Sands v State of South Australia

Case [2012] SASC 159

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

SANDS v STATE OF SOUTH AUSTRALIA

[2012] SASC 159

Reasons for Decision of The Honourable Justice Kelly

12 September 2012

DEFAMATION - ACTIONS FOR DEFAMATION - OTHER PROCEEDINGS BEFORE TRIAL - STAYING ACTION

BANKRUPTCY - ADMINISTRATION OF PROPERTY - PROPERTY AVAILABLE FOR PAYMENT OF DEBTS - PROPERTY NOT DIVISIBLE AMONGST CREDITORS - DAMAGES FOR PERSONAL INJURY

BANKRUPTCY - PROCEEDINGS IN CONNECTION WITH SEQUESTRATION - PETITION AND SEQUESTRATION ORDER - EFFECT OF BANKRUPTCY ON PROPERTY AND PROCEEDINGS - ACTIONS BY AND AGAINST BANKRUPT - ACTIONS BY OR ON BEHALF OF BANKRUPT - CONTINUANCE BY BANKRUPT OF ACTIONS

Plaintiff instituted proceedings against the defendant for alleged defamatory remarks made during the course of a murder investigation, as well for alleged breaches of statutory duty, duty of care, duty of confidence and duty of privacy - Plaintiff made bankrupt by sequestration order on 18 June 2012 - Defendant applies for a declaration that the action is stayed, pursuant to s 60(2) of the Bankruptcy Act 1966, and will remain stayed until plaintiff elects to limit his claim to damages for loss of personal reputation - Defendant applies, in the alternative, for a declaration that the matter is stayed, and the extent to which the plaintiff is required to limit his case to allow it to proceed - Whether claims other than defamation claim are stayed by operation of s 60(2) of the Bankruptcy Act 1966 - Whether plaintiff must confine his claim for damages to damages for loss of reputation in order to continue the action.

Held: Action not stayed under s 60(2) of the Bankruptcy Act - Nature of the damages claim are damages or compensation for the injury or wrong suffered by the plaintiff - All claims brought by the plaintiff of a personal rather than proprietary nature - Precise ambit of damages which may be recoverable to be determined following hearing of the evidence.

Bankruptcy Act 1966 (Cth) s 60, s 60(2), s 60(3), s 60(4), s 60(4)(a), s 116, s 116(2)(g), s 116(2)(n), s 116(2)(D), s 116(3), s 116(4); Criminal Law (Forensic Procedures) Act 1998 (SA); Telecommunications (Interception and Access) Act 1979 (Cth); Insolvency Act 1986 (UK), referred to.
Cox v Journeaux (No 2) (1935) 52 CLR 713; Moss v Eaglestone (2011) 257 FLR 96; Re Dosanjh; Ex parte Duus (1995) 56 FCR 521; Mulkerrins v PricewaterhouseCoopers [2003] 1 WLR 1937, applied.
Mannigel v Phelps [1991] NSWCA 786; Ord v Upton [2000] Ch 352; Grady v HM Prison Service [2003] EWCA Civ 527, discussed.
Sands v Channel Seven Adelaide Pty Ltd & Anor (2009) 104 SASR 452; Khan v Trident Safeguards Ltd [2004] EWCA Civ 624, considered.

SANDS v STATE OF SOUTH AUSTRALIA
[2012] SASC 159

CIVIL:  Reasons for Decision

KELLY J.

Introduction

  1. By an application dated 25 July 2012 the defendant applied for a declaration that the plaintiff’s action is stayed pursuant to s 60(2) of the Bankruptcy Act 1966 (Cth) (“the Act”), and that…

Continue reading Sands v State of South Australia

Sign in free to access the full text

Details
AGLC
Sands v State of South Australia [2012] SASC 159
Case
[2012] SASC 159
Decision Date

CaseChat Overview and Summary

The case of Sands v State of South Australia involves the plaintiff, who was declared bankrupt, suing the defendant for defamatory remarks made during a murder investigation. The plaintiff’s claims include defamation, breaches of statutory duty, duty of care, duty of confidence, and duty of privacy. The defendant argued that the bankruptcy stayed the plaintiff's claims except for the defamation claim for general damages. The court previously ruled against the defendant, declining to grant the sought declaration, and the defendant now appeals this decision.

