate veil’ should be pierced/lifted as between parent and subsidiary - PROCEDURAL FAIRNESS – Self-represented litigant – Whether primary judge afforded appellant fair and just opportunity to prepare and present case – Appellant claimed to be unaware certain issues were to be determined – Alleged failure of primary judge to explain court processes to appellant – Alleged failure of primary judge to properly assess totality of submissions put by appellant LEGISLATION CITED: Defamation Act 1974 (NSW)
Partnership Act 1892 (NSW)CATEGORY: Principal judgment CASES CITED: Al-Shennag v Statewide Roads Ltd & Anor [2006] NSWSC 1226
Al-Shennag v Statewide Roads Ltd & Anor [2007] NSWSC 147
Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549
Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; (2002) 54 NSWLR 165
J H Rayner (Mincing Lane) Ltd & Anor v Department of Trade & Industry [1989] Ch 72
James Hardie & Co Pty Ltd v…
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Details
- Case
- [2008] NSWCA 300
- Decision Date
CaseChat Overview and Summary
In *Al-Shennag v Statewide Roads Ltd*, the appellant, Mr Al-Shennag, appealed to the Court of Appeal of New South Wales against a decision concerning defamation proceedings he had initiated. The dispute arose from a report prepared by a consultant engineer regarding work undertaken by the appellant in his professional capacity as an engineer. The appellant alleged that the report contained defamatory imputations concerning him, particularly in his professional context, and that these imputations were published by the first respondent, Statewide Roads Ltd. The appellant also raised issues concerning procedural fairness, arguing that the primary judge had not afforded him a fair opportunity to present his case, particularly as a self-represented litigant.
The Court of Appeal was required to determine several key legal issues. These included whether the imputations conveyed by the engineer's report were defamatory of the appellant, and whether these imputations were published by the first respondent. Central to the publication issue was the relationship between the first respondent and the author of the report's employer, specifically whether the employer was an agent of the first respondent, or if they were in partnership, thereby rendering the first respondent vicariously liable. The court also considered whether the corporate veil should be lifted between a parent company and its wholly owned subsidiary in this context. Furthermore, the court had to assess whether the primary judge had provided adequate procedural fairness to the self-represented appellant.
The Court of Appeal reasoned that the primary judge had correctly determined that the imputations pleaded in specific paragraphs of the amended Statement of Claim were conveyed by the matter complained of and were defamatory of the appellant. However, the court found that the proceedings against the first respondent should be dismissed. The court also addressed the procedural fairness arguments, implicitly finding that the appellant had not been denied a fair opportunity to present his case. The court extended the time for the appellant to file his summons for leave to appeal, granted leave to appeal, but ultimately dismissed the appeal. The court also dismissed a cross-appeal.
The final orders of the Court of Appeal included setting aside the previous orders and dismissing the proceedings against the first respondent with costs. Judgment was entered for the appellant against the second respondent, confirming that certain pleaded imputations were conveyed and defamatory. The appellant was ordered to pay the respondents' costs of the appeal, and the second respondent was ordered to pay the disbursements for the cross-appeal.
The Court of Appeal was required to determine several key legal issues. These included whether the imputations conveyed by the engineer's report were defamatory of the appellant, and whether these imputations were published by the first respondent. Central to the publication issue was the relationship between the first respondent and the author of the report's employer, specifically whether the employer was an agent of the first respondent, or if they were in partnership, thereby rendering the first respondent vicariously liable. The court also considered whether the corporate veil should be lifted between a parent company and its wholly owned subsidiary in this context. Furthermore, the court had to assess whether the primary judge had provided adequate procedural fairness to the self-represented appellant.
The Court of Appeal reasoned that the primary judge had correctly determined that the imputations pleaded in specific paragraphs of the amended Statement of Claim were conveyed by the matter complained of and were defamatory of the appellant. However, the court found that the proceedings against the first respondent should be dismissed. The court also addressed the procedural fairness arguments, implicitly finding that the appellant had not been denied a fair opportunity to present his case. The court extended the time for the appellant to file his summons for leave to appeal, granted leave to appeal, but ultimately dismissed the appeal. The court also dismissed a cross-appeal.
The final orders of the Court of Appeal included setting aside the previous orders and dismissing the proceedings against the first respondent with costs. Judgment was entered for the appellant against the second respondent, confirming that certain pleaded imputations were conveyed and defamatory. The appellant was ordered to pay the respondents' costs of the appeal, and the second respondent was ordered to pay the disbursements for the cross-appeal.
Orders
Orders of the court
1. Extend the time for the filing by the appellant of his summons for leave to appeal up to and including 13 March 2008. 2. Grant the appellant leave to appeal. 3. Dismiss the appeal. 4. The appellant to pay the respondents' costs of the appeal. 5. Grant the cross-appellants leave to appeal. 6. Dismiss the cross-appeal. 7. The second respondent to pay the disbursements, if any, incurred by the appellant in respect of the summons for leave to cross-appeal and the cross-appeal. 8. Set aside the orders made by Walmsley A-J on 12 December 2007 and in lieu thereof order: (a) that the proceedings against the first respondent be dismissed with costs; (b) that there be judgment for the appellant against the second respondent to the effect that the imputations pleaded in paragraph 13(a), (b), (c), (d) and (e) of the amended Statement of Claim filed on 29 May 2007 were conveyed by the matter complained of and were defamatory of the appellant.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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