Restifa v Pallotta - [2009] NSWSC 958

CITATION: RESTIFA v PALLOTTA [2009] NSWSC 958

HEARING DATE(S): 28-30 April 2009

JUDGMENT DATE :
16 September 2009

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

DECISION: (1) I order that there be a verdict and judgment for the first plaintiff in the sum of $40,000.
(2) I order that there be a verdict and judgment for the second plaintiff in the sum of $40,000.
(3) I order the defendant to pay the plaintiffs’ costs of the proceedings.

CATCHWORDS: DEFAMATION – matters complained of published in internet newspaper in the Italian language– plaintiffs were candidates in election to Italian parliament – whether matters complained of identified plaintiffs – whether publications defamatory - DEFAMATION – defences – common law defence of qualified privilege – whether occasion of qualified privilege – whether recipients had interest in receiving information published – whether defendant actuated by improper motive - DEFAMATION – defences – statutory defence of qualified privilege under s 30 Defamation Act 2005 – whether publication of matters complained of reasonable in the circumstances - DEFAMATION – damages

LEGISLATION CITED: Defamation Act 2005

CATEGORY: Principal judgment

CASES CITED: Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366
Bennette v Cohen [2009] NSWCA 60
Davis v Nationwide News [2008] NSWSC 693
Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575
Howe & McColough v Lees [1910] HCA 67; (1910) 11 CLR 361
Lewis v Daily Telegraph [1964] AC 234
Mirror Newspapers v Harrison [1982] HCA 50; (1982) 149 CLR 293

PARTIES: Teresea Todaro RESTIFA (1st Plaintiff)
Luigi CASSAGRANDE (2nd Plaintiff)
Giampiero PALLOTTA (Defendant)

FILE NUMBER(S): SC 20247/07

COUNSEL: Mr B R McClintock SC/Mr K L Andronos (Plaintiffs)
Ms L Evans (Defendant)

SOLICITORS: Landerer & Company (Plaintiffs)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCallum J

16 SEPTEMBER 2009

20247/07 Teresea Todaro RESTIFA & Anor v Giampiero PALLOTTA

JUDGMENT

1 HER HONOUR: This is an action for defamation brought by Mrs Teresea Restifa and Mr Luigi Casagrande against Mr Giampiero Pallotta in respect of three publications that appeared in an Italian internet newspaper called “Italia chiama Italia”.

2 Mr Pallotta admits publishing the three matters complained of but denies that any of the publications defamed either plaintiff. The only substantive defence relied upon by Mr Pallotta is the defence of qualified privilege, both at common law and pursuant to s 30 of the Defamation Act 2005.

Circumstances in which the publications were made

3 In order to determine the issues in the proceedings, it is necessary to understand something of the Italian elections in 2006 and the participation in those elections of Italian citizens living outside Italy. The following summary, based on the limited evidence before me, is brief, but gives a sufficient understanding for present purposes.

4 Before the Italian elections in 2006, Italian citizens living abroad could be represented and participate in Italian…

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 Restifa v Pallotta

Details

AGLC: Restifa v Pallotta [2009] NSWSC 958
Case: [2009] NSWSC 958
Decision Date: 16 September 2009

CaseChat Overview and Summary

The plaintiffs, Restifa and others, brought a defamation action against the defendant, Pallotta, over statements published on an internet newspaper written in the Italian language. The plaintiffs were candidates in the election to the Italian parliament, and the defendants published statements that they claimed defamed them. The primary legal issues the court had to address were whether the statements identified the plaintiffs, whether they were defamatory, and if the defences of qualified privilege under both common law and the Defamation Act 2005 were applicable.

The court first determined that the statements in question did identify the plaintiffs. It found that the content of the publications was defamatory, as they conveyed a meaning that lowered the plaintiffs in the estimation of right-thinking members of the community. Concerning the defences, the court examined whether the common law defence of qualified privilege was applicable. It assessed if the occasion was one of qualified privilege and if the recipients had an interest in receiving the information. Additionally, the court evaluated if the defendant was actuated by an improper motive. The court also considered the statutory defence of qualified privilege under section 30 of the Defamation Act 2005, examining whether the publication of the matters complained of was reasonable in the circumstances.

Ultimately, the court found that neither the common law nor the statutory defences of qualified privilege were applicable to the facts of this case. Consequently, the plaintiffs' claims for defamation were upheld. The court awarded damages to the plaintiffs, which were quantified in the final orders of the court.

Orders