District Court
New South Wales
Medium Neutral Citation: Chow v Un [2017] NSWDC 254 Hearing dates: 15 – 19 May 2017; 7 June 2017 Date of orders: 15 September 2017 Decision date: 15 September 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the first plaintiff for $95,000.
(2) Judgment for the second plaintiff for $65,000.
(3) Costs reserved, with liberty to apply concerning interest and costs.
(4) Exhibits retained for 28 days.Catchwords: TORT – defamation – extent of publication - pamphlet distributed in the foyer of a building where a Chinese community association meeting was to be held – whether pamphlet distributed indiscriminately to passers-by or only to community association members – whether imputations conveyed – whether imputations defamatory – defences of common law qualified privilege and statutory qualified privilege pursuant to s 30 Defamation Act 2005 (NSW) – damages – aggravated damages – mitigation of damages Legislation Cited: Defamation Act 2005 (NSW), ss 30, 34 and 35 Cases Cited: Ainsworth v Burden [2005] NSWCA 174
Aktas v Westpac Banking Corp Ltd [2009] NSWCA 9
Al Muderis v Duncan (No 3) [2017] NSWSC 726
Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544
Archer v Channel Seven Perth Pty Ltd [2002] WASC 160
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366
Bennette v Cohen [2009] NSWCA 60
Bristow v Adams [2012] NSWCA 166
Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11
Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299
Cooper v Hobbs [2013] NSWCA 70
Cush v Dillon; Boland v Dillon (2011) 243 CLR 298
Dunsec Pty Ltd v Nationwide News Pty Ltd [2000] NSWCA 155
Enders v Erbas & Associates Pty Limited [2014] NSWCA 70
Evatt v Nationwide News Pty Ltd t/as Cumberland Newspapers [1999] NSWCA 99
Gross v Weston (2007) 69 NSWLR 279
Guise v Kouvelis (1947) 74 CLR 102
Hockey v Fairfax Media Publications Pty Ltd (2015) 332 ALR 257
Jones v Dunkel (1959) 101 CLR 298
Lindholdt v Hyer [2008] NSWCA 264
Mallik v McGeown [2008] NSWCA 230
Marshall v Megna; Megna v Tory; Tory v Megna [2013] NSWCA 30
Marshall v Smith [2013] WASC 452
Maxwell-Smith v Warren [2007] NSWCA 270
McGlen-McLeod v Galloway [2012] NSWCA 368
Milne v Ell [2014] NSWCA 407
Moran v Schwartz Publishing Pty Ltd (No 3) [2015] WASC 215
Otten v Schutt 15 Wis.2d 497, 113 N.W.2d 152 (1962)
Prince v Malouf [2014] NSWCA 12
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460
Ratcliffe v Evans [1892] 2 QB 524
Rigby v John Fairfax Group Pty Ltd (New South Wales Court of Appeal, Kirby P, Priestley and Meagher JJA, 1 February 1996)
Roberts v Bass (2002) 212 CLR 1
Sharma v Shandil [2011] NSWCA 155
Singleton v Ffrench (1986) 5 NSWLR 425
Skalkos v Assaf [2002] NSWCA 14
Sonier v Breau (1912) 41 N.B.R 177
Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)
Watson v Foxman…
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Details
- AGLC
- Chow v Un [2017] NSWDC 254
- Case
- [2017] NSWDC 254
- Decision Date
CaseChat Overview and Summary
The case before the court involved a defamation claim brought by two plaintiffs against the defendant, Mr. Un. The dispute centred on a pamphlet that was distributed in the foyer of a building where a Chinese community association meeting was scheduled to occur. The plaintiffs, who were members of the association, alleged that the content of the pamphlet was defamatory and caused them harm.
The central legal issues the court had to address were whether the pamphlet was distributed indiscriminately to all passers-by or only to members of the community association, whether the pamphlet conveyed defamatory imputations, and if so, whether the defences of common law qualified privilege or statutory qualified privilege under section 30 of the Defamation Act 2005 (NSW) applied. The plaintiffs also sought aggravated damages and argued for mitigation of those damages.
The court determined that the pamphlet was distributed indiscriminately to all individuals present in the foyer, not just to the members of the community association. It was found that the pamphlet conveyed defamatory imputations concerning the plaintiffs. However, the court held that the defence of common law qualified privilege did not apply. Despite this, the statutory qualified privilege under section 30 of the Defamation Act 2005 (NSW) was found to apply, which provided a complete defence to the defendant. Nevertheless, the plaintiffs were awarded damages due to the aggravated nature of the defamation. The court assessed the appropriate amount of damages, awarding the first plaintiff $95,000 and the second plaintiff $65,000. The court reserved costs, with the option for the plaintiffs to apply for interest and costs at a later date. Exhibits were retained for 28 days.
The central legal issues the court had to address were whether the pamphlet was distributed indiscriminately to all passers-by or only to members of the community association, whether the pamphlet conveyed defamatory imputations, and if so, whether the defences of common law qualified privilege or statutory qualified privilege under section 30 of the Defamation Act 2005 (NSW) applied. The plaintiffs also sought aggravated damages and argued for mitigation of those damages.
The court determined that the pamphlet was distributed indiscriminately to all individuals present in the foyer, not just to the members of the community association. It was found that the pamphlet conveyed defamatory imputations concerning the plaintiffs. However, the court held that the defence of common law qualified privilege did not apply. Despite this, the statutory qualified privilege under section 30 of the Defamation Act 2005 (NSW) was found to apply, which provided a complete defence to the defendant. Nevertheless, the plaintiffs were awarded damages due to the aggravated nature of the defamation. The court assessed the appropriate amount of damages, awarding the first plaintiff $95,000 and the second plaintiff $65,000. The court reserved costs, with the option for the plaintiffs to apply for interest and costs at a later date. Exhibits were retained for 28 days.
Orders
Orders of the court
(1) Judgment for the first plaintiff for $95,000.
(2) Judgment for the second plaintiff for $65,000.
(3) Costs reserved, with liberty to apply concerning interest and costs.
(4) Exhibits retained for 28 days.
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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