Shift2Neutral Pty Limited v Fairfax Media Publications Pty Limited [2014] NSWSC 86

Supreme Court New South Wales

Medium Neutral Citation: Shift2Neutral Pty Limited v Fairfax Media Publications Pty Limited [2014] NSWSC 86 Hearing dates: 2 - 6, 9, 10 December 2013 Decision date: 18 February 2014 Jurisdiction: Common Law Before: Nicholas AJ Decision: Verdict and judgment for the defendants. Catchwords: DEFAMATION - whether imputations conveyed - whether defence of truth to all imputations established - no questions of principle. Legislation Cited: Defamation Act 2005 (NSW) Cases Cited: Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204 Category: Principal judgment Parties: Shift2Neutral Pty Ltd (First Plaintiff) Brett Goldsworthy (Second Plaintiff) Fairfax Media Publications Pty Ltd (First Defendant) Ben Cubby (Second Defendant) Representation: Counsel: C A Evatt/R K M Rasmussen/L Evans (Plaintiffs) D R Sibtain/L E Barnett (Defendants) Solicitors: Sharah & Associates Lawyers (Plaintiffs) Banki Haddock Fiora (Defendants) File Number(s): 2011/128622 Publication restriction: Nil

Judgment 1The plaintiffs sue the defendants for damages for defamation arising from the publication on 8 April 2011 of an article in the newspaper "The Sydney Morning Herald" under the heading "Revealed: wild claims of carbon credit firm" (Annexure A to these reasons), and also arising from the publication on 14 April 2011 of an article in the same newspaper under the heading "School deceived by carbon neutral scheme" (Annexure B to these reasons). The first defendant, was the publisher of the newspaper which circulates in New South Wales and the other States and Territories of Australia. The second defendant was a journalist employed by the first defendant, and the author of the articles. 2By consent the trial proceeded before me without a jury. 3The first plaintiff (Shift) is a corporation which, on 5 December 2013, I found to be an excluded corporation within the meaning of section 9(2)(b) of the Defamation Act 2005 (the Act). The second plaintiff (Mr Goldsworthy) is a director, and the controller, of Shift. Shift claims compensatory damages. Mr Goldsworthy claims compensatory and aggravated damages. No claim for economic loss is made. Mr Goldsworthy and his father, also a director of Shift, gave evidence. No witness was called for the defendants. 4Shift was incorporated in July 2007. Its business activities include the provision of energy audits, renewable energy strategies, corporate environmental policies and carbon credit certification. It claimed its team would assist businesses in achieving a carbon neutral workplace. 5With respect to the first article, the plaintiffs pleaded in paragraph 6 of the Amended Statement of Claim that, in its natural and ordinary meaning, it conveyed the followed defamatory imputations: (a) The First Plaintiff is a fake company which shifts paper certificates instead of saving forests and cutting greenhouse emissions. (b) The First Plaintiff falsely pretended to engage in deals to generate more than $1 billion of carbon credits because the deals did not exist. (c) The First Plaintiff lied when it said that every carbon offset certificate issued has value and represents a real reduction in greenhouse emissions. (d) The First Plaintiff made wild and false claims about carbon credits in order to persuade investors to buy them. (e) The First Plaintiff has deceived investors by falsely informing them that its certificate for carbon offsets had value and represented a real reduction in greenhouse emissions. (i) The Second Plaintiff controlled a fake company which shifts paper certificates instead of saving forests and cutting greenhouse emissions. (j) The Second Plaintiff controlled a company which falsely pretended to engage in deals to generate more than $1 billion of carbon credits because the deals did not exist. (k) The Second Plaintiff controlled a company which lied when it said that every certificate for carbon offsets issued has a value and represents a real reduction in greenhouse emissions. (l) The Second Plaintiff is a liar about the value of carbon credits issued by his company. (m) The Second Plaintiff controlled a company which made wild and false claims about carbon credits in order to persuade investors to buy them. (n) The Second Plaintiff controlled a company which deceived investors by falsely informing them that its certificates for carbon offsets had value and represented a real reduction in greenhouse emissions. 6With respect to the second article, in paragraph 8 of the Statement of Claim the plaintiffs pleaded that, in its natural and ordinary meaning, it conveyed the following defamatory imputations: (a) The First Plaintiff deceived Oakhill College by providing it with worthless carbon offsets. (b) The First Plaintiff is dishonest about its carbon offset claims. (d) The Second Plaintiff makes false claims about carbon offset deals valued at more than $1 billion. (e) The Second Plaintiff made false statements to "The Herald" to the effect that carbon offsets had been generated by a partnership with two companies. (f) The Second Plaintiff controlled a company which deceived Oakhill College by providing it with worthless carbon offsets. (g) The Second Plaintiff controlled a company which is dishonest about its carbon offsets claims. 7In support of a claim for aggravated damages Mr Goldsworthy asserted the imputations were false. 8The defendants did not accept that the imputations were either conveyed or defamatory. The defence of justification under section 25 of the Act was pleaded to all imputations.