Simpsons Solicitors

The law does not concern itself with trifles …

December 3rd 2014

A recent defamation case underlines the need to take careful stock before launching into expensive court action for defamation.

The case started when Ms Kay Freeburn took exception to the Cake Decorating Association of NSW (“the CDA”) publishing a motion calling for her expulsion from the CDA.

The move to expel Ms Freeburn followed several years of conflict between Ms Freeburn and other members of the CDA, focused particularly on the running of the CDA.

In commencing proceedings, Ms Freeburn claimed (among other things) that the wording of the motion to expel her gave rise to the imputations that she is “a nuisance and a trouble-maker”, that she “does not act fairly” and that she has a “personal agenda” not in the interests of the CDA.

Attempts at mediation failed to resolve the issues, though the CDA did agree to publish an apology. The parties, however, could not agree on the wording of the apology and the relations between the two sides degenerated into what one of the counsel called a “battle of the apologies”. The CDA and the other parties that had allegedly defamed Ms Freeburn then applied to the court to have the proceedings dismissed.

The judge agreed that the proceedings should be dismissed, including on the bases that the matter complained of was too trivial to be wasting the court’s resources (the cost to the court would be grossly disproportionate to what was at stake for the plaintiff) and that the costs of the proceedings could not be justified in light of the parties’ financial situations  (none apparently had any real income or assets to pay the legal bills). The judge also noted that, while defamation should be about clearing a person’s reputation, this case had devolved into another means by which Ms Freeburn could pursue a vendetta against the CDA and various individuals.

The judge further noted that a number of Ms Freeburn’s claims were close to hopeless, given the various defences that the defendants would be able to rely on. For example, the CDA was under an obligation to publish motions that had been put forward for upcoming meetings (so would have a good defence of “qualified privilege”).

You can read the judgement at:

http://www.austlii.edu.au/au/cases/nsw/NSWDC/2014/173.html