Byrnes v John Fairfax Publications Pty Ltd
[2003] NSWSC 1131
•28 November 2003
CITATION: BYRNES v JOHN FAIRFAX PUBLICATIONS PTY LTD [2003] NSWSC 1131 HEARING DATE(S): 28 November 2003 JUDGMENT DATE:
28 November 2003JUDGMENT OF: Levine J DECISION: 1. Leave granted to file further amended statement of claim, pleading, in relation to second matter complained of, proposed imputations (a)(i), (b)(i), (c)(i).; 2. Imputation (b) is bad in form and is not to be included in the further amended statement of claim.; 3. Imputation (c) has been abandoned.; 4. Each party to pay his and its own costs of the proceedings. CATCHWORDS: Imputations - form - capacity CASES CITED: Byrnes v John Fairfax Publications Pty Ltd [2003] NSWSC 575 PARTIES :
JIM BYRNES
(Plaintiff)v
JOHN FAIRFAX PUBLICATIONS PTY LTD
(Defendant)
FILE NUMBER(S): SC 20047 OF 2003 COUNSEL: C Evatt
T Blackburn SC
(Plaintiff)
(Defendant)SOLICITORS: Monte Gildea
Freehills
(Plaintiff)
(Defendant)
- Ex tempore: revised
[2003] NSWSC 1131
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST
JUSTICE DAVID LEVINE
FRIDAY 28 NOVEMBER 2003
20047 OF 2003
JIM BYRNES
(Plaintiff)
John Fairfax Publications Pty Ltdv
(Defendant)
1 The plaintiff, in effect, seeks to restructure his action against the defendant by having incorporated into it a further publication in the Australian Financial Review on 27 August 2003.
2 The proceedings initially were concerned only with the publication in The Sydney Morning Herald of 7 October 2002, in respect of which I gave a ruling in [2003] NSWSC 575 on 23 June this year.
3 The proposed second matter complained of bears the headline "Galleries duck Lucky Jim's prize" and is made up of approximately 14 paragraphs of text (appended hereto) and an accompanying cartoon with this caption: “Jim Byrnes… I don’t know much about art but I know what I like…Which is?…Cars”.
4 The plaintiff now seeks to rely upon the following imputations.
- (a) The plaintiff is a twice bankrupt property developer.
- If that cannot be sustained then,
- (a)(i) The plaintiff is a twice bankrupt.
5 The second of those two imputations is really the one that captures crisply that about which the plaintiff can legitimately complain. The additional words "property developer", in my view, are surplusage and I would grant leave to file a further amended statement of claim pleading, in relation to the second matter complained of, only proposed imputation (a)(i).
6 Proposed imputation (b) is that:
- (b) The plaintiff was not genuine in offering a $50,000 art prize because it was only a marketing exercise designed as an art prize gained at securing cheap stock.
7 It is very difficult to determine what precisely is meant by "not genuine". As has been submitted for the defendant, it can range from the notion of absolute dishonesty, in a general sense, to, on a more narrow basis, a suggestion that there is simply no prize at all. The imputation is therefore bad in form and cannot be included in the proposed further amended statement of claim.
8 Imputation (b)(i) is:
- (b)(i) The plaintiff was deceitful in offering a $50,000 art prize because it was only a marketing exercise disguised as an art prize aimed at securing cheap stock.
9 I am not troubled by any question of form in relation to (b)(i) and am persuaded that the ordinary reasonable reader could come to the view that the mere existence of the “fine print” in the conditions of the offered prize is not enough to eliminate a notion of deceit. I would grant leave to file a further amended statement of claim containing the proposed imputation (b)(i).
10 Proposed imputation (c) has been an abandoned. Imputation (c)(i) is:
- (c)(i) The plaintiff is so misleading in offering an art prize that some galleries and dealers are advising their artists to stay away and not to enter.
11 That, in my view, is capable of being sustained by the matter being complained of and even though that capacity is founded under the proposition I raised in relation to (b)(i), it is different in substance. It is capable of arising and capable of being defamatory.
12 So the end result is (a) is not available, (a)(i) is; (b) is not available, (b)(i) is and (c)(i) is.
13 I grant leave to file a further amended statement of claim in accordance with these reasons.
14 Each party can pay their own costs of the proceedings.
15 (It is noted that a s7A trial is fixed for 25 February 2004).
APPENDIX A
The Australian Financial Review 27 August 2003
1 Galleries duck Lucky Jim’s prize.
2 Lucky Jim Byrnes is having a little trouble getting creative types to take his excursion into art patronage seriously. The one-time bankruptcy adviser to Alan Bond is offering $50,000 in prize money for his inaugural Cromwell’s Art Prize 2004.
3 But some galleries are advising their artists to stay away from the cash being offered by Byrnes’s Ultimo-based gallery in Sydney.
4 “It is a marketing exercise disguised as an art prize aimed at securing cheap stock,” Vasili Kaliman of the Kaliman Gallery in Paddington, NSW, says.
5 Another Paddington dealer, Rex Irwin, is also advising his artists not to enter.
6 Careful reading of the prize’s fine print shows why the gallery dealers are a little concerned about the eastern suburbs entrepreneur.
7 One condition of the prize is that Cromwell’s can secure entries for resale in the group’s auctions at one-third of their agreed market value.
8 As Kaliman points out, the $45,000 first prize (there is also $5,000 for the people’s choice winner) is acquisitive.
9 While this is not unusual for art prizes, it will probably yield a work of some calibre and value.
10 The rest of the outlay on the prize should be recouped through buying stock at a discount.
11 This helps Lucky Jim solve one of the biggest problems facing art auction houses - a shortage of supply in the hot contemporary art market.
12 The twice-bankrupt property developer, with a reputation for liking fancy cars, got into the fine art auction business late last year when he opened Cromwell’s.
13 Jim Byrnes … I don’t know much about art but I know what I like…Which is?…Cars.
Last Modified: 12/03/2003
0
1
0