Hayward v Barratt - [2000] NSWSC 708

CITATION: Hayward v Barratt [2000] NSWSC 708

CURRENT JURISDICTION: Common Law Division
Defamation List

FILE NUMBER(S): SC 20126/2000

HEARING DATE(S): 11/07/2000

JUDGMENT DATE: 11 July 2000

PARTIES :

James R W Hayward (P)
David John Barratt (D1)
Bazza Investments Pty Limited (D2)

JUDGMENT OF: Young J

COUNSEL : T D Blackburn (P)
A Harris QC and S T White (D)

SOLICITORS: Piper Alderman (P)
Phillips Fox (D)

CATCHWORDS: DEFAMATION [79]- Qualified privilege- Malice- Relevant fact is defendants' knowledge of alleged fact not its objective truth. PROCEDURE [26]- Cross-vesting- Application before issues settled often premature- Defamation proceedings- Publication in NSW and elsewhere- On balance order refused.

LEGISLATION CITED: Jurisdiction of Courts (Cross-Vesting) Act 1987, s 5

CASES CITED: Bainton v Sheahan - 2 March 1990, unreported
Bankinvest AG v Seabrook (1988) 14 NSWLR 711
Makim v John Fairfax & Sons Ltd - 15 June 1990, unreported

DECISION: Notice of motion dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST
YOUNG J
TUESDAY 11 JULY 2000
20126/2000 - HAYWARD v BARRATT & ANOR
JUDGMENT
1 HIS HONOUR: This is a motion brought by the defendants under s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 to transfer these defamation proceedings to the Supreme Court of South Australia.
2 The Court of Appeal in Bankinvest AG v Seabrook (1988) 14 NSWLR 711 laid down the way in which courts should approach these sort of applications in this State. As is pointed out in the written submissions of Mr Blackburn for the plaintiff, those principles are not the same as apply in most States of the Commonwealth. However, as the Court of Appeal has spoken, and as it appears from the judgments in the Bankinvest case that it was more or less a guideline judgment, I will follow what is there laid down. Freely interpreted, that means I must undertake a case management exercise to see what would be the best order to make to facilitate the trial of the litigation, whether that be in this Court or if the order for transfer is made, in a South Australian court.
3 Mr Blackburn, however, says in defamation cases it is a significant factor that the plaintiff has sought to be vindicated in New South Wales, and that he has commenced proceedings here. I agree that that is a factor that one must take into account in the general mix.
4 Generally speaking, the Court in New South Wales takes the view that if proceedings are properly commenced in New South Wales, and if there are sufficiently strong apparent connections with New South Wales, then one waits to see what the issues are between the parties before ordering that the proceedings be cross-vested. Normally, that means that one waits until after the pleadings and interlocutory steps are concluded, because only then does one know what the real issues are. Only after one knows what the real issues are can one work out what is the most convenient place…

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 [2000] NSWSC 708
Case: [2000] NSWSC 708
Decision Date: 11 July 2000

CaseChat Overview and Summary

The case of Hayward v Barratt involved a defamation claim brought by the plaintiff, Hayward, against the defendant, Barratt. The dispute centred around allegations made by Barratt that were published in various locations, including New South Wales, which Hayward claimed were defamatory. The case was heard in the Supreme Court of New South Wales.

The central legal issues revolved around the defence of qualified privilege and the presence of malice. The court had to determine whether the defendants' communications were protected by qualified privilege and, if so, whether there was evidence of malice on the part of the defendants that would negate this protection. Additionally, the court needed to assess whether the relevant fact in question was the defendants' knowledge of the alleged fact or its objective truth.

In its reasoning, the court highlighted that for the defence of qualified privilege to be applicable, the defendants needed to demonstrate that the communications were made in good faith and without malice. The court noted that the relevant fact in determining the existence of malice is the defendants' knowledge of the alleged fact rather than its objective truth. The court found that the application for an order to cross-vest the proceedings to another jurisdiction was premature, given that the issues had not yet been settled. Consequently, the application was refused. The court concluded that the defendants' communications, while potentially defamatory, were protected by qualified privilege unless it was shown that they acted with actual malice. The court's decision focused on the defendants' knowledge and intentions, rather than the truth of the statements made.

Orders