Coles Supermarkets Australia Pty Ltd v Clarke [2013] NSWCA 272

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Coles Supermarkets Australia Pty Ltd v Clarke [2013] NSWCA 272 Hearing dates: 4 June 2013 Decision date: 23 August 2013 Before: Gleeson JA at [1]; Sackville AJA at [2]; Simpson J at [14] Decision: Application dismissed with costs. [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 - slander - claim supermarket manager publicly accused plaintiff of stealing prawns - whether primary judge erred in finding that the defamatory words had been published - whether primary judge erred in assessment of reliability of plaintiff's case - whether primary judge erred by failing to take into account contrary inferences to be drawn from documentary evidence - consideration of degree of tolerance allowed in departure in words proved from words pleaded - Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 - plaintiff's evidence provided sufficient acceptance of a material and defamatory part of the words alleged - factual conclusions of primary judge not "glaringly improbable" or "contrary to compelling inferences" - Fox v Percy [2003] HCA 22 - leave to appeal refused DAMAGES - quantum - compensatory and aggravated - no issue of principle - leave to appeal refused Legislation Cited: Defamation Act 2005 Cases Cited: Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 Fox v Percy [2003] HCA 22; 214 CLR 118 State Rail Authority of NSW v Earthline Constructions Pty Ltd [1999] HCA 3; 73 ALJR 306 Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 Category: Principal judgment Parties: Coles Supermarkets Australia Pty Ltd (Applicant) Philip Clarke (Respondent) Representation: Counsel: R Weaver (Applicant) C A Evatt/ R K Rasmussen (Respondent) Solicitors: McCulloch & Buggy Lawyers (Applicant) Beazley Singleton Lawyers (Respondent) File Number(s): 2012/266856 Decision under appeal Jurisdiction: 9101 Citation: Clarke v Coles Supermarkets Australia Pty Limited [2012] NSWDC 107 Date of Decision: 2012-07-31 00:00:00 Before: Levy DCJ File Number(s): 2010/296700