Baker v Nightingale - [2008] NSWDC 103

CITATION: Baker v Nightingale [2008] NSWDC 103
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 6 June 2008

JUDGMENT DATE:
6 June 2008

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

DECISION: 1. Defendants’ application to strike out imputations (a) and (b) as deficient in form dismissed.
2. The plaintiff pay the defendants’ costs thrown away by reason of amendments to the Statement of Claim.
3. Defendants pay two thirds of the plaintiff’s costs of the argument today.
4. Gibson DCJ’s reasons for judgment to be forwarded to the parties by email.
5. Matter stood over for further directions to Friday 8 August 2008 at 9:00am.

CATCHWORDS: TORT - defamation - imputations - objections to form - Defamation Act 2005 (NSW)

LEGISLATION CITED: Civil Procedure Act 2005 (NSW), s 56
Defamation Act 2005 (NSW)

CASES CITED: Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255
Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682
Holmes v TCN Channel Nine Ltd (2007) 4 DCLR (NSW) 394; [2007] NSWDC 137
John Fairfax Publications Pty Ltd v Blake; David Syme & Co Ltd v Blake (2001) 53 NSWLR 541
Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213
Malcolm v Nationwide News Pty Ltd (2007) Aust Torts Reports 81-915; [2007] NSWCA 254
Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273

PARTIES: Plaintiff: Donna Baker
First Defendant: Tom Nightingale
Second Defendant: The Wagga Daily Advertiser Pty Ltd

FILE NUMBER(S): 1556 of 2008

COUNSEL: Plaintiff: Mr S Groch (Solicitor)
Defendants: Mr D Sibtain

SOLICITORS: Plaintiff: Denniston & Day Pty Limited
Defendants: Freehills

Judgment

1. The plaintiff brings proceedings for defamation for a publication in the Daily Advertiser headed “Football Wagga president must go” on 2 August 2007.

2. The plaintiff pleads the following imputations:

(a) That the plaintiff rules Football Wagga in a dictatorial style.
(b) That the plaintiff has turned Football Wagga into a ruthless and possessive regime.
(c) That the plaintiff acted dishonestly in performance of her duties as President of Football Wagga.
(d) That the plaintiff is of a callous nature.
(e) That the plaintiff suffers a psychological condition involving feelings of insecurity.

3. Imputation (e) was withdrawn during argument.

4. The defendants challenge only the form of imputations (a) and (b). I have heard argument this morning and made rulings. The parties have kindly agreed that I should provided reasons for my rulings by email by reason of time constraints caused by a long-running trial.

5. The defendants challenge imputations (a) and (b). I should first note that any determination of issues of form and capacity should be dealt with in accordance the principles of the Court of Appeal enunciated in Malcolm v Nationwide News Pty Ltd (2007) Aust Torts Reports 81-915; [2007] NSWCA 254 and Dennis…

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 Baker v Nightingale

Details

AGLC: Baker v Nightingale [2008] NSWDC 103
Case: [2008] NSWDC 103
Decision Date: 6 June 2008

CaseChat Overview and Summary

In the matter of Baker v Nightingale, the plaintiff, Baker, sought to hold the defendants, Nightingale, liable for defamation. The plaintiff alleged that the defendants had made various defamatory statements about the plaintiff, which had caused damage to the plaintiff's reputation. The case was heard in the District Court of New South Wales.

The central legal issues the court needed to address were whether the imputations made by the defendants were adequately pleaded and if the plaintiff's objections to the form of the imputations were valid. Specifically, the court had to determine whether the defendants' application to strike out certain imputations as deficient in form should be dismissed.

In delivering the judgment, the court found that the defendants' application to strike out imputations (a) and (b) was to be dismissed. The court held that these imputations were sufficiently pleaded and did not suffer from any fatal deficiencies in form. Furthermore, the court directed that the plaintiff pay the defendants' costs incurred due to the amendments to the Statement of Claim. Conversely, the court ordered that the defendants pay two thirds of the plaintiff's costs relating to the argument on the application. The court also mandated that the reasons for judgment be emailed to the parties and set the matter over for further directions.

Orders

Orders of the court

1. Defendants' application to strike out imputations (a) and (b) as deficient in form dismissed. 2. The plaintiff pay the defendants' costs thrown away by reason of amendments to the Statement of Claim. 3. Defendants pay two thirds of the plaintiff's costs of the argument today. 4. Gibson DCJ's reasons for judgment to be forwarded to the parties by email. 5. Matter stood over for further directions to Friday 8 August 2008 at 9:00am.

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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CITATION:	Baker v Nightingale [2008] NSWDC 103 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	6 June 2008
JUDGMENT DATE:	6 June 2008
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	1. Defendants’ application to strike out imputations (a) and (b) as deficient in form dismissed. 2. The plaintiff pay the defendants’ costs thrown away by reason of amendments to the Statement of Claim. 3. Defendants pay two thirds of the plaintiff’s costs of the argument today. 4. Gibson DCJ’s reasons for judgment to be forwarded to the parties by email. 5. Matter stood over for further directions to Friday 8 August 2008 at 9:00am.
CATCHWORDS:	TORT - defamation - imputations - objections to form - Defamation Act 2005 (NSW)
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW), s 56 Defamation Act 2005 (NSW)
CASES CITED:	Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 Holmes v TCN Channel Nine Ltd (2007) 4 DCLR (NSW) 394; [2007] NSWDC 137 John Fairfax Publications Pty Ltd v Blake; David Syme & Co Ltd v Blake (2001) 53 NSWLR 541 Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 Malcolm v Nationwide News Pty Ltd (2007) Aust Torts Reports 81-915; [2007] NSWCA 254 Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273
PARTIES:	Plaintiff: Donna Baker First Defendant: Tom Nightingale Second Defendant: The Wagga Daily Advertiser Pty Ltd
FILE NUMBER(S):	1556 of 2008
COUNSEL:	Plaintiff: Mr S Groch (Solicitor) Defendants: Mr D Sibtain
SOLICITORS:	Plaintiff: Denniston & Day Pty Limited Defendants: Freehills