The primary legal issue in this case is whether the claims brought by a bankrupt individual are stayed by the operation of the Bankruptcy Act 1966 (Cth), except for the defamation claim for general damages. The court had to determine whether the Bankruptcy Act applies to the various claims made by the plaintiff, including those related to statutory duty, duty of care, duty of confidence, and duty of privacy. The court also had to consider the implications of the plaintiff’s bankruptcy on these claims and whether they should be stayed.

In delivering the reasons for the decision, the court examined the provisions of the Bankruptcy Act and how they apply to the various claims brought by the plaintiff. The court found that the operation of the Bankruptcy Act does not automatically stay all claims brought by a bankrupt individual. The court held that the claims for breach of statutory duty, duty of care, duty of confidence, and duty of privacy are not stayed by the Bankruptcy Act, and the plaintiff is entitled to pursue these claims. The court also determined that the defamation claim for general damages is not the only claim that can proceed despite the bankruptcy.

The court's ruling ensures that the plaintiff can continue to pursue various claims related to the defamatory remarks made during the murder investigation, despite being declared bankrupt. The court's decision clarifies that not all claims are stayed under the Bankruptcy Act, and the plaintiff retains the right to seek remedies for breaches of statutory duty, duty of care, duty of confidence, and duty of privacy. The court's decision provides a clear framework for how bankruptcy affects the pursuit of civil claims in similar situations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The plaintiff was declared bankrupt by sequestration order with effect from 18 June 2012. The defendant contended that as a consequence his claims with the exception of the defamation claim for general damages are stayed by operation of the Act. On 6 September 2012 I ruled against the defendant and declined to grant the declaration sought. At that time I indicated that I would provide reasons in due course. As the defendant wishes to appeal, however, I give my reasons now. Background to the Action The plaintiff has sued the defendant for alleged defamatory remarks made during the course of a murder investigation. The claim, which was commenced in September 2005, includes as well claims for alleged breaches of statutory duty, duty of care, duty of confidence and duty of privacy. On 19 September 2005, when the original Statement of Claim was filed, the plaintiff claimed for damages on the basis of defamation only. The plaintiff alleged that defamatory statements were made by members of the South Australia Police Force (SAPOL) in the course of investigating the murder of Corinna Marr. Corinna Marr was shot dead in her home on 4 July 1997. In the course of the investigation into her murder the plaintiff was one of the persons interviewed by the police. The investigations by the police have not yet resulted in the charging of anyone in relation to the murder. The plaintiff alleges that SAPOL published information to The Advertiser or alternatively advised them of the existence of court documents as a result of which The Advertiser published stories on 28 February 2004 and 3 March 2004. In addition, a press conference was held on 3 March 2004 in which the media were advised of an affidavit sworn by Detective Keane. The articles and press conference relate to the actions taken by the police under the Criminal Law (Forensic Procedures) Act 1998 (SA) in the course of investigating the murder. At the press conference, Detective Superintendent Symons made statements related to Mr Keane’s affidavit and referred to information which was subject to the Telecommunications (Interception and Access) Act 1979 (Cth) (“the TIAA”) and the Criminal Law (Forensic Procedures) Act 1998 (SA). The plaintiff sought and was granted leave to amend his Statement of Claim by a Master of the Court in a decision delivered on 17 February 2010. The substantive amendments which were allowed by the Master included additional causes of action based on breach of statutory duty, breach of duty of care, breach of confidence, breach of privacy and misfeasance in public office. The plaintiff was also permitted to add two new imputations to the natural and ordinary meaning of the press statements and the media release, namely that he was the prime suspect and that police had information placing the plaintiff at the scene of the murder which the plaintiff knew about and refused to challenge. A Further Amended Statement of Claim pleading these additional causes of action and imputations was filed on 18 February 2010.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KELLY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J

Full text does not contain this section.