STRASBERG v WESTFIELD LIMITED

WESTFIELD LIMITED t/a WESTFIELD HORNSBY (Defendant) FILE NUMBER(S) : SC 20867 OF 2001 C Evatt / J Henness (Plaintiff) COUNSEL : G Reynolds SC / R McHugh (Defendant) Ward Maxwell & Co (Plaintiff) SOLICITORS : Speed and Stracey (Defendant)

• 1 - Ex tempore: revised DLJT:5 [2003] NSWSC 1021 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

20867 OF 2001 MARIE-ANN STRASBERG (Plaintiff)

WESTFIELD LIMITED t/a WESTFIELD HORNSBY (Defendant)

JUDGMENT (On application for discharge of jury - aggravated damages - damages for injury to reputation - action for defamation and false imprisonment)

1 At the conclusion of the opening address by Mr Evatt, counsel for the plaintiff, an application was made by Mr Reynolds SC for a discharge of the jury on what I counted to be six bases. 2 The first was founded upon an unfortunate reference by Mr Evatt to the defendant as a "big holding company that operates all these Westfields at the various suburbs". As a matter of real life, I suppose everyone knows that, or as a matter of real life, people might believe that. But the statement should not have been made. Whether in the end it could become relevant far way down the track, and no doubt after lengthy argument, to any issue about exemplary damages remains to be seen. I merely propose to direct the jury that at this stage they should take no account of anything of the kind said by Mr Evatt. As far as we are concerned, the litigants are equal before the law in this case. 3 The second basis for asking that the jury be discharged relates to something, until it was exposed, which was really only within the knowledge of the parties. That was the contents of paragraphs 14 and 16 of a statement delivered by the plaintiff in April relating to security guards and the suggestion that what Mr Evatt said to the jury, for example at page 42 line 45, "Security officers, mainly female, stood around her"; there is another reference at page 43 to the plaintiff being in one position for thirteen minutes with security personnel on the horizon. There are thus references to security people, security personnel and security officers (at line 45). What is suggested is that this amounted to a complete change of case by the plaintiff. 4 The opening is consistent, in my view, with the two paragraphs in the statement where reference is made in paragraph 14 to security officers and paragraph 16 to a certain number of security officers in position, both male and female and in uniform. 5 The opening seems to me to be quite consistent with the case of the plaintiff as disclosed in the statement and not inconsistent with anything particularised in the count of false imprisonment in the second further amended statement of claim. It may be that that will evolve into a massive issue of fact on which one side or the other is going to be successful. 6 The next ground in the application for the discharge related to a statement Mr Evatt made. It is recorded at page 53, line 15 of the transcript: "Now, in this case the employees or agents were Miss Remoundos, Mr Beckwith, Mr Poile and other witnesses that they are going to call. Why I'm telling you this is that anything they say, anything that you find they say, Westfield is responsible" (sic).

7 As Mr Evatt points out, there was nothing express in the amended defence to the second further amended statement of claim that raises any issue to derogate from the overall propriety of what Mr Evatt said. I simply don't know whether other witnesses are going to be so connected with the defendant that there will arise some legal responsibility in the defendant for them, but I am not persuaded that that remark is so prejudicial or erroneous as to warrant a discharge or direction. 8 The fourth matter is a complaint about Mr Evatt's outline as a matter of law of what is involved in the tort of false imprisonment that is recorded at page 44 of the transcript where Mr Evatt at first stated, from line 10: "It means the depravation of a person's liberty for any time, however short, without lawful excuse."

9 Below at lines 50 and following, Mr Evatt made it clear that his client was going to establish that she believed she was compelled to stay in the one spot and would be forcibly held there if she tried to move. That, in my view, sufficiently coincides with what I said in paragraph 28 of my ruling of 8 August 2002 ([2002] NSWSC 689). I do not propose to discharge the jury on that basis or give a direction. 10 The fifth basis arises from a statement made by Mr Evatt, now recorded at page 49 of the transcript. (I interpose an expression of gratitude to the Reporting Service for the prompt supply of this material over the luncheon adjournment). 11 What appears between lines 20 and 33 is: "One of the problems is that you will be asked in respect of that letter, and in respect of the slander what was said, whether the letter conveyed these imputations and whether those imputations were defamatory and there won't be any inquiry as to whether it is true or false that there was a modelling or Cadillac advertising business but I think I will come back to that later at the end of the case because one doesn't know what evidence is going to come out, but the falsity or truth of the letter and otherwise what was said by Westfield employees is not relevant to the defamation aspect of the case, however, it could be relevant, except the letter, to the wrongful imprisonment aspect".

