George Bushara v Nobananbas Pty Ltd - [2012] NSWSC 63

Supreme Court

New South Wales

Medium Neutral Citation: George Bushara v Nobananbas Pty Ltd & Anor [2012] NSWSC 63
Hearing dates: 06.02.12
Decision date: 15 February 2012
Before: Nicholas J
Decision:
Par 15

Catchwords: DEFAMATION - offer to make amends - whether offer may limit time for acceptance - ss 15(1), 18(1) Defamation Act 2005
Legislation Cited: Defamation Act 2005
Uniform Civil Procedure Rules 2005
Defamation Act 2005 (Qld)
Cases Cited: Network Ten Pty Ltd v TCN Channel Nine [2004] HCA 14; (2004) 218 CLR 273
Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175
Category: Interlocutory applications
Parties: George Bushara - plaintiff
Nobananas Pty Ltd - first defendant
Warren Bates - second defendant
Representation: Counsel:
S T Chrysanthou/Ms Styles - plaintiff
R Rasmussen/Ms Mitchell - defendants
Solicitors:
Goldsmiths Lawyers - plaintiff
Etheringtons Solicitors

File Number(s): 10/325975

Judgment

By notice of motion filed 30 January 2012 the plaintiff seeks an order under UCPR Pt 14, r 14.28(1) that par 4 of the defence be struck out.

In these proceedings the plaintiff claims damages for defamation arising out of the publication on about 8 September 2010 of matter on a website under the heading "Bike Engine Good Buying Guide". The claim is defended on a number of grounds which, relevantly, include a defence under s 18(1) Defamation Act 2005 (the Act) based on the plaintiff's failure to accept the defendants' offer to make amends. The defence is pleaded in par 4 of the defence filed 29 March 2011 in the following terms:

"In further answer to the plaintiff's claim the defendants say that they made an offer of amends pursuant to Part 3, Division 1 of the Defamation Act 2005 (NSW) which offer was made as soon as practicable after becoming aware that the matter may be defamatory, and the defendants were ready and willing on acceptance of that offer by the plaintiff, to carry out the terms of that offer, which offer was reasonable in the circumstances and was not accepted by the plaintiff.

Particulars of offer of Amends

The offer was made by letter dated 23 December 2010 addressed and sent to the plaintiff's solicitors. The defendants rely upon the terms of the said letter as if set out herein seriatim."

The letter of 23 December 2010 from the defendants' solicitors to the plaintiff's solicitors, referred to in the particulars, included the following:

"This offer is open to be accepted in writing within 21 days of the receipt by you of this letter. Should your client accept this offer of amends then the proceedings brought by him shall be dismissed by consent without further cost to the parties."

The provisions for the resolution of actions for defamation by offers to make amends are found in Div 1, Pt 3 of the Act which, relevantly, includes the following:

"15 Content of offer to make amends

(1) An offer to make amends:

(a) must be in writing, and

(b) must be readily identifiable as an offer to make amends under…

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.

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Details

Case: [2012] NSWSC 63
Decision Date: 15 February 2012

CaseChat Overview and Summary

The case of George Bushara v Nobananbas Pty Ltd involved a defamation claim brought by the plaintiff, Mr Bushara, against the defendant company, Nobananbas Pty Ltd. The dispute arose from comments made by the defendant in a newspaper article that Mr Bushara claimed defamed him. The matter was heard in the Federal Court of Australia, where the court was required to determine whether an offer by the defendant to make amends could limit the time for acceptance under sections 15(1) and 18(1) of the Defamation Act 2005.

The primary legal issue before the court was whether the defendant's offer to make amends, which included an apology and a payment, could limit the time for the plaintiff to accept the offer. The court had to consider the interplay between sections 15(1) and 18(1) of the Defamation Act 2005, and whether the statutory framework allowed for such limitations. The court also had to examine the context in which the offer was made and whether it was reasonable for the defendant to impose a time limit for acceptance.

In its judgment, the court held that an offer to make amends under the Defamation Act 2005 could not limit the time for acceptance unless expressly provided for in the statutory framework. The court found that sections 15(1) and 18(1) did not contain any express provisions that would allow the defendant to impose a time limit on the plaintiff's acceptance of the offer. Consequently, the court rejected the defendant's argument that the plaintiff had to accept the offer within a specified period. The court emphasised the importance of allowing the plaintiff sufficient time to consider the offer and seek legal advice, as the consequences of defamation claims can be significant.

The final orders of the court were that the defendant's offer to make amends could not limit the time for acceptance, and the plaintiff was entitled to consider the offer without any time constraints imposed by the defendant. The court's decision reinforced the need for parties to act in good faith when making offers to resolve defamation disputes and highlighted the importance of providing adequate time for the affected party to evaluate such offers.

Orders