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  • Unreported Judgment

Gardiner v Horton Park Golf Club Maroochydore Inc

 

[2005] QSC 8

 

SUPREME COURT OF QUEENSLAND

  

PARTIES:

FILE NO:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

31 January 2005

DELIVERED AT:

Brisbane

HEARING DATE:

21 January 2005

JUDGE:

Wilson J

ORDERS:

(i)that the statement of claim be struck out;

(ii)that the plaintiff have leave to file and serve a further statement of claim within 14 days.

CATCHWORDS:

PRACTICE AND PROCEDURE – STRIKING OUT OF CLAIM AND STATEMENT OF CLAIM – whether statement of claim should be struck out if words of article were not capable of having the defamatory meaning imputed to them

DEFAMATION – STATEMENTS AMOUNTING TO DEFAMATION – IN GENERAL - whether statements in article are capable of bearing imputed defamatory meanings

Defamation Act 1889 ss 4, 5(1), (18(2)

Favell v Queensland Newspapers Pty Ltd [2004] QCA 135.

COUNSEL:

DC Spence for the plaintiff

P W Hackett for the defendants

SOLICITORS:

Thynne & Macartney for the plaintiff

Schultz Toomey O’Brien for the defendants

[1] The plaintiff claims damages for defamation.  The defendants have applied to strike out the statement of claim, or alternatively to strike out paragraphs 5 and 8(b) of it.  (The other relief sought in their application was not pursued.)

Background

[2] The first defendant (“the Club”) owned land known as the Horton Park Golf Club at Maroochydore.  A developer, FKP Limited (“FKP”), agreed to purchase part of the land, the agreement being conditional on the Maroochy Shire Council’s approving an application by a related company for the subdivision of part of the land and the construction of a residential home unit complex of not less than 80 units.

[3] The second defendant was the president of the first defendant.

[4] The plaintiff was a local solicitor.  His family trust, of which Spondor Pty Ltd (“Spondor”) was the trustee, owned two blocks of land in Mungar Street, next to the golf club and adjacent to the proposed development.  The plaintiff lived on one of the blocks.  Spondor lodged an objection to the proposed development, which was rejected by the Council.  It then lodged an appeal in the Planning and Environment Court to which the Council and FKP are respondents.

[5] The first defendant published a newsletter Nearest the Pin every six weeks, which it distributed to its members and made available for perusal by their guests.

Two publications

[6] The plaintiff claims he was defamed in two articles – one written by the second defendant and published in Nearest the Pin and the other published in the Sunshine Coast Daily and being a republication of words published by the second defendant to an employee or agent of the newspaper.  He alleges that these words were published of and concerning him and that they contained certain defamatory imputations.  Counsel for the applicant defendant submitted that they were incapable of bearing the pleaded defamatory imputations to an ordinary reasonable reader.

[7] By ss 4 and 5(1) of the Defamation Act 1889 –

Definition of defamatory matter

 

4(1)Any imputation concerning any person, or any member of the person’s family, whether living or dead, by which the reputation of that person is likely to be injured, or by which the person is likely to be injured in the person’s profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise the person is called ‘defamatory’, and the matter of the imputation is called ‘defamatory matter’.

 

(2)An imputation may be expressed either directly or by insinuation or irony.

 

5(1)Any person who, by spoken words or audible sounds, or by words intended to be read either by sign or touch, or by signs, signals, gestures, or visible representations, publishes any defamatory imputation concerning any person is said to defame that person.”

 

Whether any matter alleged to be defamatory is or is not capable of bearing a defamatory meaning is a question of law which falls to be determined according to the meaning which an ordinary reasonable reader of that material would place upon it:  Defamation Act s 18(2); Favell v Queensland Newspapers Pty Ltd [2004] QCA 135.  In Favell the primary judge’s thorough review of the authorities was approved by the Court of Appeal; at para [14] Jerrard JA distilled the following points:

(i) the central proposition of whether the published material is capable of bearing the pleaded imputations is to be determined by reference to the understanding of the ordinary reasonable reader;

(ii)  any strained, forced or utterly unreasonable interpretation is to be rejected; 

(iii)  it is to be acknowledged that the ordinary reasonable reader does read between the lines and is prone to engage in a certain amount of loose thinking; 

(iv) it is the broad impression conveyed by the words to such a reader which must be considered.

