Philip Sullivan v Andrew Griffin - [2012] NSWSC 687

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Philip Sullivan v Andrew Griffin [2012] NSWSC 687
Hearing dates: 04.06.12
Decision date: 22 June 2012
Before: Nicholas J
Decision:
Par 29

Catchwords: DEFAMATION - parties - further proceedings against same defendant - whether proceedings in respect of same or like matter - application for dismissal under s 23 Defamation Act 2005 - Internet publications - whether "matter" as defined in s 4 Defamation Act incorporates mode of communication - turns on facts - no question of general principle
Legislation Cited: Defamation Act 2005
Cases Cited: Buckley v Herald and Weekly Times Pty Ltd (No. 2) [2008] VSC 475
Carey v Australian Broadcasting Corporation [2012] NSWCA 176
Rastogi v Nolan [2010] NSWSC 735
Reynolds v Nationwide News Pty Ltd [2012] VSC 226
Waterhouse v Age Company Ltd [2011] NSWSC 159
Category: Interlocutory applications
Parties: Philip Sullivan - plaintiff
Andrew Griffin - defendant
Representation: Counsel:
B R McClintock SC - plaintiff
P Gray SC - defendant
Solicitors:
Bransgroves Lawyers - plaintiff
Clayton Utz - defendant

File Number(s): 11/355412

Judgment

By notice of motion filed 24 April 2012 the defendant sought an order that the proceedings against him for damages for defamation be struck out on the basis that they were commenced by the plaintiff without first having obtained leave to do so pursuant to s 23 Defamation Act 2005 (the Act). The application was opposed.

The plaintiff was formerly the founder, chief executive officer, and managing director of City Pacific Ltd which was the Responsible Entity for the City Pacific First Mortgage Fund (the fund). The defendant is the joint chief executive officer of Balmain Trilogy which was appointed as the Investment Manager by Trilogy Funds Management Ltd which replaced City Pacific Ltd as Responsible Entity in respect of the fund in 2009.

By statement of claim filed 14 June 2011, the plaintiff brought proceedings in the Supreme Court of Queensland (no. 5041/11) (the Queensland proceedings) against the defendant for damages for defamation arising out of the publication at a meeting of the fund's investors in Brisbane on 22 November 2010 of the following words:

"Third question is why isn't Phil Sullivan behind bars? If I was the DPP, he would be but I am not. I can only bring civil action. We are encouraging authorities to so [sic] all they can to redress the wrongs brought upon you by your fund."

It is alleged that, in its natural and ordinary meaning, the matter complained of conveyed the following defamatory imputations:

"(a) The plaintiff is a criminal;

(b) The plaintiff behaved in such a way as to deserve to be convicted of a serious criminal offence and imprisoned;

(c) The plaintiff had defrauded investors of the Fund."

By statement of claim filed 7 November 2011, the plaintiff brought these proceedings against the defendant for damages for defamation arising out of the publication of words spoken at a meeting of the fund's investors in Sydney on 24 November 2010. A transcript of…

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.

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Details

Case: [2012] NSWSC 687
Decision Date: 22 June 2012

CaseChat Overview and Summary

Philip Sullivan brought an action against Andrew Griffin in the Supreme Court of Queensland, seeking damages for defamation. The defamation arose from publications made by Griffin on the Internet. This was not the first time the two had clashed in the courts over similar allegations. Griffin sought to have the action dismissed on the basis that the proceedings were in respect of the same or like matter as a previous action. The court was required to determine whether the two actions were in respect of the same or like matter, and whether the mode of communication constituted a different matter within the meaning of section 4 of the Defamation Act 2005.

The court found that the question of whether the two matters were in respect of the same or like matter was a question of fact and degree. The court held that the definition of "matter" in section 4 of the Defamation Act 2005 incorporated the mode of communication. This meant that even if the defamatory matter was the same, the mode of communication could be different and therefore the matters could be different. The court held that in this case, the matters were not in respect of the same or like matter, as the mode of communication was different. The court found that the publications on the Internet were a different matter from the publications in the previous action.

The court dismissed the application for the action to be stayed. The court found that the defamatory publications on the Internet were a different matter from the publications in the previous action, and that the matters were not in respect of the same or like matter. The court found that the mode of communication was a relevant factor in determining whether the matters were the same or like, and that the Internet publications were a different matter. The court held that the application for the action to be stayed was dismissed.

Orders