Favell v Mbuzi

[2005] QDC 356

DISTRICT COURT OF QUEENSLAND

CITATION:

Favell v Mbuzi [2005] QDC 356

PARTIES:

PAUL JOSEPH FAVELL (Plaintiff)

And

JOSIYAS MBUZI (Defendant)

FILE NO/S:

BD1021 of 2005

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court

DELIVERED ON:

18 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

17 and 18 October 2005

JUDGE:

Tutt DCJ

ORDER:

1.   Judgment for the plaintiff against the defendant.

2.   That the defendant pay damages to the plaintiff in the sum of $15,000.00 plus interest at the rate of 10% per annum from 14 February 2005 to date of judgment.

I shall hear the parties on costs.

CATCHWORDS:

Defamation – publication of defamatory material – injury to reputation of experienced and senior barrister – whether defendant’s conduct aggravated the injury to the plaintiff – whether exemplary damages should be awarded – aggravated compensatory damages.

Defamation Act 1889 s 11.

Uniform Civil Procedure Rules 1999 r 137(1).

Bickel v John Fairfax & Sons Limited (1982) 2 NSWLR 474.

Broome v Cassell & Co Ltd [1972] AC 1027.

Carson v John Fairfax & Sons Limited (1993) 178 CLR 44.

Cotogno v Lamb (No 3) (1986) 5 NSWLR 559.

Crampton v Nugawela (1996) 41 NSWLR 176.

Favell v Mbuzi [2005] QDC (Brabazon QC DCJ 2 September 2005).

Gibbons v Duffell (1932) 37 CLR 520.

John Fairfax Publications Pty Ltd v O’Shane (No. 2) [2005] NSWCA 291.

Konstantinidis v Foreign Media Pty Limited [2004] NSWSC 835.

Mann v O’Neill (1997) 191 CLR 204.

XL Petroleum New South Wales Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448.

COUNSEL:

Mr R Anderson for the plaintiff.

Mr J Mbuzi in person.

SOLICITORS:

Gail Malone & Associates for the plaintiff.

Introduction

1. By his claim filed 23 March 2005, the plaintiff claims damages under various heads for defamation arising out of the publication of two letters by the defendant on 14 February (“the first letter”) and 18 February 2005 (“the second letter”) respectively.  The first letter was forwarded to Mr David Colwell who was the plaintiff’s instructing solicitor in Supreme Court application no. BS10869 of 2004 (“the originating application”) with copies to the Registrar and Listings Manager of the Supreme Court of Queensland; the second letter was forwarded to Ms Gail Malone, solicitor, of Gail Malone & Associates, who had been instructed by the plaintiff to act on his behalf in respect of the first letter.  Both letters form part of Exhibit “2” in this proceeding.

1. The plaintiff is a practising barrister in Brisbane, having been in continuous practice in that occupation for approximately 26 years.

Background

1. The background to this proceeding is that the plaintiff represented a Mr and Mrs Averono (“Averono”) in the originating application against the defendant and his wife, whereby Averono sought injunctive relief in respect of issues pertaining to easements affecting their respective properties and in which the defendant and his wife filed a cross-application, also seeking certain relief.

1. The originating application came before his Honour Justice Byrne in…