JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	12-13 June 2012
DATE OF JUDGMENT:	18 June 2012
CASE MAY BE CITED AS:	Cunliffe v Woods
MEDIUM NEUTRAL CITATION:	[2012] VSC 254

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DEFAMATION – Letter by defendant concerning an affidavit of the plaintiff – Investigation of facts in affidavit – Letter concerning judicial proceedings – Whether pleaded imputations conveyed – Other defamatory imputation conveyed – Whether other defamatory imputations are permissible variants of pleaded imputations – Absolute privilege – Letter published on an occasion properly incidental to judicial proceedings and necessary for them - Qualified privilege – Malice – No malice established – Defence of triviality - Defamation Act 2005, ss 27, 30 and 33.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R. Sion	AH Swanwick
For the Defendant	Mr D.A. Klempfner	Yeldham Price O’Brien Lusk

HIS HONOUR:

Ian George Cunliffe, the plaintiff, is a solicitor. Patrick Woods, the defendant, is also a solicitor. In 2008, there was a proceeding on foot in the Equity Division of the New South Wales Supreme Court, Darkinjung Local Aboriginal Land Council v Darkinjung Pty Limited & Ors (“the NSW proceeding”). In the NSW proceeding, the defendant was the solicitor for Darkinjung Local Aboriginal Land Council. On 19 May 2008, the plaintiff was joined as the seventh defendant in the NSW proceeding.

On 4 December 2008, the defendant faxed a letter addressed to the Chief Executive Officer of Novell Pty Ltd.[1] The letter provided:
[1]The letter was also posted to the address of Novell Pty Ltd. However, no evidence was given at trial as to what happened to the posted letter. At trial, the parties concentrated on the sending of the facsimile letter and its receipt by employees of Novell.

“Dear Sirs,
RE:Darkinjung Local Aboriginal Land Council –v- Darkinjung Pty Limited & Others, including Ian Cunliffe, Supreme Court, Equity Division No. 2842 of 2006.

I refer to the above Court proceedings, and inform you that I act for the Plaintiff Darkinjung Pty Limited.
Ian George Cunliffe of … , Victoria, is the Seventh Defendant in the proceedings.
On 19^th September, 2008 Mr Cunliffe sworn (sic, swore) and relied in Court upon an affidavit that included the following paragraph concerning your company:
’10.Firstly, for the period 25 August 2008 to 11 September 2008 I was called in to work virtually full time as General Counsel at Novell Pty Ltd. My role there was made much more time-consuming and stressful because I was there to cover for the General Counsel whose wife was gravely ill following childbirth. As a consequence my ability to get guidance and assistance from the incumbent was greatly reduced’

One of Mr Cunliffe’s former partners in a discussion I had with that person expressed the view that the statements in the above paragraph are unlikely to be true.
In order…

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 Cunliffe v Woods

Details

AGLC: Cunliffe v Woods [2012] VSC 254
Case: [2012] VSC 254
Decision Date: 18 June 2012

CaseChat Overview and Summary

In the matter of Cunliffe v Woods, the plaintiff sought damages for defamation from the defendant. The defendant had written a letter about an affidavit the plaintiff had submitted in relation to ongoing proceedings between the parties. The Federal Court was tasked with determining the defamatory nature of the letter, and whether any defences available to the defendant applied.

The court identified two primary imputations from the letter: that the plaintiff was not telling the truth, and that the plaintiff was engaging in vexatious litigation. The court also noted an additional imputation that the plaintiff was not acting in good faith. The legal issue was whether the additional imputation was a permissible variant of the pleaded imputations, and if not, whether it was defamatory in its own right. The court also considered whether the letter was protected by absolute or qualified privilege, and whether the defendant had acted with malice or if the defamation was trivial.

The court found that the additional imputation was not a permissible variant of the pleaded imputations and was defamatory in its own right. However, the letter was protected by absolute privilege as it was published on an occasion properly incidental to judicial proceedings and necessary for them. The court further found that there was no evidence of malice, and the defendant’s defence of triviality failed. The court held that the defendant’s letter did not constitute defamation as it was protected by absolute privilege.

The court dismissed the plaintiff’s claim for damages.

Orders