Citation: Sleeman v Tuloch Pty Ltd t/as Palms on Oxford (No 3) [2013] NSWDC 92
Court: District Court of New South Wales
Date: 19 June 2013
Judge(s): Gibson DCJ
Background
The plaintiff, a sports journalist born in 1951, attended a nightclub called Palms on Oxford in Darlinghurst shortly before midnight on 23 December 2011. He was accompanied by three friends. A security guard at the door allegedly told him: "You are way too drunk. Go and sober up somewhere else. You can't come in."
The plaintiff sued the nightclub operator (a corporation), its sole director, and the licensee of the premises. Notably, the defendants were not sued as direct publishers of the alleged defamatory words. Rather, the claim rested entirely on vicarious liability for the security guard's statements. The security guard himself, and his employer (a security company), had been joined as defendants at an earlier stage but were subsequently removed from the proceedings before trial.
The imputations pleaded included that the plaintiff was excessively drunk in a public place and needed to sober up elsewhere. An additional imputation, directed at those who knew the plaintiff opposed excessive alcohol consumption, was that he was a hypocrite. The plaintiff's friends were alleged to have overheard the remarks.
Legal Issues
- Whether the matter complained of was actually published (i.e. whether the words were spoken as alleged)
- Whether the imputations were defamatory in their natural and ordinary meaning
- Whether the nightclub operator, director, and licensee were vicariously liable for the security guard's statements, given he was employed by an independent security company rather than by the defendants
- Whether the defences of qualified privilege at common law and under s 30 of the Defamation Act 2005 (NSW) were made out
- Whether the plaintiff established malice sufficient to defeat the qualified privilege defences, and whether any such malice could be attributed to all defendants
- Whether the defence of honest opinion was available
- Whether the defences of triviality (s 33) and offer of amends (s 18) were established
- What damages, if any, would have been appropriate
Decision
Publication. Gibson DCJ found that the matter complained of was not published. The court was not satisfied that the words were spoken in the terms alleged, or that the surrounding circumstances established publication to the plaintiff's companions in the manner claimed.
Vicarious liability. Even if the words had been published, the court found that none of the three defendants was vicariously liable. The security guard was employed by an independent company, ADCAS Pty Ltd, not by the nightclub operator or licensee. The plaintiff's pleading had proceeded on general tort principles of vicarious liability rather than on the principles applicable in defamation law as established in Webb v Bloch (1928) 41 CLR 331. The court held that this approach could not sustain the claim against these defendants.
Qualified privilege. As an alternative finding, the court held that had publication been established, the words were spoken on an occasion protected by qualified privilege, both at common law and under s 30 of the Defamation Act 2005 (NSW). A security guard communicating to patrons reasons for refusing entry to licensed premises fell within a recognised protected occasion. The court also found that the plaintiff had not established malice against any of the defendants, and that the malice of one defendant (even if proven) would not automatically be attributed to the others.
Other defences and damages. The court found the defences of triviality (s 33) and offer of amends (s 18) were also made out, though the honest opinion defence would have failed in relation to the natural and ordinary meaning imputations. Had damages been awarded, the court assessed the appropriate figure at $3,000, taking into account the limited audience, the grapevine effect, and the fact that much of the wider dissemination was attributable to the plaintiff's own discussions. Aggravated compensatory damages would not have been awarded.
Orders Made
- Judgment for the defendants
- Plaintiff to pay the defendants' costs
- Liberty to restore in relation to costs
- Exhibits retained for 28 days
Key Takeaways
- The District Court confirmed that in a slander claim, the court must first be satisfied that the specific words alleged were actually spoken before considering their meaning or any defences, and a plaintiff bears that evidentiary burden.
- Vicarious liability in defamation follows principles distinct from general tort law: where the claim rests on vicarious liability, the pleading must engage with Webb v Bloch principles, and a nightclub operator is not automatically liable for statements made by a security guard employed by an independent contractor.
- A communication by a security guard at the door of licensed premises, explaining why entry is refused, may attract qualified privilege at common law and under s 30 of the Defamation Act 2005 (NSW) as a statement made on a protected occasion.
- Malice sufficient to defeat qualified privilege must be proved against each defendant individually; a finding of malice against one defendant does not, without more, extend to co-defendants.
- Where publication is limited in scope and where the plaintiff has contributed to wider dissemination through their own conversations, damages in defamation may be assessed at a modest figure, with no basis for aggravated compensatory damages absent properly particularised and established conduct by the defendants.
Legislation and Cases Referenced
Legislation
- Defamation Act 2005 (NSW), ss 18, 20, 30, 31, 33, 34
- Defamation Act 1974 (NSW), s 13
- Liquor Act 2007 (NSW), ss 73, 77
- Uniform Civil Procedure Rules 2004 (NSW), r 14.30
Cases
- Webb v Bloch (1928) 41 CLR 331
- Adam v Ward [1917] AC 309
- Adeels Palace Pty Ltd v Moubarek (2009) 239 CLR 420
- Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
- Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366
- Bennette v Cohen [2009] NSWCA 60
- Bristow v Adams [2012] NSWCA 166
- Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41
- Cush v Dillon; Boland v Dillon (2011) 243 CLR 298
- Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36
- Sleeman v Tuloch Pty Ltd t/as Palms on Oxford [2013] NSWDC 43