McDonagh v Cefai - [2014] SADC 83

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MCDONAGH v CEFAI AND ORS
[2014] SADC 83
Ruling and Judgment of Her Honour Judge Davison
15 May 2014
DEFAMATION - DAMAGES - GENERAL DAMAGES - ASSESSMENT
Plaintiff seeks review of determinations in judgment by Ms Eldridge SM - question of defamation - claims for damages.
Held: Application for review dismissed. Magistrate did not err.
Magistrates Court Act 1991 ss 38(6), 38(7); Copyright Act 1968 (Cth) s 248J; Judiciary Act 1903 s 39(2); Commonwealth Constitution ss 76(ii), 77(ii), referred to.
Ly v Jenkins (2001) 114 FCR 237; AV Jennings Ltd v Bogdan [2008] FCA 107, considered.

MCDONAGH v CEFAI AND ORS
[2014] SADC 83
Introduction

This is a review pursuant to section 38(6) of the Magistrates Court Act 1991 that provides that the District Court may on the application of the party dissatisfied with the judgment given at a minor civil action review the matter. The decision of the District Court on such a review is final and not subject to appeal. The procedural rules applicable to a review as set out in section 38(7) of the Magistrates Court Act 1991. The District Court may inform itself as it thinks fit and is not bound by the rules of evidence. In hearing the review the Court must act with equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
Ms Eldridge SM heard this matter in the civil jurisdiction of the Magistrates Court Act 1991 on 21 January 2013. She then delivered reasons for her judgment on the 24 April 2013. It is from this judgment that Mr McDonagh seeks a review. He has filed a Notice of Appeal with seven grounds. Each of these grounds is particularised to a greater or lesser extent having reference to the issues that he says arose at the trial.
The defendants have provided a written case outline in respect of the application for review. Both parties have supplemented their material with oral submissions. In addition to this I received the original works that are the subject of dispute in this matter being the crash repair quotations with the annotations made by Mr McDonagh and others.
Preliminary matters
The bulk of the claim in this matter related to alleged breaches of the Copyright Act 1968 (Cth) hereinafter referred to as ‘the Act’. There arose a real question as to whether the Magistrates Court of South Australia was the correct jurisdiction to have heard this matter. In the ordinary course matters such as this will be lodged in the Federal Circuit Court of Australia that until April 2013 was known as the Federal Magistrates Court of Australia. It is this court that has the jurisdiction to deal with and determine civil copyright matters under the Act and in particular to deal with matters arising under Parts V, VAA, IX and section 248J of the Act. The claims by Mr McDonagh fall primarily under Part IX of the Act. Whilst this alleged breach of copyright makes up the bulk of his claim, he also has a claim in respect of defamation. This matter could be heard by the Magistrates Court of South Australia.
I drew this matter to the attention of the parties. I have received submissions in relation to it.
I have looked at all of the matters that have been put to me. I have considered all of the submissions that were made by Mr McDonagh and by the defendants in relation to this matter and taken into account all of the written material. I find that the Magistrates Court of South Australia does have jurisdiction to have entertained a claim in relation to breach of copyright under the Act by virtue of section 39 (2) of the Judiciary Act 1903 and Subsections 76(ii) 77(ii) of the Commonwealth Constitution.[1] I am thereby satisfied that Magistrate Eldridge did have jurisdiction to determine the matter now before me.
[1] See Ly v Jenkins (2001) 114 FCR 237 and AV Jennings Ltd v Bogdan [2008] FCA 107
In this matter the plaintiff claimed that he had prepared a number of motor vehicle assessment quotations that were then submitted to the insurance company. These quotations were originally prepared by the crash repairer. The plaintiff had then made written annotations to the quotations. It was his written annotations that he claimed were literary works within the meaning of the Act.
The plaintiff claimed that the defendants had then altered and signed those written assessments and as a consequence have infringed his rights and the provisions of the Act.
The plaintiff further alleged that the first and second defendants used the unauthorised and altered version of the foundation to file a report for insurance companies. He said that there conduct was malicious and wilful and contained derogatory statements about the plaintiff and had caused his literary works to be defaced and defiled.
In their defence the defendants did not admit that the quotations were literary works but say that if they were then the copyright vested in the company Drawline Pty Ltd and not the plaintiff.
Ms Eldridge SM dealt in great detail with the questions of the copyright, who owned the copyright and whether the quotations constituted literary works as defined by the Act. She recorded her findings in paragraph 34 of the judgment in which she found that each of the allegations made by the plaintiff should be rejected. In essence the defendants had done no more than the plaintiff, namely to review a repair estimate prepared by the crash repairer.
In arguing his case before me the plaintiff has sought to rely upon a joint possession of the literary work between him and the crash repairer. There was no evidence from the crash repairer that any of the crash repairers were aware of these proceedings nor that they took the view that there was a literary work in existence as a result of the preparation of the crash repair quotes. This argument of the plaintiff should be rejected.
I can see no reason to depart from the judgment given by Ms Eldridge SM in respect of the claims for breach of copyright or damages associated with such a claim.
There are two potential grounds that deal with the defamation action. They are ground 6 and in part ground 7.
Ms Eldridge SM dealt with the issue of defamation from paragraph 36 in her judgment. The publications relied upon by the plaintiff in relation to the claim for damages for defamation are not set out in the pleadings. They were referred to by him. He contends that the following passage from the Katzenberg report prepared by the third defendant is defamatory.
The assessment performed by Drawline Pty Ltd is also in our opinion inflated to an un-reasonable level. Based on some of the amounts allowed I would question the level of experience in the vehicle repair industry of the assessor.
…
We note the remove and refit labour has not been carried out as stated on the attached repair estimate.
The applicant further relies upon the passage in each of the other six reports prepared by the third defendant:
I have found the quotation assessment and allowances supplied by the complainant appears excessive and significantly exceeded accepted industry rates.
Correspondence had been entered into between the applicant through his solicitor Mr Robert Brook and the third defendant in relation to these passages. An acknowledgement of the words was made by the third defendant but were characterised as opinions that he asserts were taken out of context.
The applicant asserts that the remark related to the ‘remove and refit labour has not been carried out’ gives rise to the imputation that he was engaged in fraudulent activity. The defendants denied that this was the case. Indeed a fair reading of this statement is that it would not reflect upon the applicant in any event but rather the repairer who was of course an unrelated third party.
This matter was agitated before me. I find it difficult to see that the statement could in fact be an imputation on the character of the applicant in any event in this matter.
There is no error in the manner in which Ms Eldridge SM dealt with the question of defamation. She has considered relevant matters and made determinations in relation to each of them. I can see no reason to interfere with the determinations that she has made.
Ms Eldridge SM rejected each of the plaintiff’s claims for damages for defamation. In my view that was correct, there is no reasonable claim for damages arising out of any of the statements made by any of the defendants in relation to this matter.
In relation to the claim of the damages for defamation it is my view that the Magistrate did not fall into error in making her findings. Accordingly, I dismiss the application for review. I affirm the judgment and the orders made by the learned magistrate on 24 April 2013.
I will hear the parties as to costs.