Hayward v Barratt - [2001] NSWSC 8

CITATION: Hayward v Barratt & Anor [2001] NSWSC 8

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20126 of 2000

HEARING DATE(S): 11 October 2000

JUDGMENT DATE:
25 January 2001

PARTIES :

JAMES R W HAYWARD
(Plaintiff)
v
DAVID JOHN BARRATT
(First Defendant)
BAZZA INVESTMENTS PTY LTD
ACN 008 119 891
(Second Defendant)

JUDGMENT OF: Levine J

COUNSEL :
T Blackburn
(Plaintiff)
A Harris Q.C.
(Defendant)

SOLICITORS:
Piper Alderman
(Plainiff)
Phillips Fox
(Defendant)

CATCHWORDS: Imputations - capacity - form - SCR Pt 67 r 11(3) - refusal of separate trial under SCR Pt 31 r 2 in respect of oral publication

CASES CITED: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Krahe v TCN Channel Nine Pyt Limited [1986] 4 NSWLR 536
Love v Mirror Newspapers Limited [1980] 2 NSWLR 112
Marsden v Amalgamated Television Services Pty Limited (1998) 43 NSWLR 158
Stewart v Shoalhaven & Nowra News Limited (Hunt J, 26 September 1980, unreported)

DECISION: See paragraph 31

DLJ: 1

[2001] NSWSC 8

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

DEFAMATION LIST

No. 20126 of 2000

JUSTICE DAVID LEVINE

THURSDAY 25 JANUARY 2001

JAMES R W HAYWARD
(Plaintiff)

v

DAVID JOHN BARRATT
(First Defendant)

bazza investments pty ltd
ACN 008 119 891
(Second Defendant)

JUDGMENT (Imputations - capacity - form - SCR Pt 67 r 11(3) - refusal of separate trial under SCR Pt 31 r 2 in respect of oral publication)

1 The plaintiff is the Chairman of Southern Equity Holdings Limited (SEQ) and at all material times was the Secretary of Sengate Pty Limited (Sengate). The first defendant, Mr Barratt, was a Director and Shareholder of Bazza Investments Pty Limited (Bazza) which corporation held shares in SEQ and Sengate.

2 The plaintiff has sued the defendants in respect of two publications. The first publication is a letter dated 10 June 1999 the text of which is appended hereto. It is alleged that the letter was forwarded to all shareholders of SEQ.

3 The second matter complained of is based upon an event that is said to have occurred on 30 November 1999 at the Annual General Meeting of SEQ where certain words were uttered. I shall return to that matter complained of in due course.

4 In respect of the first matter complained of, the plaintiff pleads 18 imputations said to arise out of the natural and ordinary meaning of the letter or as true innuendos by reason of particularised facts and matters. The imputations are as follows:

“7.1 The plaintiff as managing director of Southern Equity Holdings Limited had acted disgracefully by accepting incredibly high remuneration from that company which was wholly unjustified in view of the poor results of the company.

7.2 The plaintiff was a greedy person.

7.3 The plaintiff as managing director of Southern Equity Limited had failed in his duty to the shareholders of that company by failing to give the shareholders the least they were entitled to, namely an explanation for the substantial losses of that…

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 Hayward v Barratt

Details

AGLC: Hayward v Barratt [2001] NSWSC 8
Case: [2001] NSWSC 8
Decision Date: 25 January 2001

CaseChat Overview and Summary

The plaintiffs, Hayward and others, brought proceedings against the defendant, Barratt, in the Supreme Court of New South Wales. The plaintiffs sought damages for defamation, claiming that the defendant had made defamatory statements about them in various publications. The defendant denied the allegations and counterclaimed for malicious prosecution. The central issue before the court was whether the plaintiffs' claims could proceed in the form of a single proceeding, or whether a separate trial should be ordered for the oral publication component of the claims.

The court considered whether the imputations made in the publications were so closely connected that they could be tried together. The plaintiffs argued that the oral publication was part of a continuous defamatory campaign and should not be severed from the other claims. The defendant contended that the oral publication was distinct and should be tried separately. The court had to decide whether the trial of the oral publication claims should be severed under rule 31 of the Supreme Court Rules, or whether it could be tried concurrently with the other claims under rule 11(3) of the Supreme Court Rules Part 67.

The court held that the oral publication claims could not be severed from the other claims because they were part of a single defamatory campaign. The imputations made in the oral publications were closely connected to those in the written publications, and trying them separately would be an exercise of form rather than substance. The court found that the claims could proceed in a single proceeding, as they were not so distinct as to warrant a separate trial. The court's decision was based on the principle that the form of the proceeding should not override the substance of the claims, and that the trial of all claims together would be more efficient and just. The court denied the defendant's application for a separate trial for the oral publication claims.

Orders