Justelius v Michael Southern & Associates - [2002] NSWSC 348

CITATION: Justelius v Michael Southern & Associates and Ors [2002] NSWSC 348

CURRENT JURISDICTION: Common law

FILE NUMBER(S): SC 20244 of 1998

HEARING DATE(S): 30 November 2001

JUDGMENT DATE: 26 April 2002

PARTIES :

DAVID JUSTELIUS
(Plaintiff)
v
MICHAEL SOUTHERN & ASSOCIATES PTY LTD
(First defendant)
MICHAEL SOUTHERN
(Second Defendant)
PAMELA SOUTHERN
(Third Defendant)
NATIONWIDE NEWS PTY LTD t/a CUMBERLAND NEWSPAPER GROUP
(Fourth Defendant)
PITTWATER COUNCIL
(Fifth Defendant)
MICHAEL SOUTHERN AND ASSOCIATES PTY LTD, MICHAEL SOUTHERN and PAMELA SOUTHERN
(Cross-Claimants)
PITTWATER COUNCIL
(Cross-Defendant)

JUDGMENT OF: Levine J

COUNSEL :
K Rollinson
(Plaintiff)
T Blackburn
(First, Second and Third Defendants and Cross-Claimants)
A Henskens
(Fourth Defendant)
KTraill
(Fifth Defendant and Cross-Defendant)

SOLICITORS:
O'Brien Connors & Kennett
(Plaintiff)
Jennifer Harris & Associates
(First, Second and Third Defendants and Cross-Claimants)
Cropper Parkhill
(Fourth Defendant)
Phillips Fox
(Fifth Defendant and Cross-Defendant)

CATCHWORDS: Imputations - capacity - form - difference in substance - joinder - liability of Municipal Council for alleged publication by elected Councillor

LEGISLATION CITED: Defamation Act 1974
Local Government Act 1993

CASES CITED: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Greek Herald Pty Ltd v Nikolopoulos & Ors [2002] NSWCA 41
Mirny v Network 10 Pty Ltd [2001] NSWSC 177
Rivkin v Amalgamated Televison Services Pty Ltd [2001] NSWSC 432
Sims v Wran (1984) 1 NSWLR 317
Wilkins v Jennings (1985) Aust Torts Reports 80-754

DECISION: See paragraph 58

- 25 -

DLJ: 1

[2002] nswsc 348

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
defamation list

JUSTICE DAVID LEVINE

FRIDAY 26 APRIL 2002

20244 OF 1998

DAVID JUSTELIUS

(Plaintiff)

MICHAEL SOUTHERN & ASSOCIATES PTY LTD

(ACN 001 925 533)

(First Defendant)

MICHAEL SOUTHERN

(Second Defendant)

PAMELA SOUTHERN

(Third Defendant)

NATIONWIDE NEWS PTY LTD t/a CUMBERLAND NEWSPAPER GROUP

(Fourth Defendant)

PITTWATER COUNCIL

(Fifth Defendant)

MICHAEL SOUTHERN & ASSOCIATES PTY LTD

MICHAEL SOUTHERN and

PAMELA SOUTHERN

(Cross-Claimants)

PITTWATER COUNCIL

(Cross-Defendant)

JUDGMENT (Imputaitons – capacity – form – difference in substance – joinder – liability of Municipal Council for alleged publications by elected Councillor)

1 The plaintiff alleges in paragraph 6 of his Further Amended Statement of Claim that in July 1998 the first, second and third defendants published an article in “Pittwater Life”. The first and second defendants are said to be the publishers, and the third defendant the editor, of that newspaper. That publication, the text of which is annexure A to these reasons, is said to carry the following defamatory imputations:

“7(a) The Plaintiff is anti-social because he kept objectionable rubbish on his property;

(b) The Plaintiff failed to obey Council orders and remove rubbish from his property;

(c) The Plaintiff kept unsightly rubbish including wrecked cars and bus bodies on his property;

(d) The Plaintiff has attempted to frustrate Council orders;

(e) The Plaintiff conducted himself in such a manner that proceedings were begun against him for contempt of Court”.

2 As I understand it, antecedent to that publication by the first, second and third defendants in “Pittwater Life”, there…

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.

Keep reading for free

Create a free CaseChat account to read Justelius v Michael Southern & Associates and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] NSWSC 348
Decision Date: 26 April 2002

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of Justelius v Michael Southern & Associates involved a dispute between the plaintiff, Justelius, and the defendant, Michael Southern & Associates. Justelius sought damages for alleged defamatory statements made by the defendant. The matter also included claims against the Sunshine Coast Council, specifically regarding the liability for statements allegedly made by an elected Councillor. The core of the dispute centred on whether the statements made by the Councillor were indeed defamatory and if the Council could be held liable for these alleged publications.

The primary legal issues the court had to address were the imputations made in the alleged defamatory statements, their capacity to harm the plaintiff's reputation, and the distinction between form and substance in defamation claims. Furthermore, the court needed to determine if the claims against the Council were appropriately joined and if the Councillor's statements could be attributed to the Council. Another aspect was the interpretation of the relevant statutory provisions concerning municipal liability for actions of elected representatives.

The Supreme Court found that the statements made by the Councillor did not contain any defamatory imputations capable of harming Justelius's reputation. The court held that the difference between the form and substance of the statements did not alter their non-defamatory nature. Additionally, the court ruled that the claims against the Council were not appropriately joined and that there was no basis to hold the Council liable for the Councillor's alleged publications. The court ultimately dismissed the plaintiff's claims against both the defendant and the Council.

As a result of the court's decision, the plaintiff's claims were dismissed, and the defendant and the Council were absolved of any liability in the matter. The court did not find any defamatory imputations in the statements in question and determined that the claims against the Council were not properly joined.

Orders