Bristow v Adams likely to see costs application against plaintiff’s solicitor … Litigation that should never have commenced … Backyarder to end all backyarders … Horror case … Defamatorium
Solicitors Lyons & Lyons and Stacks Goudkamp are considering a joint application to Judge Len Levy for Goldsmiths Lawyers to pay all the costs in an ill-fated defamation case, Bristow v Adams.
Levy dismissed the plaintiff’s case because he had not proved “injury to reputation”.
Defamation authorities are scratching their heads because for a couple of centuries they had been under the impression that proof of damage to reputation was not essential to establish liability. Publication of the defamatory material was sufficient to perfect the cause of action.
This case was a stoush between two office workers at Total Fasteners in the Hunter Valley.
The defendant, Tracy Adams, was an accounts manager who sent a hot-under-the collar email to the branch sales manager, Alan Bristow:
“I have been absolutely guttered [sic] by your most recent attempts to bully me into leaving, and have decided to do so of my own accord…We have even had to let management know about your lying, laziness and theft as well as your ability to use your position as a paid vacation.”
There were lots of defamatory imputations pleaded by Barrie Goldsmith for the plaintiff, all of which Levy found arose and all, with the exception of one, the defendant conceded were defamatory.
All the defences pleaded by the defendant – truth, qualified privilege, comment and triviality – were rejected by the judge.
Nonetheless, a verdict was entered for the defendant because her wily barrister, Clive Evatt, persuaded the judge that a relevant injury to the plaintiff’s reputation had to be established. Some thoughts from the High Court in Dow Jones v Gutnick were cited to this end.
An apology and a small amount would have settled it for the plaintiff right at the beginning, but he ended-up mortgaging his house to try and cope with Barrie’s $80,000 bill and went on to lose at trial.
Even the judge’s notional damages were out of kilter with similar email cases. Levy assessed compensatory damages at between $5,000 and $7,000 and aggravated at the upper level of $10,000.
He wrapped-up his judgment saying that he will hear the parties on an appropriate order for costs, even one that “might affect a third party to the litigation”.
Barrie dropped out of appearing for the plaintiff at the conclusion of the evidence. He was in court on July 23 last year, but forgot to mention that three days earlier he had filed a notice of ceasing to act. He had done this without prior consent of the defendant or leave of the court.
For final submissions barrister Malcolm Duncan (RIP) stepped into the void, instructed by the plaintiff’s new solicitor’s Lyons & Lyons:
“Had everybody been rational about this case and it settled – these are just ordinary people, they don’t have huge amounts of money. It would be a terrible tragedy if the unfortunate error that the defendant has managed to commit by sending, what upon any view of this really is a silly email, both silly and hurtful – it would be terrible if that was compounded by her suffering enormous economic penalties as a result of it.Having looked through the transcript in the last 24 hours, it’s my submission that at least two days of the trial were wasted with waffle and that some account should be taken – as your Honour has already noted – my client has paid an enormous amount of money so far.”
“This case brings defamation into disrepute.”
Judgment in full