MG v PJ[2025] QCA 99

SUPREME COURT OF QUEENSLAND

1. [1]
   FLANAGAN JA:  Pursuant to s 10A(1) of the Defamation Act 2005 (Qld) (the Act), it is an element of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.
2. [2]
   This is referred to as “the serious harm element”.
3. [3]
   On 5 October 2023, the appellant commenced defamation proceedings against his brother-in-law (the first respondent) and his nephew, the son of the first respondent, (the second respondent).
4. [4]
   Four of the pleaded defamatory matters arise from statements made by the respondents to police and the alleged republication of those statements in police protection notices on 19 and 20 January 2023.^[1]
5. [5]
   By consent, and pursuant to s 10A(5) of the Act, the serious harm element was determined by the learned primary judge as a separate question before the trial of the proceedings commenced.
6. [6]
   The issue on this appeal is whether his Honour was correct in finding on the evidence, and in the particular circumstances of this case, that the appellant had failed to establish that the publication of the four defamatory matters had caused, or was likely to cause, serious harm to the appellant’s reputation for the purposes of s 10A of the Act.^[2]
7. [7]
   The respondents do not oppose either the appellant’s application for an extension of time to apply for leave to appeal^[3] or his application for leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld).  As the issue on this appeal concerns the proper construction and application of s 10A of the Act, which sits within a national uniform framework,^[4] it is appropriate to grant leave to appeal.
8. [8]
   For the reasons which follow, the primary judge’s finding was correct and the appeal should be dismissed with costs.

The separate question – the evidence and relevant factual background

9. [9]
   In about November 2021, the appellant’s wife was diagnosed with a mild cognitive impairment as a result of mixed dementia being a form of both Alzheimer’s Disease and vascular dementia.
10. [10]
    At the time of the publications, the appellant and his wife had been together for approximately 53 years.  They have two adult daughters.  Since his wife’s diagnosis, the appellant has been her primary carer.
11. [11]
    On 13 January 2023, the appellant and his wife had a disagreement which resulted in the appellant leaving their unit and staying at his eldest daughter’s house who was overseas at the time.
12. [12]
    On 15 January 2023, the appellant returned to the unit to return his wife’s phone.  He observed that the first respondent and the first respondent’s wife were staying with his wife at the unit.
13. [13]
    On 19 January 2023, the appellant received a text message from his wife seeking the appellant’s assistance to have the first respondent and his wife leave the unit.  The appellant returned to the unit that evening.  An altercation occurred in the carpark area involving the appellant and the first respondent.
14. [14]
    The appellant left and returned to his eldest daughter’s house.
15. [15]
    On 19 January 2023, at a time after 8.45 pm, the respondents participated in an interview with Queensland Police.  The words spoken to police on this occasion, which are set out below, constitute the first matter complained of.
16. [16]
    After the interview, Queensland Police issued a police protection notice dated 19 January 2023 (the First PPN).  It named the appellant as the respondent and his wife as the aggrieved.  It also identified two police officers, one as the “authorising officer” and the other as the “issuing police officer”.  The First PPN was pleaded as a republication of the substance of the first matter complained of and the imputations arising from it.^[5]  The First PPN constitutes the second matter complained of.
17. [17]
    On 20 January 2023, in the early hours of the morning, the appellant decided to drive back to the unit.  He admits he drove while very intoxicated.  He was stopped by police and found to have a blood alcohol concentration of 0.182 per cent.^[6]
18. [18]
    The appellant became aware of the First PPN in the early hours of the morning of 20 January 2023, when he received a copy of the First PPN at the watch-house when being charged in relation to the drink driving offence.^[7]
19. [19]
    On 20 January 2023, the respondents participated in a further interview with Queensland Police.  The words published by the respondents, which are set out below, constitute the fourth matter complained of.
20. [20]
    On the same day, Queensland Police issued a further police protection notice dated 20 January 2023 (the Second PPN).  The Second PPN identified the appellant as the respondent and the first respondent as the aggrieved.  The Second PPN was pleaded as a republication of the substance of the fourth matter complained of and the imputations arising from it.^[8]  The Second PPN constitutes the fifth matter complained of.  The Second PPN contained allegations that the appellant had contravened the First PPN by contacting or attempting to contact his wife.
21. [21]
    Both the First PPN and the Second PPN were issued pursuant to provisions of the Domestic and Family Violence Protection Act 2012 (Qld) (the 2012 Act).  These provisions are considered below.  Generally they require the police officer who issues the notice to hold a reasonable belief that the relevant respondent has committed domestic violence.  In this respect, the First PPN relevantly stated:^[9]

“Due to the respondent’s clear display of bad behaviour in physically assaulting one of the named persons [the first respondent] and making extensive amounts of threats to commit similar offences Police reasonably believe [they] are in need of the protection in which an Order can provide. Further, both named persons are strong participants in the aggrieved’s day to day life and as her family they have all intentions of assisting her heavily in the future with regards to navigating this situation and possibly this long-term relationship breakdown.”

22. [22]
    To similar effect, the Second PPN stated:^[10]

“Police strongly believe that this matter will likely not be resolved in the short-term and that there is a present need for extended family members to be protected through a DV Order against the respondent as he has displayed a blatant disregard to the matter.  The respondent almost immediately contacted the aggrieved after being released from custody after service of the documents.”

23. [23]
    Before considering the evidence adduced at first instance in relation to the serious harm element, four observations should be made.  First, before the primary judge, the appellant alleged that the five publications had caused serious harm to three sectors of his reputation: family members, residents of the unit complex and police.  The appellant relied on five affidavits:

    1. two affidavits of the appellant;
    2. one affirmed by his brother;
    3. one sworn by the treasurer of the body corporate; and
    4. one affirmed by the solicitor who represented the appellant in relation to the assault charge arising from the altercation with the first respondent on 19 January 2023.
24. [24]
    For the respondents, an affidavit from each daughter of the appellant was filed.  All witnesses, apart from the solicitor, gave evidence and were cross-examined.
25. [25]
    Secondly, as found by the primary judge, serious harm to the appellant’s reputation with family members and residents of the unit complex was not established:^[11]

“[18] There is little evidence to permit any conclusion about the relationship between the plaintiff and other residents of the unit complex, much less whether any of them had existing opinions about the plaintiff’s reputation.  [The treasurer of the body corporate’s] evidence was to the effect that before the publications, the plaintiff and his wife seemed happy, and he did not hear a harsh word between  them.  [The treasurer of the body corporate’s] said he had no reason to suspect either would do harm to the other. He also described the plaintiff as someone who could be ‘loud’, which put a few people off, but [the treasurer of the body corporate’s] did not hear the plaintiff abuse people generally. [His] unit was four floors away from where the plaintiff lived, such that [he] could not hear what went on in the unit.  [He] also said he worried about the amount of alcohol the plaintiff drank and that he might drive while drunk.  [He] said  nothing  of  his  perception  of  the  plaintiff  after  becoming  aware  of  the first PPN. All he said was that other unit owners asked him about the incident because they were concerned and wanted to understand what had occurred.

[19] In these circumstances, I cannot come to any conclusion about whether other residents had an existing opinion of the plaintiff’s reputation, or whether they were disposed to believe or disbelieve the imputations conveyed by the publications.

[20] There was similarly limited evidence from family members who may have become aware of the publications. WK and NK, each a daughter of the plaintiff, deposed to a pre-existing poor view of the plaintiff.  Each thought the plaintiff drank too much, was verbally abusive towards his wife, and had been physically abusive towards her as well.  It seems unlikely that knowledge of the publications has changed their dim view of the plaintiff.

[21] MM, the plaintiff’s brother, thought that the plaintiff was a hard-working man who was loyal to his family.  He thought that the plaintiff enjoyed a good relationship with his daughters prior to the publications.  This is a little at odds with the evidence of WK and NK.  MM described in some detail what he saw as the effect of these events on the plaintiff but said nothing of his own perception of the plaintiff’s reputation.  In cross-examination, MM described the plaintiff as someone who would ‘get on the grog’ and become short-tempered.  He said that he would swear at and insult his wife at times when he was angry with her. MM gave evidence that in February 2023, just after the publications, he thought the plaintiff was ‘toxic’ and in need of mental health assistance.  This was a view he had reached at around the time of the events of late January 2023 and was based on his observations of the way in which the plaintiff treated his daughters.  He also deposed that he considered the family dynamic was toxic well before January 2023.”

None of these findings are challenged on appeal.

26. [26]
    Thirdly, the present appeal only concerns a consideration of the serious harm element in relation to the first and fourth matters complained of and, as a natural and probable consequence, the republication of those matters in the First PPN and the Second PPN, being the second and fifth matters complained of.  It follows that apart from the appellant’s evidence and the affidavit of his solicitor, together with any inferences that arose from all of the circumstances of the case, the balance of the evidence adduced before the primary judge is largely irrelevant.
27. [27]
    Fourthly, the appellant did not adduce evidence from any of the police officers to whom the first and fourth publications were made, nor any officer concerned in the issuing of either the First PPN or the Second PPN.
28. [28]
    As to the relevant evidence, in his first affidavit filed 25 June 2024, the appellant identified the following consequences to his personal circumstances as a result of the publications made to police:^[12]

“(a) I have felt intense embarrassment, anger and shame.

