Kevin Waters v Australia Wide Towing Pty Ltd
[2002] NSWSC 533
•14 June 2002
CITATION: KEVIN WATERS V AUSTRALIA WIDE TOWING PTY LTD & ANOR [2002] NSWSC 533 FILE NUMBER(S): SC 20090 of 2002 HEARING DATE(S): 11 June 2002 JUDGMENT DATE: 14 June 2002 PARTIES :
KEVIN WATERS
(Plaintiff)v
AUSTRALIA WIDE TOWING PTY LTD
BARRY LEWIS
(First Defendant)
(Second Defendant)JUDGMENT OF: Levine J
COUNSEL : J WHEELHOUSE
J GARNSEY QC
(Plaintiff)
(First and Second Defendants)SOLICITORS: BLESSINGTON JUDD
CRICHTON-BROWNS
(Plaintiff)
(First and Second Defendants)CATCHWORDS: Imputations - capacity - form CASES CITED: Amalgamated Television Services Pty Ltd v Marsden [1998] 43 NSWLR 158
Mirror Newspapers v Harrison [1982] 149 CLR 293DECISION: See paragraph 14
DJL:1
[2002] nswsc 533
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION list
JUSTICE DAVID LEVINE
20090 OF 2002FRIDAY 14 JUNE 2002
KEVIN WATERS
(Plaintiff)
AUSTRALIA WIDE TOWING PTY LTD & ANORv
(Defendant)
1 The letter published on or about 8 February 2002 upon which the plaintiff sues is appended hereto. The plaintiff contends that the publication carries the following imputations defamatory of him:
- “(a) The plaintiff is a criminal;
- (b) The plaintiff is a thug;
- (c) The plaintiff has such a bad character that he is unsuitable to be an NRMA Towing Contractor;
- (d) The plaintiff was black-banned by NRMA Insurance and had his NRMA Road Service Contract taken away from him because he acted fraudulently;
- (e) The Blacktown Police suspect the plaintiff has engaged in criminal activity in relation to towing services;
- (f) The plaintiff threatened to shoot Barry Lewis if Barry Lewis did not stay out of the area where the plaintiff provided towing services;
- (g) The plaintiff arranged for an employee of Western smash Repairs, Mr Dennis Wilson, to be so seriously bashed he was lucky to escape with his life and now Mr Wilson is unable to work;
- (h) The plaintiff employs stand over merchants as tow truck drivers;
- (i) The plaintiff dishonestly obtained an NRMA Towing Contract because he colluded with members of a submitted-committee with the TTA”.
2 The defendant challenges imputations (a), (b), (e) and (g).
Imputation (a)
3 The defendant contends that only by the impermissible course of drawing at least an inference on an inference if not several inferences could the matter complained of give rise to this imputation which, it is argued, attributes to the plaintiff the status of being a convicted criminal (Mirror Newspapers v Harrison [1982] 149 CLR 293; Amalgamated Television Services Pty Ltd v Marsden [1998] 43 NSWLR 158).
4 The matter complained of makes a series of specific allegations of criminal conduct and disparaging statements about the plaintiff in the context where it is said that Mr Hawker should be “very wary”. Reference is made to the plaintiff being black-banned by the NRMA, to the NRMA Service Contract being taken away for fraudulent reasons; the suggestion that the plaintiff was known to the Blacktown Police; the plaintiff threatened to shoot the second defendant and that the plaintiff was implicated in the bashing of an employee of another operator. Further, reference is made to the plaintiff’s companies employing standover merchants and there is a further reference to collusion.
5 This is an instance in my view where there is no need for any inference to be drawn upon an inference. The inference is drawn upon the express statements in the matter complained of and is a rational and reasonable inference.
6 I hold the matter complained of capable of carrying imputation (a) and that it is capable of being defamatory.
Imputation (b)
7 This falls into the same category as imputation (a) in my view. There is express reference to violence associated with the plaintiff. It is not reasonable to suggest that there has to be some continuing course of violent conduct to warrant the attribution of being a “thug”. In any event there is at least more than one reference to violence in relation to the plaintiff in the matter complained of.
8 I hold the matter complained of capable of carrying imputation (b) which I hold to be capable of being defamatory.
Imputation (e)
9 I must confess to at first having reservations about the capacity of the matter complained of to carry this meaning. When, however, account is taken of the invitation to refer to Blacktown Police Station, in the context of the black bans referred to in the letter before that part, the author having worked in the Blacktown/Seven Hills area, the reference to the plaintiff’s “shortcomings” followed by the threat, I am persuaded on this capacity basis that this imputation is capable, just capable, of being carried by the matter complained of.
10 As to imputation (e) I hold that the matter complained of is capable of carrying that meaning and that that imputation is capable of being defamatory.
Imputation (g)
11 The ultimate submission made for the defendant in relation to this imputation was that it does not, insofar as it refers to the seriousness of the bashing and in terms of its effect upon the victim, attribute any act or condition to the plaintiff. I agree. All that the matter complained of is capable of attributing to the plaintiff by way of act is his arranging for an employee of another operator to be bashed. Nothing in the matter complained of is capable of sheeting home to the plaintiff any intention as to the seriousness of the bashing (he was lucky to escape with his life and is now unable to work) which the plaintiff otherwise arranged.
