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)
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
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…
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.
Continue reading Zarth v Williamson
Sign in free to access the full text
Details
AGLC
Zarth v Williamson [2006] NSWCA 246
Case
[2006] NSWCA 246
Decision Date
CaseChat Overview and Summary
The applicants, Zarth and Williamson, sought leave to appeal a decision of the District Court concerning a defamation action brought against them by solicitors. The dispute arose from communications made by the applicants to third parties, including Aussie Home Loans, their receptionist, and an officer of the Legal Services Commission, which the solicitors alleged were defamatory. The District Court had awarded damages totalling $80,000.
The Court of Appeal was required to consider several grounds for leave to appeal. These included whether the trial judge erred in the conduct of the trial regarding the order of evidence on the issue of malice, the applicability of statutory absolute privilege under s 17J of the Defamation Act to communications with the Legal Services Commission, whether the jury's determination of issues was flawed by not including publication, and whether the damages awarded were excessive.
The Court of Appeal concluded that the prospects of success on appeal were poor and that there had been no substantial departure from the due administration of justice. The court considered the discretion to grant leave to appeal, taking into account the various grounds raised by the applicants.
Ultimately, the Court of Appeal dismissed both summonses for leave to appeal, with costs.
Orders
Orders of the court
Dismiss both Summonses for leave to appeal with costs.