2. I have abused alcohol to stop these feelings.

…

4. I have since had multiple unpleasant interactions with Police.  I feel that I am treated differently by Police now, as if there is an immediate assumption of guilt or a preconceived view about me.  I feel that this is because I am now a person who (to their knowledge) has a record of violent behaviour towards my wife and family.”

29. [29]
    In evidence-in-chief the appellant stated that the First PPN and the Second PPN were no longer in effect.^[13]  Prior to the issuing of the First PPN, the appellant had very rare interactions with police.^[14]
30. [30]
    In cross-examination the appellant accepted that as a result of the altercation with the first respondent in the carpark on the evening of 19 January 2023 he was charged by police for common assault.^[15]  He accepted that police had intercepted him in the early hours of the morning of 20 January 2023 and that he had returned a blood alcohol reading of 0.182.  He was convicted of this offence in February 2023.^[16]  He also admitted that he did not comply with the First PPN.^[17]  He further accepted that he attended a police station in relation to an incident between himself and his eldest daughter which occurred on 18 January 2024.  He had been verbally abusive towards his eldest daughter which resulted in the issuing of a further PPN.^[18]  The appellant admitted that he became upset about the further PPN and was “locked up” for obstructing a police officer.^[19]  He was subsequently convicted of this offence after pleading guilty.^[20]  The reason he was at the police station when the offence of obstructing a police officer occurred, was because of an allegation that he had breached the further PPN issued in relation to his eldest daughter.^[21]  When asked in cross-examination whether his relationship with police arose because of his own conduct since January 2023, rather than the publication of the first, second, fourth and fifth matters complained of, his belief remained that it was because of the publications.^[22]
31. [31]
    The solicitor’s affidavit exhibited email exchanges between the respondents and the Queensland Police Service together with QPrime Reports disclosed by the Queensland Police Service.  The emails between the police and the respondents concern whether the first respondent wished to proceed with the assault charge against the appellant.  The appellant relies on these exchanges as indicating a preparedness by police to commence proceedings against the appellant at the first respondent’s convenience.  The appellant asserts that this is “reflective of a significantly diminished reputation in the eyes of the Police”.^[23]  The appellant also relies on the QPrime Reports as showing that the respondent’s publications caused the appellant to be entered into police systems as an alleged perpetrator of domestic violence and prompting multiple actions by police (including the issuing of the First PPN and the Second PPN).^[24]
32. [32]
    It is against this factual and evidentiary background that the serious harm element, in respect of the first, second, fourth and fifth matters complained of, must be considered.

The first, second, fourth and fifth matters complained of as pleaded

33. [33]
    As already observed, the first matter complained of arose from the respondents’ interview with police on 19 January 2023, during which the respondents together made statements to the following effect:^[25]

    1. The appellant’s wife was not in a fit state of mind to talk to the police;
    2. The appellant has behavioural issues from time to time;
    3. The appellant is hot headed, and this is exacerbated when he consumes alcohol;
    4. The appellant consumes alcohol on a daily basis and in large quantities;
    5. On or about 15 January 2023, the appellant’s wife informed the first respondent that the appellant and her were fighting and she was in need of help;
    6. The appellant’s behaviour was becoming more aggressive and escalating with threats;
    7. It was decided that the appellant’s wife would move out for a short time and stay at another family home;
    8. When the first respondent was packing his vehicle, in the carpark of the unit, the appellant returned home unexpectedly;
    9. The appellant immediately started to verbally abuse the first respondent before physically approaching him and throwing punches;
    10. The appellant started to verbally abuse his wife and the first respondent’s wife;
    11. The appellant called out to the first respondent’s wife to fight him;
    12. The appellant left in his vehicle upon becoming aware that the first respondent had called the police;
    13. The appellant contacted the first respondent by text and voicemail threatening to further assault him and asked him to meet the following morning to “sort it out once and for all”;
    14. The appellant had a long history of being verbally abusive and generally degrading towards his wife;
    15. The appellant would swear at his wife and call her all sorts of names and insults including calling her dumb;
    16. This type of behaviour has been consistent for many years and was just accepted that it was the way the appellant is and his wife would put up with it;
    17. Three or four months prior, the appellant’s wife disclosed to the first and second respondent that the appellant had:
        1. grabbed her around the throat in a choking manner during an argument;
        2. pinned her down against the floor and a side table pushing her head down however she managed to kick herself out of the situation;
    18. The second respondent saw physical marks on the appellant’s wife’s neck from that incident;
    19. The appellant’s wife sought legal advice however reneged on reporting that incident;
    20. The first and second respondents suspected this was due to the fact the appellant’s wife did not want to be alone and fears of possible repercussions; and
    21. The first respondent holds serious concerns for the safety and welfare of the appellant’s wife due to her vulnerable state not only due to the aggressiveness and threatening behaviour of the appellant but because the appellant’s wife is not fully cognisant of the situation and is extremely forgetful.
34. [34]
    Collectively, these statements constitute the first matter complained of. 
35. [35]
    The appellant pleaded that the following imputations arose from the first matter complained of:^[26]

    1. The appellant consumes excessive amounts of alcohol daily, which exacerbated his existing behavioural issues;
    2. The appellant has a long history of being verbally abusive towards his wife, who is suffering from dementia, including degrading her and insulting her intelligence;
    3. The appellant physically assaulted his wife who is suffering from dementia, by grabbing her around the throat and pinning her to the ground;
    4. The appellant’s behaviour towards women is aggressive and threatening;
    5. The appellant is a danger to his wife and others; and
    6. The appellant’s behaviour towards his wife warrants police intervention.
36. [36]
    The second matter complained of is the publication of the First PPN.  The appellant pleaded that the First PPN was a republication of the substance of the first matter complained of and gave rise to the following imputations:^[27]

    1. The appellant has a long history of being verbally abusive towards his wife, who is suffering from dementia, including degrading her and insulting her intelligence;
    2. The appellant physically assaulted his wife who is suffering from dementia, by grabbing her around the throat and pinning her to the ground;
    3. The appellant’s behaviour towards women is aggressive and threatening;
    4. The appellant is a danger to his wife and others;
    5. The appellant’s behaviour towards his wife warrants police intervention; and
    6. Police had grounds to believe that the appellant’s wife required protection from the appellant.
37. [37]
    The fourth matter complained of arose from the respondents’ second interview with Queensland Police on 20 January 2023, during which the respondents together made statements to the following effect:^[28]

    1. The appellant’s wife is suffering dementia and is not in a current state of mind to make formative decisions for herself;
    2. The appellant left multiple threatening voicemails on his wife’s mobile phone;
    3. The appellant made a direct threat towards the second respondent that if he and the first respondent were not out of the unit by the morning that the appellant was going to “fucking kill them”;
    4. The appellant’s behaviour is becoming more erratic and unpredictable; and
    5. The second respondent feels like he is constantly having to be on the lookout or aware if the appellant is going to attend his residence and potential cause damage or further fulfil his threat.
38. [38]
    The appellant pleaded that the following imputations arose from the fourth matter complained of:^[29]

    1. The appellant threatened his wife;
    2. The appellant threatened to kill the first and second respondents;
    3. The appellant has, by his threats of physical harm, caused the second respondent to be fearful for his life, his family’s safety and his property;
    4. It was necessary for the second respondent to take measures to ensure his and his family’s safety from the appellant;
    5. The appellant is aggressive, erratic and dangerous; and
    6. The appellant’s behaviour warrants police intervention.
39. [39]
    The fifth matter complained of is the publication of the Second PPN.
40. [40]
    The appellant pleaded that the Second PPN was a republication of the substance of the fourth matter complained of and gave rise to the following imputations:^[30]

    1. The appellant threatened his wife;
    2. The appellant threatened to kill the first and second respondents;
    3. The appellant has, by his threats of physical harm, caused the second respondent to be fearful for his life, his family’s safety and his property;
    4. It was necessary for the second respondent to take measures to ensure his and his family’s safety from the appellant; and
    5. Police had grounds to believe that the second respondent required protection from the appellant.
41. [41]
    As to the serious harm element, the appellant relevantly pleaded as follows:^[31]

“27. The defamatory imputations are objectively very serious.

28. The publication of the matters complained of, and their imputations have caused or are likely to cause serious harm to the [appellant’s] reputation, including but not limited to:

1. the [appellant] is now known to Police as someone who is violent, aggressive and abusive of his vulnerable wife;

2. the [appellant] now has two Police Protection Notices on his record;

3. the First PPN and the Second PPN, their contents and the fact of their issuing may be disclosed in the future and cause further harm to the [appellant’s] reputation in circumstances where he is [his wife’s] sole carer as well as her power of attorney.”

