Webster v Coles Myer Limited; Thompson v Coles Myer Limited

Webster v Coles Myer Limited; Thompson v Coles Myer Limited - [2009] NSWDC 4 - NSWDC 2009 case summary — Zoe

[6]

Abbott v TCN Channel Nine Pty Ltd (1987) Aust Torts Reports 80-138 Ainsworth v Burden [2005] NSWCA 174 Aitken v Bedwell (1827) Mood. & M 68; 173 ER 1084 Aktas v Westpac Banking Corporation Limited [2009] NSWCA 9 Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544 Allen v Tobias (1957-58) 98 CLR 367 Archer v Channel Seven Perth Pty Ltd [2002] WASC 160 Austin v Dowling (1870) LR 5 CP 534 Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 65 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 Bauer v NSW (District Court of New South Wales, Robison DCJ, 24 May 2005, unreported) Bennette v Cohen [2009] NSWCA 60 Bogusz v Thomson (1989) 95 FLR 167 Bonette v Woolworths Ltd (1937) 37 SR NSW 142 Boychuk Construction Corp. v O'Lain (1997) 161 Sask R 206 (QB) Bridges v Pelly [2001] NSWCA 31 Briginshaw v Briginshaw (1938) 60 CLR 336 Brown v Hirley (1838) 5 UCQB (OS) 734 (CA) Bugge v Brown (1919) 26 CLR 10 Calwell v Ipec Australia Ltd (1975) 135 CLR 321 Clark v State of New South Wales [2006] NSWSC 673 David Syme & Co v Lloyd [1984] 3 NSWLR 346 Davidson v Chief Constable of North Wales [1994] 2 All ER 59 Dickenson v Waters Ltd (1931) 31 SR (NSW) 593 Donald v McKeown [2004] NSWCA 285 Evatt v Nationwide News Pty Ltd t/as Cumberland Newspapers [1999] NSWCA 99 Federal Capital Press of Australia Pty Ltd v Edwards (1992) 108 FLR 118 Feria v Lange [2009] PGNC 4 Foord v John Fairfax & Sons Ltd (Supreme Court of NSW, 27 February 1987, unreported) Fraser v Holmes [2009] NSWCA 36 Goldsworthy v Radio 2UE Sydney Pty Ltd [1999] NSWSC 547 Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 Gray v Motor Accident Commission [1998] HCA 70 Grinham v Willey (1859) 4H&N 496 Gross v Weston (2007) 69 NSWLR 279 Grundeman v Georgeson (Supreme Court of Queensland, Fryberg J, 19 May 1995, unreported) Guise v Kouvelis (1947) 74 CLR 102 Hall v Queensland Newspapers Pty Ltd [2002] 1 Qd R 376 Hayward v Thompson [1982] 1 QB 47 Healy v Askin [1974] 1 NSWLR 436 Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 Hutchins v Maughan [1947] VLR 131 Jones v E Hulton & Co [1909] 2 KB 444 Katsilis v Broken Hill Proprietary Co Ltd (1977) 18 ALR 181 Khodaparast v Shad [2000] 1 All ER 545 King v McKenzie (1991) Aust Torts Reports 81-118 CASES CITED: Kolokol v Amburuapi [2009] PGNC 1 Komba v Peke [1994] PNGLR 572 Lamb v Cotogno (1987) 164 CLR 1 Lee v Wilson (1934) 51 CLR 276 Lindholdt v Hyer [2008] NSWCA 264 Malec v JC Hutton Pty Ltd [1990] HCA 20 ; (1990) 169 CLR 638 Martin v Watson [1996] AC 74 Maxwell-Smith v Warren & Anor [2007] NSWCA 270 McDonald v Coles-Myer Limited (trading as K-mart Chatswood) (1995) Aust Torts Rep, 62,692 McHale v Watson (1964) 111 CLR 384 McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42 Morgan v Odhams Ltd [1971] 1 WLR 1239 Myers Stores Ltd v Soo [1991] 2 VR 597 Nixon v Slater & Gordon (2000) 175 ALR 15 Noye v Robbins; Noye v Crimmins [2007] WASC 98 Orpwood v Barkes (1827) 4 Bing 261 at 263; 130 ER 767 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 Photi v Target [2007] NSWDC 265 Pike v Waldrum and Peninsular & Oriental Steam Navigation Co [1952] 1 Lloyd's Rep 431 Platt v Nutt (1988) 12 NSWLR 2 Rabay v Bristow [2005] NSWCA 199 Roberts v Bass (2002) 212 CLR 1 Roberts v Buster's Auto owing Service Ltd (1976) 70 DLR (3d) 716 Robb v Morrison (1920) 20 SR (NSW) 163 Rogers v Nationwide News Pty Ltd (2003-4) 216 CLR 327 Ruddock v Taylor (2003) 58 NSWLR 269 Ryan v Ann St Holdings Pty Ltd [2006] QCA 217 Sadler & State of Victoria v Madigan [1998] VSCA 53 Scott v Shepherd (1773) 2 Wm BI 892; 96 ER 525 Sewell v The National Telephone Co Ltd [1907] 1 KB 557 Skalkos v Assaf [2002] NSWCA 14 Stanley v Powell [1891] 1 QB 86 State of New South Wales v Delly [2007] NSWCA 303 State of New South Wales v Ibbett (2006) 229 CLR 638 State of New South Wales v Ibbett (2005) 65 NSWLR 168 State of New South Wales v Lepore (2003) 212 CLR 511 State of New South Wales v Riley [2003] NSWCA 208 Steele v Mirror Newspapers Ltd [1972] 2 NSWLR 348 Symes v Mahon [1922] SASR 447 Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 Turner v MGM Pictures Ltd [1950] 1 All ER 449 Vignoli v Sydney Harbour Casino [1999] NSWSC 1113 Warner v Riddiford (1858) 4 CBNS 180; 140 ER 1052 Watson v Marshall & Anor (1971) 124 CLR 621 Webb v Bloch (1928) 41 CLR 331 Williams v Milotin (1957) 97 CLR 465 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448 Zorom Enterprises Pty Ltd (in liq) v Zabow (2007) 71 NSWLR 354

