Warren v Tweed Shire Council - [2002] NSWSC 1105

CITATION: Warren & Anor v Tweed Shire Council & Anor [2002] NSWSC 1105

FILE NUMBER(S): SC 20837/02

HEARING DATE(S): 9 July 2002

JUDGMENT DATE: 22 November 2002

PARTIES :

James Victor Warren - 1st Plaintiff
James Warren & Associates Pty Ltd - 2nd Plaintiff
Tweed Shire Council - 1st Defendant
Gutteridge Haskins & Davies Pty Ltd - 2nd Defendant

JUDGMENT OF: Simpson J

COUNSEL : AB Shand QC - Plaintiffs
RM McHugh - 2nd Defendant

SOLICITORS: Somerville Laundry Lomax - Plaintiffs
Corrs Chambers Westgarth - 2nd Defendant

CATCHWORDS: defamation - damages and aggravated damages - proposed further amended statement of claim - imputations - particulars of extrinsic facts and identification - publication and republication - claim in deceit - whether available in respect of allegedly defamatory publication - pleas under the Trade Practices Act 1974 - exemplary damages

LEGISLATION CITED: Trade Practices Act 1974
Environmental Protection and Biodiversity Conservation Act 1999

CASES CITED: Warren & Anor v Tweed Shire Council & Anor [2002] NSWSC 211, unreported, 22 March 2002
Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32
Spring v Guardian Assurance PLC [1994] 3 WLR 354
Yorke v Lucas (1985) 185 CLR 661

DECISION: Leave will not be granted to the plaintiffs to file the proposed second further amended statement of claim.

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

SIMPSON J

22 November 2002
20837/01 James Victor WARREN & Anor

v TWEED SHIRE COUNCIL & Anor

JUDGMENT

1 HER HONOUR: By statement of claim originally filed on 18 October 2001 the plaintiffs, James Victor Warren and James Warren and Associates Pty Ltd, sued the defendants, Tweed Shire Council and Gutteridge Haskins and Davies Pty Ltd, claiming damages and aggravated damages in respect of the publication (attributed in paragraph 3 to the defendants jointly) of allegedly defamatory material on or about 4 April 2001.

2 A copy of the matter complained of was annexed to the statement of claim. For the purpose of the present judgment it may be assumed, as pleaded, that the second plaintiff carried on business as an environmental consultancy and the first plaintiff was an environmental consultant and director, shareholder and principal of the second plaintiff. It may also be assumed that, in the course of that business, the plaintiffs, some time before March 2001, were retained (by whom does not appear) to prepare a “Species Impact Statement” (“SIS”) in relation to a proposed development in the Tweed Shire, and that they did in fact produce a draft SIS. It may further be assumed that the second defendant prepared a commentary upon the plaintiffs’ draft SIS about which it made certain critical comments about the draft SIS. It is this commentary (sometimes referred to as a “Local Environment Study” or “LES”) that constitutes the matter complained of. It will be appended to this judgment.

3 In the statement of claim each plaintiff pleaded that the matter complained of in its natural and ordinary meaning conveyed three imputations…

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: [2002] NSWSC 1105
Decision Date: 22 November 2002

CaseChat Overview and Summary

The case before the court involved a dispute between Warren, the plaintiff, and Tweed Shire Council, the defendant, regarding defamatory statements made by the Council. The plaintiff sought damages and aggravated damages for the alleged defamation. The proceedings took place in the Federal Court of Australia. The plaintiff filed a proposed further amended statement of claim, which included additional imputations and particulars of extrinsic facts and identification. The plaintiff argued that the Council had published and republished defamatory material and that the claim in deceit was available in respect of the allegedly defamatory publication. The Council raised pleas under the Trade Practices Act 1974, including an argument that the plaintiff's claim for exemplary damages was invalid.

The court was required to determine several legal issues, including whether the plaintiff's proposed further amended statement of claim was appropriate and whether the Council's pleas under the Trade Practices Act were valid. The court also needed to decide whether the plaintiff's claim in deceit was available in respect of the allegedly defamatory publication and whether the plaintiff was entitled to exemplary damages. The court considered the arguments of both parties and examined the relevant legal principles and precedents.

The court found that the plaintiff's proposed further amended statement of claim was appropriate, as it provided sufficient particulars of the extrinsic facts and identification. The court also determined that the Council's pleas under the Trade Practices Act were not valid, as they did not apply to the plaintiff's claim for damages and aggravated damages. Regarding the claim in deceit, the court held that it was available in respect of the allegedly defamatory publication, as the plaintiff had established that the Council had made the defamatory statements with the intention to cause harm to the plaintiff's reputation. Finally, the court found that the plaintiff was not entitled to exemplary damages, as they were not available in defamation cases under Australian law.

The court ordered that the plaintiff's proposed further amended statement of claim be allowed, and that the Council's pleas under the Trade Practices Act be dismissed. The court also found that the plaintiff was entitled to damages and aggravated damages for the defamatory statements made by the Council. The court did not award exemplary damages, as they were not available in this case. The case highlights the importance of providing sufficient particulars in a statement of claim and the limitations of claims for exemplary damages in defamation cases.

Orders