42. [42]
    The respondents in denying these allegations relevantly pleaded:^[32]

“(c) …the pleaded imputations were conveyed in circumstances in which:

1. the First Matter Complained of and Fourth Matter Complained of were published by the [respondents]:

1. to a limited number of persons, who were all members of the Police;

2. during the course of interviews with members of the Police relating to the conduct of the [appellant];

…

6. If the [appellant] has suffered or is likely to suffer serious harm (which is denied) that harm has been caused by his own conduct in the form of his assault of the First [Respondent] on 19 January 2023 for which he has been charged by the Police under s 335 of the Criminal Code (Qld) rather than the publication of the matters complained of.”

43. [43]
    As well as denying the serious harm element, the respondents pleaded a number of defences including substantial truth pursuant to s 25 of the Act, contextual truth pursuant to s 26 of the Act and qualified privilege both at common law and pursuant to s 30 of the Act.  As these pleaded defences only arise in the context that the serious harm element has been established, they do not require any further consideration.

The Reasons of the primary judge

44. [44]
    The primary judge was not satisfied that the serious harm element was established:^[33]

“I am not satisfied it is more probable than not that the publications complained of have caused, or are likely to cause, serious harm to the reputation of [the appellant].  The publications may convey the imputations that the [appellant] is a drunk who is verbally and physically abusive to his wife and is a danger to the [respondents].  But the narrow scope of the publication and the absence of sufficient evidence of reputational harm leads me to conclude that the [appellant] has not suffered, and is not likely to suffer, serious harm to his reputation.”

45. [45]
    His Honour, in arriving at this conclusion, had previously observed:^[34]

“The evidence relied upon by the [appellant] can establish only moderate harm to his reputation among a handful of people.  The evidence falls well short of proving that serious harm has been, or is likely to be, caused by the publications.”

46. [46]
    In the result his Honour made orders dismissing the appellant’s claim.
47. [47]
    At Reasons [3]–[7], by reference to Rader v Haines^[35] (Rader) and Lachaux v Independent Print Ltd^[36] (Lachaux), his Honour identified the relevant principles in relation to the application of s 10A of the Act.  These principles are considered below.
48. [48]
    One of the principles identified by his Honour was that serious harm is not established by the gravity of the imputations alone, or the hurt feelings of the relevant plaintiff. At Reasons, [11] his Honour noted that the respondents admitted much of the effect of the pleaded imputations.  His Honour proceeded on the premise that the imputations were grave.^[37]
49. [49]
    As to the extent of publication, his Honour noted that the first and fourth matters complained of were made to unidentified officers of the Queensland Police Service with the contents of those two matters complained of being republished in the First PPN and the Second PPN.  His Honour observed as follows:^[38]

“… it can be assumed the police are disinterested actors whose role, consistent with legislation, is to investigate an act where they reasonably suspect domestic violence has been committed.^[39]  There is no evidence of any prior or continuing relationship between the [appellant] and individual police officers.  As to whether the police believed the imputations, support for that conclusion can be found in the issuing of the PPNs.  A PPN may only be issued if a police officer reasonably believes that a person has committed domestic violence.^[40] This suggests the police believed at least enough of the matters the subject of the publications to form a reasonable belief that the [appellant] had committed domestic violence.”

50. [50]
    As to the effect of the publications on the appellant’s reputation, his Honour summarised the appellant’s evidence in relation to his interactions with police as follows:

“[25] First, he says that he has experienced multiple unpleasant interactions with the police, which are said to be indicative of the police having a low opinion of the [appellant].  It was not disputed that the [appellant] has had multiple unpleasant experiences with the police.  But the cause of these experiences was in contention.

[26] The [appellant] admitted that he drove while very intoxicated on 20 January 2023.  His blood alcohol concentration was 0.182%.  He was stopped by police in the early hours of the morning while driving back to his unit.

[27] A year later, on 18 and 19 January 2024, the [appellant] twice breached the first PPN by telephoning his wife.  In cross-examination, the [appellant] said this was a deliberate decision that he took because ‘he chose to care more for his wife than for the [PPN]’.

[28] On 18 January 2024, the [appellant] obstructed a police officer.  When asked by me what he had done, the [appellant] was unwilling to answer.  Despite pleading guilty to the charge before a Magistrate, the [appellant] claimed to not understand what it was that he had done wrong to constitute the charge.

[29] The police were also aware of an allegation that the [appellant] assaulted one of the [respondents].”

51. [51]
    His Honour considered that this evidence provided “a sufficient explanation for any unpleasant interactions with the police that the [appellant] has experienced.  There is no reason to think that any unpleasantness, as perceived by the [appellant] stems from the publications as opposed to the [appellant’s] own poor conduct set out above”.^[41]
52. [52]
    The primary judge accepted that while the publications caused or were likely to cause some harm to the appellant’s reputation, his Honour was not persuaded that on their own or in combination with other matters, they amounted to serious harm:^[42]

“[31] The individual police officers who heard the [respondents’] publications and decided to issue the PPNs can be assumed to have believed some of what was said by the [respondents]. Otherwise, the power to issue a PPN was not engaged. From this it follows that the police officers thought the [appellant] had committed an act of domestic violence. In turn this leads to a conclusion that, to the extent the police officers thought about the [appellant’s] reputation, their esteem for him was diminished. This indicates some harm to the [appellant’s] reputation, but I am not persuaded that on its own or in combination with the other matters discussed, it amounts to serious harm.

[32] That is so for at least two reasons.

[33] First, a belief that the [appellant] had committed an act of domestic violence would do little to change the opinion of a police officer considering the matters set out above.

[34] Secondly, police officers are expected to be professional and disinterested. The reputation of the [appellant] is unlikely to be of any concern to them, beyond matters which might affect how police officers deal with the [appellant]. Whether or not this amounts to harm to the [appellant’s] reputation, it does not amount to serious harm.”

The nature of the appeal

53. [53]
    By his Notice of Appeal, the appellant asserts that the primary judge committed three errors:

“a. … his Honour erred by concluding that the publication of defamatory matter, as set out as the matters complained of, did not cause or was not likely to cause the [appellant] serious harm to his reputation; (Ground 1)

b. … his Honour erred by misapplying the relevant legal test in failing to conclude that the evidence as it was in relation to the publication of the matters complained of did not amount to the causation of or the likely causation of serious harm to the [appellant’s] reputation; (Ground 2) and,

c. … his Honour otherwise erred in dismissing the application and therefore, the proceeding.” (Ground 3).

54. [54]
    From the appellant’s amended outline of argument, it is apparent that the type of errors asserted are those identified in House v The King.^[43]  For example, paragraph 17 of the appellant’s amended outline of argument asserts that it was “unreasonable” for the primary judge to conclude from the facts that the harm suffered by the appellant was not serious.  At the commencement of the hearing, the Court raised with the parties the nature of the appeal by reference to the decision of Kiefel CJ, Gageler and Jagot JJ in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore^[44] where the plurality stated at [16]:

“The reasoning in House v The King applies to judicial decisions involving an exercise of discretion.  It has been said that the concept of a “discretion” is “apt to create a legal category of indeterminate reference”, but the presently relevant essential characteristic of a discretionary judicial decision is that it is a decision where more than one answer is legally open. In Norbis v Norbis, for example, the power of a court to make an order altering the interests of parties to a marriage was characterised as a judicial discretion because the decision called for “value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right”. The line separating discretionary decisions (in which appellate review is confined to the House v The King standard) and other decisions (in which the “correctness standard” applies) was identified as that between questions lending “themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions” in which event “it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance”, and questions to which there is but one legally permissible answer, even if that answer involves a value judgment.”  (Citations omitted).

55. [55]
    The parties were directed to file a joint written submission addressing the nature of an appeal from a determination under s 10A of the Act as to whether the serious harm element is established.  The issue is whether a decision under s 10A is an evaluative decision to which the correctness standard applies, as in GLJ and Warren v Coombes,^[45] or whether it is an exercise of discretion which requires identification of the type of error described in House v The King.
56. [56]
    The parties jointly submit that it is the correctness standard that is to be applied and to the extent that the appellant’s primary or reply submissions read otherwise, they ought be ignored.^[46]
57. [57]
    The joint written submission as to the nature of the appeal should be accepted.  From the passage of the plurality in GLJ quoted above, the correctness standard applies to questions “to which there is but one legally permissible answer, even if that answer involves a value judgment”.
58. [58]
    The correctness standard was more recently considered by Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ in Moore (a pseudonym) v The King:^[47]

“The basis for intervention identified in House v The King was expressed to be dependent upon the subject matter of the appeal, being the exercise of a judicial “discretion”.  House v The King was an appeal against the imposition of a sentence of three months imprisonment for an offence under the Bankruptcy Act 1924 (Cth). While what constitutes a “discretionary decision” in this context can be ambiguous, in essence it refers to the circumstances where the decision maker is allowed “some latitude as to the choice of the decision to be made”.  A determination of which standard of review is applicable does not depend on whether the reasoning to be applied is evaluative or in respect of which reasonable minds may differ.  Instead, the determination turns on whether the legal criterion to be applied “demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies.” (Citations omitted).