[332]

[118] I have set out in the section on false imprisonment a consideration of the elements necessary to establish vicarious liability. As the landmark case in defamation (Bonette v Woolworths Ltd (1937) 37 SR NSW 142) is very similar, I need only refer to the careful discussion of this issue by Jordan CJ, who explained (at 150-151): "An authority expressly given, whether it be particular or general, gives implied authority to do anything which is incidental to what is expressly authorised. Whether any authority has been expressly given, and if so what is the scope of the authority, are questions of fact to be determined by evidence. Evidence that a person is purporting to do acts on behalf of a principal in some capacity in such circumstances that the knowledge and approval of the principal may fairly be inferred is evidence that the principal has authorised him to act in the particular capacity. If there is evidence justifying such an inference, it justifies the further inference that the person has authority to do such acts as would be done, as a matter of ordinary business practice, by a person acting in such a capacity. If there is no evidence as to what authority was in fact expressly given, or what the business practice is, the jury may draw inferences based upon their own knowledge of business and affairs. This may be done, for example, where there is evidence that a person is manager or superintendent of a business: Macauley v. Bank of N.S.W. (1893) 14 LR (NSW) 269; (1893) 9 WN (NSW) 195; Citizens Life Assurance Co. v. Brown [1904] AC 423 or occupies a less responsible position: Goff v. Great Northern Railway Co (1861) 3 El & El 672; (1861) 121 ER 594; Mountney v. Smith (1904) 1 CLR 146 . Evidence that an agent was prohibited from doing an act which, apart from such a prohibition, might have been inferred to be within the scope of his authority is evidence which, if accepted, prevents it from being inferred that the act was in fact within the scope of his authority: Knowles v. Southern Railway Co. [1936] 2 KB 330; [1936] 2 All ER 682. If, however, a person ignorant of the prohibition is induced to act on the assumption that the agent possess an authority which such an agent would ordinarily possess, the doctrine of holding out may prevent the principal from disputing the agent's authority. This doctrine is immaterial in the present case.

