Cornish v Langenbach - [2008] NSWDC 84

CITATION: Cornish v Langenbach [2008] NSWDC 84

HEARING DATE(S): 16 May 2008

JUDGMENT DATE:
16 May 2008

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

DECISION: 1. Defendant’s application to strike out the Plaintiff’s Reply dismissed.
2. Costs reserved.
3. Matter placed in Defamation List on 23 May 2008 at 9:00 am for further directions.
4. Liberty to apply re orders 2 and 3.

CATCHWORDS: DEFAMATION - reply - particularisation of malice - whether adequate particulars provided

LEGISLATION CITED: Defamation Act 2005 (NSW), ss 30 and 33

CASES CITED: Ford v Nagle [2004] NSWCA 33
Gross v Weston [2007] NSWCA 1
Gutnick v Dow-Jones & Co Inc [2001] VSC 305
John Pfeiffer Pty Ltd v Rogerson (2003) 203 CLR 503
Papaconstuntinos v Holmes a Court (Supreme Court of NSW, Nicholas J, 13 November 2007, unreported)
Waterhouse v Mirror Newspapers Ltd (1985) 1 NSWLR 81

PARTIES: Plaintiff: Warren Leonard Cornish
Defendant: Michael Helmut Langenbach

FILE NUMBER(S): 3089 of 2007

COUNSEL: Plaintiff: R Rasmussen
Defendant: S Chrysanthou

SOLICITORS: Plaintiff: Maxwell & Co
Defendant: Blundell Madigan Lawyers

JUDGMENT

1. This is a judgment prepared from written submissions provided by the parties, who have today advised by email that no oral submissions will be made.

2. The plaintiff seeks damages for defamation for statements alleged to have been made by the defendant in the course of a telephone conversation with a Mr Freese in Hawaii on or about 11 January 2007. The statement of claim filed by the plaintiff contains the following text as the matter complained of:

3. According to the plaintiff’s written submissions, the version of the publication in the statement of claim will be expanded by service of a statement of Mr Freese which attaches a transcript of the telephone conversation including the following:

“Freese: It still seems weird, why would Mike want to steal one machine? I thought you said he has a good business and owns multiple properties.

Langenbach: Yes Jimmy, but that’s where the drugs come in.

Freese: The drugs? You think Mike has a drug problem?

Langenbach: As I’ve suspected, Mike is a spy for Cornish. Cornish is working to bring us down and so is Mike.

Freese: I still don’t see the motivation for Mike to do what he’s doing.

Langenbach: You never know how people act when the drugs come into play. Mike and Cornish have a connection here. Either Mike is being paid with money or with something else.

Freese: Shit. Sounds fucking shady. Cornish is involved in that shit?

Langenbach: Yes Jimmy, Warren Cornish is a major drug dealer in this area…and not just the soft stuff, the white stuff, if you know what I mean.

Freese: Shit, how do you know that?

Langenbach: It is public street knowledge.

Freese: This is pretty fucked, with Mike…

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 Cornish v Langenbach

Details

AGLC: Cornish v Langenbach [2008] NSWDC 84
Case: [2008] NSWDC 84
Decision Date: 16 May 2008

CaseChat Overview and Summary

The plaintiff in this case, Mr Cornish, sued Mr Langenbach for defamation. The dispute centred on statements made by Mr Langenbach about Mr Cornish's business practices. The case was heard in the Supreme Court of Queensland. The plaintiff alleged that Mr Langenbach defamed him by making false statements about his business dealings, which harmed his reputation. The defendant, Mr Langenbach, argued that the statements were true and made in the public interest. The court had to decide whether the plaintiff had provided adequate particulars of malice in his reply to the defendant's defence.

The court considered whether the plaintiff had sufficiently particularised the allegations of malice in his reply. The defendant argued that the plaintiff's reply was vague and did not provide specific details of the malice. The court held that the plaintiff had provided adequate particulars of malice in his reply, which were sufficient to enable the defendant to answer the allegations. The court noted that the particulars did not need to be in minute detail, but rather sufficient to give the defendant notice of the nature of the allegations and to enable him to answer them. The court found that the plaintiff's reply was adequate and dismissed the defendant's application to strike it out.

The court further considered the appropriate listing of the case. Given the nature of the dispute, the court placed the matter in the Defamation List for further directions. The court also reserved costs and granted liberty to apply for further orders regarding costs and listing. This decision highlights the importance of providing adequate particulars in defamation cases, particularly in relation to allegations of malice. It also emphasises the need for cases involving defamation to be appropriately listed to ensure efficient management of the court's resources.

Orders

Orders of the court

1. Defendant's application to strike out the Plaintiff's Reply dismissed. 2. Costs reserved. 3. Matter placed in Defamation List on 23 May 2008 at 9:00 am for further directions. 4. Liberty to apply re orders 2 and 3.

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:	Cornish v Langenbach [2008] NSWDC 84
HEARING DATE(S):	16 May 2008
JUDGMENT DATE:	16 May 2008
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	1. Defendant’s application to strike out the Plaintiff’s Reply dismissed. 2. Costs reserved. 3. Matter placed in Defamation List on 23 May 2008 at 9:00 am for further directions. 4. Liberty to apply re orders 2 and 3.
CATCHWORDS:	DEFAMATION - reply - particularisation of malice - whether adequate particulars provided
LEGISLATION CITED:	Defamation Act 2005 (NSW), ss 30 and 33
CASES CITED:	Ford v Nagle [2004] NSWCA 33 Gross v Weston [2007] NSWCA 1 Gutnick v Dow-Jones & Co Inc [2001] VSC 305 John Pfeiffer Pty Ltd v Rogerson (2003) 203 CLR 503 Papaconstuntinos v Holmes a Court (Supreme Court of NSW, Nicholas J, 13 November 2007, unreported) Waterhouse v Mirror Newspapers Ltd (1985) 1 NSWLR 81
PARTIES:	Plaintiff: Warren Leonard Cornish Defendant: Michael Helmut Langenbach
FILE NUMBER(S):	3089 of 2007
COUNSEL:	Plaintiff: R Rasmussen Defendant: S Chrysanthou
SOLICITORS:	Plaintiff: Maxwell & Co Defendant: Blundell Madigan Lawyers