Pierson v National Parks & Wildlife Service: Pierson & Anor v National Parks & Wildlife Service [1999] NSWSC 1092

New South Wales Supreme Court CITATION : Pierson v National Parks & Wildlife Service: Pierson & Anor v National Parks & Wildlife Service [1999] NSWSC 1092 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 19547 of 1993; 20245 of 1999 HEARING DATE(S) : 5 November 1999 JUDGMENT DATE : 5 November 1999

CHARLES REGINALD PIERSON (Plaintiff)

v

NATIONAL PARKS & WILDLIFE SERVICE (Defendant)

PARTIES : CHARLES REGINALD PIERSON (First Plaintiff)

RAYMOND HOSER (Second Plaintiff)

v

NATIONAL PARKS & WILDLIFE SERVICE (Defendant) JUDGMENT OF : Levine J

C Evatt (Plaintiffs) COUNSEL : G McGrath (Defendant) Duker & Associates (Plaintiffs) SOLICITORS : Lynn Boyd (Defendant) CATCHWORDS : Transfer to District Court DECISION : See paragraph 6-8

DLJ: 2 (Ex Tempore - Revised) THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 19547 of 1993 No. 20245 of 1999 JUSTICE DAVID LEVINE

FRIDAY 5 NOVEMBER 1999

CHARLES REGINALD PIERSON (Plaintiff)

v

NATIONAL PARKS & WILDLIFE SERVICE (Defendant)

CHARLES REGINALD PIERSON (First Plaintiff) RAYMOND HOSER (Second Plaintiff)

v

NATIONAL PARKS & WILDLIFE SERVICE (Defendant) JUDGMENT (Transfer to District Court) 1 HIS HONOUR: In matter 20245 of 1999 there is an opposed application for a transfer of the action to the District Court. It is an action brought by two plaintiffs, which I understand to have been instituted two days before the expiry of the limitation period, the publication being in May 1993. The imputations in a general way may be described as asserting of the plaintiffs that they are defamers. 2 No doubt at any hearing of the action on the issue of damages, the question of the delay in the institution of proceedings - the objective of which is speedily to seek vindication of an asserted damaged reputation - will be the subject of consideration. There is nothing in this action that persuades me that its prosecution, if it is to be prosecuted, will benefit procedurally or otherwise by being maintained in this court. 3 In relation to the second plaintiff, in my judgment of 27 October in Hoser v Hartcher the fact that there was some adverse material available that upon its admission might diminish any damages to which Mr Hoser would be entitled, was a factor that was raised in submissions. In this case the plaintiffs have chosen to sue in the one action. There may well be reasons for that. The effect of any flaw in Mr Hoser's case by reason of the matter I have mentioned upon Mr Pierson's case will have to be handled in the District Court, to which I remit it for hearing in Sydney. 4 In action 1954 of 1993 the causes of action upon which the sole plaintiff Mr Pierson sues, are injurious falsehood and intentional inducement of breach of the contract. Those two causes of action discretely, whilst not common, do not have any remarkable characteristics that warrant the retention of this very old case in this court. 5 One matter that might induce a belief that it should stay here is the articulated claim for a loss said to flow from one or both of those torts in the sum of $1.2 million. In the light of remarks made in court today as to what is frankly conceded to be the inflated nature of that claim, in terms of its quantum, and in the light of the questionable issue of any causal connection between whatever tort is found to have been committed and the incurring of any loss, the action again cannot be characterised as warranting retention in this court. 6 It has not enjoyed a vigorous history through this court, either with the benefit of differential case management, or without it. It may well be that this action will be amenable to prompt disposition in the District Court, to which I order it to be remitted for hearing in Sydney. 7 I will recommend, subject to the resources of the District Court, that those matters be listed together. 8 In matter 19547 of 1993, the plaintiff is to pay the defendant's costs of 22 October 1999, otherwise the costs will be the defendant's costs in the cause. ***********