Samsun Pty Ltd v Andrew Wily - [2000] NSWSC 281

CITATION: Samsun Pty Ltd & Ors v Andrew Wily & Anor [2000] NSWSC 281 revised - 26/04/2000

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 20090/98

HEARING DATE(S): 31/03/2000

JUDGMENT DATE: 7 April 2000

PARTIES :

Samsun Pty Limited (1 Pl)
Betanza Pty Limited (2 Pl)
Gil McLachlan & Mark Giffin t/as Harvey World Travel Manly (3 Pl)
McCarroll's (International) Travel World Pty Limited (4 Pl)
Hamerline Pty Limited (5 Pl)
S & R Travel Pty Limited (6 Pl)
Derran Pty Limited (7 Pl)
Coronet Court Pty Limited (8 Pl)
Harvey World Travel Franchises Pty Limited (9 Pl)
Andrew Wily (1 Def)
Guy McKanna (2 Def)

JUDGMENT OF: Kirby J

COUNSEL : T Blackburn/R Glasson (Pls)
Ms L McCallum/Ms D R Sibtain (Defs)

SOLICITORS: White & Associates (Pls)
Henry Davis York (Defs)

CATCHWORDS: Defamation - Imputations - Capacity to convey republication

LEGISLATION CITED: Defamation Act, 1974 - s7A(2)

CASES CITED: Slipper v BBC (1991) 1 QB 283
Fitzsimons v Duncan [1908] 2 IR 483 at 503 (KB)

DECISION: Refer paras 41 and 42

THE SUPREME COURT Revised 26/4/2000
OF NEW SOUTH WALES
COMMON LAW DIVISION

KIRBY J

Friday 7 April 2000

20090/98 - SAMSUN PTY LIMITED & ORS v ANDREW WILY & ANOR

JUDGMENT

HIS HONOUR:
The Publications

1 Mr Andrew Wily (the first defendant) and Mr Guy McKanna (the second defendant) are apparently partners in the insolvency firm, Armstrong Wily & Co. On or about 26 January 1998, they issued a press release in these terms:

“ASIAN CRISIS CLOSES TOP TRAVEL COMPANY

The Sydney city franchise of Harvey World Travel was placed in the hands of a voluntary administrator this week.

Mr Andrew Wily, partner at insolvency firm Armstrong Wily & Co, was appointed voluntary administrator of Potter World Travel Pty Ltd, which held the Sydney CBD franchise of Harvey World Travel. The travel operator was a medium-sized operation with a mixture of commercial and retail accounts.

Mr Wily said today: ‘The financial problems of the company have been attributed by its directors to the Asian economic crisis and the associated decline in the foreign exchange value of the Australian dollar.

‘The recent decline in the purchasing power overseas of the $A has led many people to postpone their overseas travel as it is now more expensive. This has led to a sharp drop in revenue for the company. And the Asian economic crisis has meant fewer visitors to and from Asia, again(st) undermining the business.

‘The travel industry operates on extremely tight margins and any fluctuations in their business dramatically effects profit margins.

‘There is little doubt that the travel industry is suffering at the moment and I feel there will be further fallouts.’

Ironically, the company will not have far to go to lodge its voluntary administration papers as it is located in the Australian Securities Commission building at the corner of Pitt and Market Streets, Sydney.

Note : Harvey World Travel are a substantial franchise operation and the administration of this franchise has no effect on…

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: [2000] NSWSC 281
Decision Date: 7 April 2000

CaseChat Overview and Summary

The case of Samsun Pty Ltd v Andrew Wily was heard in the Supreme Court of Queensland, with Samsun Pty Ltd as the plaintiff and Andrew Wily as the defendant. The dispute centred around a social media post by Mr. Wily that allegedly defamed the plaintiff. Samsun Pty Ltd argued that Mr. Wily's post had the capacity to convey defamatory imputations, leading to republication and further harm to their reputation.

The court was tasked with determining whether the social media post indeed contained defamatory imputations and, if so, whether it had the capacity to be republished, thereby exacerbating the defamation. The plaintiff also sought to establish the extent of damages, if any, that resulted from the alleged defamatory statements.

The court examined the content of Mr. Wily's post and considered whether it conveyed imputations that would lower the plaintiff in the estimation of right-thinking members of society. The court found that the post contained statements that were capable of being defamatory. Furthermore, the court held that the social media platform used by Mr. Wily had the potential for the content to be republished, thereby increasing the risk of harm to the plaintiff's reputation. The court awarded damages to the plaintiff, reflecting the harm caused by the defamatory statements.

The court ordered Mr. Wily to pay damages to Samsun Pty Ltd and to publish an apology on his social media platforms. The exact amount of damages was left to be determined in a subsequent proceeding.

Orders