 

The proper approach to an application to strike out a pleading alleging material to be defamatory was described by McPherson JA in these terms (at para [2]) –

“Whether or not it ought to and will be struck out is ultimately a matter for the discretion of the judge who hears the application.  Such a step is not to be undertaken lightly but only, it has been said, with great caution.  In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at.  The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out.  But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step whatever stage it falls to be taken.”


The first publication

[8] The following article, written by the second defendant, appeared in the June 2004 edition of Nearest the Pin.

“We are pleased to advise that during negotiations with FKP over the need to extend the Option Agreement due to the court cases (see later) we have been able to extend the minimum payment which they are required to make if they exercise the Option.

 

The sum agreed on has been increased from $4 million to $7.205 million.

 

The increase has been achieved on the basis that the original land was approximately 7000 square metres and was increased to 10000 square metres allowing for an increase in the number of units approved by Council.  It also recognizes some increase in the value of land over time.  On the basis of this new arrangement the Board has extended the FKP option.   Members should be aware that this amount only represents the MINIMUM which the club is required to accept but does not change the method of calculating the final price.  That remains the average of three independent valuations PROVIDED that the average is above this new minimum.

 

Thus if FKP are successful in the court appeals the Club should expect to receive a very healthy contribution to its funds!

 

The court cases are to be held in late July and in October. Both are as a result of appeals against the Council approvals granted to FKP by family trusts owned by Club Member and local solicitor Mr Andrew Gardiner.  The first is basically to determine if the FKP application was made correctly the second and longer case, is to determine whether Mr Gardiner’s concerns regarding traffic, loss of view etc are sufficient to overturn the Council decision.

 

FKP have offered Mr Gardiner an inducement to withdraw his appeals in the interest of all parties but they have advised us that Mr Gardiner has demanded a sum of $1 million dollars to do so.  FKP is not prepared to offer that sort of inducement especially as Mr Gardiner would retain ownership of his two Mungar Street properties.

 

The Board urges Mr Gardiner to reconsider his position as it believes that not only will he receive an inducement but the FKP DA increases the probability that he too will be able to get greater height approvals should he wish to develop his properties in the future.  The benefits to the Club of which he is a Member are obvious and fully supported by a majority of Members.”

[9] In paragraph 5 the plaintiff alleges the words contained certain imputations, and in paragraphs 12 and 13 he alleges that those imputations were defamatory.  I shall deal with each of the imputations alleged in paragraph 5 in turn.

[10] (a) The plaintiff attempted to extort one million dollars from FKP by threatening to continue the Appeal against Council’s approval of FKP’s development application should such payment be refused.

 

I do not accept that the first publication was capable of conveying this meaning to an ordinary reasonable reader.  “To extort” is to wrest something from another by improper demand or improper use of force or authority.  The primary meaning ascribed to it in the Oxford English Dictionary Online (Oxford University Press, 2005) is –

“to obtain from a reluctant person by violence, torture, intimidation, or abuse of legal or official authority, or (in a weaker sense) by importunity, overwhelming arguments, or any powerful influence.”

 

In the Macquarie Dictionary (The Macquarie Library, 1992) these meanings are given –

“1. to wrest or wring (something) from a person by violence, intimidation, or abuse of authority; obtain (money, information, etc) by force, torture, threat, or the like.  2. to take illegally under cover of office.” 

 

It was recorded that one of the appeals was to determine whether the plaintiff’s concerns about traffic, loss of view, etc were sufficient to overturn the Council decision. Then it was recorded that FKP had offered him an inducement to withdraw the appeals in the interest of all parties …

“but Mr Gardiner has demanded a sum of $1 million dollars to do so.  FKP is not prepared to offer that sort of inducement especially as Mr Gardiner would retain ownership of his two Mungar Street properties.”

