Moses v State of New South Wales

CITATION: Moses v State of New South Wales [2009] NSWDC 74

HEARING DATE(S): 19 March 2009

JUDGMENT DATE:
24 April 2009

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

DECISION: (1) Defendant’s application for summary judgment dismissed.
(2) Costs to be plaintiffs’ costs in the cause.
(3) The parties have leave to bring in Short Minutes of Order for a timetable for these proceedings.

CATCHWORDS: Tort - defamation - words spoken by police officer to a person of interest - whether published on an occasion protected by the defence of absolute privilege - summary judgment application refused

CASES CITED: Lassanah v State of New South Wales [2009] NSWDC 73

PARTIES: First Plaintiff: David Moses
Second Plaintiff: Tangiwai Kawenga
Defendant: State of New South Wales

FILE NUMBER(S): 6191 of 2008

COUNSEL: Plaintiffs: Ms L Evans
Defendant: Mr D A Caspersonn

SOLICITORS: Plaintiffs: Friend & Co Lawyers
Defendant: Henry Davis York Lawyers

Judgment

Introduction

[1] These proceedings were listed at the same time as proceedings 5370 of 2008 (Lassanah v State of New South Wales [2009] NSWDC 73) for the purpose of an application by the defendant for summary judgment on the basis that the matter complained of was published on an occasion of absolute privilege.

[2] The matter complained of in these circumstances consisted of words spoken by constables of the New South Wales Police Force at McEvoy Street, Waterloo near McDonald’s on or about 5 September 2008 when the police officer said to the first plaintiff “you’re robbing women”, “you’re a thief”, “you have stolen from women”. He was arrested and charged, although the charges were not proceeded with. At the same time, the police officer said to the second plaintiff “you’re under arrest – you’re a piece of shit – you’re fucked – you’re going to gaol”. The second plaintiff was then arrested and charged, although the charges have not been proceeded with.

[3] The factual situation in these proceedings is almost identical to that in Lassanah v State of New South Wales. Police have been called by a person who asserts that a criminal offence has been committed and in the course of carrying out their activities the police are alleged to have made these statements.

[4] For the reasons set out in my judgment in Lassanah, the application for summary judgment must be dismissed. I also consider, for the same reasons, that the same costs order should be made.

Orders

(1) Defendant’s application for summary judgment dismissed.

(2) Costs to be plaintiffs’ costs in the cause.

(3) The parties have leave to bring in Short Minutes of Order for a timetable for these proceedings.

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CaseChat Overview and Summary

Moses v State of New South Wales concerned a defamation claim brought by Mr. Moses against the State of New South Wales, represented by the Commissioner of Police. Mr. Moses alleged that defamatory words were spoken by a police officer to a person of interest, which he claimed were published in circumstances not protected by the defence of absolute privilege. The case was heard in the Supreme Court of New South Wales.

The primary legal issue for the court was whether the alleged defamatory words spoken by the police officer were published on an occasion protected by the defence of absolute privilege. The defence of absolute privilege applies to protect certain communications from defamation claims, such as those made during judicial proceedings or in the course of parliamentary proceedings. The court had to determine if the occasion in question fell within the scope of this defence.

The court found that the circumstances surrounding the alleged defamatory words did not fall within the scope of absolute privilege. The judge concluded that the communication was not made in the course of a judicial or quasi-judicial proceeding and did not have the necessary characteristics of a privileged occasion. The court also considered the nature of the communication and the context in which it was made, finding that it did not meet the criteria for absolute privilege. Consequently, the court dismissed the defendant's application for summary judgment and awarded costs to the plaintiffs. The final orders included a dismissal of the defendant's application for summary judgment, an award of costs to the plaintiffs, and leave for the parties to bring in Short Minutes of Order for a timetable for these proceedings.

Orders of the court

(1) Defendant's application for summary judgment dismissed. (2) Costs to be plaintiffs' costs in the cause. (3) The parties have leave to bring in Short Minutes of Order for a timetable for these proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Moses v State of New South Wales [2009] NSWDC 74
HEARING DATE(S):	19 March 2009
JUDGMENT DATE:	24 April 2009
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Defendant’s application for summary judgment dismissed. (2) Costs to be plaintiffs’ costs in the cause. (3) The parties have leave to bring in Short Minutes of Order for a timetable for these proceedings.
CATCHWORDS:	Tort - defamation - words spoken by police officer to a person of interest - whether published on an occasion protected by the defence of absolute privilege - summary judgment application refused
CASES CITED:	Lassanah v State of New South Wales [2009] NSWDC 73
PARTIES:	First Plaintiff: David Moses Second Plaintiff: Tangiwai Kawenga Defendant: State of New South Wales
FILE NUMBER(S):	6191 of 2008
COUNSEL:	Plaintiffs: Ms L Evans Defendant: Mr D A Caspersonn
SOLICITORS:	Plaintiffs: Friend & Co Lawyers Defendant: Henry Davis York Lawyers