59. [59]
    The present appeal is from the District Court in its original jurisdiction.  Accordingly, pursuant to s 118(8) of the District Court of Queensland Act 1967 (Qld), the appeal is by way of rehearing.  The evidence which was before the primary judge is set out above.  As already identified, the issue on this appeal is whether the primary judge was correct in finding on the evidence, and in the particular circumstances of this case, that the appellant failed to establish that the publication of the four defamatory matters to police has caused, or is likely to cause, serious harm to the appellant’s reputation for the purposes of s 10A of the Act.  That is, the separate question concerned the issue of whether the appellant had established the serious harm element.
60. [60]
    The determination of whether the serious harm element was established involved the primary judge undertaking an evaluative judgment based on the relevant evidence, including the inferences of fact that could be drawn from a consideration of the whole of the circumstances.  In this respect, Lord Sumption in Lachaux v Independent Print Ltd^[48] described the task of the relevant trial judge as follows:

“Warby J’s task was to evaluate the material before him, and arrive at a conclusion on an issue on which precision will rarely be possible.”

61. [61]
    To similar effect and by reference to Lachaux, in Peros v Nationwide News Pty Ltd (No 3),^[49] Applegarth J described the trial judge’s task as follows:

“The judge’s task is to evaluate the material before the court and ‘arrive at a conclusion on an issue on which precision will rarely be possible’.” (Citations omitted).

His Honour further observed:^[50]

“Having reached a conclusion on the basis that the material before the court about the harm that was caused, the judge makes an evaluation as to whether it amounts to ‘serious harm’.”

Simply because a determination as to whether the serious harm element has been established involves an evaluative exercise leading to a conclusion on an issue on which precision will rarely be possible, does not mean that the relevant finding constitutes an exercise of discretion.  Rather, as accepted by Lord Sumption in Lachaux, the defamatory matter “must also be shown to produce serious harm in fact”.^[51]

62. [62]
    As a determination as to whether the serious harm element has been established is one of fact and the appeal is by way of rehearing, this Court should apply the limitations on such an appeal identified in Warren v Coombes.^[52]  The relevant principles were identified by Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2):^[53]

“First, the appeal court must make up its own mind on the facts.  Secondly, that task can only be done in the light of, and taking into account and weighing, the judgment appealed from.  In this process, the advantages of the trial judge may reside in the credibility of witnesses, in which case departure is only justified in circumstances described in Abalos v Australian Postal Commission; Devries v Australian National Railways Commission and Earthline. The advantages of the trial judge may be more subtle and imprecise, yet real, not giving rise to a protection of the nature accorded credibility findings, but, nevertheless, being highly relevant to the assessment of the weight to be accorded the views of the trial judge.  Thirdly, while the appeal court has a duty to make up its own mind, it does not deal with the case as if trying it at first instance.  Rather, in its examination of the material, it accords proper weight to the trial judge’s views.  Fourthly, in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”

63. [63]
    In the present appeal, the parties do not suggest that the primary judge benefited from any special advantage over this Court in evaluating the evidence.^[54]  The hearing of the separate question before the primary judge was conducted within a day.  While the appellant gave relatively brief oral evidence, his primary evidence was contained in his two affidavits.
64. [64]
    The fact that a finding that the serious harm element has not been established may be arrived at by a process of reasoning which can be characterised as evaluative does not affect the application of the correctness standard.  As observed by Gageler J (as the Chief Justice then was) in Minister for Immigration and Border Protection v SZVFW:^[55]

“Warren v Coombes itself illustrates that it is not sufficient to justify departure from the correctness standard of appellate review that a conclusion of a primary judge has been arrived at by a process of reasoning which can be characterised as evaluative.  In Warren v Coombes, the conclusion of the primary judge to which the general standard was held to be applicable was a conclusion that the defendant had not failed to exercise reasonable care.  The point is further illustrated by the outcome in Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd.  There the conclusion of the primary judge which was the subject of appellate challenge was that certain conduct in which a corporation was found to have engaged answered the statutory description of “conduct that is unconscionable”.  A submission to the effect that the evaluative character of that conclusion triggered application of the standard of appellate review applicable to an exercise of judicial discretion was unanimously rejected:  implicitly by three members of the High Court, and explicitly by the other two.  Callinan J, with whom Kirby J specifically agreed on this point, suggested that “every judgment of a trial judge requires an evaluation of facts” and pointed out that “[a]n evaluation of facts found is precisely one of the exercises which an appellate court is obliged, when an unrestricted right of appeal is available, to undertake”.  Like a common law duty of care, a statutory prohibition on conduct that is unconscionable posits a standard of conduct which, on proven facts, a person obliged to meet that standard either has met or has not.” (Citations omitted).

65. [65]
    The correctness standard was also applied in Bazzi v Dutton^[56] which concerned an appeal by way of rehearing from a finding that a publication carried the meaning alleged by the respondent.  On appeal in that case, both parties agreed that the court was in as good a position as the primary judge to determine whether the relevant tweet conveyed the imputation for the purposes of deciding whether the primary judge erred in arriving at a finding that it did.^[57]  Rares and Rangiah JJ (with whom Wigney J agreed) considered that such a determination was susceptible of only one answer:^[58]

“The question whether a publication conveys an imputation is equally one that requires a tribunal of fact, be it judge or jury, to decide objectively. The question for decision is whether an ordinary reasonable reader, listener or viewer would understand that the publication conveys the alleged imputation.  The test uses the objective standard of reasonableness, based on how that hypothetical person would understand the matter complained of.”

66. [66]
    Their Honours continued:^[59]

“The determination of whether a publication conveys an imputation is an objective fact (as distinct from the anterior enquiry of whether it is capable of conveying such a meaning which is a question of law… There cannot be a range of possible outcomes when a tribunal of fact applies the objective test for determining whether the ordinary reasonable reader, listener or viewer would understand a publication to have conveyed an imputation. A publication either conveys a meaning or it does not.  The answer to that question cannot be, like beauty, in the eyes of the beholder.”

67. [67]
    Similarly here, the correctness standard should apply to a determination of whether the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.  As correctly submitted by the parties, the determination of whether the serious harm element is established arises from the anterior determination of facts upon which that finding ultimately must be made.  In other words, the determination of serious harm is an evaluative judgment, rather than an exercise of discretion.^[60]  A consideration of the evidence, including available inferences, and the whole of the circumstances either establishes the serious harm element or it does not.

Section 10A of the Act

68. [68]
    The appeal primarily turns on the proper construction of s 10A of the Act.
69. [69]
    Section 10A provides:

“(1) It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.

2. For the purposes of subsection (1), harm to the reputation of an excluded corporation is not serious harm unless it has caused, or is likely to cause, the corporation serious financial loss.

3. The judicial officer (and not the jury) in defamation proceedings is to determine whether the serious harm element is established.

4. Without limiting subsection (3), the judicial officer may (whether on the application of a party or on the judicial officer’s own motion)—

1. determine whether the serious harm element is established at any time before the trial for the proceedings commences or during the trial; and

2. make any orders the judicial officer considers appropriate concerning the determination of the issue (including dismissing the proceedings if satisfied the element is not established).

5. If a party applies for the serious harm element to be determined before the trial for the proceedings commences, the judicial officer is to determine the issue as soon as practicable before the trial commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceedings (including during the trial).

6. The matters a judicial officer may take into account in deciding whether there are special circumstances for the purposes of subsection (5) include (but are not limited to) the following—

1. the cost implications for the parties;

2. the resources available to the court at the time;

3. the extent to which establishing the serious harm element is linked to other issues for determination during the trial for the proceedings.

7. Without limiting subsection (5), the judicial officer may determine the serious harm element is not established on the pleadings without the need for further evidence if satisfied that the pleaded particulars are insufficient to establish the element.

8. Nothing in this section limits the powers that a judicial officer may have apart from this section to dismiss defamation proceedings (whether before or after the trial commences).”

70. [70]
    As observed by Gageler CJ, Gordon and Edelman JJ in R v Rohan (a pseudonym):^[61]

“The starting point for the ascertainment of the meaning of a statutory provision…is the text of the statute, whilst at the same time regard is had to context in its widest sense – including its historical context – and purpose.” (Citations omitted).

