Zarth v Williamson

Case [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…

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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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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