Nicetin v Price[2003] QCA 332

SUPREME COURT OF QUEENSLAND 

THE PRESIDENT:  The applicant has filed a notice of appeal from a decision of the District Court awarding the respondent damages for defamation in the sum of $40,000, together with interest and costs to be assessed.

There is, however, no right of appeal to this Court from a judgment in this amount which is less than the Magistrates Court jurisdictional limit:

see s 118(2)(a)(i) District Court of Queensland Act 1967.  The applicant, in fact, requires an extension of time within which to seek leave to appeal from that judgment:

see s 118(3) District Court of Queensland Act 1967.

Both parties were strata title lot owners in a large shopping centre at Hope Island on the Gold Coast called Village Square.  The respondent had been involved in lengthy litigation, challenging the applicant's right to exclusive occupancy of a part of the shopping centre and as to whether the applicant could charge an entrance fee to the complex.  Ultimately the first issue was determined in favour of the applicant and the second against him.  The litigation cost the body corporate of Village Square about $36,000.  This was the background to the defamation action here.

The learned primary Judge found that the applicant defamed the respondent in a letter to other lot owners of Village Square written, at least in part, with a view to improving the complex.  The defamatory portions of the letter stated that the respondent was reckless and egotistical; had a hidden agenda in ensuring that litigation involving the body corporate was promoted; was a person who consistently put her own position before that of any other lot owner; was manipulative and used the body corporate for her own means; mismanaged or was part of the mismanagement of any committee upon which she served; performed any duties on any committee in such a manner as to cause mismanagement; was involved in wasting the body corporate's money; was obnoxious, offensive, prone to disruptive behaviour, argumentative; offensive in her treatment of others and abusive to other committee members and disruptive at committee meetings; meetings had to be closed because of her behaviour; her inflammatory behaviour caused others to become angry at meetings; was vindictive and would do all she could to ensure those who voted or worked against her were subject to punishment, inflammatory behaviour, offence and abuse; her decisions were fraught with disaster;  she was nasty in attitude and attempted to brick-wall well-meaning intentions.  There is no complaint with that finding of defamation. 

The appeal sought to be brought is now limited to an appeal from the quantum of the damages awarded.  The applicant's contention is that the award was manifestly excessive and unsustainable and only nominal damages should have been awarded because of the respondent's poor character.

His Honour found the respondent to be a person who was passionate about her beliefs; who could be emotional; who was sometimes offensive to others and who was more than capable of looking after herself in any verbal exchange.  His Honour found that the appellant was actuated by ill-will in his defamation of the respondent and rejected claims that only nominal damages should be awarded on the basis that she was of poor character.  His Honour pointed out that damages in defamation are for injury to reputation, not character.  His Honour declined to award exemplary damages.  His Honour was not satisfied the respondent had a bad reputation or a reputation for being a person of poor character prior to the applicant's publication of the defamatory letter which, after reading a strong supporter of her might be less approving and one who held her in poor regard may also have thought less of her.  His Honour determined that there were no circumstances justifying an adverse view of the respondent's conduct or character so as to award only nominal damages.  His Honour recognised that compensation was not only for her reputation, but also for the distress caused to her by the publication of the defamation.  His Honour concluded that the appellant had aggravated the damages because he had not apologised and had sought to set up the defence of truth to prove that the respondent's reputation and character was of so little worth that it was not harmed by the defamation.

It is true, as the applicant emphasises in his submissions, that the respondent had been critical in correspondence of members of the body corporate prior to the applicant's defamatory letter.  Mr Ringuet, at the relevant time chair of the body corporate, considered the respondent was sometimes offensive, inappropriate, inflammatory and insulting to the body corporate committee.  The learned primary Judge appears to have taken these matters into account in finding that the respondent sometimes expressed herself, orally or in writing, inappropriately.

Despite having listened carefully to the submissions made by the applicant's counsel, who has said all that could be said on his behalf, the applicant has not demonstrated that the respondent's reputation was such as to necessitate only an award of nominal damages or to otherwise warrant the giving of leave to appeal from the discretionary award of damages here. Nor has the applicant demonstrated any other sound reason justifying leave to appeal.

The award of damages appears to have been based on sound principle and, although very generous, does not seem to have been obviously manifestly excessive.  As leave, in my view, should not be granted here, it is unnecessary to consider further the appropriateness of the quantum of this award.

I would strike out the appeal as incompetent and refuse the extension of time within which to seek leave to appeal with costs to be assessed.

MACKENZIE J:  I agree with what the President has said.  The principal thrust of the written submissions was that nominal damages only were appropriate in this case.  That is plainly untenable. 

One other factor that was rather unusual about the case was that the defendant, for reasons that were not explained, did not give evidence. 

Otherwise, I agree with the reasons of the President.

HELMAN J:  I agree with what has been said by the President and by Mr Justice Mackenzie and with the orders proposed.

THE PRESIDENT:  The orders are as I have proposed.