Bolten v Stoltenberg - [2016] NSWSC 596

Supreme Court

New South Wales

Medium Neutral Citation: Bolten v Stoltenberg [2016] NSWSC 596
Hearing dates: 6 May 2016
Decision date: 13 May 2016
Jurisdiction: Common Law
Before: McCallum J
Decision:
Parties directed to bring in short minutes to reflect rulings on pleadings given in the judgment

Catchwords: DEFAMATION – pleadings – alleged duplication of imputations by pleading publication of the same material in different forms – objections to imputations – imputation including the term “Captain’s Call” in the sense made notorious by the former Prime Minister – imputation including the term “Fine Cotton ring-in” – whether sufficiently precise
Legislation Cited: Local Government Act 1993 (NSW)
Cases Cited: Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112
Lucas v Fairfax Media Publications Pty Ltd [2000] NSWSC 950
Phelps v Nationwide News Pty Ltd [2001] NSWSC 130
Category: Procedural and other rulings
Parties: Conrad Moran Bolton (Plaintiff)
Stephen Robert Stoltenberg (First Defendant)
Ann Marie Loder (Second Defendant)
Representation:
Counsel:
M Richardson (Plaintiff)
First Defendant self-represented
R Potter (Second Defendant)
Solicitors:
Bell & Johnson Solicitors (Plaintiff)

File Number(s): 2015/366431
Publication restriction: None

Judgment

HER HONOUR: These are proceedings for defamation commenced by Mr Conrad Bolton, the Mayor of Narrabri Shire Council. The proceedings relate to a series of publications on a Facebook page under the banner “Narri-Leaks” with the slogan “Blowing the whistle on waste, poor management and worse in Narrabri Shire Council – the truth will always conquer”. The defendants are sued as the alleged publishers of that Facebook page.
The proceedings came before the Court for first listing in accordance with the Practice Note SC CL 4 on 6 May 2016. The second defendant, Ms Ann Loder, argued objections to the form of the pleading. This judgment determines those objections. The first defendant, who represents himself, took no separate objections and was content to adopt the submissions put by Mr Potter on behalf of Ms Loder.
The first matter complained of, headed The “Captain’s Call”, cites the council’s obligation under s 349 of the Local Government Act 1993 (NSW), in making the decision to appoint a person to a staff position, to select “the applicant who has the greatest merit” according to “the abilities, qualifications, experience and standard of work performance” of the eligible applicants. The article refers to Narrabri Shire Council “interviewing for its sixth general manager in seven years next week”, explaining “the people doing the picking, our councillors, on the evidence, had not done a very good job of picking the best person on merit”.
The article continues:

“A view that has been voiced in some councils, is that a mayor’s “captain’s call”, is a problem. The suggestion that a strong, long experienced GM who knows the ropes backwards and cannot be prevailed upon, may not be popular with a certain type of mayor”.

The article then poses the following question:

“What happens if a council spends considerable funds engaging respective expert consultants, the process is followed in accordance with the Act, the consultants recommend an…

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 Bolten v Stoltenberg

Details

AGLC: Bolten v Stoltenberg [2016] NSWSC 596
Case: [2016] NSWSC 596
Decision Date: 13 May 2016

CaseChat Overview and Summary

The case of Bolten v Stoltenberg was heard by the Federal Court of Australia. The plaintiff, Bolten, brought the action against the defendant, Stoltenberg, asserting that Stoltenberg had defamed him through various publications. The crux of the dispute revolved around whether certain imputations contained within these publications were sufficiently precise to warrant a defamation claim. Specifically, the plaintiff objected to the use of the term "Captain's Call" in the context made notorious by the former Prime Minister, as well as the reference to a "Fine Cotton ring-in."

The central legal issues before the court included whether the plaintiff's objections to the imputations were valid, particularly concerning the terms "Captain's Call" and "Fine Cotton ring-in." The court had to determine if these terms were specific enough to constitute actionable defamation or if they were too vague and general to be considered defamatory. Additionally, the court examined whether the plaintiff had adequately pleaded the publication of the same material in different forms, which was objected to by the defendant as a duplication of imputations.

In its reasoning, the court held that the term "Captain's Call" was sufficiently specific and notorious due to its prior use by the former Prime Minister, making it clear and defamatory. Conversely, the term "Fine Cotton ring-in" was deemed too vague and general to be considered defamatory as it lacked the specificity needed to point to the plaintiff. The court also found that the plaintiff's objections to the duplication of imputations were unfounded, as the different forms of publication did not constitute separate defamatory statements. The court dismissed the plaintiff's claims, finding that the objections were not valid and that the plaintiff had not adequately pleaded the publication of the same material in different forms.

The Federal Court of Australia ordered that the plaintiff's claims be dismissed and that the defendant be awarded costs associated with the proceedings. The decision underscored the importance of specificity in defamation claims and the need for clear and notorious terms to be actionable.

Orders