Sarina v O'Shannassy (No.5)

Case [2020] FCCA 2911


FEDERAL CIRCUIT COURT OF AUSTRALIA

SARINA & ANOR v O'SHANNASSY (No.5) [2020] FCCA 2911
Catchwords:
DEFAMATION – Whether an email sent by the company secretary of a company to the two directors of the company conveyed defamatory imputations of two of the shareholders of the company – whether defences of statutory and common law qualified privilege applied – whether defence of “triviality” established – defence of triviality established – judgment for respondent.

Legislation:

Defamation Act 2005 (NSW), ss.8, 25, 26, 28, 29, 30, 31, 33, 34
Defamation Act 1974 (NSW), s.22

Cases cited:

ABC v Obeid [2006] NSWCA 231
Amalgamated Television Services Pty Limited v Marsden  [1998] NSWSC 4; (1998) 43 NSWLR 158
Barrow v Bolt [2015] VSCA 107
Browne v Dunn (1893) 6 R 67
Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840
Caldwell v JA Neilson Investments Pty Ltd [2007] NSWCA 3
Cassell & Co Ltd v Broome [1972] AC 1027
Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185
Elkington v Shell Australia Ltd (1993) 32 NSWLR 11
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Hayson v Nationwide News Pty Limited [2019] FCA 81
Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652
Jones v Dunkel (1959) 101 CLR 298
Jones v Sutton [2004] NSWCA 439
Kassem & Ors v Minister for Immigration & Anor (No.2) [2020] FCCA 1834
Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234
Megna v Marshall [2010] NSWSC 686
Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749
Phelps v Nationwide News Pty Limited and Anor [2001] NSWSC 130
R v Curtis (No 3) [2016] NSWSC 866
R v Fischetti (No 5) [2016] ACTSC 213
Reading v Australian Broadcasting Corporation [2002] NSWSC 1031
Roberts v Bass [2002] HCA 57; 212 CLR 1
Sarina & Anor v O'Shannassy [2019] FCCA 732
Smith v Lucht [2016] QCA 267
Trkulja v Google LLC [2018] HCA 25

First Applicant: CLINTON SARINA
Second Applicant: MARTIN GREEN
Respondent: JOHN O'SHANNASSY
File Number: SYG 1339 of 2018
Judgment of: Judge Manousaridis
Hearing date: 15, 16 and 17 April 2020 25 and 26 May 2020 and 1 July 2020
Date of Last Submission: 1 July 2020
Delivered at: Sydney
Delivered on: 30 October 2020

REPRESENTATION

Counsel for the Applicants: Mr R Rasmussen, by video
Solicitors for the Applicants: Kalantzis Lawyers
Counsel for the Respondent: Mr T Crispin, by video
Solicitors for the Respondent: Lloyd & Lloyd Solicitors

ORDERS

  1. Judgment for the respondent.

  2. By 13 November 2020 the parties file and serve written submissions on the question of costs together with such affidavits, if any, on which they intend to rely.

  3. By 20 November 2020 the parties inform the associate to Judge Manousaridis whether they wish to supplement their written submissions by oral argument or whether they agree to the question of costs being determined on the papers.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

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AGLC
Sarina v O'Shannassy (No.5) [2020] FCCA 2911
Case
[2020] FCCA 2911
Decision Date

CaseChat Overview and Summary

The proceeding concerned a defamation claim brought by the applicant, Sarina, against the respondent, O'Shannassy. The dispute arose from an email sent by the respondent, in their capacity as company secretary, to the two directors of a company. The applicant alleged that this email conveyed defamatory imputations concerning her and another shareholder.

The court was required to determine whether the email contained defamatory imputations about the applicant, and if so, whether any of the defences raised by the respondent were made out. Specifically, the court considered the defences of statutory and common law qualified privilege, as well as the defence of triviality under section 33 of the *Defamation Act 2005* (NSW).

His Honour Judge Manousaridis found that the defence of triviality was established. This defence applies where the defendant proves that the imputation carried by the defamatory matter has not caused, and is not likely to cause, the plaintiff the serious harm required to justify the award of damages. Consequently, the court entered judgment for the respondent.

Orders

Orders of the court

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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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