71. [71]
    As the provision sits within a national uniform framework it should be interpreted consistently in its operation with equivalent legislative provisions in each State and Territory.  This approach to the construction of s 10A “promote[s] uniform laws of defamation in Australia”, consistently with one of the main objects of the Act.^[62]  As a not dissimilar provision has been considered by the New South Wales Court of Appeal in Rader and s 10A of the Defamation Act 2005 (Vic) by the Full Federal Court in Selkirk v Wyatt,^[63] this Court should not depart from an interpretation of such legislation by another Australian intermediate appellate court unless convinced that the relevant interpretation is plainly wrong.^[64]

Judicial consideration of the serious harm element

72. [72]
    The Supreme Court of the United Kingdom in Lachaux and the New South Wales Court of Appeal in Rader considered s 1 of the Defamation Act 2013 (UK) which provides:

“Serious harm

1. A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

2. For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.”

73. [73]
    As noted by Besanko J (with whom Anderson and O'Sullivan JJ agreed) in Selkirk v Wyatt:^[65]

“There is a difference between this section and s 10A in that s 10A provides that serious harm is an element of a cause of action for defamation, whereas s 1 provides that a statement is not defamatory unless its publication has caused, or is likely to cause, serious harm.  In both cases, it is serious harm to the reputation of the person…”.

74. [74]
    Nonetheless, given the similarity between s 1 of the UK Act and the uniform Australian provision, the decisions in both Lachaux and Rader offer guidance as to the proper interpretation of s 10A.
75. [75]
    In Lachaux, Lord Sumption JSC (with whom Lord Kerr of Tonaghmore, Lord Wilson, Lord Hodge and Lord Briggs JJSC agreed) considered the common law background of the law of defamation prior to the introduction of s 1:^[66]

“6. For present purposes a working definition of what makes a statement defamatory, derived from the speech of Lord Atkin in Sim v Stretch [1936] 2 All ER 1237, 1240, is that “the words tend to lower the plaintiff in the estimation of right-thinking members of society generally”.  Like other formulations in the authorities, this turns on the supposed impact of the statement on those to whom it is communicated.  But that impact falls to be ascertained in accordance with a number of more or less artificial rules.  First, the meaning is not that which other people may actually have attached to it, but that which derived from an objective assessment of the defamatory meaning that the notional ordinary reasonable reader would attach to it.  Secondly, in an action for defamation actionable per se, damage to the claimant’s reputation is presumed rather than proved.  It depends on the inherently injurious character (or “tendency”, in the time-honoured phrase) of a statement bearing that meaning.  Thirdly, the presumption is one of law, and irrebuttable.

7. In two important cases decided in the decade before the Defamation Act 2013, the courts added a further requirement, namely that the damage to reputation in a case actionable per se must pass a minimum threshold of seriousness.”

76. [76]
    Lord Sumption was of the opinion that s 1 of the UK Act meant that the common law rule, that damage to reputation is presumed not proved, and that this presumption was irrebuttable, could not survive.  This was also accepted by the Full Federal Court in Selkirk in relation to the equivalent provision in Victoria. 
77. [77]
    Applegarth J in Peros v Nationwide News Pty Ltd & Ors (No 3), described the change effected by s 10A of the Act to the previous common law presumption as follows:^[67]

“Section 10A has been held to remove the presumption of damage, together with any presumption of a good reputation, if the latter presumption was part of the common law.  This follows the approach adopted in the United Kingdom in Lachaux.  Lord Sumption (with whom the other members of the Supreme Court agreed) adopted the analysis of Warby J (as Warby LJ then was) at first instance.  Warby J accepted that s 1 means that libel is no longer actionable without proof of damage, and “that the legal presumption of damage will cease to play any significant role”.  Lord Sumption was more emphatic, observing that if the common law rule that damage to reputation was presumed survived, then there would be no scope for evidence of the actual impact of the publication.  Therefore, he concluded that the presumption of damage “cannot survive”.  The Full Court of the Federal Court has adopted the same approach in considering the effect of s 10A.”^[68] (Citations omitted).

78. [78]
    Lord Sumption explained the significance of the change to the common law brought about by s 1 as follows:

“12. Although the Act must be construed as a whole, the issue must turn primarily on the language of section 1.  This shows, very clearly to my mind, that it not only raises the threshold of seriousness above that envisaged in Jameel and Thornton, but requires its application to be determined by reference to the actual facts about its impact and not just to the meaning of the words.

…

14. Secondly, section 1 necessarily means that a statement which would previously have been regarded as defamatory, because of its inherent tendency to cause some harm to reputation, is not to be so regarded unless it “has caused or is likely to cause” harm which is “serious”.  The reference to a situation where the statement “has caused” serious harm is to the consequences of the publication, and not the publication itself.  It points to some historic harm, which is shown to have actually occurred.  This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had.  It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated.  The same must be true of the reference to harm which is “likely” to be caused. In this context, the phrase naturally refers to probable future harm.  Ms Page QC, who argued Mr Lachaux’s case with conspicuous skill and learning, challenged this.  She submitted that “likely to cause” was a synonym for the inherent tendency which gives rise to the presumption of damage at common law.  It meant, she said, harm which was liable to be caused given the tendency of the words.  That argument was accepted in the Court of Appeal.  She also submitted, by way of alternative, that if the phrase referred to the factual probabilities, it must have been directed to applications for pre-publication injunctions quia timet.  Both of these suggestions seem to me to be rather artificial in a context which indicates that both past and future harm are being treated on the same footing, as functional equivalents.  If past harm may be established as a fact, the legislator must have assumed that “likely” harm could be also.  As to pre-publication injunctions, the section is designed to import a condition to be satisfied if the statement is to be regarded as defamatory at all.  It is not concerned with the remedies available for defamation, whether interlocutory or final.  It is right to add that pre-publication injunctions are extremely rare, because of the well-established constraints on judicial remedies which restrict freedom of expression in advance of publication.

…

16. Finally, if serious harm can be demonstrated only by reference to the inherent tendency of the words, it is difficult to see that any substantial change to the law of defamation has been achieved by what was evidently intended as a significant amendment.  The main reason why harm which was less than “serious” had given rise to liability before the Act was that damage to reputation was presumed from the words alone and might therefore be very different from any damage which could be established in fact.  If, as Ms Page submits, the presumption still works in that way, then this anomaly has been carried through into the Act.  Suppose that the words amount to a grave allegation against the claimant, but they are published to a small number of people, or to people none of whom believe it, or possibly to people among whom the claimant had no reputation to be harmed.  The law’s traditional answer is that these matters may mitigate damages but do not affect the defamatory character of the words.  Yet it is plain that section 1 was intended to make them part of the test of the defamatory character of the statement.”

79. [79]
    In applying these principles to the case, Lord Sumption identified the following basis of the finding of serious harm by Warby J at first instance:

“21. … He based his finding of serious harm on (i) the scale of the publications; (ii) the fact that the statements complained of had come to the attention of at least one identifiable person in the United Kingdom who knew Mr Lachaux and (iii) that they were likely to have come to the attention of others who either knew him or would come to know him in future; and (iv) the gravity of the statements themselves, according to the meaning attributed to them by Sir David Eady.  Mr Lachaux would have been entitled to produce evidence from those who had read the statements about its impact on them.  But I do not accept, any more than the judge did, that his case must necessarily fail for want of such evidence.  The judge’s finding was based on a combination of the meaning of the words, the situation of Mr Lachaux, the circumstances of publication and the inherent probabilities.  There is no reason why inferences of fact as to the seriousness of the harm done to Mr Lachaux’s reputation should not be drawn from considerations of this kind.”

80. [80]
    As to the application of s 1 of the UK Act, Brereton JA in Rader observed as follows:^[69]

“[28] The authorities to which reference has been made found the following propositions in respect of s 1 of the UK Act:

1. In order to succeed, a plaintiff must satisfy the threshold of showing that the publication has caused or is likely to cause serious harm to his or her reputation.
2. “Serious” harm involves harm that is more than merely substantial, though it need not be grave.
3. The requirement for serious harm to reputation is concerned with actual or likely reputational damage – that is, the impact of the imputation, in all the circumstances, on the plaintiff’s reputation – arising from a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. It is not satisfied by the gravity of the imputation alone. Nor is it satisfied by injury to feelings, however great. Relevant factors include the meaning of the words, the extent of the publication, the nature of the recipients and their relationship with the plaintiff, and whether they believe the imputations.
4. A grave imputation may not result in serious harm, typically where the publication is to a small number of persons well acquainted with the plaintiff who are not disposed to believe it, and any impact of the imputation on the plaintiff’s reputation is transitory or ephemeral.

[29] The following conclusions of the trial judge accord with those propositions:

1. Section 1 introduced a “new threshold of serious harm which did not previously exist”, and “Claimants therefore need to establish that serious harm has been caused or is likely to be caused as a fact”;

2. “More than the mere inherent tendency of the words is required, even where the words amount to a grave allegation against the plaintiff, and special emphasis is to be placed on the circumstances and extent of publication”;

3. “Serious harm should not be conflated with hurt to feelings. However distraught the plaintiff may have been, this personal hurt is not evidence of harm to reputation because harm depends upon ‘a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated’”; and

4. “findings of serious harm should be based on the circumstances and extent of publication, whether the publication was likely to have come to the attention of others at the time or in the future and the gravity of the imputations. The meaning of the words, the situation of the plaintiff, the circumstances of publication and the inherent probabilities are also relevant”.