12 Imputation (g) is struck out as bad in form. The plaintiff has leave to replead.
13 The plaintiff has predominantly succeeded in meeting the defendant’s attack upon his Statement of Claim.
14 Accordingly the formal orders are:
1. Imputations (a), (b) and (e) are found to be capable of being carried by the matter complained of and capable of being defamatory.
2. Imputation (g) is struck out.
3. The plaintiff has leave to file an Amended Statement of Claim within 14 days.
4. The defendant is to pay the plaintiff’s costs.
5. The matter is stood over to the Registrar’s Defamation List on 12 July 2002.
SCHEDULE A
1. 8 February 2002
2.
Mr Michael Hawker
3.
Chief Executive Officer
4.
NRMA Insurance Limited
5.
388 George Street
6.
SYDNEY NSW 2000
15 7. PRIVATE AND CONFIDENTIAL
8. Dear Sir
9.
I have just learned of the new Towing arrangements for NRMA Insurance, with utter
10.
disbelief.
11.
I have been an NRMA Road Service Contractor since I was 18 years old (I am not 59
12.
yrs old). My initial Contract was with Sundell Motors Chatswood, in the late 1970’s
13.
I was a contractor in my own right under my business name Carlingford Towing
14.
which I handed back when I sold Carlingford Towing as was the nature of the
15.
Contract. In the early 1980’s, I purchased Australia Wide Towing and was given the
16.
NRMA Road Service Contract that was held by the previous owner, because of my
17
. good record with NRMA Road Service.
18.
I now own 17 Tow Trucks, 13 of these being tiltrays and 3 of these tiltrays are dual
19.
cabs. I am currently the only Towing Service who owns 3 dual cabs. My NRMA
20.
Road service area covers Blacktown/Seven Hills and all of the Campbelltown area
21.
going as far south as Picton turnoff on the M5.
22.
I do not “chase” accidents and do not “sell” work. I am also the Towing contractor
23.
for the Blacktown Police Roster and have been for approx 10 years. I believe I have a
24.
very good business reputation.
25.
Why has this not been put to tender, and why have the NRMA Towing Contractors,
26.
who have looked after this part of the Service for many years, not been invited to
27.
tender on their own behalf.
28.
The NRMA Towing Contractors have looked after the Road Service Members
29.
(without which you Insurance Company would have very few), for many years for a
30.
very small amount of money. As you are aware, the Insurance side of this service has
31.
aided in keeping the Road Service Contractors in Business by giving them the means
32.
(by way of higher Towing Fees at TTA approved rates) to service the breakdowns
33.
more efficiently at a highly reduced cost. The two went hand in hand without any
34.
problems.
35.
Has anyone bothered to do a history check on either of these Towing Services?
36.
Surely if you had you would be very wary of giving people of this character such a
37.
position with your Company. May I suggest you get in touch with Keith Humphries
38.
(prior Road Service Manger) and make inquiries as to why Kevin Waters was black
39.
banned by NRMA Insurance and his NRMA Road Service Contract was taken away
40.
from him for fraudulent reasons. You might also like to do a personal reference with
41.
Blacktown Police Station. Obviously none of this has been very well checked or you
42.
would not have put your Company in such a precarious position.
43.
Having worked in the Blacktown/Seven Hills area as an NRMA Contractor for a
44.
number of years and having worked in the same area as Kevin Waters I am aware of
45.
his shortcomings. I was personally threatened by him when I purchased Australia
46.
Wide Towing that I would be shot if I did not stay out of “his area”. Please also
47.
check with one of your preferred repairers (Western Smash Repairs) and ask them to
48.
tell you about the bashing of one of their employees received by a driver (who was a
49.
member of a well known “bikie” gang) and who was driving a truck owned by Kevin
50.
Waters only 2 year ago. Their employee (Denis Wilson) was lucky to escape with his
51.
life and is now unable to work again.
52.
The Road Service Contractors, as you are well aware, are checked very thoroughly
53.
before they are invited to be a part of this highly respected consortium. We are given
54.
a time limit to respond to jobs, we are answerable to Road Service for consideration
55.
and respect to members, and our drivers have to meet the highest standards we can
56.
obtain. Not standover merchants as some other companies employ.
57.
Collusion Kevin Waters and Combing Towing are involved on a Sub Committee
58.
with the TTA. Perhaps this is why they have been able to get in at the top level
59. without any other Towing Services being invited to tender. I believe that is called
60.
collusion. Strangely enough the TTA deny any knowledge of being part of this
61.
arrangement or that it would be part of the JAS, as stated in your correspondence.
62.
I believe it is time the media and your shareholders were made aware of this ludicrous
63.
arrangement and demanded to have this matter thoroughly investigated. Surely your
64.
Company could not stand any more bad publicity, or perhaps it would be better to
65.
retract what you have already done and proceed with this in a legal manner and call
66.
for public tenders.
67.
I trust you will look into this matter and give it your most urgent attention. I can be
68.
contacted on my mobile 24 hrs per day 0412 271 184. I look forward to your earliest
69.
reply.
70. Yours sincerely,
Barry Lewis
AUSTRALIA WIDE TOWING PTY LIMITED
Director
0
0
0