Duffy v Trenowden - [2010] SADC 152

District Court of South Australia
(Civil)
DUFFY & ORS v TRENOWDEN
[2010] SADC 152
Judgment of His Honour Judge David Smith
10 December 2010
DEFAMATION - DAMAGES - GENERAL DAMAGES
Plaintiffs members of District Council of Ceduna elected for a period from 2000 to 2003 – defendant elected to a subsequent council – in the course of a meeting of Council defendant alleged that the plaintiffs, as members of the previous Council, were corrupt – consideration of whether the allegation was defamatory – whether it was protected by traditional qualified privilege, the Lange extended privilege or the statutory immunity conferred by s 39 of the Local Government Act 1999 – in respect of damages consideration of the extent to which the defendant’s apologies mitigated the plaintiffs’ entitlement.
Held: statement defamatory and not protected by any common law privilege or statutory immunity – plaintiffs awarded damages but substantially reduced by the mitigating effect of several apologies – general damages awarded of $13,000 in total.
Local Government Act 1999 s 39, referred to.
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Tournier v National Provincial and Union Bank of England [1924] 1 KB 461; Conservation Council of SA Inc v Chapman (2003) 87 SASR 62; Sadgrove v Hole [1901] 2 KB 1; Adam v Ward [1917] AC 309; Horrocks v Lowe [1975] AC 135; Roberts v Bass (2002) 212 CLR 1; Gross v Weston [2007] NSWCA 1; Clark v Molyneux (1877) 3 QBD 237; Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105; Puntiero v Water Administration Ministerial Corporation (1999) 199 CLR 575; Weinel v Fedcheshen (1995) 65 SASR 156; McCarron v Boree Shire Council [1971] 1 NSWLR 638; Ratcliffe v Evans [1892] 2 QB 524; Bickel v John Fairfax & Son Ltd [1981] 2 NSWLR 474, considered.

DUFFY & ORS v TRENOWDEN
[2010] SADC 152

In the course of a meeting of the District Council of Ceduna held on the 20 August 2003, the defendant made a statement to the effect that the previous Ceduna Council was corrupt. The statement was unfounded. At the next meeting, on the 17 September 2003, the defendant tabled a letter retracting the allegation. The plaintiffs, who were members of that previous Council, understandably, took exception to it. They regarded the speedy retraction as insufficient. Solicitors were instructed by both sides. There were negotiations and although the defendant again apologised, he did not meet all the terms of a compromise proposed by the plaintiffs. Accordingly, on the 21 July 2005, the six plaintiffs instituted this action against him seeking damages for defamation.
The Issues
The issues arising from the pleadings, the evidence and the arguments are:
·whether the statement made by the defendant was defamatory of the plaintiffs;
·whether the publication of the statement by the defendant was malicious thereby defeating the defence of qualified privilege which applied to the Council’s proceedings;
·whether the so-called “extended” privilege articulated…

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 Duffy v Trenowden

Details

AGLC: Duffy v Trenowden [2010] SADC 152
Case: [2010] SADC 152
Decision Date: 10 December 2010

CaseChat Overview and Summary

In Duffy v Trenowden, the plaintiffs, who served as members of the District Council of Ceduna from 2000 to 2003, sought damages from the defendant, who was elected to a subsequent council. The dispute arose when the defendant made allegations during a council meeting that the plaintiffs were corrupt in their previous roles. The plaintiffs contended that the statement was defamatory, and the defendant argued that it was protected by either traditional qualified privilege, the extended privilege recognised in Lange v Australian Broadcasting Corporation, or statutory immunity under section 39 of the Local Government Act 1999.

The court considered whether the statement was defamatory, and if so, whether it was protected by any of the claimed privileges or statutory immunity. The court found that the statement was indeed defamatory, as it had the potential to lower the plaintiffs in the estimation of right-thinking members of society. The court further determined that the statement was not protected by traditional qualified privilege, the extended privilege, or the statutory immunity provided by the Local Government Act. The court assessed the effect of the defendant's apologies on the plaintiffs' entitlement to damages, finding that the apologies had a significant mitigating effect.

Consequently, the court awarded the plaintiffs a total of $13,000 in general damages, significantly reduced due to the mitigating effect of the defendant's apologies. The court did not award any other forms of damages, focusing primarily on the general damages. This decision underscores the importance of the context and the content of the allegedly defamatory statement in defamation cases, as well as the potential mitigating effect of apologies in determining the quantum of damages.

Orders