81. [81]
    Relevantly, Brereton JA examined the meaning of serious harm in this way:^[70]

“Courts appear so far to have avoided endeavouring to explain the word “serious”. Indeed, it has been said that “serious” is an ordinary word in common usage. But in my view there is utility in giving some further explanation of its content. It is used in the sense third mentioned in the Oxford Dictionary definition, namely “significant or worrying because of possible danger or risk; not slight or negligible”, for which the example given is “she escaped serious injury”, and the synonyms include “severe” and “grave”. In Lachaux, whereas the Court of Appeal had considered that the new statutory test was the same as the common law “tendency to cause substantial harm” test, in Thornton v Telegraph Media Group, albeit raised to the level of “serious harm”, the Supreme Court confirmed that it “raises the threshold of seriousness above that envisaged in Jameel (Yousef) and Thornton”. At least, this shows that “serious” involves more than merely “substantial”. In Monroe v Hopkins, Warby J concluded that “whilst the claimant may not have proved that her reputation suffered gravely, I am satisfied that she has established that the publications complained of caused serious harm to her reputation and met the threshold set by s 1 of the 2013 Act”. In my opinion, “serious” harm sits on the spectrum above “substantial” but below “grave”. Importantly, there can be harm which, though substantial, does not reach the level of serious harm.”  (Citations omitted)

82. [82]
    Basten AJA, while agreeing with the reasons of Brereton JA, expressed a minor reservation in relation to this passage:^[71]

“The reservation relates to the exegesis on the meaning of “serious” in s 1 of the Defamation Act 2013 (UK). There is a risk in seeking synonyms, which may later be treated as valid replacements for the ordinary English word adopted by the Parliament. There is also a risk in seeking to place the term on a scale, between other terms of equal imprecision. The critical concept is “serious harm to the reputation of the claimant”; it is that to which the court is required to attend by reference to the evidence of a range of matters. Analysis of individual component words is apt to distract from that inherently impressionistic exercise.”

83. [83]
    The approach of Basten AJA has received judicial support in subsequent decisions.^[72]  I respectfully agree with his Honour.  The plain and ordinary meaning of the word “serious” should be adopted as a matter of course.  This Court need not advance any alternative nomenclatures when construing this term.
84. [84]
    It is also appropriate, as a matter of statutory interpretation, to have regard to the overarching purpose of the provision when construing its terms.  Section 10A of the Act was introduced “to encourage the early resolution of defamation proceedings by enabling the issue of serious harm to be dealt with as a threshold issue”.^[73]  As observed by Applegarth J in Peros v Nationwide News Pty Ltd (No 3):^[74]

“… One purpose, which is evident from extrinsic material, is to deal with “insignificant claims early in the proceedings”. Identical legislation was introduced in New South Wales. The Minister in that State referred to concerns about defamation law being used for “trivial, spurious and vexatious backyard claims” and that the serious harm threshold is intended to filter out “trivial claims”.  (Citations omitted)

85. [85]
    While this may invite some consideration of the consequences which flow from a finding that the serious harm element has not been established, it does not, as Applegarth J recognised, “justify interpreting the provision other than according to its terms or giving ‘serious’ something other than its ordinary meaning”.^[75] 
86. [86]
    Section 10A is plainly couched in causative language, namely that the publication of the defamatory matter has caused, or is likely to cause, serious harm to the reputation of the claimant.^[76] 
87. [87]
    To establish causation, the Court must evaluate the seriousness of the harm to reputation, rather than of the imputation itself.^[77]
88. [88]
    In Qu v Wilks,^[78] Beach, Kennedy and Walker JJA in relation to the equivalent Victorian provision considered the term used in s 10A “likely to cause”:

“[60] Section 10A of the Act makes it an element of the cause of action for defamation that the publication of the defamatory matter ‘has caused, or is likely to cause, serious harm’. The inclusion of the words ‘or is likely to cause’ is plainly forward looking: it is capable of encompassing the possibility of a case where, at the time the proceeding was issued, serious harm may not yet have been suffered, but the publication of the defamatory material was likely to cause serious harm at some later point in time. The proposition that those words are not capable of encompassing circumstances where the serious harm likely to be suffered is, or includes, harm occasioned by the reporting of a plaintiff’s proposed defamation proceeding is not self-evident.”

89. [89]
    In Peros, Applegarth J posited various considerations when making a determination of serious harm.  The assessment is qualitative, not quantitative.^[79]  The Court should examine all of the circumstances of the case, rather than merely the circumstances of the publication.^[80]  In this respect, his Honour proffered the following factors:^[81]

    1. the gravity of the defamation;
    2. the extent of the publication;
    3. the source of the publication and the reliability that may be attributed to it;
    4. the form or permanence of the publication;
    5. the recipients’ identity; and
    6. the claimant’s prior reputation, though it need not necessarily be good.
90. [90]
    It is well established that the claimant bears the onus of proving, at the outset, that the publication has caused or is likely to cause serious harm to their reputation.^[82]
91. [91]
    Serious harm may be established by fact or as a matter of inference. Applegarth J in Peros considered that both direct evidence and inferences will be admissible in establishing serious harm.  His Honour observed:

“[80] By direct evidence, I include evidence from recipients of the publication or from persons who have heard others speak about the publication and its effect on their estimation of the claimant. It includes publications in the media, in readers’ comments, in social media posts, abuse, criticism, and being avoided because of the defamatory publication. Care is required in such cases that the abuse, criticism or other response (such as being avoided) is caused by the publication of the defamatory matter, and not by other publications.

[81] Actual or likely serious harm may be established by inference, at least when the defamation conveys a gravely serious meaning about the claimant. In some cases, a claimant may rely on inference and, if the inference is strong enough, serious harm may not be in issue. As noted, it has been held that mass media publications of very serious defamatory allegations may render the need for evidence of serious harm unnecessary. All depends upon the circumstances. It may also be unnecessary to call direct evidence of serious harm in the case of grave defamation to a more limited number of recipients, if the circumstances make that inference compelling and there is no competing, reasonable inference.

[82] This is not to say that serious harm is established by the inherent tendency of the words. Lord Sumption in Lachaux stated:

‘… if serious harm can be demonstrated only by reference to the inherent tendency of the words, it is difficult to see that any substantial change to the law of defamation has been achieved by what was evidently intended as a significant amendment.

[83] The gravity of the defamation and the extent of publication may permit actual harm to be reasonably inferred. However, reliance on inference alone may be a brave, forensic choice where there are competing and equally compelling inferences. One example is that quoted above from Sivananthan v Vasikaran, where prior publications by the defendant make it unlikely in the circumstances that a further publication containing the same allegations will have a material impact and cause serious harm. Another is a claimant who had a damaged reputation at the time of publication, and where the difference between that reputation and the reputation that resulted from the relevant publication may not be such as to constitute “serious harm”.

[84] In Rader v Haines the New South Wales Court of Appeal, in applying s 1 of the English statute stated:

‘This requirement concerns the seriousness of the harm to the reputation, not of the imputation … the application of the test [for serious harm] is to be determined by reference to the actual facts about the impact of the imputation, and not just the meaning of the words; although the meaning is necessarily part of the impact, because all else being equal a grave imputation will cause more harm than a trivial one, it is only part of the equation, because the gravest imputation will cause no harm if it has no impact.’

[85] The Court of Appeal emphasised that findings of serious harm should be based on all the relevant circumstances. The same approach should be applied in a determination under s 10A.

[86] Any expectation that a claimant should be able to call numerous witnesses who read or heard the defamatory publication and are prepared to say that they thought less of the complainant as a result, or overheard others speaking about the publication, should be tempered by the reality “that a claimant may struggle to identify, or to produce evidence from, all of those to whom an article was published and in whose eyes the claimant’s reputation was damaged”.

[87] A claimant may be able to rely in an appropriate case on “the grapevine effect” and an inability to know to whom the defamatory publication has spread along a traditional, oral grapevine or “by social media and modern methods of electronic communication”.

92. [92]
    Recently, the New South Wales Court of Appeal considered the NSW provision and the interplay between the uniform law and UK legislation in Whittington v Newman.^[83]  Leeming, Stern JJA and Simpson AJA held, consistently with the approach in the UK, that inferences may be drawn to establish the serious harm element.  Their Honours observed:

“[41] The introduction of a new element to the cause of action gives rise to a large number of issues, which are discussed in D Rolph, “A serious harm threshold for Australian defamation law” (2022) 51(2) Australian Bar Review 185 at 202–207. One is whether Australian courts will follow the decision of the Supreme Court of the United Kingdom in Lachaux v Independent Print Ltd [2020] AC 612; [2019] UKSC 27, in relation to similar wording albeit in a somewhat different context (including, as Professor Rolph points out, the different approaches formerly taken to triviality). Consistently with what had been said in the earlier interlocutory decision of Sackar J, Mr Whittington insisted that damage could no longer be presumed and it was necessary in order to satisfy s 10A to adduce evidence to prove actual or likely serious harm to reputation.