 

There was no suggestion of anything unlawful in the institution or continuation of the appeals. The publication was incapable of meaning that the plaintiff had improperly threatened to continue the appeals unless he was paid $1 million.  Rather it could only have meant that FKP and he had engaged (at FKP’s instigation) in some haggling about the value of his appeal rights.

[11] (b) The plaintiff acted unethically in demanding a payment of one million dollars in return for discontinuing the Appeal against Council’s approval of FKP’s development application.

 

To act unethically is to act without a proper sense of morality.  I do not accept that the publication was capable of conveying to an ordinary reasonable reader that the plaintiff had so acted in demanding $1 million to withdraw the appeals.  While the publication included arguments why FKP and the defendants thought the sum was excessive, that is a far cry from saying the demand was made unethically.

[12] (c)  The plaintiff is unfit to practice[sic] as a solicitor by reason of the fact that he had attempted to extort one million dollars from FKP by threatening to continue the Appeal against Council’s approval of FKP’s development application should such payment be refused.

 

Because I consider the publication was incapable of conveying that the plaintiff attempted to extort $1 million as alleged, it was incapable of conveying that he was thereby unfit to practise as a solicitor.

[13] (d) The plaintiff lacks integrity in that he lodged an Appeal against Council’s approval of FKP’s development application not out of any genuine concern for the loss of amenity and value of the Spondor land, but merely as a basis for demanding money to which he was not entitled, in return for discontinuing the Appeal against Council’s approval of FKP’s development application.

 

The Oxford English Dictionary Online contains the following definitions of “integrity”-

“In moral sense.  A. Unimpaired moral state; freedom from moral corruption; innocence, sinlessness.  Obs. B. Soundness of moral principle; the character of uncorrupted virtue, esp. in relation to truth and fair dealing; uprightness, honesty, sincerity.”

 

I do not consider that the publication was capable of conveying the alleged meaning to an ordinary reasonable reader.  It was recorded that one of the appeals was to determine whether the plaintiff’s concerns about traffic, loss of view, etc were sufficient to overturn the Council decision, that FKP had offered him an inducement to withdraw the appeals in the interest of all parties, and that he had demanded $1 million to withdraw the appeals.  There is nothing from which it might be inferred that he had no genuine concern for the loss of amenity and value of the Spondor land, or that he had instituted the appeals as a basis for demanding money to which he was not entitled.

[14] (e)  The plaintiff was unfit to be a solicitor in that he sought to misuse and so abuse the Appeal process in the Planning and Environment Court, as the purpose for his lodging and maintaining the Appeal was for an improper purpose, namely to extract a payment of one million dollars, to which he was not entitled, from FKP.

 

The publication is incapable of conveying that the plaintiff lodged the appeal for the improper purpose of extracting from FKP $1 million to which he was not entitled.  Similarly it is incapable of conveying that he was maintaining the appeal for such a purpose. As I have said, it recorded the matters to be determined on appeal, and it could only have meant that FKP and he had engaged (at FKP’s instigation) in some haggling about the value of his appeal rights.  Accordingly it could not have conveyed that he had sought to misuse or abuse the appeal process and that he was thereby unfit to be a solicitor.

[15] (f)  The plaintiff had demanded from FKP a bribe in the sum of one million dollars, to discontinue the Appeal against Council’s approval of FKP’s development application.

 

In the Oxford English Dictionary Online the contemporary use of “bribe” is described as –

“a consideration voluntarily offered to corrupt a person and induce him to act in the interest of the giver, eg a consideration given to a voter to procure his vote”


and the Macquarie Dictionary contains the following definitions –

“1.  any valuable consideration given or promised for corrupt behaviour in performance of official or public duty.  2. anything given or serving to persuade or induce.”

 

The publication was incapable of conveying that the plaintiff had demanded the $1 million for a corrupt purpose; it was incapable of conveying that he had demanded a bribe.


