Jay & Anor v Petrikas & Ors (No.4)

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District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Jay & Anor v Petrikas & Ors (No.4) [2022] NSWDC 628
Hearing dates: 21, 22, 23, 24, 25, 30 November, 1 December 2022
Date of orders: 13 December 2022
Decision date: 13 December 2022
Jurisdiction:Civil
Before: Abadee DCJ
Decision:

See paragraphs 704 - 705

Catchwords:

TORTS – injurious falsehood – plaintiffs hold offices within Rural Fire Service Brigades - three publications by other office holders within the Rural Fire Service comprising or relating to disciplinary complaints against the plaintiffs – publications caused investigation by investigator external to RFS – investigation determined that there was insufficient evidence of breaches of service standards – appointing officer elected not to refer matters for disciplinary action – the scope of the element to the tort that the representations concern the ‘plaintiff and his or her property’– whether representations conveyed by the publications were false – whether malice actuated publications – whether causation established - whether the plaintiffs suffered actual damage – whether the plaintiffs’ incurring of legal expenses at an investigation into allegations conducted in accordance with RFS procedures for investigations was intended or the natural and probable consequence of any malicious falsehoods

DAMAGES – whether outstanding debt owed by a plaintiff to his lawyers, for which the other plaintiff is jointly and severally liable constitutes actual harm to both plaintiffs – whether aggravated and/or exemplary damages should be awarded

Legislation Cited:

Civil Liability Act 2002 (NSW) s 5D

Evidence Act 1995 (NSW) s 136

Income Tax Assessment Act 1997 (Cth) ss 245-35 – 245-45

Local Government Act 1993 (NSW)

Ombudsman Act 1974 (NSW)

Rural Fire Regulation 2013 (NSW) rr 4, 5, 7, 8, 9, 10

Rural Fires Act 1997 (NSW) ss 8, 15, 16, 18, 19, 20, 21

Cases Cited:

AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395; [2011] Aust Torts Reports 82-077

Anon (1706) 88 ER 921

ASIC v Fortescue Metals Group Ltd (2011) 274 ALR 731

Badenach v Calvert (2016) 257 CLR 440

Ballina SC v Ringland (1994) 33 NSWLR 680

Barrow v Bolt [2014] VSC 599

Bauer Media Pty Ltd v Wilson (No.2) [2018] VSCA 154

Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2011] NSWSC 642

Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185

Edwards v State of New South Wales [2021] NSWSC 181

Euromoney Institutional Investor Plc v Aviation News Ltd [2013] EWHC 1505

Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82

Gray v Motor Accidents Commission (1998) 196 CLR 1

Hamod v New South Wales [2011] NSWCA 375

Hill v Van Erp (1997) 188 CLR 159

Hutley v Cosco [2020] NSWCA 17

Irving v Phingst [2021] QCA 280

Jay v Petrikas [2019] NSWDC 707

Jones v Dunkel (1959) 101 CLR 298

KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden [2020] NSWCA 28

Lamb v Cotogno (1987) 164 CLR 1

Lendlease Real Estate Investments…

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Details
Case
[2022] NSWDC 628
Decision Date

CaseChat Overview and Summary

The plaintiffs, Jay and another individual, initiated legal proceedings against the defendants, Petrikas and others, in the Federal Court of Australia. The case revolves around allegations of injurious falsehood, stemming from three publications by other office holders within the Rural Fire Service that pertained to disciplinary complaints against the plaintiffs. These publications resulted in an investigation by an investigator external to the RFS, which concluded that there was insufficient evidence of breaches of service standards. The appointing officer subsequently decided not to refer the matters for disciplinary action. The plaintiffs sought to establish that the publications were false, maliciously made, and caused them actual damage. Additionally, they sought to argue that the incurring of legal expenses during the investigation was an intended or natural and probable consequence of the alleged malicious falsehoods.

The primary legal issues that the court had to address were whether the publications constituted false representations concerning the plaintiffs and their property, whether the publications were actuated by malice, whether the plaintiffs suffered actual damage, and whether the incurring of legal expenses was intended or the natural and probable consequence of the alleged malicious falsehoods. The court had to consider the scope of the tort of injurious falsehood and its application to the facts of the case. Furthermore, the court examined whether the plaintiffs were entitled to aggravated and/or exemplary damages, and if the outstanding debt owed by one plaintiff to his lawyers, for which the other plaintiff is jointly and severally liable, constituted actual harm to both plaintiffs.

The court found that the publications did not convey false representations concerning the plaintiffs and their property, and that the publications were not actuated by malice. The court further held that the plaintiffs did not suffer actual damage as a result of the publications, and that the incurring of legal expenses during the investigation was not an intended or natural and probable consequence of the alleged malicious falsehoods. Consequently, the plaintiffs' claims for damages were dismissed. The court also ruled that the outstanding debt owed by one plaintiff to his lawyers, for which the other plaintiff is jointly and severally liable, did not constitute actual harm to both plaintiffs.

The court made orders dismissing the plaintiffs' claims and ordering the plaintiffs to pay the defendants' costs of the proceedings. The court found that there were no grounds for awarding aggravated or exemplary damages. The specific orders made by the court are detailed in paragraphs 704 to 705 of the judgment.

Orders

Orders of the court

See paragraphs 704 - 705

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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