LVMH Watch & Jewellery Australia Pty Limited v Michael Lassanah & Ors [2011] NSWCA 370

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: LVMH Watch & Jewellery Australia Pty Limited v Michael Lassanah & Ors [2011] NSWCA 370 Hearing dates: 13 and 14 September 2011 Decision date: 28 November 2011 Before: Giles JA Campbell JA Bergin CJ in Eq Decision: (1) Appeal in relation to the defences of qualified privilege allowed. (2) Verdicts and judgments entered by the Trial Judge in favour of the First and Second Respondents on the defamation action be set aside. (3) Verdict and Judgment be entered in favour of the Third Respondent on the defamation action. (4) The parties are granted liberty to file an agreed costs order with the Registry by no later than 1 December 2011. If the parties are unable to agree on a costs order they are to file and serve written submissions of no more than 3 pages by no later 7 December 2011. The question of costs will be dealt with on the papers. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: [DEFAMATION] - whether error in finding of fact pivotal to finding of malicious and false accusations - whether error in finding that "occasion" of qualified privilege was "lost" - whether failure to identify motive or purpose foreign to occasion of qualified privilege - whether finding of malice justified - reconsideration of defence of qualified privilege Legislation Cited: Defamation Act 2005 Cases Cited: Aktas v Westpac Banking Corporation Limited (2010) 241 CLR 79; [2010] HCA 25 Andreyevich v Kosovich (1947) 47 SR (NSW) 357 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 Clark v Molyneux (1877) 3 QBD 237 Cush v Dillon; Boland v Dillon (2011) 279 ALR 631; [2011] HCA 30 Dougherty v Chandler & Ors (1946) 46 SR (NSW) 370 Egger v Viscount Chelmsford [1965] 1 QB 248 Fraser v Holmes (2009) 253 ALR 538; [2009] NSWCA 36 Guise v Kouvelis (1947) 74 CLR 102 Jones v Dunkel (1959) 101 CLR 298 Lassanah v State of New South Wales (No. 3) [2010] NSWDC 241 LVMH Watch & Jewellery Australia Pty Ltd v Lassanah (Unreported, 4 March 2011, New South Wales Court of Appeal, Tobias and Young JJA) Mann v O'Neill (1997) 191 CLR 204 Megna v Marshall [2010] NSWSC 686 Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 Smith v Streatfeild [1913] 3 KB 764 Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044 Webb v Bloch (1928) 41 CLR 331 Category: Principal judgment Parties: LVMH Watch & Jewellery Australia Pty Limited (Appellant) Michael Lassanah (1st Respondent) Aaron Oddie by his Tutor Michelle Pearson (2nd Respondent) State of New South Wales (3rd Respondent) Representation: B McClintock SC/RW Potter (Appellant) CA Evatt/L Evans (1st and 2nd Respondents) M Neil QC/D Caspersonn (3rd Respondent) Baker & McKenzie (Appellant) Friend & Co Lawyers (1st and 2nd Respondents) Henry Davis York (3rd Respondent) File Number(s): 2010/339209 Decision under appeal Jurisdiction: 9101 Citation: [2010] NSWDC 241 Date of Decision: 2010-09-30 00:00:00 Before: Gibson DCJ File Number(s): 5370/2008