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Essey v Harding

Essey v Harding

Case [2002] WASC 209 30 August 2002

Civil Litigation & Procedure

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: ESSEY & ANOR -v- HARDING & ANOR [2002] WASC 209

CORAM: HASLUCK J

HEARD: 22-26 APRIL, 18 JUNE 2002

DELIVERED : 30 AUGUST 2002

FILE NO/S: CIV 1190 of 1998

BETWEEN: FRED JOSEPH ESSEY
First Plaintiff
ALL-FECT DISTRIBUTORS LTD
Second Plaintiff
AND
MARLENE ANNE HARDING
First Defendant
PINEGATE HOLDINGS PTY LTD
Second Defendant
(BY ORIGINAL ACTION)
MARLENE ANNE HARDING
First Plaintiff
PINEGATE HOLDINGS PTY LTD
Second Plaintiff
AND
FRED JOSEPH ESSEY
First Defendant
ALL-FECT DISTRIBUTORS LTD
Second Defendant
(BY COUNTERCLAIM)

Catchwords:

Defamation - Newsletter circulated to school canteens - Review of product marketed by plaintiff - Whether words complained of identified plaintiff company and its managing director - Meaning of words complained of - Whether words complained of were too extreme - Whether discrepancies on label description sufficient to support plea of justification - Defence of fair comment - Whether words spoken on privileged occasion - Counterclaim in respect of plaintiff's written response to criticisms - Whether response published on a privileged occasion - Assessment of damages

Legislation:

Supreme Court Act 1935, s 32

Result:

Judgment for the plaintiffs

Category: B

Representation:

Original Action

Counsel:

First Plaintiff                :     Mr J F Hassett
Second Plaintiff            :     Mr J F Hassett
First Defendant             :     Mr J T Schoombee & Mr S L Dworcan
Second Defendant         :     Mr J T Schoombee & Mr S L Dworcan

Solicitors:

First Plaintiff                :     Tottle Christensen
Second Plaintiff            :     Tottle Christensen
First Defendant             :     Phillips Fox
Second Defendant         :     Phillips Fox

Counterclaim

Counsel:

First Plaintiff                :     Mr J T Schoombee & Mr S L Dworcan
Second Plaintiff            :     Mr J T Schoombee & Mr S L Dworcan
First Defendant             :     Mr J F Hassett
Second Defendant         :     Mr J F Hassett

Solicitors:

First Plaintiff                :     Phillips Fox
Second Plaintiff            :     Phillips Fox
First Defendant             :     Tottle Christensen
Second Defendant         :     Tottle Christensen

Case(s) referred to in judgment(s):

Adam v Ward [1917] AC 309
Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225
Australian Broadcasting Corp v McBride (2001) 53 NSWLR 430
Calwell v Ipec Australia Ltd (1975) 135 CLR 321
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Cassell & Co Ltd v Broome [1972] AC 1027
Corse v Robinson, unreported; FCt SCt of WA; Library No 970669; 8 December 1997
Coyne v Citizen Finance Ltd (1991) 172 CLR 211
Crampton v Nugawela (1996) 41 NSWLR 176
Dakhyl v Labouchere [1908] 2 KB 325
David Syme & Co v Canavan (1918) 25 CLR 234
Duane v Granrott [1982] VR 767
Edwards v Bell [1824] Bing 403
Guise v Kouvelis (1947) 74 CLR 102
Henry v TVW Enterprises Ltd (1990) 3 WAR 474
Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440
Horrocks v Lowe [1975] AC 135
Hunt v Star Newspaper Co Ltd [1908] 2 KB 309
John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131
Jones v E Hulton & Co [1909] 2 KB 444

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 Essey v Harding

Details

AGLC: Essey v Harding [2002] WASC 209
Case: [2002] WASC 209
Decision Date

CaseChat Overview and Summary

Essey v Harding involved a dispute between Fred Essey and Marlene Harding over a newsletter article published by Harding in September 1997. The article criticised the marketing of JJ Noodles by Essey's company, All-Fect Distributors. Essey and All-Fect Distributors brought an action for defamation against Harding and Pinegate Holdings, which published the newsletter. The defendants counterclaimed for defamation over a response letter sent by Essey and All-Fect in October 1997.

The court found that the defendants' article was defamatory of Essey and All-Fect, as it accused them of serious breaches of food labelling laws and endangering consumers' health. However, the court dismissed the defendants' plea of justification as the evidence did not support such extreme allegations. The court also dismissed the defendants' claims of qualified privilege and fair comment. The court awarded Essey $40,000 in damages and All-Fect $20,000, but dismissed their claims for exemplary damages.

In the counterclaim, the court found that Essey's response letter was defamatory of Harding and Pinegate, but dismissed the counterclaim on the grounds that the response was made in good faith to an earlier defamatory publication. The court also dismissed the defendants' claims for damages and exemplary damages in the counterclaim.

In summary, the court found for the plaintiffs in the main action and dismissed the defendants' counterclaim, awarding the plaintiffs damages and interest but dismissing their claims for exemplary damages.

Orders