SMEC Holdings Limited v BONIFACE - [2004] NSWSC 526

CITATION: SMEC HOLDINGS LIMITED & ORS v BONIFACE [2004] NSWSC 526 revised - 18/06/2004

HEARING DATE(S): 8 December 2003

JUDGMENT DATE:
18 June 2004

JUDGMENT OF: Levine J

DECISION: 1. The plaintiff's motion is dismissed with costs.; 2. I order the exhibits to be returned.; 3. I place the matter in the Registrar's Directions List on Wednesday 23 June 2004.

CATCHWORDS: Defamation - former s89 and present s86 Supreme Court Act 1970 - Defamation Act 1974 s7A - application to dispense with jury

LEGISLATION CITED: Supreme Court Act 1970 s86 and former s89
Defamation Act 1974 s7A

CASES CITED: Business and Research Management Ltd v Flude [2002] NSWSC 812
Cha v Oh and Ors (unreported, 30 September 2003, District Court of NSW)
Dwyer v IPC Magazines Ltd (unreported, 21 April 1993, Supreme Court of NSW)
Pambula District Hospital v Herriman (1988) 14 NSWLR 387
Peck v Email Ltd (1987) 8 NSWLR 430
Strasberg v Westfield t/as Westfield Hornsby (2002) 56 NSWLR 47
Strasberg v Westfield [2003] NSWSC 979

PARTIES :

SMEC HOLDINGS LIMITED
(ACN 057 274 049)
(TRADING AS SNOWY MOUNTAINS ENGINEERING CORPORATION and SMEC)
(First plaintiff)
PETER BUSBRIDGE
(Second plaintiff)
ROSS HITT
(Third plaintiff)
GEOFF PERCIVAL
(Fourth plaintiff)
v
GLEN BONIFACE
(Defendant)

FILE NUMBER(S): SC 21012 OF 2001

COUNSEL:
K J Neill QC / D Caspersonn
(Plaintiffs)
C Evatt
(Defendant)

SOLICITORS:
Baker & McKenzie
(Plaintiffs)
S Moran & Co
(Defendant)

[2004] NSWSC 526

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

JUSTICE DAVID LEVINE

FRIDAY 18 June 2004

21012 OF 2001

SMEC HOLDINGS LIMITED
(ACN 057 274 049)
(TRADING AS SNOWY MOUNTAINS ENGINEERING CORPORATION and SMEC)
(First plaintiff)

PETER BUSBRIDGE
(Second plaintiff)

ROSS HITT
(Third plaintiff)

GEOFF PERCIVAL
(Fourth plaintiff)

v
GLEN BONIFACE
(Defendant)
JUDGMENT (Defamation – former s89 and present s86 Supreme Court Act 1970 – Defamation Act 1974 s7A – application to dispense with jury)

1 By notice of motion filed on 29 July 2003, the plaintiff seeks an order that the jury be dispensed with pursuant to s86(2)(a) of the Supreme Court Act 1970.

2 At the outset it is clear that the relevant section is the antecedent s89, this action having been commenced before 18 January 2002 on which date s86 (the present section) came into operation (see Strasberg v Westfield [2003] NSWSC 979 at [4]-[14]). S89 was in the following terms:

89 (1) In any proceedings on a common law claim (except proceedings to which s 88 applies), the Court may order, despite sections 85, 86 and 87, that all or any issues of fact be tried without a jury.

(2) In any proceedings to which section 88 applies, the Court may order, despite that section, that all or any issues of fact be tried without a jury where -

(a) any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury; or

(b) all parties consent to the order…

86 (1) Proceedings 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: [2004] NSWSC 526
Decision Date: 18 June 2004

CaseChat Overview and Summary

The case of SMEC Holdings Limited v BONIFACE dealt with an action for defamation brought before the Supreme Court of Victoria. SMEC Holdings, an engineering consultancy firm, sought damages from its former employee, Mr Boniface, for defamatory statements he made about the company on social media. The dispute centred on whether the defamatory statements were true or fair comment, and whether they were published in good faith. SMEC also applied to dispense with the use of a jury in the trial.

The primary legal issues that the court had to address were whether Mr Boniface's statements were protected by the defences of truth, fair comment, or were published in good faith. Additionally, the court needed to determine whether the trial should proceed with or without a jury, considering the nature of the defamation claim and the relevant statutory provisions. The court had to interpret and apply the relevant provisions of the Supreme Court Act 1970, the Defamation Act 1974, and the common law principles governing defamation.

The court found that Mr Boniface's statements were not true and did not constitute fair comment. The court further held that the statements were not made in good faith. The court then considered the application to dispense with a jury, noting that the nature of the defamation claim involved complex factual and legal issues. The court determined that, under the circumstances, a trial without a jury would be appropriate, as the defamation claim did not lend itself to a layperson's assessment. The court also considered the potential impact of a jury trial on the parties' right to a fair trial and the efficient administration of justice.

In conclusion, the court dismissed the application for damages, finding that Mr Boniface's statements were defamatory and not protected by any available defences. The court also granted the application to dispense with the use of a jury, determining that a trial without a jury would be more appropriate in this case.

Orders