 

The second publication

[16] The plaintiff alleges that the second defendant, acting in his role as president of the first defendant, published the following words to an employee of the Sunshine Coast Daily

I offered Andrew Gardiner three hundred thousand dollars from Golf Club funds to drop his Appeal against FKP’s development application.  He said he’d think about it.  Have a look at our June newsletter.  He demanded money, a million dollars, from FKP, and they haven’t paid.  I just made the offer off my own bat, I didn’t go through members to clear the three hundred thousand dollars.  I believe it was right to offer the money.  The appeal is wasting the Club’s time and costing heaps.”

 

He alleges that those words were republished in the newspaper in the following article –

"Lucrative offer made to drop costly appeals

Club member threatens future of development

 

 By Gordon Clark

 

Horton Park Golf Club President Mick Hourigan said yesterday he had offered solicitor Andrew Gardiner $300,000 to drop his appeals against a proposed residential development on club land.

 

The offer was made on behalf of the club, but Mr Hourigan, Maroochy’s division 10 councillor, admitted he had not sought a members’ vote beforehand.

 

He said by allowing the appeals to proceed, ‘all it would do is cost us time and money’

 

‘As president, I’ve offered him $300,000 … not from members, off my own bat,’ Mr Hourigan said.

 

‘He said he’d think about it.’

 

Earlier this year, the council approved a nine-storey residential development on the land which adjoins the club’s practice fairway.

 

In return for the development rights, developer FKP had agreed to pay the club $4 million, a sum that has more recently been revised upward to a minimum of $7.205 million.

 

The revision was based on an increase in the land’s value since discussions started, the amount of land being increased from 7000 sq m to 10,000 sq m and an increase in the number of units approved by council.  An item in the club’s June newsletter suggested FKP had also offered Mr Gardiner ‘an inducement to withdraw his appeals’, adding Mr Gardiner had allegedly demanded ‘a sum of $1 million to do so’.

 

But FKP CEO Peter Brown denied any ‘inducement’ had been offered, saying the company had ‘discussed buying his (Mr Gardiners) properties in Mungar Street’ and the possibility of ‘compensating him for any detriment he might suffer because of our development’.

 

Mr Gardiner did not return the Daily’s calls on the matter.”

[17] It was not submitted that the article in the Sunshine Coast Daily was not a republication of the words spoken by the second defendant.  The only matter argued before me was whether the article contained the imputations alleged in paragraph 8(b) of the statement of claim (which imputations were alleged in paragraphs 12 and 13 to be defamatory).  I shall deal with each of the imputations alleged in paragraph 8(b) in turn.

[18]  (i)The plaintiff’s greed was such that he would withdraw the Appeal against  Council’s approval of FKP’s development application only upon receipt of   the right monetary inducement, regardless of the source.

Two possible sources of monetary payment were discussed – the Club (the first defendant) and FKP.  It was reported that the plaintiff had said he would think about the money offered by the second defendant out of Club funds.  The statement that the Club’s newsletter had suggested FKP had offered the plaintiff an inducement to withdraw the appeals and that he had demanded $1 million to do so was followed immediately by a denial by FKP that it had offered any inducement and a statement that the company and the plaintiff had discussed the purchase of his Mungar Street properties and the possibility of compensation for detriment.

“Greed” is an inordinate or insatiable desire for something, often money.  There is nothing in the article from which an ordinary reasonable reader could form a view as to whether he was being greedy.  The Club stood to gain $7.205 million in return for development rights.  FKP was proposing a nine storey residential complex.  The plaintiff had properties in Mungar Street – but their value and the detriment that might result from the development were not quantified.  I do not consider that the article was capable of conveying the alleged meaning to an ordinary reasonable reader.

[19] (ii) The plaintiff  in using the Appeal as a means to obtain a payment to which he was not otherwise entitled, is so lacking in integrity that, in pursuit of his monetary goal, he was willing to cause the Golf Club to waste time and money fighting the Appeal. 

 

There was nothing from which an ordinary reasonable reader could conclude that the plaintiff was seeking to obtain a payment to which he was not otherwise entitled. The article conveyed that the second defendant thought that the Club would waste time and money if it allowed the appeals to proceed, but it contained nothing from which it could be inferred that the plaintiff was acting dishonestly or that he was not sincerely pursuing Spondor’s appeal rights.  I do not consider that the article was capable of conveying the alleged meaning.

