| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. 10487 of 2009
| IAN GEORGE CUNLIFFE | Plaintiff |
| v | |
| PATRICK WOODS | Defendant |
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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 19th 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…
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- AGLC
- Cunliffe v Woods [2012] VSC 254
- Case
- [2012] VSC 254
- Decision Date
CaseChat Overview and Summary
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.
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