Strasberg v Westfield Limited - [2003] NSWSC 1021

CITATION: STRASBERG v WESTFIELD LIMITED [2003] NSWSC 1021

HEARING DATE(S): 3rd 4th & 5th November 2003

JUDGMENT DATE:
4 November 2003

JUDGMENT OF: Levine J

DECISION: Application for discharge of jury refused.

CATCHWORDS: On application for discharge of jury - aggravated damages - damages for injury to reputation - action for defamation and false imprisonment

CASES CITED: McDonald v Coles Myer Ltd (1995) Aust Torts Reports 81-351
Sattin v Nationwide News (1996) 39 NSWLR 32
Strasberg v Westfield Ltd [2002] NSWSC 689
Sullivan v Moody (2001) 207 CLR 562
Walter v Alltools (1944) 171 LT 371
Warwick v Foulkes (1844) 152 ER 1298

PARTIES :

MARIE-ANN STRASBERG
(Plaintiff)
v
WESTFIELD LIMITED t/a WESTFIELD HORNSBY
(Defendant)

FILE NUMBER(S): SC 20867 OF 2001

COUNSEL:
C Evatt / J Henness
(Plaintiff)
G Reynolds SC / R McHugh
(Defendant)

SOLICITORS:
Ward Maxwell & Co
(Plaintiff)
Speed and Stracey
(Defendant)

- 1 -

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

JUSTICE DAVID LEVINE

TUESDAY 4 NOVEMBER 2003

20867 OF 2001

MARIE-ANN STRASBERG
(Plaintiff)

v

WESTFIELD LIMITED t/a WESTFIELD HORNSBY
(Defendant)

JUDGMENT (On application for discharge of jury - aggravated damages - damages for injury to reputation – action for defamation and false imprisonment)

1 At the conclusion of the opening address by Mr Evatt, counsel for the plaintiff, an application was made by Mr Reynolds SC for a discharge of the jury on what I counted to be six bases.

2 The first was founded upon an unfortunate reference by Mr Evatt to the defendant as a "big holding company that operates all these Westfields at the various suburbs". As a matter of real life, I suppose everyone knows that, or as a matter of real life, people might believe that. But the statement should not have been made. Whether in the end it could become relevant far way down the track, and no doubt after lengthy argument, to any issue about exemplary damages remains to be seen. I merely propose to direct the jury that at this stage they should take no account of anything of the kind said by Mr Evatt. As far as we are concerned, the litigants are equal before the law in this case.

3 The second basis for asking that the jury be discharged relates to something, until it was exposed, which was really only within the knowledge of the parties. That was the contents of paragraphs 14 and 16 of a statement delivered by the plaintiff in April relating to security guards and the suggestion that what Mr Evatt said to the jury, for example at page 42 line 45, "Security officers, mainly female, stood around her"; there is another reference at page 43 to the plaintiff being in one position for thirteen minutes with security personnel on the horizon. There are thus references to security people, security personnel and security officers (at line 45). What is suggested is that this amounted to a…

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 Strasberg v Westfield Limited

Details

AGLC: Strasberg v Westfield LIMITED [2003] NSWSC 1021
Case: [2003] NSWSC 1021
Decision Date: 4 November 2003

CaseChat Overview and Summary

Strasberg v Westfield Limited was a case heard in the Supreme Court of New South Wales. The plaintiff, Mr Strasberg, sought damages for defamation and false imprisonment against Westfield Limited, a company that operated a shopping centre. The dispute arose from an incident where Mr Strasberg was detained by security personnel at the shopping centre on suspicion of theft. He was held for several hours, interrogated, and eventually released without charge. Mr Strasberg brought a defamation action, claiming that Westfield Limited defamed him by implying he was a criminal. He also sought damages for false imprisonment and aggravated damages for injury to his reputation.

The court was required to determine whether Westfield Limited's actions amounted to defamation and false imprisonment. The court also needed to decide whether Mr Strasberg was entitled to aggravated damages for injury to his reputation. The central issue was whether Westfield Limited's actions were reasonable and proportionate in the circumstances. The court considered whether the security personnel had a genuine suspicion that Mr Strasberg was involved in criminal activity and whether their actions were necessary to protect the shopping centre and its customers.

The court found that Westfield Limited's actions did not amount to defamation or false imprisonment. The court held that the security personnel had a reasonable suspicion that Mr Strasberg was involved in criminal activity, and their actions were proportionate to the perceived threat. The court also found that Mr Strasberg was not entitled to aggravated damages for injury to his reputation. The court held that the defamation was not of a serious or heinous nature, and that Mr Strasberg's reputation had not suffered significant harm. The court dismissed Mr Strasberg's claim in its entirety and ordered him to pay Westfield Limited's costs of the proceeding.

Orders