Haddon v Steele - [2011] NSWCA 323

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Haddon v Steele [2011] NSWCA 323
Hearing dates: 4 October 2011
Decision date: 04 October 2011
Before: Allsop P at 1 and 17
Giles JA at 16
Decision:
Application for leave to appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
DEFAMATION - finding of qualified privilege - no finding of malice - no error in approach of primary judge.
APPEAL - civil - procedure - significant costs expended for small award of damages not necessarily a basis for leave to appeal - Civil Procedure Act 2005 (NSW), s 60 considered.
Legislation Cited: Civil Procedure Act 2005 (NSW), s 60
Defamation Act 2005 (NSW), s 30
Category: Principal judgment
Parties: Bruce Haddon (Applicant)
The Reverend Dominic Steele (First Respondent)
Evan Batten (Second Respondent)
Representation: Mr M G McHugh, Ms C Dobraszczyk (Applicant)
Mr K P Smark SC, Ms S T Chrysanthou (Respondents)
Neville & Hourn Legal Pty Limited (Applicant)
HWL Ebsworth Lawyers (Respondents)

File Number(s): 2009/297442
Decision under appeal

Citation:

Haddon v Forsyth [2011] NSWSC 123

Date of Decision:

2011-03-08 00:00:00

Before:

Simpson J

File Number(s):

2009/297442

Judgment

ALLSOP P : This is an application for leave to appeal against orders made by a judge in the common law division, that the verdicts be entered for the defendants with costs.

The matter concerns alleged defamation said to have taken place in and about the affairs of an Anglican Church at Annandale. The plaintiff sued on five imputations and three were found. Those imputations are set out in [7] of the primary judge's reasons.

Her Honour found justification by truth and qualified privilege at common law and under the Defamation Act 2005 (NSW), s 30 . Malice was rejected. A contingent finding of damages assessed at $5,000 was made by her Honour.

Written submissions have been filed by the parties, signed by counsel. They will remain with the file and I do not propose to set them out. I take the opportunity of thanking counsel for those submissions.

One matter should be noted in respect of those submissions. The respondent, in para 25, indicated that the question of knowledge of falsity in respect of malice had not been the subject of submissions. In fact, it had and that was recognised in argument before us.

The short reason why, in my view, leave should be refused, is that I do not consider there are reasonable prospects of success in relation to qualified privilege under s 30 of the Act and in relation to the question of malice. I am not persuaded in that regard that her Honour…

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 Haddon v Steele

Details

AGLC: Haddon v Steele [2011] NSWCA 323
Case: [2011] NSWCA 323
Decision Date: 04 October 2011

CaseChat Overview and Summary

The appeal concerned a defamation action brought by the appellant, Haddon, against the respondent, Steele. The primary judge had found that the respondent had established the defence of qualified privilege in relation to the defamatory statements made, and crucially, had made no finding of malice on the part of the respondent. The appellant sought leave to appeal this decision.

The central legal issue before the Court of Appeal was whether the primary judge had erred in finding that the defence of qualified privilege was established, and consequently, whether there was any basis to overturn the judgment in favour of the respondent. A secondary issue related to whether the significant costs expended by the appellant in pursuing the appeal, relative to the small award of damages, provided a sufficient basis for granting leave to appeal.

The Court of Appeal, comprising Allsop P and Giles JA, found no error in the approach of the primary judge. The Court affirmed that the absence of a finding of malice was determinative in upholding the defence of qualified privilege. Furthermore, the Court considered that the substantial costs incurred for a minor award of damages did not, in itself, constitute a sufficient ground for granting leave to appeal, particularly in the absence of any arguable error in the primary judge's substantive findings.

Consequently, the application for leave to appeal was dismissed with costs.

Orders

Orders of the court

Application for leave to appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Haddon v Steele [2011] NSWCA 323
Hearing dates:	4 October 2011
Decision date:	04 October 2011
Before:	Allsop P at 1 and 17 Giles JA at 16
Decision:	Application for leave to appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	DEFAMATION - finding of qualified privilege - no finding of malice - no error in approach of primary judge. APPEAL - civil - procedure - significant costs expended for small award of damages not necessarily a basis for leave to appeal - Civil Procedure Act 2005 (NSW), s 60 considered.
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 60 Defamation Act 2005 (NSW), s 30
Category:	Principal judgment
Parties:	Bruce Haddon (Applicant) The Reverend Dominic Steele (First Respondent) Evan Batten (Second Respondent)
Representation:	Mr M G McHugh, Ms C Dobraszczyk (Applicant) Mr K P Smark SC, Ms S T Chrysanthou (Respondents) Neville & Hourn Legal Pty Limited (Applicant) HWL Ebsworth Lawyers (Respondents)
File Number(s):	2009/297442
Decision under appeal	Citation: Haddon v Forsyth [2011] NSWSC 123 Date of Decision: 2011-03-08 00:00:00 Before: Simpson J File Number(s): 2009/297442