DUNSEC PTY LTD & ORS v NATIONWIDE NEWS PTY LTD [2000] NSWCA 155

New South Wales Court of Appeal

CITATION : DUNSEC PTY LTD & ORS v NATIONWIDE NEWS PTY LTD [2000] NSWCA 155 FILE NUMBER(S) : CA 40786/99 HEARING DATE(S) : 22 May 2000 JUDGMENT DATE : 29 June 2000

PARTIES : DUNSEC PTY LTD & ORS v NATIONWIDE NEWS PTY LTD JUDGMENT OF : Mason P at 1; Heydon JA at 24

LOWER COURT JURISDICTION : District Court LOWER COURT DC 4221/98 FILE NUMBER(S) : LOWER COURT Judge Christie QC JUDICIAL OFFICER :

COUNSEL : Appellants: M J Neil QC/D A Casperson Respondent: T S Hale SC/P Sibtain SOLICITORS : Appellants: Coode & Corry (Penrith) Respondent: Cropper Parkhill CATCHWORDS : Defamation - application to amend Statement of Claim by adding fresh imputations - substantial and contextual truth - determining whether newspaper articles complained of are capable of conveying a particular imputation - questions of delay and prejudice - (ND) DECISION : Appeal upheld.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40786/99

MASON P HEYDON JA

Thursday 29 June 2000

DUNSEC PTY LTD & ORS v NATIONWIDE NEWS PTY LTD

JUDGMENT 1 MASON P: Pursuant to a grant of leave this appeal was heard instanter. The Chief Justice gave a direction that it might be heard by two Judges of Appeal pursuant to s46A(2) of the Supreme Court Act 1970. 2 In November 1992 the appellants sued in the Supreme Court. They claimed damages for defamation arising out of articles published by the respondent in the Penrith Press on 7 July 1992 and the Mt Druitt-St Marys Standard on 15 July 1992. The first article was: HUGE BILL FEARED Costly dispute over security firm looms Penrith ratepayers may foot what union officials believe could be a bill of up to $500,000 because Penrith Council has employed a security firm which has allegedly failed to pay award wages for the past five years. Penrith City Night Patrol, a division of Dunsec Pty Ltd, has been sent a dispute notification to appear before the Industrial Relations Commission next Monday for allegedly failing to pay award wages, penalty rates and allowances, and refusing to surrender time and record books to the Federated Miscellaneous Workers Union of Australia. If the company is unable to pay any amount the commission may award to its employees, Penrith Council is liable to foot the bill under section 154 of the Industrial Relations and Arbitration Act. Union president Geoff Roser said on Thursday that Penrith Council would be prosecuted to pay the liability if the security firm could not meet the cost. "Council has known about the problem for a minimum of three weeks and we will be meeting with them to discuss the allocation of contracts and local government liabilities," Mr Roser said. "I can give an absolute assurance that we will go ahead and prosecute Penrith Council for the back pay if this firm can't pay. "Penrith City Night Patrol has been notified that a conciliation conference is to be held at the Industrial Relations Commission on July 13 in an effort to settle the matter." Penrith Mayor Tony Aquilina said on Thursday he has been aware of the problem only for a short time. "Whenever we became aware that this may be the case we got a statement from the company stating they were paying award wages," he said. "We are very keen to meet with the union and to make sure to uphold the integrity of council in every way." Council general manager Barry Long said on Friday that talks would be held between council and the security company. "All I can say is that we are seeking further information from the company," he said. Penrith City Night Patrol management was contacted but refused to comment.