GWA Pty Ltd v Russo

DISTRICT COURT OF QUEENSLAND
CITATION:	GWA P/L v Russo & Anor [2000] QDC 387
PARTIES:	GWA PTY LTD ACN 006 0112 344 Plaintiff -v- NICK RUSSO First Defendant and EQUUSCORP PTY LTD (FORMERLY EQUUS FINANCIAL SERVICES LIMITED) ACN 006 012 344 Second Defendant
FILE NO/S:	81 of 1993
COURT:	District Court of Queensland
DELIVERED ON:	3 November 2000
HEARING DATE:	5 September 2000
JUDGE:	Judge Brabazon QC
ORDER:	Application dismissed
CATCHWORDS:	Defamation – identification of person defamed – intention of publisher – Lee v Wilson (1934) 51 CLR 276 and Baltino v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 considered
COUNSEL:	Mr SSW Couper QC (for applicant/defendants) Mr DR Cooper SC (for respondent/plaintiff)
SOLICITORS:	Gadens (for applicant/defendants) Lees Marshall Warnick (for respondent/plaintiff)

Judgment

1. In this action GWA Pty Ltd claims damages for defamation by the defendants.

2. The defendants now apply to strike GWA’s Further Amended Plaint of 27 March

   1998, and to dismiss its claim, on the basis that it cannot plead sufficient facts to support a cause of action against the defendants. This is the third such application –

   similar applications have already been dealt with by Judge McGill and Judge

   McLauchlan. Each application resulted in an amendment to the statement of claim

   in the plaint.

   The present pleading

3. The further amended plaint alleges that, in about 1990, a group of Brisbane based

   investors participated in some primary production projects. That Brisbane group

   comprised investors who were officers, shareholders or employees of GWA, or

   were companies associated with GWA. GWA itself is said not to have been an

   investor. However, the investors were said to be known as, and referred to by the

   other investors in the projects as either “the GWA group of borrowers”, or “the

   GWA Pty Ltd group of borrowers” or “the Brisbane based borrowers”. The

   pleading refers to them as “the Brisbane based borrowers”.

4. The pleading asserts that the second defendant, Equus Financial Services Limited,

   was in the business of general financing. The first defendant, Mr Russo, was its

   managing director. The second defendant had some involvement in the project.

5. The pleading alleges that the defendants wrote to other investors in the projects, in

   October 1992. A long extract from the letter is incorporated in the pleading. It

   refers to “the Brisbane based borrowers”. There is no actual reference to GWA, in

   the letter.

6. Paragraphs 11 and 12 of the pleading assert that the words quoted were published

   “concerning the plaintiff”. Paragraph 13 then complains of a number of

   defamatory imputations concerning the plaintiff, to be found in the letter.

7. Because GWA was not actually named in the letter, paragraph 12 sets out to plead

   facts to sustain the allegation, that “the matter complained of was published

   concerning the plaintiff”. It makes these assertions:

   (i)         at no time was GWA one of the Brisbane-based borrowers;

   (ii)        the investors other than the Brisbane-based borrowers

   erroneously believed that GWA was in fact one of the

   Brisbane based borrowers;

   (iii)       the defendants knew that the investors…