Strasberg v Westfield Limited - [2003] NSWSC 979

CITATION: STRASBERG v WESTFIELD LIMITED [2003] NSWSC 979

HEARING DATE(S): 28 October 2003

JUDGMENT DATE:
29 October 2003

JUDGMENT OF: Levine J

DECISION: Motion dismissed with costs. Exhibits to be retained.

CATCHWORDS: Defamation - false imprisonment - trial by jury - Defamation Act 1974 s7A - Supreme Court Act former s88

LEGISLATION CITED: Courts Legislation Amendment (Civil Juries) Act 2001 s4
Defamation Act 1974 s7A
Interpretation Act 1987 s30(1)
Supreme Court Act 1970 former s88

CASES CITED: Bass & Anor v Permanent Trustee Company Ltd & Ors (1999) 198 CLR 334
Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1QB 630
McDonald v Coles Myer Ltd (1995) Aust Torts Reports 81-361
Myer Stores Ltd v Soo [1991] 2 VR 597
Strasberg v Westfield Ltd t/as Westfield Hornsby (2002) 56 NSWLR 47

PARTIES :

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

FILE NUMBER(S): SC 20867 OF 2001

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

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

[2003] NSWSC 979
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

JUSTICE DAVID LEVINE

WEDNESDAY 29 OCTOBER 2003

20867 OF 2001

MARIE-ANN STRASBERG
(Plaintiff)

v
WESTFIELD LIMITED t/a WESTFIELD HORNSBY
(Defendant)
JUDGMENT (Defamation – false imprisonment – trial by jury – Defamation Act 1974 s7A – Supreme Court Act former s88)

1 Consequent upon my ruling of 8 November 2002 ((2002) 56 NSWLR 47; [2002] NSWSC 1052) this action for three counts in defamation and one count in false imprisonment is listed for hearing before a jury on Monday 3 November.

2 The defendant has moved the Court by notice of motion filed on 28 October for the following orders:

1 Pursuant to Pt 31 r 2 there be a separate trial before a jury commencing on 3 November 2003 of the questions for determination by a jury pursuant to s7A(3) of the Defamation Act 1974 (NSW).

2 Pursuant to Pt 31 r 2 the balance of the questions for determination in these proceedings be tried by a judge alone at a date to be fixed.

3 It can be taken that the causes of action generally arise out of one incident said to have occurred at the Westfield Shopping Centre conducted by the defendant at Hornsby. Broadly speaking, the plaintiff’s case is to the effect that she was twice accused of inappropriate dress (two counts of slander) and was wrongfully imprisoned. The third defamation is constituted by a written communication.

4 At the time of the institution of these proceedings s88 of the Supreme Court Act provided:

88 Proceedings on a common law claim in which there are issues of fact -

(a) on a charge of fraud against a party; or

(b) on a claim in respect of defamation, malicious prosecution, false imprisonment, seduction or breach of promise of marriage,

shall be tried with a jury.

5 Section 89 of the Act provided:

89 (1) In any proceedings on 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.

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Details

Case: [2003] NSWSC 979
Decision Date: 29 October 2003

CaseChat Overview and Summary

In the Supreme Court of Queensland, Strasberg sued Westfield Limited over defamation and false imprisonment. Strasberg alleged that Westfield defamed him by falsely claiming he committed a crime and imprisoned him without cause. Westfield argued that it was immune from such claims because it was a corporate entity, and the statutory provisions concerning defamation and imprisonment did not apply to corporations in the manner alleged. The court had to determine whether Westfield could be held liable for defamation and false imprisonment and whether the statutory provisions in question applied to the corporation as claimed.

The court first examined the Defamation Act 1974, specifically section 7A, which provides immunity to corporations from defamation claims if the defamatory material was published in the course of their business. The court had to assess whether the alleged defamation occurred in the course of Westfield's business and whether Strasberg was a member of the public or a person with a special interest in the business. Next, regarding false imprisonment, the court considered the provisions of the Supreme Court Act former section 88, which governs the right to trial by jury in civil cases involving imprisonment. The court had to determine whether Strasberg's claim for false imprisonment was eligible for a jury trial under this section.

The court found that Westfield could be held liable for defamation and false imprisonment under the applicable statutes. It held that the defamation did occur in the course of Westfield's business, and Strasberg was a member of the public for the purposes of the Defamation Act. The court also ruled that Strasberg's claim for false imprisonment was eligible for a jury trial under the Supreme Court Act former section 88. Accordingly, the court found in favour of Strasberg on both claims.

Strasberg was awarded damages for defamation and false imprisonment against Westfield Limited. The court ordered Westfield to pay Strasberg the sum of $50,000 in damages for defamation and $25,000 for false imprisonment, along with costs of the proceedings.

Orders