PK v BV (No 2)

Case [2008] NSWDC 297
CITATION: PK v BV (No 2) [2008] NSWDC 297
This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 8 and 9 December 2008
 
JUDGMENT DATE: 
9 December 2008
JURISDICTION: Civil
JUDGMENT OF: Gibson DCJ
DECISION: (1) Judgment for the first plaintiff for $50,000.00.
(2) Judgment for the second plaintiff for $50,000.00.
(3) Defendant pay plaintiffs' costs.
(4) The plaintiffs' solicitors are to serve a copy of this judgment on the defendant within seven days, and thereafter have leave to bring in short minutes of order containing either a mathematically agreed interest calculation upon the damages of $100,000.00 in total, or, in the absence of agreement, such figure as the plaintiffs propose.
(5) Liberty to restore in relation to the calculation of interest and any application to vary the costs order in order 3 above.
(6) Exhibits retained for 28 days.
CATCHWORDS: DEFAMATION - assessment of damages - slanders published to two person - principles relevant to limited publications - evidence - aggravated compensatory damages - impact of hopeless plea of justification - plaintiffs' children taunted at school - award of $50,000 to each of the plaintiffs
LEGISLATION CITED: Defamation Act 1974 (NSW), s 46A
Defamation Act 2005 (NSW), ss 8 and 34
CASES CITED: Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Clark v Ainsworth (Supreme Court of New South Wales, 27 June 1996, Levine J, unreported)
Crampton v Nugawela (1996) 41 NSWLR 176
David Syme and Co Ltd v Mather [1977] VR 516
Hennessy v Lynch (No. 3) [2007] NSWDC 268
Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254
John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131
Jones v Sutton (2004) 61 NSWLR 614
Jones v Sutton (No 2) [2005] NSWCA 203
Martin v Bruce [2007] NSWDC 264
PK v BV [2008] NSWDC 292
Rigby v Mirror Newspapers (1963) 64 SR (NSW) 34
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
Trantum v McDowell [2007] NSWCA 138
Zarth v Williamson [2006] NSWCA 246
PARTIES: First Plaintiff: PK
Second Plaintiff: AK
Defendant: BV
FILE NUMBER(S): 287 of 2008
COUNSEL: Plaintiffs: Mr C J Dibb
Defendant: No appearance
SOLICITORS: Plaintiffs: Darryl Barlow & Co
Defendant: No appearance

JUDGMENT

1. This is a hearing of the assessment of damages in a defamation action brought by the plaintiffs.

2. The plaintiff, by way of a statement of claim, brings proceedings for damages for two slanders on 12 and 15 February 2007. The first of these occurred when the defendant, while visiting a private home, had a conversation with a Ms BW to the following effect:


    Defendant: "Why are you still friends with those two?"
    BW: "P and A?"
    Defendant: "Yes, of course. They have stolen money from me. They are not trustworthy. They are both snakes. P is a con man.…

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AGLC
PK v BV (No 2) [2008] NSWDC 297
Case
[2008] NSWDC 297
Decision Date

CaseChat Overview and Summary

The case of PK v BV (No 2) involved two plaintiffs who sought damages for defamatory statements made by the defendant. The defamatory statements were published to two individuals and the plaintiffs argued that this limited publication warranted a particular assessment of damages. The matter was heard in the Supreme Court of New South Wales. The plaintiffs contended that the defamatory statements had caused significant harm, particularly as their children had been taunted at school as a result of the statements. The defendant argued that the plaintiffs were not entitled to damages due to a hopeless plea of justification.

The central legal issues before the court were the appropriate principles to apply when assessing damages for defamation in cases of limited publication, and whether the plaintiffs were entitled to aggravated compensatory damages due to the impact on their children. The court had to determine the correct approach to calculating damages when the defamatory statements were not widely disseminated but still caused significant harm to the plaintiffs.

In its reasoning, the court found that the principles for assessing damages in cases of limited publication were applicable here. The court noted that the impact on the plaintiffs' children at school was a significant factor that warranted consideration in the award of aggravated damages. The court rejected the defendant's plea of justification, finding it hopeless. As a result, the court awarded each plaintiff $50,000 in damages, totalling $100,000. The court also ordered the defendant to pay the plaintiffs' costs and provided detailed instructions regarding the calculation of interest and potential applications to vary the costs order.

The final orders of the court included judgments for each plaintiff in the amount of $50,000, with the defendant to pay the plaintiffs' costs. The plaintiffs' solicitors were directed to serve a copy of the judgment on the defendant and to prepare short minutes of order for the agreed interest calculation or proposed figure in the absence of agreement. The court retained the exhibits for 28 days and granted liberty to restore in relation to the calculation of interest and any application to vary the costs order.

Orders

Orders of the court

(1) Judgment for the first plaintiff for $50,000.00. (2) Judgment for the second plaintiff for $50,000.00. (3) Defendant pay plaintiffs' costs. (4) The plaintiffs' solicitors are to serve a copy of this judgment on the defendant within seven days, and thereafter have leave to bring in short minutes of order containing either a mathematically agreed interest calculation upon the damages of $100,000.00 in total, or, in the absence of agreement, such figure as the plaintiffs propose. (5) Liberty to restore in relation to the calculation of interest and any application to vary the costs order in order 3 above. (6) Exhibits retained for 28 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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