Zarth v Williamson

[2006] NSWCA 246

New South Wales

Court of Appeal

CITATION:	ZARTH v WILLIAMSON & ORS [2006] NSWCA 246
HEARING DATE(S):	03 & 04/08/2006
JUDGMENT DATE:	6 September 2006
JUDGMENT OF:	Giles JA at 1; Bryson JA at 6
DECISION:	Dismiss both Summonses for leave to appeal with costs.
CATCHWORDS:	DEFAMATION – defamation action in District Court by solicitors against clients who defamed them in communications to 1) Aussie Home Loans 2) their receptionist in front office 3) officer of Legal Services Commission – damages awards totalling $80,000 – leave to appeal sought on numerous grounds relating to – Common Law Qualified Privilege – conduct of trial re order of going into evidence on issue of malice – statutory absolute privilege in communication with Legal Services Commission DAct s.17J – determination by jury of issues accepted by counsel which did not include publication – excessive damages – other complaints – CA concluded poor prospects of success and no substantial departure from due administration of justice – consideration of discretion to grant leave to appeal – refused (ND)
LEGISLATION CITED:	Defamation Act 1974 (NSW) ss.7A, 13, 17F, 17J, 22 District Court Act 1973 (NSW) s.127(2)(c)
CASES CITED:	Webb v Bloch (1928) 41 CLR 331
PARTIES:	Claimants – Henry Zarth and Karen Zarth First Opponent – Neil Stewart Williamson Second Opponent – Ronald William Winter Third Opponent – Anthony Orazio Brischetto
FILE NUMBER(S):	CA 40942/2005; CA 40626/2005
COUNSEL:	Claimants’ counsel – Mr R Newell Opponents’ counsel – Mr D A Caspersonn
SOLICITORS:	Claimants’ solicitor – L.C. Muriniti & Associates Opponents’ solicitor - Coode & Corry
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 7421/2002
LOWER COURT JUDICIAL OFFICER:	J.C. Gibson J
LOWER COURT DATE OF DECISION:	08/11/2005

CA 40626/05
CA 40942/05

GILES JA
BRYSON JA

6 SEPTEMBER 2006

HENRY ZARTH & KAREN ZARTH v NEIL STEWART WILLIAMSON, RONALD WILLIAM WINTER & ANTHONY ORAZIO BRISCHETTO

Judgment

1 GILES JA: These applications for leave to appeal were heard at greater length than is customary, and have produced more full reasons than customary. I am indebted to Bryson JA for the exposition in his reasons, which I have read in draft and with which I generally agree.

2 The amounts of the verdicts are not insignificant, albeit less than the $100,000 threshold for the purposes of an appeal as of right, and the costs must be great and material to the exercise of the discretion to grant leave. There can be said to be some importance to the parties in whether the claimants have been actionably defamatory of the opponents. As Bryson JA notes, however, the materiality of the costs is not necessarily in favour of a grant of leave. Even for defamation proceedings, litigation over 17 days and commensurate costs resulting in damages totalling at most $75,000, but in truth separate lesser amounts, is disproportionate to the interests at stake, and there are strong considerations that enough is enough.

3 Leave to appeal in relation to the interlocutory costs order, involving a few thousand dollars…