Weston v Favretto

CITATION:

Weston v Favretto & Ors [1999] NSWSC 358

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20337 of 1998

HEARING DATE(S):

9 April 1999

JUDGMENT DATE:

21 April 1999

PARTIES :

MALCOLM JOHN WESTON
(Plaintiff)

v

FRANK FAVRETTO
(First Defendant)

COMS21 LIMITED 057 864 876
(Second Defendant)

JOHN FAIRFAX PUBLICATIONS PTY LIMITED
(Third Defendant)

JUDGMENT OF:

Levine J

COUNSEL :

P Gray
(Plaintiff)

R Lancaster
(First & Second Defendant)

T Blackburn
(Third Defendant)

SOLICITORS:

Verekers
(Plaintiff)

Watson Mangioni
(First & Second Defendants)

John Fairfax Publications Pty Limited
(Third Defendant)

CATCHWORDS:

Imputations - capacity - form

DECISION:

See paragraph 15

DLJ : 1

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

No. 20337 of 1998

JUSTICE DAVID LEVINE

WEDNESDAY 21 APRIL 1999

MALCOLM JOHN WESTON
(Plaintiff)

v

FRANK FAVRETTO
(First Defendant)

COMS21 LIMITED 057 864 876
(Second Defendant)

John Fairfax publicationS PTY Limited
ACN 003 357 720
(Third Defendant)
JUDGMENT (Imputations - capacity - form)

1 By an Amended Statement of Claim the plaintiff sues the first and second defendants in respect of a publication on 26 August 1998 in the following terms:
“Schedule A
The Board of directors of Coms21 Limited has decided to stand down its General Manager, Mr Mal Weston, pending receipt of an explanation from him as to where he’s been, what company business he has been on and what authority he has had to do it.
The decision was taken because Mr Weston has been absent from his duties for much of the time since Mr Graeme Green of Felscot Pty Limited announced his intention to launch a takeover for Coms21”.
2 The plaintiff contends that this matter complained of in its natural and ordinary meaning conveys the following defamatory imputation of him:
“6(a) the plaintiff deceitfully absented himself from his duties as General Manager of the company in order to give clandestine assistance, on the Company’s time, to persons who were seeking to take over control of the Company contrary to the best interests of the Company;
(b) the plaintiff was derelict in his duties as General Manager of the Company in that he had, without the knowledge or authority of the Company, absented himself from his duties at a time when the Company was the subject of a takeover bid”.
3 The plaintiff sues the third defendant as the publisher of “ The Australian Financial Review ” in respect of a matter published on 27 August 1998 as follows:
“ Schedule B
The boardroom tussle at smartcard and gaming group Coms21 Limited escalated yesterday when the largest shareholder called for the removal of all directors except founder and chief executive Mr Graeme Green.
Felscot Pty Limited, a company owned by Mr Green and his brother James, is believed to have requested a shareholders meeting to consider the removal of executive chairman Mr Frank Favretto, acting chief executive Mr Rodger Mortleman, Mr Keith Cullen and Mr Mike Hale.
The Australian Financial understands that Felscot has nominated Mr Jim Green, Coms21 general manager…