TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:279 of 1997 (9726456)
DELIVERED:  11 December 2002
HEARING DATES:  3 to 7; 11 to 14; 17 to 20; 24 to 28

June 2002

1 to 3 July 2002

26 to 30 August 2002
JUDGMENT OF:  MILDREN J
CATCHWORDS:
REPRESENTATION:
Counsel:
Plaintiffs:P Heywood-Smith
Defendants:M Lynch
Solicitors:
Plaintiffs:Ward Keller
Defendants:R Levy
Judgment category classification:    B
Judgment ID Number:
Number of pages:  106

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Penfold & Anor v Higgins & Anor [2002] NTSC 65

No. 279 of 1997 (9726456)
BETWEEN:

ROBERT PENFOLD and HUNT AUSTRALIA PTY LTD

Plaintiffs

AND:

BERNARD HIGGINS and NORTHERN LAND COUNCIL

Defendants

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 11 December 2002)
Introduction

This is an action for damages for defamation. The plaintiff Robert Penfold (Mr Penfold), is and was at all times a director of the plaintiff Hunt Australia Pty Ltd (Hunt Australia) which, since 1981, has carried on business in the Northern Territory of Australia and elsewhere in Australia as a safari hunting operator. The only other director of Hunt Australia is Mrs Kathleen Elizabeth (Kay) Penfold, Mr Penfold's wife.
The defendant Bernard Higgins (Mr Higgins), was at all material times an employee of the defendant Northern Land Council (NLC). The NLC is a body corporate established pursuant to s 21 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Part of the NLC's functions is to assist and negotiate on behalf of traditional owners of Aboriginal land in its area with third parties who may wish to obtain rights, such as the right to enter and to hunt wild animals on such land. Mr Higgins' duties included, inter alia, the carrying out of these functions on behalf of the NLC. Mr Higgins was employed as a project officer in the Parks and Tourism section of

the NLC.
Hunt Australia's clients came entirely from overseas, mostly from Europe and the United States. Many of the hunters came to shoot trophy-sized beasts, especially boar, deer, banteng cattle, buffalo and goats. Some others were not so particular. Those animals were available in the Top End of the Northern Territory in broadly three locations: (1) at Gurig National Park, Cobourg Peninsula, administered by the Northern Territory Parks and Wildlife Commission on behalf of the Cobourg Peninsula Sanctuary Board where deer, banteng cattle and buffalo were available; (2) Aboriginal land, more particularly in or near Arnhem Land where goats and buffalo were available and (3) on privately owned pastoral leases where boar and some buffalo were available.
Gurig National Park was the only location where hunting of banteng and a rare breed of deer was available.
The plaintiffs also offered shooters 'culling' of donkeys and other feral animals on some pastoral leases from time to…

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 Penfold v Higgins

Details

AGLC: Penfold v Higgins [2002] NTSC 65
Case: [2002] NTSC 65
Decision Date: 11 December 2002

CaseChat Overview and Summary

The case of Penfold & Anor v Higgins & Anor was an action for damages for defamation brought by Robert Penfold and Hunt Australia Pty Ltd against Bernard Higgins and the Northern Land Council. The plaintiffs sought damages for the publication of a defamatory briefing note by Higgins, an employee of the defendant NLC, to Darryl Pearce, the Director of the NLC, on 2 December 1994. The briefing note contained defamatory statements about the plaintiffs, including allegations that they operated without regard to contractual obligations, engaged in disinformation to the detriment of Aboriginal land owners and the Northern Territory hunting industry, and operated without a licence. The defendants admitted liability for the publication of the briefing note but contested the meanings and innuendoes alleged by the plaintiffs, as well as the extent of the publication and the damages claimed. Mildren J, the trial judge, found that the briefing note conveyed defamatory meanings of the plaintiffs as alleged, and that the publication had been made to a wide audience, including the Northern Territory Tourist Commission and its officers, traditional owners, and other employees of the NLC. The judge also found that the defendants were liable for the republications of the briefing note, as they were the natural and probable consequence of the original publication. However, the judge held that the damages flowing from the publication of the Minister's letter, which was sent in response to a facsimile from Philippa Davidson to the Minister, were too remote and not the consequence of a novus actus interveniens. The judge awarded damages to the plaintiffs for the loss of reputation, lost economic opportunity, and loss of business, as well as aggravated damages to Hunt Australia. Interest was also awarded on the damages awarded. The defendants were ordered to pay costs of the action.

Orders