[42] Let it be assumed, favourably to Mr Whittington, that the effect of s 10A is to introduce the same principles as apply in England. Even there, it is clear that actual or likely serious harm to reputation may be established by inference, at least where the imputation is grave…

…

[44] The Court of Appeal has repeatedly stated that serious harm to reputation may be inferred: see for recent examples Banks v Cadwalladr [2023] KB 524; [2023] EWCA Civ 219 at [55] and [67] and Amersi v Leslie [2023] EWCA Civ 1468 at [7].

[45] This accords with Lord Sumption’s reasoning Lachaux at [21] that:

‘The judge’s finding was based on a combination of the meaning of the words, the situation of Mr Lachaux, the circumstances of publication and the inherent probabilities. There is no reason why inferences of fact as to the seriousness of the harm done to Mr Lachaux’s reputation should not be drawn from considerations of this kind.’

[46] In light of the above, there is no occasion in this application, where the point was far from the forefront of the parties’ argument, to address in any detail the operation of s 10A…

…

[48] … It will be necessary, for a plaintiff suing on a cause of action to which s 10A applies, to establish that the publication has caused or is likely to cause serious harm to the plaintiff’s reputation. That may be established by evidence, or by admission. Further, actual serious harm, or the likelihood of serious harm, to the plaintiff’s reputation, may also be established by inference from other facts, including the nature of the publication and the imputations it contains. And these are matters to be established at trial. It does not follow that in order for a defendant to meet the plaintiff’s case particulars of the “actual impact” of the publication are required.”

93. [93]
    Having considered the above authorities, the central principles which govern the application of section 10A to the present case may be distilled as follows:

    1. a plaintiff is required to prove the serious harm element as a fact;^[84]
    2. the serious harm element may be established by direct evidence, inference or both means, but it will never be presumed;^[85]
    3. the assessment of the serious harm element may depend on the inherent tendency of the words used, the impact on persons to whom these words were conveyed and the extent of publication, but regard must be had to all the circumstances of the case;^[86]
    4. it is a qualitative inquiry;^[87]
    5. reliance on the gravity of the imputation without more will not suffice;^[88]
    6. the serious harm element is not evinced by mere injury to feelings;^[89] and
    7. the evidence is required to establish that the publication caused or was likely to cause serious harm to the plaintiff’s reputation.^[90]

Ground 1: The primary judge should not have found that the publication of the defamatory matter did not cause or was not likely to cause the appellant serious harm to his reputation

94. [94]
    The appellant did not call the police officers to whom the publications were made and who subsequently issued the PPNs.  There was therefore no direct evidence that the publications caused or were likely to cause serious harm to the appellant’s reputation. The appellant sought to establish the serious harm element by way of inference drawn from a combination of the following facts and circumstances:

    1. the gravity of the imputations conveyed by the publications;
    2. the publications were made by family members who it may be thought had personal or direct knowledge of the allegations being made;
    3. the publications constituted the basis for the police forming the necessary reasonable belief under s 101 of the 2012 Act for the purposes of issuing the PPNs;
    4. QPrime Reports extracted from the Queensland Police Service systems show that the publications caused the name of the appellant to be entered into police systems as an alleged perpetrator of domestic violence;
    5. emails between the police and the respondents regarding whether the first respondent wished to proceed with his assault complaint against the appellant; and
    6. the appellant’s multiple unpleasant interactions with police subsequent to the publications.^[91]

The gravity of the imputations

95. [95]
    As to (a), the inherent tendency of the words used, without more, is insufficient to establish the serious harm element.  While the primary judge accepted at Reasons, [22] that the imputations were grave, such a finding is “only part of the equation”.^[92]  As observed by Brereton JA in Rader by reference to the conclusions of the trial judge:^[93]

“More than mere inherent tendency of the words is required, even where the words amount to a grave allegation against the plaintiff, and special emphasis is to be placed on the circumstances and extent of publication.”

96. [96]
    In the present case the publication was only to a small unknown number of police officers.  As correctly submitted by the respondents, while inferential reasoning may be available in mass media publications, in a case such as the present, which involves very limited publication, “the extent to which the [appellant] can rely on inference to prove serious harm will be significantly constrained.”^[94]

Nature of the persons making the publications

97. [97]
    As to (b), the fact that the publications, which alleged acts of domestic violence, were made by family members familiar with the appellant is entirely neutral.  In receiving complaints of domestic or family violence, police would ordinarily expect such complaints to be made by family members familiar with the relevant domestic situation.  The source of the complaint would not necessarily affect the relevant police officer’s statutory functions (discussed further below), including the officer’s investigatory functions and the forming of any reasonable belief that an act of domestic violence has been committed.  While the source of the information may assist the relevant officer in being satisfied that the threshold statutory test is met, it cannot be inferred from this factor, either alone or in combination, that the serious harm element is established.

Impact of the publications on the relevant officer’s statutory functions

98. [98]
    Factor (c) requires a consideration of a number of provisions of the 2012 Act.
99. [99]
    Section 100 falls within Part 4, Division 1 of the 2012 Act, which deals with police functions and powers.  Section 101 falls within Part 4 Division 2 which deals with a police officer’s power to issue a PPN. 
100. [100]
     Part 4, Division 1 is headed “Investigatory function”.  Section 100(1) provides that if a police officer reasonably suspects that domestic violence has been committed, the police officer must investigate or cause to be investigated the complaint, report or circumstance on which the officer’s reasonable suspicion is based.
101. [101]
     Section 100(2)(a) provides that if, after the investigation, the police officer reasonably believes domestic violence has been committed, the police officer must consider whether it is necessary or desirable to take any action under subsection 3 (to protect a person from further domestic violence).
102. [102]
     Section 100(3)(c) gives a police officer a discretion to issue a PPN under Division 2.
103. [103]
     As already observed, s 101 falls within Division 2.  This section provides:

“Police officer may issue police protection notice

1. a police officer may issue a notice (police protection notice) against a person (the respondent) if the police officer –

1. reasonably believes the respondent has committed domestic violence; and

2. if the respondent is not present at the same location as the police officer – has made a reasonable attempt to locate and talk to the respondent, including by telephone, to afford the respondent natural justice in relation to the issuing of a police protection notice.”

104. [104]
     Section 101 is made subject to ss 102 and 103.  Section 102 requires the police officer to obtain the approval of a supervising police officer before issuing a PPN.  As already observed, the PPNs contained the signature of both the issuing police officer and the supervising police officer.
105. [105]
     The appellant submits that in circumstances where a police officer issued a PPN to the appellant the relevant officer, pursuant to s 101(1)(a), must have reasonably believed that the appellant had committed domestic violence.
106. [106]
     “Domestic violence” is defined in s 8 of the 2012 Act.  Relevantly it means behaviour or a pattern of behaviour by a person towards another person with whom the first person is in a relevant relationship.  Such behaviour or pattern of behaviour includes that which is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening or coercive.  The term “relevant relationship” is defined in s 13 as either an intimate personal relationship, a family relationship or an informal care relationship.  As is apparent from these definitions, what constitutes domestic violence in any particular case may vary considerably.
107. [107]
     None of the relevant issuing police officers were called to give evidence as to the nature of the domestic violence which they reasonably believed the appellant had committed.  From an analysis of the statements made by the respondents in the first matter complained of and the First PPN, it would appear that the issuing officer’s belief that the appellant had committed domestic violence was based on a number of factors.  These included that the appellant, on the evening of 19 January 2023, had been verbally abusive towards the first respondent and his wife and had assaulted the first respondent.  The information contained in the First PPN shows that this incident was placed in the following context:

