Windridge Farm Pty Ltd v Grassi - [2010] NSWSC 335

CITATION: Windridge Farm Pty Ltd v Grassi [2010] NSWSC 335

HEARING DATE(S): 18 September 2009

JUDGMENT DATE :
19 March 2010

JUDGMENT OF: Latham J

DECISION: Defendants' Notice of Motion dismissed with costs

CATCHWORDS: PROCEDURE - Application to further amend Defence - ss 56, 57 and 58 of the Civil Procedure Act 2005 - Proposed defence of unclean hands and abuse of process - Proposed defence of freedom of political communication - Delay

LEGISLATION CITED: Prevention of Cruelty to Animals Act 1979
Civil Procedure Act 2005

CATEGORY: Consequential orders

CASES CITED: Dennis v ABC [2008] NSWCA 37
Arthur Anderson Corporate Finance v Buzzle Operation Pty Ltd [2009] NSWCA 104
Haplin & Ors. v Lumley General Insurance Ltd [2009] NSWCA 372
Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230
Commissioner of Police for New South Wales v Industrial Commission of New South Wales & Raymond Sewell [2009] NSWCA 198
Black Uhlans Incorporated v New South Wales Crime Commission & Ors [2002] NSWSC 1060
Meyers v Casey (1913) 17 CLR 90
Kation Pty Ltd v Lamru Pty Ltd ; Lewis v Nortex Pty Ltd (in liq) [2009] NSWCA 145
Williams v Spautz [1992] HCA 34; 174 CLR 509
Van Der Lee & Ors v State of New South Wales & Ors [2002] NSWCA 286
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520

PARTIES: Windridge Farm Pty Ltd - Plaintiff
Mauro Grassi - 1st Defendant
Diana Simpson - 2nd Defendant
Tully James - 3rd Defendant

FILE NUMBER(S): SC 10469/2008

COUNSEL: JR Clarke - Plaintiff
S O'Brien - Defendants

SOLICITORS: Blake Dawson - Plaintiff
Glabally & O'Bryan Lawyers - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

19 MARCH 2010

2008/10469 WINDRIDGE FARMS (HOLDINGS) PTY LTD v MAURO GRASSI & ORS.
JUDGMENT

1 HER HONOUR: The defendants’ Notice of Motion, filed on 21 August 2009, seeks leave to file a Further Amended Defence in proceedings brought by the plaintiff in trespass, and in the nature of declaratory and injunctive relief. The Notice of Motion is opposed by the plaintiff.

2 The proceedings arise out of the entry by the defendants onto land leased and occupied by the plaintiff, who conducted the business of a piggery, in July 2006. The defendants went onto the property without the consent of the plaintiff in order to take photographs and film footage of the piggery, in the expectation that the defendants could establish that the plaintiff was failing to comply with appropriate standards for the maintenance and care of the animals.

3 After the defendants left the property, they caused the photographs and film to be shown to representatives of Animal Liberation NSW and to be publicised, thereby intending to provoke a prosecution by the relevant authorities. However, despite an investigation by police and the RSPCA, no action was taken against the plaintiff.

4 The plaintiff commenced proceedings in this Court…

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: [2010] NSWSC 335
Decision Date: 19 March 2010

CaseChat Overview and Summary

The dispute before the court was between Windridge Farm Pty Ltd and Grassi, concerning allegations of breach of contract and misuse of confidential information. The case was heard in the Supreme Court of New South Wales. Windridge Farm Pty Ltd sought an order that Grassi be restrained from disclosing confidential information and an injunction to prevent further breaches of contract. Grassi sought to further amend the defence, proposing new defences of unclean hands, abuse of process, freedom of political communication, and raised the issue of delay in bringing the application.

The court considered whether the proposed amendments to the defence were permissible under the Civil Procedure Act 2005 and whether there was any prejudice to the plaintiff in allowing the amendments. The court found that the proposed defences of unclean hands and abuse of process were not relevant to the issues in the case. The court also found that the defence of freedom of political communication did not apply as the matter was a private dispute and not related to any political activity. The court noted that there was a significant delay in bringing the application, but ultimately found that the delay did not prejudice the plaintiff.

The court allowed the further amendment of the defence, permitting the defendant to raise the defence of delay in bringing the application. The court found that the defendant had established a genuine defence to the plaintiff's claims, and accordingly, dismissed the plaintiff's application for relief. The court did not make any orders for costs.

Orders