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Templar v Watt (No 3)

Templar v Watt (No 3)

Case [2016] NSWSC 1230 2 September 2016

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Supreme Court

New South Wales

Medium Neutral Citation: Templar v Watt (No 3) [2016] NSWSC 1230
Hearing dates: 25, 26, 27, 28 July 2016
Decision date: 02 September 2016
Before: McCallum J
Decision:
Verdict for the defendants

Catchwords:
DEFAMATION – defences – qualified privilege at common law and pursuant to the Defamation Act 2005 (NSW) – where government-employed paediatric specialist wrote to department of education officer raising concerns as to the department’s unqualified support for a business offering hearing tests in public schools for a fee – whether an occasion of qualified privilege – whether statements relevant to the occasion – whether conduct of author in publishing the matter complained of reasonable in the circumstances
CONSUMER LAW – email sent by government-employed paediatric specialist to department of education officer in relation to hearing tests offered in public schools by the plaintiffs – whether conduct in trade or commerce – consideration of extended definition of “trade or commerce” in the Australian Consumer Law
Legislation Cited: Competition and Consumer Act 2010 (Cth), sch 2
Australian Consumer Law, s 236
Defamation Act 2005 (NSW), s 30
Health Services Act 1997 (NSW), s 8
Cases Cited: Adam v Ward [1917] AC 309
Auswest Timbers v Secretary to the Department of Sustainability and Environment (2010) 241 FLR 360; [2010] VSC 389
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5
Bride v The Shire of Katanning [2016] FCA 65
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; [1990] HCA 17
Firewatch v Country Fire Authority (1999) 93 FCR 520; [1999] FCA 761
Guise v Kouvelis (1947) 74 CLR 102; [1947] 13
Markit Pty Ltd v Commissioner of Taxation (2007) 1 Qd R 253; [2006] QSC 157
Murphy v Victoria (2014) 45 VR 119; [2014] VSCA 238
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323; NSWCA 9
Toben v Mathieson; Toben v Nationwide News Pty Ltd [2013] NSWSC 1530
Toben v Milne [2014] NSWCA 49
Unilan Holdings Pty Ltd v Kerin (1992) 35 FCR 272; [1992] FCA 211
Seafolly Pty Ltd v Madden (2012) 297 ALR 337; [2012] FCA 1346
Madden v Seafolly Pty Ltd (2014) 313 ALR 1; [2014] FCAFC 30
Texts Cited: Raymond E Brown, The Law of Defamation in Canada (2nd ed, Carswell)
Category: Principal judgment
Parties: Stephen Templar (first plaintiff)
Audametrics Pty Ltd (second plaintiff)
Phillip Watt (first defendant)
Central Coast Local Health District (second defendant)
Representation:
Counsel:
MK Rollinson (plaintiffs)
K Smark SC, S Chrysanthou (defendants)
Solicitors:
City Attorneys (plaintiffs)
Crown Solicitor’s Office (NSW) (defendants)

File Number(s): 2013/150908

Judgment

HER HONOUR: Mr Stephen Templar practises as an audiometrist (a person who conducts hearing tests). In 2010, Mr Templar became the sole director of a company, Audametrics Pty Ltd, through which he sought to establish a business offering hearing tests in the Central Coast region of…

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 Templar v Watt (No 3)

Details

AGLC: Templar v Watt (No 3) [2016] NSWSC 1230
Case: [2016] NSWSC 1230
Decision Date: 02 September 2016

CaseChat Overview and Summary

A paediatric specialist employed by the government, Dr. Templar, wrote a letter to an officer of the Department of Education, Mr. Watt, raising concerns about the department's unqualified support for a business offering hearing tests in public schools for a fee. Mr. Watt sued Dr. Templar for defamation, alleging that the letter contained false and defamatory statements. The court considered whether the letter was protected by qualified privilege at common law or under the Defamation Act 2005 (NSW) and whether the statements were relevant to the occasion of privilege and whether Dr. Templar's conduct in publishing the matter was reasonable in the circumstances.

The court determined that the occasion of qualified privilege arose because there was a legal, moral or social duty to communicate the concerns to the department, and the recipient had a corresponding interest in receiving them. The statements in the letter were relevant to the occasion because they related to the department's support for the business offering hearing tests, which was the subject of Dr. Templar's concerns. The court also found that Dr. Templar's conduct in publishing the matter was reasonable in the circumstances because the letter was sent in good faith and without malice, and the concerns were based on information that Dr. Templar reasonably believed to be true.

Dr. Templar was found to have a valid defence to the defamation claim because the letter was protected by qualified privilege. The court also found that the email did not constitute conduct in trade or commerce under the Australian Consumer Law because it was not part of a course of conduct that was commercial in nature. The court dismissed the defamation claim, and Mr. Watt's claim under the Australian Consumer Law was also dismissed.

Orders