     1. the appellant and his wife had been together for over 50 years and had two adult daughters;
     2. the appellant’s wife was suffering from a declining mental state, in particular dementia;
     3. prior to the incident that occurred on 19 January 2023, the first respondent considered the appellant “a very good and loyal friend”;
     4. the appellant had behavioural issues from time to time with the first respondent describing him as a “hot head” which would be exacerbated when the appellant consumed alcohol;
     5. the incident that occurred on 19 January 2023 was “a couple of days in the making”.  The appellant’s wife had informed the first respondent and his wife that she and the appellant had been fighting;
     6. this resulted in the first respondent and his wife staying with the appellant’s wife over the next couple of days;
     7. the first respondent suspected that the initial argument between the appellant and his wife was probably over something “as small as not being able to work a TV controller or someone changing the channel, something trivial most likely”; and
     8. as the appellant’s behaviour was not ceasing and growing more aggressive and escalating with threats, it was decided that the appellant’s wife would move out for a short time and stay at another family home.
108. [108]
     The most serious allegation of domestic violence was for an event that occurred about three or four months prior involving the appellant allegedly grabbing his wife around the throat in a choking manner during an argument.
109. [109]
     When the First PPN was issued by the relevant police officer, the appellant had not been asked for his version of events, it being noted that attempts would be made at a later time for the appellant to give his version.
110. [110]
     As to the fourth matter complained of and the issuing of the Second PPN, it would appear that the issuing officer’s relevant belief that the appellant had committed domestic violence was primarily based on the appellant having immediately contravened the First PPN by leaving multiple threatening voicemails on his wife’s mobile phone and threatening the second respondent that if he and his father were not out of the unit by that morning he was going to “fucking kill them”.  The concern expressed by the second respondent was that the appellant’s behaviour was becoming more erratic and unpredictable.
111. [111]
     In the absence of the relevant issuing officer giving direct evidence, it is difficult to be precise as to what acts of domestic violence formed the basis of the relevant issuing officer’s reasonable belief.
112. [112]
     The police officers, in carrying out their functions, including forming any required belief for the purposes of issuing the First PPN and Second PPN, were not required to have any consideration as to their estimation of the appellant.
113. [113]
     This reflects the observations of both the primary judge^[95] and Gibson DCJ in Bechara v Bonacorso (No 4)^[96] namely, that one expects police officers to carry out their duties, including their statutory duties, in a professional and detached manner.  In Bechara, Gibson DCJ stated:

“… for the defence of unlikelihood of harm to have any meaning, there must be an acceptance that persons who receive information of a defamatory nature but who have a duty to investigate it will go ahead and do so without thinking less of the person about whom the publication is made.  It is not the job of police to think worse of a person who is suspected or accused of a crime; it is their job to investigate for evidence.”

114. [114]
     The appellant submits that the observation of Gibson DCJ is of limited value because her Honour was considering there the application of the triviality defence, which has “critical differences from the serious harm element”.^[97]  According to the appellant, the focus of the triviality defence is on the circumstances of the publication and the likelihood of any harm flowing from it (at the time of the publication), rather than examining the actual and future effects of the publication.  This distinction does not, in my view, alter the force of her Honour’s observation.  In the present case, the defamatory matter was published to a very limited number of police officers.  This in itself, as submitted by the respondents, “tells against a conclusion that the publication has caused serious harm”.^[98]  As well as this consideration, the identity of the persons to whom the publication is made is also relevant.  The observations of the primary judge and Gibson DCJ are therefore relevant when consideration is given to the identity of the recipients being police officers carrying out statutory functions.

QPrime Reports and email exchanges

115. [115]
     As to (d) and (e), the QPrime Reports and the emails are simply consequential upon the police fulfilling their functions in actioning the complaints.  Police receive complaints daily.  There is nothing unusual about these records nor do they shed light on the estimation of the appellant in the eyes of the police.
116. [116]
     These factors, either alone or in combination, do not establish that the publication to a limited number of police officers has caused or is likely to cause serious harm to the appellant’s reputation.  Further, as correctly submitted by the respondents, the QPrime documents record that the domestic violence proceeding concerning the First and Second PPN was dismissed.^[99]
117. [117]
     The above conclusion is further supported by the following observation of Gibson DCJ in Bechara:^[100]

“The defendant submits that serious imputations of this kind would inevitably result in harm.  It is submitted that ‘it is difficult to see how allegations of criminal conduct, violence and serious dishonesty amounting to corruption could ever be made in circumstances where they would be unlikely to cause harm.

However, the very nature of police records, and in particular COPS entries, is that it is a record of inquiry into alleged criminal activity.  While it is certainly the case that COPS entries are permanent records, the fact that material is entered into a COPS entry is not of itself permissible evidence capable of establishing the truth or falsity of anything other than that an allegation was made on a particular day by one person about another person.

Secondly, the information provided by police officers in COPS entries is accessible only by persons authorised by law, namely other police officers, who would bring their training and skills to bear when considering such information or, as occurred in these proceedings, under compulsion of law under subpoena.  It is one computer entry amongst hundreds of thousands of other computer entries.”

118. [118]
     Looking at the totality of the factors set out above, the appellant has not demonstrated that the primary judge should have found that the serious harm element was established on the evidence.
119. [119]
     Ground 1 fails.

Ground 2: The primary judge should not have found that the evidence as it was in relation to the publication of the matters complained of did not amount to the causation of or the likely causation of serious harm to the appellant’s reputation

120. [120]
     Ground 2 asserts that the primary judge erred by misapplying the relevant test of causation in failing to conclude that “the evidence as it was in relation to the publication of the matters complained of did not amount to the causation of or the likely causation of serious harm to the [appellant’s] reputation”.^[101]  This ground concerns the appellant’s evidence of multiple unpleasant interactions with police following the publications.
121. [121]
     These interactions included:

     1. the assault charge;
     2. the drink driving incident on 20 January 2023 (of which the appellant was subsequently convicted);
     3. the breaching of both the First PPN and the PPN issued in relation to his eldest daughter; and
     4. the appellant’s subsequent conviction for obstructing police.
122. [122]
     The appellant submits that his Honour erred in concluding that there was no reason to think that any unpleasantness experienced by the appellant in his interactions with police stemmed from the publications as opposed to the appellant’s own poor conduct.  What is asserted is that the resolution of the serious harm question, in the context of the appellant’s reputation with police, was not simply a question of dealing with the causation of “unpleasant interactions” with police.  Rather, the appellant’s case was that the serious harm included the fact that the appellant was, since the publications, a person who is now known to police as someone who is violent, aggressive and abusive towards his vulnerable wife, and a person with two PPNs on his record.^[102]
123. [123]
     The appellant’s submissions cannot be accepted.  In considering the whole of the evidence, his Honour concluded at Reasons, [39] that it fell well short of proving that serious harm has been, or is likely to be, caused by the publications.  This is the correct test of causation in relation to the serious harm element.  His Honour repeated that correct test at Reasons, [40].  His Honour’s consideration of causation was consistent with the causative language of s 10A, namely that the publication of the defamatory matter has caused, or is likely to cause, serious harm to the reputation of the claimant.^[103]  The appellant’s submissions misunderstand the context in which the appellant’s multiple unpleasant interactions with police should be considered.  The appellant relied on the relevant interactions as constituting a fact from which an inference could be drawn that the publications to police have caused or are likely to cause serious harm to the appellant’s reputation.  The appellant asserted that this inference was available by reason of the police now treating him differently.
124. [124]
     It was for the appellant to establish on the evidence and by reference to the relevant circumstances, that the publications have caused or are likely to cause serious harm to his reputation.  He sought to discharge this onus by seeking to draw this ultimate inference from a number of facts and circumstances set out above at [94].  In light of the fact that his Honour expressly identified the correct test for causation in accordance with s 10A, his Honour’s analysis of the relevant interactions should be understood as simply determining whether the inference could be drawn from this fact.  It could not.  The difficulty for the appellant is that the most logical explanation for his subsequent interactions with police following the publications was not that police thought less of him because of the publications, but rather that police, in accordance with their duties, were required to “interact” because of the appellant’s own conduct.  The fact of the multiple unpleasant interactions did not therefore support the inference that the publications have caused or were likely to cause serious harm to the appellant’s reputation.
125. [125]
     Ground 2 fails.

Ground 3: The primary judge should not have dismissed the application, and therefore the proceeding

126. [126]
     It follows from the above conclusions that his Honour was correct to dismiss the appellant’s claim.

Appellant’s request for an order pursuant to s 159(2)(a) Domestic and Family Violence Act 2012 (Qld)

127. [127]
     The primary judge made an order pursuant to s 159(2)(d) of the Domestic and Family Violence Act 2012 requiring the publication of the judgment in an anonymised form.
128. [128]
     The anonymisation was necessary to comply with s 159(1) in order to avoid the identification of a person as the party to a proceeding under that Act.
129. [129]
     In the present appeal, some documents were inadvertently filed on behalf of the appellant which did not deidentify the parties.  As a consequence, the notice of appeal, the application for leave to appeal and an affidavit of Gabriel Hutchinson affirmed 17 September 2024 were filed without anonymising the names of the parties.  While attempts were made by the solicitor’s office to rectify this issue through the court registry, an order of this Court was considered necessary.
130. [130]
     In the circumstances, I would make an order in terms of the draft order provided to the Court at the hearing of the appeal.

Disposition

131. [131]
     I would order as follows:

1. Application for leave to appeal granted.
2. Appeal dismissed with costs.
3. Any publication of documents in non-anonymised form which occurred in this appeal be authorised pursuant to s 159(2)(a) of the Domestic and Family Violence Act 2012 (Qld).

132. [132]
     BROWN JA:  I agree with Justice Flanagan.
133. [133]
     DAVIS J:  I agree with the reasons of Flanagan JA and the orders his Honour proposes.