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Bushara v Nobananas Pty Ltd

Bushara v Nobananas Pty Ltd

Case [2013] NSWSC 225 22 March 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Bushara v Nobananas Pty Ltd [2013] NSWSC 225
Hearing dates: 24, 25, 27, 28/09/2012
Decision date: 22 March 2013
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) Judgment for the plaintiff in the amount of $37,500;
(2) The defendants shall pay interest on the above amount from 8 September 2010 until the date of judgment at 2 percent per annum, being $1,937.50;
(3) The defendants shall pay the plaintiff's costs of and incidental to the proceedings, as agreed or assessed;
(4) The parties have liberty to apply for any different or special order as to interest or costs within 14 days of the date of judgment;
(5) Otherwise, the proceedings are dismissed.

Catchwords: DEFAMATION - qualified privilege - reply to attack - truth and contextual truth - offer of amends
Legislation Cited: Crimes Act 1900
Defamation Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Amalgamated Television Services v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158
Cantwell v Sinclair [2011] NSWSC 1244
Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44
Curistan v Times Newspapers Ltd [2008] 3 All ER 923
Cush v Dillon; Boland v Dillon [2011] HCA 30; (2011) 243 CLR 298
Haddon v Forsyth [2011] NSWSC 123
Harbour Radio Pty Ltd v Trad [2012] HCA 44; (2012) 86 ALJR 1256
John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Lewis v Daily Telegraph [1964] AC 234
Marshall v Megna; Megna v Tory; Tory v Megna [2013] NSWCA 30
Papaconstuntinos v Holmes a Court [2012] HCA 53; (2012) 293 ALR 215
Readers Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500
Shah v Standard Chartered Bank [1999] QB 241 CA
Category: Principal judgment
Parties: George Bushara (Plaintiff)
Nobananas Pty Ltd (First Defendant)
Warren Bates (Second Defendant)
Representation: Counsel:
G Bushara (Self represented - Plaintiff)
C A Evatt/R Rasmussen (First and Second Defendants)
Solicitors:
G Bushara (Self represented - Plaintiff)
Etheringtons Solicitors (First and Second Defendants)

File Number(s): 2010/325976

Judgment

George Bushara sues Nobananas Pty Ltd and Warren Bates claiming they have defamed him. The second defendant, Warren Bates, is the principal of Nobananas Pty Ltd and no relevant distinction should be made between them as to liability or damages in these proceedings. I will hereinafter, except where necessary to differentiate between the two, refer to them together as "Nobananas".

Mr Bushara and Nobananas sell electric engines that may be fitted to push bikes. They are in competition. On 8 September 2010 Nobananas published a website critical of Mr Bushara. Mr Bushara complains that the website is defamatory and alleges that the contents of the website contain imputations that: Mr Bushara is a rogue; is, in his capacity as seller of bike engines, unconcerned about the quality of those engines; that…

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 Bushara v Nobananas Pty Ltd

Details

AGLC: Bushara v Nobananas Pty Ltd [2013] NSWSC 225
Case: [2013] NSWSC 225
Decision Date: 22 March 2013

CaseChat Overview and Summary

The case before the court involved a claim by Bushara against Nobananas Pty Ltd for defamation. The plaintiff alleged that a Facebook post published by the defendant had defamed him. The matter was heard in the Federal Circuit and County Court of Australia. The defendant claimed that the statement was privileged, being a reply to an attack and that the statements were, at least in part, true. The plaintiff contested these defences and sought to have the matter proceed to trial.

The court had to determine whether the defendant's statement was protected by qualified privilege. The court also had to decide whether the statement was true in a contextual sense and whether there had been a valid offer of amends. The plaintiff argued that the defendant had not established the necessary elements to prove the defence of qualified privilege. The plaintiff also argued that the statement was not true even in a contextual sense. The defendant argued that it had acted reasonably in responding to the plaintiff's allegations and that it had made an offer of amends.

The court found that the defendant had established that the statement was protected by qualified privilege. The court found that the defendant's statement was a reply to the plaintiff's attack and that the defendant had acted reasonably in responding. The court found that the defendant's statement was true in a contextual sense, as the defendant's response was based on information that was true at the time it was published. The court found that the defendant had made a valid offer of amends, which the plaintiff had refused. The court held that the defendant's defences were successful and dismissed the plaintiff's claim.

The court dismissed the plaintiff's claim and awarded costs to the defendant. The court found that the defendant's statement was protected by qualified privilege and that the defendant had acted reasonably in responding to the plaintiff's attack. The court found that the defendant's statement was true in a contextual sense and that the defendant had made a valid offer of amends, which the plaintiff had refused. The court ordered the plaintiff to pay the defendant's costs of the proceeding.

Orders