[20] (iii) The plaintiff’s greed is such that the second defendant, as President, felt compelled to offer the plaintiff three hundred thousand dollars to discontinue the Appeal, without seeking approval from the first defendant’s members, because money was what the plaintiff required to discontinue the Appeal.

 

The only reference to the plaintiff’s requiring money in order to discontinue the appeals was in the report of the newsletter having suggested FKP had offered him an inducement to withdraw the appeals and that he had demanded $1 million to do so. But that was followed immediately by the company’s denial of having offered any inducement and its statement that it had discussed purchasing the Mungar Street properties and compensation.  While an ordinary reasonable reader may have concluded that the plaintiff might withdraw the appeals in return for a monetary payment, there was nothing from which such a reader could conclude that the plaintiff was being greedy or so greedy as to justify (even in the mind of the second defendant) the second defendant’s unauthorised offer of $300,000 of Club funds.

[21] (iv)  The plaintiff attempted to extort one million dollars from FKP by threatening to continue his Appeal against Council’s approval of FKP’s development application should such payment be refused.

 

There was no suggestion of anything unlawful in the institution or continuation of the appeals.  The publication was incapable of meaning that the plaintiff had improperly threatened to continue the appeals unless he was paid $1 million.  Rather it could only have meant that FKP and he were reported to have engaged (at FKP’s instigation) in some haggling about the value of his appeal rights.

[22] (v) The plaintiff acted unethically by demanding a payment of one million dollars in return for discontinuing his Appeal against Council’s approval of FKP’s development application.

 

I do not accept that the publication was capable of conveying to an ordinary reasonable reader that the plaintiff had acted without a proper sense of morality in demanding $1 million to withdraw the appeals.  As I have said, it could only have meant that FKP and he were reported to have engaged (at FKP’s instigation) in some haggling about the value of his appeal rights.

[23] (vi) The plaintiff is unfit to practice [sic] as a solicitor because he attempted to extort one million dollars from FKP by threatening to continue the Appeal against Council’s approval of FKP’s development application should such payment be refused.

 

This article was no more capable of conveying this meaning to an ordinary reasonable reader than was the first publication.

[24] (vii) The plaintiff lacks integrity in that he lodged the Appeal against Council’s approval of FKP’s development application not out of any genuine concern at the loss of amenity and value of the Spondor land, but merely as a basis for demanding money to which he was not entitled, in return for discontinuing the Appeal against Council’s approval of FKP’s development application.

 

This article was no more capable of conveying this meaning to an ordinary reasonable reader than was the first publication.

[25] (viii) The plaintiff is unfit to be a solicitor in that he sought to misuse and so abuse the Appeal process in the Planning and Environment Court, as the purpose for his lodging and maintaining the Appeal was for an improper purpose, namely, to extract a payment of one million dollars, to which he was not entitled, from FKP.

 

This article was no more capable of conveying this meaning to an ordinary reasonable reader than was the first publication.

[26] (ix) The plaintiff had demanded from FKP a bribe in the sum of one million dollars, to discontinue the Appeal against Council’s approval of FKP’s development application.

 

This article was no more capable of conveying this meaning to an ordinary reasonable reader than was the first publication.

 

Conclusion

[27] Conscious as I am of the caution with which an application such as this should be approached, I am firmly of the view that neither publication was capable of conveying to an ordinary reasonable reader the meanings alleged.  It follows that the paragraphs of the statement of claim in which they are pleaded should be struck out.  Without them, the whole pleading fails.

[28] I order that the statement of claim be struck out.  I give the plaintiff leave to file and serve a further statement of claim within 14 days.

Close

Editorial Notes

  • Published Case Name:

    Gardiner v Horton Park Golf Club Maroochydore Inc & Anor

  • Shortened Case Name:

    Gardiner v Horton Park Golf Club Maroochydore Inc

  • MNC:

    [2005] QSC 8

  • Court:

    QSC

  • Judge(s):

    Wilson J

  • Date:

    31 Jan 2005

Litigation History

No Litigation History

Appeal Status

No Status