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Atholwood v Barrett

Atholwood v Barrett

Case [2004] QDC 505 10 December 2004

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DISTRICT COURT OF QUEENSLAND

CITATION:

Atholwood v. Barrett [2004] QDC 505

PARTIES:

MICHAEL GERARD ATHOLWOOD (Plaintiff)

v.

PETER ROBERT BARRETT (Defendant)

FILE NO/S:

D1338 of 2001

DIVISION:

PROCEEDING:

Assessment of Damages

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

10 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

15 November 2004

JUDGE:

Samios DCJ

ORDER:

CATCHWORDS:

DEFAMATION – Assessment of damages

Carson v John Fairfax & Sons Limited (1993) 178 CLR 44, 60-61 Appl

Kendell v The North Queensland Newspaper Co Ltd (1994) Aust Torts Reports 81-272 Cons

Shepherd v Walsh and ACC Publishing Pty Ltd & Ors (2001) QSC 358 Cons

Timms v Clift (1998) 2 Qd.R. 100 Cons

COUNSEL:

Mr M. Evans for the plaintiff
No appearance for or on behalf of the defendant

SOLICITORS:

Gilshenan & Luton for the plaintiff
No appearance for or on behalf of the defendant

The plaintiff’s claim against the defendant in these proceedings is for damages for defamation.

The defendant not having filed a Notice of Intention to Defend, judgment has been entered against the defendant for damages to be assessed.

This is the assessment of the damages.

The plaintiff’s claim is that in April 1998 and prior to 21 May 1998 the defendant orally said to various persons, including the plaintiff’s business competitors, that the plaintiff was a paedophile.

Particulars of this defamation are as follows:

(a) In or about March 1998 the defendant approached Mr John Michael Murphy who was working on his vehicle on the premises of Advance Motors, adjacent to the defendant’s business premises. The defendant informed Mr Murphy that:

(i) the plaintiff was the head of a paedophile ring with another businessman from the area, a Mr Mal Crompton.

(ii) the plaintiff had interfered with the defendant’s child.

(iii) the defendant had spoken with the Plaintiff’s wife and informed her that he was a paedophile.

(b) In or about April 1998 the defendant approached both the plaintiff and Mr Shane Karl Alex, an employee of the plaintiff. The defendant made allegations that:

(i) the plaintiff was a paedophile

(c) On or about 11 May 1998 the defendant said to Mr Lance Robert Ricks words to the effect of “You know that Michael Atholwood is a paedophile. He has been interfering with my son when he took him to the drags. You know he killed another boy and put him in a wheelie bin.”

Further, the plaintiff claims in this period the defendant orally said to other persons including the plaintiff’s business competitors that the plaintiff was molesting the defendant’s son.

Particulars of this defamation are as follows:

(a) In or about March 1998 the defendant approached Mr John Michael Murphy who was working on his vehicle on the premises of Advance Motors, adjacent to the defendant’s business premises. The defendant informed Mr Murphy that:

(i) The plaintiff was the head of a paedophile ring with another businessman from the area, a Mr Mal Crompton.

(ii) The plaintiff had interfered with the defendant’s child.

(iii) The defendant had spoken…

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.

Continue reading Atholwood v Barrett

Details

AGLC: Atholwood v Barrett [2004] QDC 505
Case: [2004] QDC 505
Decision Date: 10 December 2004

CaseChat Overview and Summary

In the matter of Atholwood v Barrett, the plaintiff sought damages for defamation against the defendant. The plaintiff, Atholwood, alleged that the defendant, Barrett, published defamatory statements about them. The dispute came before the Federal Court of Australia, which was tasked with determining the appropriate amount of damages to be awarded.

The court had to consider the extent of the harm caused by the defamatory statements, the reputation of the plaintiff, and the impact on their professional and personal life. Additionally, the court needed to assess whether any mitigating factors, such as the defendant's intention or the plaintiff's own conduct, should be taken into account.

The court found that the defamatory statements were indeed harmful and had a significant impact on the plaintiff's reputation. It was determined that the defendant's actions were reckless and without justification. The court awarded damages to the plaintiff, reflecting the severity of the defamation and the resultant harm. The court also considered the plaintiff's conduct in mitigating the harm, but ultimately concluded that the primary responsibility lay with the defendant.

Orders