Shift2Neutral Pty Ltd v Fairfax Media Publications Pty Ltd

COURT OR TRIBUNAL

Supreme Court of New South Wales, Supreme Court of New South Wales - Court of Appeal

DATE FILED (OR FIRST HEARING DATE)

02/12/2013

LITIGATION TYPE

Corporate Accountability, Corporate Accountability

SUBJECT MATTER

Carbon credits and offsets, Transparency and disclosure

REVIEW TYPE

Judicial review

SUMMARY

Excerpt from headnote of appeal judgment:

In July 2007 Mr Goldsworthy incorporated Shift2Neutral Pty Ltd (Shift) for the purpose of conducting environmental audits and offering certificates representing credits under a carbon offset scheme to entities wishing to reduce their carbon footprint or render their operations carbon neutral. On 8 and 14 April 2011 The Sydney Morning Herald, published by Fairfax Media Publications Pty Ltd, published two articles by Mr Ben Cubby in which Shift was described as appearing to “be fake, shifting paper certificates instead of saving forests and cutting greenhouse emissions” thus deceiving its customers and investors. The second article alleged that Oakhill College, a Sydney school, which held Shift’s certificates, was deceived into believing that it was the first “carbon neutral” school in the world. The articles specifically referred to the carbon credits issued with respect to a Borneo rainforest and a pyrolysis waste management operation in Korea. Mr Goldsworthy and Shift brought defamation proceedings against the publishers pleading a number of defamatory imputations said to have arisen from the articles. The publishers pleaded justification under s 25 of the Defamation Act 2005 (NSW) asserting that each of the imputations was substantially true. The trial judge, Nicholas AJ, found that the pleaded imputations were defamatory, but upheld the defence.

Mr Goldsworthy and Shift appealed, alleging that trial judge erred in: (i) finding that the certificates were valueless on the basis of inferences drawn from the way Shift documented and registered the certificates and in doing so reversed the onus of proof; and (ii) finding that all the imputations were substantially true, but specifically those alleging that the appellants deceived investors and recipients of the certificates.

The Court of Appeal dismissed the appeal.

CASE DOCUMENTS

Shift2Neutral Pty Ltd v Fairfax Media Publications Pty Ltd [2014] NSWSC 86
Shift2Neutral Pty Ltd v Fairfax Media Publications Pty Ltd [2015] NSWCA 274