BUTTON v LONDON [1991] NSWCA 39

BUTTON v LONDON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and MEAGHER JJA 30 May 1991, 2 September 1991

[1991] NSWCA 39

DEFAMATION — Appeal and cross-appeal from decision of Judge in District Court — Defamation of owners of "Berry Donut Van". IDENTIFICATION of plaintiffs as persons defamed — Not essential to call a witness to say he saw the plaintiffs as referred to in the publication — Other evidence may establish this. IMPUTATIONS made by publication — whether imputations made. REASONS FOR JUDGMENT — Examination of what is required and the basis of the requirement. DEFENCE under s13 of Defamation Act 1974 — Meaning of s13 Defence of comment — Whether statements were comment or statements of fact. QUANTUM OF DAMAGES — Held not excessive.

Mahoney JA In 1984 the plaintiffs conducted a business in or near the townshipof Berry on the South Coast of New South Wales. They described it in various ways: in their statement of claim it was described as "Berry Donut Van". It was said that some neighbouring occupiers took objection to the way in which the business was conducted or, at least, the difficulties which resulted from the conduct of it. Representations were made to the local council in relation to these matters.

The defendant was dissatisfied with the position. A letter, the letter in question, was written to and published by the Illawarra Mercury, a newspaper having substantial circulation in the South Coast area. The letter was signed "R Drake". The learned trial judge held that the defendant had written the letter. The defendant denied he had done so but, on appeal, is not in a position effectively to contest that finding.

The plaintiffs claimed that the letter was defamatory of them and sued the defendant. The proceeding was determined by Solomon DCJ in the District Court at Liverpool on 4 October 1988. His Honour gave judgment for the plaintiffs for $58,065.92, being $20,000 for the male plaintiff and $15,000 for the plaintiff, the balance of the judgment being interest on those amounts. The defendant has appealed to this Court against his Honour's judgment.