12 As can be seen from the extract, the substance of what Mr Evatt was saying was unfortunately worded, to say the least, and I propose to direct the jury that in relation to the two slanders, their first task is to determine whether or not the words were spoken, and if they determine they were spoken, whether they carry the meanings alleged, and if they carry the meanings alleged, whether those meanings are defamatory. 13 Similarly, in relation to the exhibit A, whether it carries the meanings and whether these meanings are defamatory. 14 I propose to direct the jury that the issue of the truth or falsity of the spoken words and the meanings thereof, the truth or falsity of the written words and the meanings thereof are irrelevant to the causes of action in defamation and the cause of action in false imprisonment. 15 The final matter founding the application for the discharge of the jury relates to a suggestion that Mr Evatt in his address to the jury was deftly erecting an unpleaded cause of action or causes of action by treating as a defamation the conduct of the defendant by its servants and agents relied upon as constituting the tort of false imprisonment. This was by reference to certain statements being made in a loud voice and the like. 16 I am persuaded by what Mr Evatt said, and which coincides with my understanding of what he said to the jury, that that construction of his remarks is not available. Rather that which he asserts properly reflects the position, namely that the loud voices and gesticulation goes to the grounds for his client's belief as to her position of being imprisoned. 17 Unfortunately, there the matter does not end because during the course of debate on the application for discharge, there arose an issue as to aggravated damages. 18 Pursuant to a direction by me given yesterday, the plaintiff, by letter dated 3 November, has particularised her case for aggravated damages in a document which will become MFI 2. It seems to me quite clear that even for a cause of action such as false imprisonment, there must be something about the conduct of the defendant that would warrant the award of aggravated damages. That conduct is usually described as "improper, unjustifiable or lacking in bona fides". Subject to three components of the claim for aggravated damages, first and second, subject to the statement that the impropriety relied upon is constituted by the tort itself, and I infer the manner of its commission, there is nothing in the particulars that points to conduct and the relevant quality of it as making the several heads available as aggravated damages. 19 That does not mean, subject to exceptions to which I will come, that the plaintiff cannot give evidence about those matters and it may well be that a case will evolve, hopefully with notice to the defendant, that what would otherwise be the components of the claim for compensatory damages could be elevated to a claim for aggravated damages. 20 I now come to three of the components which Mr Evatt has gone so close to abandoning but has not taken the plunge so I will take it for him. Items (d), (k) and (l) are matters upon which I decline to grant leave to the plaintiff to lead evidence. 21 That does not close the most contentious issue of all in this case, certainly at the trial, which will no doubt enjoy the same status as most trials before finality is reached, and that is whether or not the plaintiff is entitled to claim in her case for wrongful or false imprisonment damages by reason of the fact that that false imprisonment is asserted to have injured her in her reputation. 22 It seems to me, after giving the matter as much reflection as I can, that to permit a bare claim of damages for injury to reputation by reason of the tort of false imprisonment having been established would go against a trend in the evolution of the common law and the true function of the tort of defamation dealt with by me in Sattin v Nationwide News (1996) 39 NSWLR 32 and remarked upon by the High Court in Sullivan v Moody (2001) 207 CLR 562 in the joint judgment in paragraph 54 at page 581 where their Honours, in the circumstances of that case, which need not presently be rehearsed, say: "To apply the law of negligence in the present case would resolve that competition on an altogether different basis. It would allow recovery of damages for publishing statements to the discredit of a person where the law of defamation would not."

23 The traditional heads of damage for false imprisonment have been referred to by Mr Justice Powell, for example in McDonald v Coles Myer Ltd (1995) Aust Torts Reports 81-351, and the reference in both the 16th and 18th editions of MacGregor on Damages, to a statement by Lord Justice Walters in Walter v Alltools (1944) 171 LT 371 and Lord Avinger in Warwick v Foulkes (1844) 152 ER 1298, does not provide, in my view, authority so clear as to be binding on me in any way to that end. 24 What was not mentioned in argument today, to my recollection, but was referred to yesterday in the scheme of things, was the operation of s48 of the Defamation Act which theoretically would preclude a defendant from relying upon the recovery of damages in a false imprisonment action in mitigation of a claim for damages in a defamation action. 25 I return to MFI 2, the letter of 3 November 2003 and in relation to paragraph 3, I presently direct the defendant to provide answers to 3(i), (ii), (v) and (vi), save for the last sentence thereof by 9 o'clock tomorrow, 5 November.

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