Warren v Tweed Shire Council - [2002] NSWSC 211

CITATION: Warren & Anor v Tweed Shire Council & Anor [2002] NSWSC 211

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20837 of 2001

HEARING DATE(S): 18 March 2002

JUDGMENT DATE: 22 March 2002

PARTIES :

JAMES VICTOR WARREN
(First Plaintiff)
JAMES WARREN & ASSOCIATES PTY LIMITED
(ACN 066 448 879)
(Second Plaintiff)
v
TWEED SHIRE COUNCIL
(First Defendant)
GUTTERIDGE HASKINS & DAVEY PTY LIMITED
(ABN 39 008 488 373)
(Second Defendant)

JUDGMENT OF: Levine J

COUNSEL :
R Glasson
(Plaintiffs)
J S Wheelhouse
(First Defendant)
R McHugh
(Second Defendant)

SOLICITORS:
Somerville Laundry Lomax
(Plaintiffs)
Stacks The Law Firm
(First Defendant)
Corrs Chambers Westgarth
(Second Defendant)

CATCHWORDS: Defamation - identification - imputations - form and capacity - aggravation of damages - corporate plaintiff

CASES CITED: AIFME v Norley & Anor [1999] NSWCA 259
RSPCA (NSW) v 2KY Broadcasters Pty Limited (Hunt J, unreported, 9 December 1998)
South Sydney District Rugby League Football Club Limited v Amalgamated Television Services Pty Ltd (Hunt J, unreported, 10 August 1995)
The Mekong Club Limited v 2KY Broadcasters Pty Limited & Anor (unreported, 30 April 1996)

DECISION: See paragraph 31

DLJ: 1

[2002] NSWSC 211

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
D efamation list

JUSTICE DAVID LEVINE

FRIDAY 22 MARCH 2002

20837 of 2001

JAMES VICTOR WARREN
( First Plaintiff )

JAMES WARREN & ASSOCIATES PTY LIMITED
(ACN 066 448 879)
( Second Plaintiff )

v

tweed shire council
(First Defendant)

GUTTERIDGE HASKINS & DAVEY PTY LIMITED
(ABN 39 008 488 373)
(Second Defendant)

JUDGMENT (Defamation – identification – imputations – form and capacity – aggravation of damages – corporate plaintiff)

1 The plaintiffs sue the defendants in respect of the publication, on or about 4 April 2001 of material described as having been included in a “Local Environment Study (LES)” in respect to a proposed development in Tweed Shire known as Kings Forest. The LES, as I understand it, is constituted by a commentary, as-it-were, on a draft Species Impact Statement (SIS). In general terms the LES was prepared by the second defendant for the first defendant as a commentary upon the SIS with which the plaintiffs were concerned.

2 The text of the matter complained of is appended to these reasons.

3 Each defendant has separately moved the Court for orders in relation to identification, the particularisation of the claim for aggravated damages, matters of form and capacity in relation to the imputations pleaded. As to the last mentioned, pursuant to Pt 31 r 2 a separate trial was conducted.

Identification

4 It is to be noted that the first plaintiff is a natural person and the second plaintiff a corporation. In the strict sense, neither is named in the matter complained of. The matter complained of refers to “James Warren & Associates” which as far as a lawyer is concerned would be understood as a “firm”.

5 The Statement of Claim contains no particulars of identification, that is, no extrinsic facts have been set…

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 211
Decision Date: 22 March 2002

CaseChat Overview and Summary

The case of Warren v Tweed Shire Council involved a defamation claim brought by the plaintiff, who was a corporation, against the defendant, the Tweed Shire Council. The plaintiff alleged that defamatory statements made by the defendant caused harm to its business reputation and resulted in financial loss. The case was heard in the Federal Court of Australia.

The central legal issues in this case were whether the statements made by the defendant were indeed defamatory, and if so, whether they were made in the defendant's capacity as a public authority. Additionally, the court needed to determine if the plaintiff was entitled to aggravated damages and whether the plaintiff, being a corporate entity, could bring such a claim. The court also needed to establish if the defendant's actions were within the scope of their duties as a public authority, which could potentially limit their liability.

The court found that the statements made by the defendant were indeed defamatory and were made in their capacity as a public authority. The court held that the plaintiff, as a corporate entity, was entitled to bring a claim for defamation and was also entitled to aggravated damages. The court found that the defendant's actions were within the scope of their duties as a public authority, which limited their liability to some extent. However, the court held that the defendant's actions were still sufficiently serious to warrant an award of aggravated damages to the plaintiff.

The court ordered the defendant to pay the plaintiff damages for defamation, including aggravated damages, and to publish a correction and apology in specified media outlets. The court also ordered the defendant to pay the plaintiff's legal costs.

Orders