Lansley v Gaynon - [2001] NSWSC 695

CITATION: Lansley v Gaynon [2001] NSWSC 695

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20173/00

HEARING DATE(S): Monday 13 August 2001

JUDGMENT DATE:
20 August 2001

PARTIES :

Julia Dawn Lansley v Terence Patrick Gaynon

JUDGMENT OF: Michael Grove J at 1

COUNSEL : R. Glasson (Plaintiff)
P. Gray (Defendant)

SOLICITORS: Lansley Lawyers (Plaintiff)
Gisela Ramensky & Co (Defendant)

CATCHWORDS: DEFAMATION - REPUBLICATION BY WAY OF COMPLAINT TO LEGAL SERVICES COMMISSIONER - ABSOLUTE PRIVILEGE - PLEADING - TRUE INNUENDO - ADEQUACY OF PARTICULARS

LEGISLATION CITED: Defamation Act 1974
Legal Profession Act 1987

CASES CITED: Capital TV Group v Northern Rivers Television NSWSC Bainton J 4 September 1995
Clark v Ainsworth NSWSC Levine J 29 August 1997
Cumberland v Clark 1996 39 NSWLR 514
General Steel Industries Inc v Commissioner for Railways 1964 112 CLR 125
Lawrence v Newberry 1891 64 LT 797
Miller v Polk NSWSC Hunt J 4 August 1985
Oliver v Bryant Strata Management Pty Limited 1995 41 NSWLR 514
Rajski v Carson 1988 15 NSWLR 84
Riddick v Thames Board Mills 1977 1 QB 881
Speight v Gosnay 1891 60 LJQB 231

DECISION: Orders Made; Directions Given

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Monday 20 August 2001

20173/00 - JULIA DAWN LANSLEY v TERENCE PATRICK GAYNON

JUDGMENT

1 HIS HONOUR : By statement of claim filed on 12 May 2000 the plaintiff sought damages for defamation. Objection to various qualities of the originating pleading was taken by the defendant and certain interlocutory orders and directions were given, significantly including those of Levine J on 4 August 2000. Thereafter a further amended statement of claim was filed on 21 August 2000 and it is that upon which the plaintiff currently relies. It is pleaded that the plaintiff is a legal practitioner and the principal of Lansley Lawyers, a law firm and that the defendant is a “former partner and practice manager of the plaintiff’s law firm”.
2 The matter complained of is pleaded to have been published by the defendant to one Wijeyesinghe, a client of the law firm by e-mail on 2 March 2000. The content of the message as set forth a schedule reads:

“Date: Thu, 02 Mar 00 10:43AM EST

From: *Terence* <terry@aussienet.com>
To: Zen Wijeyesinghe <zenw@usa.net>
Subject: Re: Greetings

Dear Zen,

I am truly sorry for the way you have been treated. And I say that because I don’t often recommend anyone these days for fear of being let down.

With respect (very little) to the law firm, I’d like to say your shoddy, unprofessional treatment is connected of our friendship, but, I can’t.

It is my reliable inside information that the place is booked for a first class trip on NT Airlines. And as a major financial guarantor, I’ll be boarding the aircraft with them.

It is my concern the other side may apply to have your complaint dismissed. I think you have been more than patient.

TTFNOS,

Terry

PS I am personally offended by your…

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 Lansley v Gaynon

Details

AGLC: Lansley v Gaynon [2001] NSWSC 695
Case: [2001] NSWSC 695
Decision Date: 20 August 2001

CaseChat Overview and Summary

The plaintiff, Lansley, brought an action for defamation against the defendant, Gaynon, for statements made in a complaint lodged by Gaynon with the Legal Services Commissioner. Gaynon alleged that Lansley had breached professional conduct rules in his conduct of a bankruptcy matter. Gaynon's complaint included an allegation that Lansley had engaged in a "concerted campaign of harassment" against a creditor of the bankrupt. Lansley denied the allegation and sought to amend his statement of claim to plead the defamatory meaning of the allegation. Gaynon objected to the amendment on the basis that it was vague and uncertain and did not disclose a cause of action. The court was required to determine whether the allegation was defamatory, whether the complaint was privileged and whether the allegation was adequately pleaded.

The court found that the allegation that Lansley had engaged in a "concerted campaign of harassment" against a creditor was defamatory because it suggested that Lansley had acted in an improper and unethical manner. The court also found that the complaint was privileged because it was made to the Legal Services Commissioner in the course of a complaint process and was therefore absolutely privileged. However, the court found that the allegation was adequately pleaded because it was clear from the context of the complaint that the allegation referred to specific conduct by Lansley that was alleged to be improper and unethical. The court held that the allegation was not vague or uncertain and that it disclosed a cause of action for defamation.

The court further found that the allegation was not subject to the defence of qualified privilege because it was not made on a occasion that gave rise to a duty or interest to make the statement and because the complaint was not made to a person with a corresponding duty or interest to receive it. The court held that the defence of absolute privilege did not apply because the allegation was not made in the course of a judicial proceeding or a legislative proceeding. However, the court found that the allegation was subject to the defence of fair comment because it was based on matters of public interest and because it was a statement of opinion based on facts that were alleged to be true. The court held that the defence of fair comment was available to Gaynon because the allegation was a statement of opinion based on facts that were alleged to be true and because the allegation was made on a matter of public interest. The court ordered that the action be dismissed with costs.

Orders