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Strasberg v Westfield Ltd

Strasberg v Westfield Ltd

Case [2002] NSWSC 689 8 August 2002

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CITATION: STRASBERG v WESTFIELD LIMITED [2002] NSWSC 689 revised - 9/08/2002

FILE NUMBER(S): SC 20687 OF 2001

HEARING DATE(S): 1 August 2002

JUDGMENT DATE: 8 August 2002

PARTIES :

MARIE-ANN STRASBERG
(Plaintiff)
v
WESTFIELD LIMITED (TRADING AS WESTFIELD HORNSBY)
(Defendant)

JUDGMENT OF: Levine J

COUNSEL :
C Evatt
(Plaintiff)
R McHugh
(Defendant)

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

CATCHWORDS: Imputations - generalised - aggravated damages - particulars - false imprisonment - pleading - SCR Pt16 r3

LEGISLATION CITED: Defamation Act 1994

CASES CITED: Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85
Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449
Hayward v Thompson [1982] QB 47
Lippl v Haines (1989) 18 NSWLR 620
Lyons v Kern Konstructions Pty Ltd (1983) 70 FLR 135
Myer Stores Ltd v Soo [1991] 2 VR 597
Nominal Defendant v Manning (2000) 50 NSWLR 139
Singleton v John Fairfax and Sons Ltd, Hunt J, unreported, 20 February 1980
Warren v Tweed Shire Council [2002] NSWSC 211
Watson v Marshall (1971) 124 CLR 621

DECISION: See paragraph 35

- 10 -

DJL: 2
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION list

JUSTICE DAVID LEVINE

THURSDAY 8 AUGUST 2002

20867 OF 2001

MARIE-ANN STRASBERG
(Plaintiff)

v

WESTFIELD LIMITED t/as WESTFIELD HORNSBY
(Defendant)

JUDGMENT ( Imputations - generalised – aggravated damages – particulars – false imprisonment – pleading – SCR Pt16 r3)

1 Consequent upon my judgment of 26 April this year ([2002] NSWSC 340), the plaintiff, on 14 May, filed a Further Amended Statement of Claim (FASC) pleading causes of action in defamation and false imprisonment. The defendant moves the Court for a variety of orders. An affidavit of Peter Stuart Speed sworn 24 July 2002 was read; annexed to it is an exchange of correspondence in relation to further and better particulars.

2 The imputations pleaded by the plaintiff are, in relation to the first matter:

“4(a) The plaintiff dressed in such an inappropriate manner that complaints were made against her.

(b) The plaintiff dressed in such a provocative manner that complaints were made against her.

6(a) The plaintiff dressed in such an inappropriate manner that she caused complaints”.

3 The defendant does not object to these imputations save to the extent that they might be understood to impute a general condition as opposed to an incident specific act. It is contended that the difficulty with these imputations would be overcome if each was amended to read: “The plaintiff was dressed…”

4 Counsel for the plaintiff argued that this matter had in fact been determined by me in my earlier judgment. This is not so. Upon an analysis of what occurred leading thereto, no order was made pursuant to Pt 31 r 2 for the preliminary determination of that question of law, namely capacity. Counsel for the plaintiff also indicated that it was his understanding that the imputations presently drafted were “incident specific”, but would make no concession in that regard. Accordingly…

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 Ltd

Details

AGLC: Strasberg v Westfield Ltd [2002] NSWSC 689
Case: [2002] NSWSC 689
Decision Date: 8 August 2002

CaseChat Overview and Summary

The matter of Strasberg v Westfield Ltd came before the Supreme Court of New South Wales. The plaintiff, Strasberg, brought a claim against Westfield Ltd, alleging false imprisonment and seeking aggravated damages. The defendant denied the allegations and argued that the plaintiff had not provided sufficient particulars regarding the claim of false imprisonment and the nature of the aggravated damages sought. The court was required to determine whether the plaintiff's pleadings were sufficient to support the claims made and whether the defendant was required to respond to the allegations of aggravated damages.

The court held that the plaintiff's statement of claim contained sufficient particulars to support the claim of false imprisonment. The court found that the plaintiff had described the circumstances of the alleged false imprisonment with enough detail to put the defendant on notice of the nature of the claim. The court further held that the plaintiff was required to provide particulars of the aggravated damages sought, but that this did not necessarily mean that the defendant was required to respond to those damages in its defence. The court found that the defendant was only required to respond to the particulars of the aggravated damages if they were pleaded with sufficient specificity to allow the defendant to prepare a meaningful defence.

The court dismissed the defendant's application to strike out the plaintiff's claim for aggravated damages. The court held that the plaintiff's pleadings were sufficient to support the claim and that the defendant was not required to respond to the particulars of the aggravated damages in its defence. The court further held that the plaintiff was entitled to particulars of the defendant's position on the aggravated damages claim, but that this did not necessarily mean that the defendant was required to provide a detailed response to those damages in its defence. The court noted that the defendant was entitled to seek further particulars from the plaintiff if it considered that the particulars provided were insufficient to support the claim.

The court made no orders as to costs.

Orders