[440]

[208] In Australia, express malice for the purpose of defeating a common law qualified privilege is confined to "any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff" (Roberts v Bass at 30). It is not to "be confused with the defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication" (Roberts v Bass at 31). This does not mean, however, that each of these matters is irrelevant. Anyone of these matters, if proved, "usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication. Even knowledge or a belief that the defamatory statement was false will not destroy the privilege, if the defendant was under a legal duty to make the communication. In such cases, the truth of the defamation is not a matter that concerns the defendant, and provides no ground for inferring that the publication was actuated by an improper motive. Thus, a police officer who is bound to report statements concerning other officers to a superior will not lose the protection of the privilege even though he or she knows or believes that the statement is false and defamatory unless the officer falsified the information. Conversely, even if the defendant believes that the defamatory statement is true, malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion. That is because qualified privilege is, and can only be, destroyed by the existence of an improper motive that actuates the publication" (Roberts v Bass at 31).

[448]

[211] Mere lack of belief in the truth of the communication is not equivalent to knowledge of the falsity. The High Court in Roberts v Bass noted at 35-36: "Further, mere lack of belief in the truth of the communication is not to be treated as if it was equivalent to knowledge of the falsity of the communication and therefore as almost conclusive proof of malice. The cases contain many statements to the effect that the privilege will be lost if the defendant did not honestly believe in the truth of a defamatory statement made on a privileged occasion. If those statements mean no more than that qualified privilege is lost when the defendant knows or believes the defamatory statement is false, they are in accord with settled principle and authority. But if they mean that the defendant loses the privilege unless he or she has a positive belief in the truth of the publication, it is not easy to reconcile them with basic principle. They are not reconcilable, for example, with the principle that recklessness as to the truth or falsity of a publication, short of wilful blindness, will not destroy an occasion of qualified privilege unless it appears that the recklessness is accompanied by some other state of mind. A person who is reckless as to whether the statement is true or false has no positive belief in the truth of the statement. Yet as the above statements of Lord Esher MR in Royal Aquarium and Clark show, recklessness, short of wilful blindness, is not enough to destroy the privilege. It must be accompanied by some other state of mind. Where that is so, the recklessness is evidence that the publication was actuated by the accompanying state of mind, be it anger, hatred, bias or unreasoning prejudice. As Jordan CJ pointed out in Mowlds v Fergusson : 'All that the Royal Aquarium Case decides is that if a defendant is proved to be affected by a particular prejudice and is proved to have made a defamatory statement on a privileged occasion, not to serve the legitimate purposes of the occasion but to indulge this prejudice, express malice is made out. In such a case, proof of the prejudice may serve both to explain how the defamatory statement came to be made, and also to justify the inference that it was made for the purpose of indulging the prejudice.'"

[597]

Past Economic Loss 29/10/2004 to 4/11/2004 (1 week) @ $684.65 net per week $684.65 ATO N/A 2004 4/11/2004 to 4/1/2005 (8.7 weeks) @ $684.65 net per week $5,966.23 ATO N/A 2004 12/4/2005 to 13/4/2005 (2 days) @ $735.93 net per week $294.37 ATO N/A 2004 9/5/2005 (1 day) @ $735.93 net per week $147.18 ATO N/A 2004 The plaintiff claims the difference between his earning capacity as at the date of injury ($735.93) and his earnings with Sensis Pty Ltd during the period 4 July 2005 - 6 April 2006 ($615.70) being $120.20 net per week over 39.587 weeks, totalling $4,754.33 ATO N/A 2004 ITR 2006 Total economic loss for the period 7 April 2006 to 31 May 2007 (56.57 weeks at $735.93) net per week, totalling $41,631.50 ATO N/A 2004 PAYG P/S Centrelink 2007 Economic loss being the difference between his earnings at Woolworths and his likely earnings as a Departmental Manager at Myer for the period 1 June 2007 to 1 April 2008 (43.42 weeks) at $235.93 net per week, totalling $10,244.00 ATO N/A 2004 PAYG P/S Woolworths 2008 For the period 2 April 2008 to 30 January 2009 (43.42 weeks) at $735.93 net per week $31,954.00 ATO N/A 2004 PAYG P/S Centrelink 2008 Total of claim for past economic loss to 30 January 2009 $95,676.26

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