Newell v O'Hanlon[2000] QDC 445

PARTIES

v

1. [1]
   The Plaintiff/Appellant was at all material times an employee of the Third Party/Second Respondent, Maroochy Shire Council. She worked in the rates department. The Defendant/First Respondent was a property owner within the shire, and knew the Appellant. There was at least an antecedent acrimonious relationship between the Appellant's husband (Newell) and the First Respondent's husband (Featherby).

1. [2]
   On 26 November 1995, the First Respondent wrote to Mr Geoff Adamson, the Chief Executive Officer of the Second Respondent, concerning an outstanding rate notice and proposing a repayment schedule. The letter was signed by the First Respondent and received by the Council on 28 November 1995. The letter contained a postscript in these terms (set out in paragraph 4 of the Plaint):

1. [3]
   The Plaintiff says that she was defamed by the publication of the postscript and commenced proceedings in the Magistrates Court at Maroochydore on 10 December 1997, by Plaint Number 1563 of 1997. Paragraphs 5, 6, 7, 8 and 9 of are in these terms:

1. [4]
   Paragraph 2 of the Plaint alleges publication to the Chief Executive Officer of the Council and paragraph 3 states:

1. [5]
   By her defence, inter alia, the Defendant put in issue the facts alleged in paragraph 3. In paragraph 4 of the Amended Defence, filed on 22 July 1998, she substantially expanded her pleading on this point. On 28 July 1998, the Defendant applied to join the Second Respondent as a Third Party to the proceedings. The application was opposed by the Appellant, but was granted by Mr Killeen S.M. after hearing argument. The trial proceeded before Mr Proctor S.M. on 14 July 1999. The learned Magistrate heard evidence from the Appellant and her husband, the First Respondent and her husband, and Mr Philips, an employee of the Second Respondent. At the end of a very long day, Mr Proctor adjourned the hearing until 3 September 1999. On that day, he heard addresses from Counsel for each party. At the conclusion of the addresses the Magistrate delivered his decision. I will turn to a detailed analysis of his reasons for judgment shortly. In essence, he found that the Appellant failed to establish that the words complained of were defamatory of her, and he dismissed her claim with costs. As the First Respondent had succeeded, her claim against the Second Respondent was dismissed with costs, however, the Appellant was ordered to indemnify the First Respondent for liability for such costs. The Magistrate made no findings as to the merit, or otherwise, of the First Respondent's third party claim against the Second Respondent.

Grounds of Appeal

1. [6]
   The Notice of Appeal, filed 30 September 1999, sets out 12 grounds of appeal. Counsel for the Appellant argued only four grounds and, for convenience, I will deal with each in turn.

(a) The Magistrate failed to consider whether the publication conveyed the imputations pleaded in 5(b) and (c) of the claim

1. [7]
   Mr Green for the First Respondent, submitted that the Appellant's argument before me was in effect, that the Magistrate had failed to provide any reasons for deciding that these paragraphs did not convey the alleged defamatory imputations, and that this was not a ground of appeal. Certainly, the argument advanced by Mr Linklater-Steele for the Appellant, could be seen as a submission that the Magistrate failed to give reasons, but I do not think that this is different, in a practical sense, from an argument, as pleaded, that the Magistrate failed to consider the point. Mr Linklater-Steele referred me to a number of passages in the First Respondent's evidence which certainly do suggest that from her point of view, she did regard the actions of the Appellant and her husband as a “campaign” against her and her family. As Mr Green points out, there was evidence from Mr Newell that he had indeed made complaints, particularly about Mr Featherby, to at least 3 police stations and a number of Government agencies; which might lead to the conclusion that there was some sort of “campaign”. It is correct, as Mr Linklater-Steele submits, that the Magistrate has not specifically referred to paragraphs 5(b) and (c). The whole thrust of his judgment is directed at paragraph 5(a). The argument faintly advanced by Mr Linklater-Greene in relation to paragraph 5(b) can be disposed of shortly. It was not pressed as a defamatory imputation before the Magistrate, nor could it have been, so it was unnecessary for the Magistrate to deal with it.

1. [8]
   As I understand the authorities, the question of whether or not the words are defamatory, in the sense that they convey the defamatory imputations alleged, is a question of fact to be determined from the language used by the arbiter of fact. The test to be applied is - what would the ordinary reasonable person understand by the matter complained of: section 18(2) Defamation Act 1889 (Qld), Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 per Mason J (as His Honour then was) at 301. The test adopted by the Court of Appeal in Copley v Queensland Newspapers Pty Ltd (unreported judgment of the Queensland Court of Appeal, delivered 22 February 1993), by reference to Harrison and Jones v Skelton (1963) 1 QLR 1362, was - how would the publication be interpreted by reasonable persons of ordinary intelligence, drawing on their own knowledge and experience of human affairs and perhaps reading between the lines in light of their general knowledge and experience. Applying this test, I agree with Mr Green that it would be wrong, as a matter of law, for the Magistrate, in determining this question of fact in relation to paragraph 5(c), to draw on evidence given by the First Respondent at the trial, although it is permissible to take into account the context in which the letter was published: Gwynne and Small v Wairarapa Times - Age [1988] 2 NZLR 234 at 238. The Magistrate did not specifically make any findings in relation to paragraph 5(c). However, he sets out paragraph 5(c) in full in the introduction to his reasons, at page 3 line 5. It could not be argued, and indeed was not argued by Mr Linklater-Steele, that the Magistrate had simply overlooked paragraph 5(c) in his findings of fact. In dealing with the issue of publication, at page 6 line 43, the Magistrate states:

Mr Linklater-Steele fairly conceded that he was not expecting the Magistrate to construct a judgment acceptable, in terms of structure, in for instance the Court of Appeal. In my opinion, the passage stated is a complete answer to the Appellant's first point. Although he does not specifically deal with the factual basis for negating any finding of defamatory imputation in the postscript, such as is pleaded in paragraph 5(c), the learned Magistrate's statement coupled with his early reference to the particular pleading, clearly indicates that he did. In any event, the words complained of contain no critical reference to the merits of the campaign alleged. Applying the correct test, it would be applying a “strained or forced” interpretation to the words, to ascribe such a meaning as is alleged in paragraph 5(c).

(b) In dealing with 5(a) the Magistrate applied the wrong test

1. [9]
   It is the law that whether or not a matter is or is not defamatory is a question of fact. Whether or not any alleged defamatory matter is or is not capable of bearing a defamatory meaning is a question of law: section 18 Defamation Act 1889. The Appellant argues that, in effect, the learned Magistrate has confused the two aspects to be decided, and has therefore erred in law by finding that the publication did not convey the imputation pleaded in paragraph 5(a). The Magistrate found the evidence established that “there were spiteful court actions etc. between (Mr Newell) and Mr Featherby”, and that “it (the publication) included no personal attack on (the appellant) as being spiteful...”, and further “It has been suggested and pleaded that these words can be read to say that you are a spiteful person. I do not accept that they do say that.” Mr Linklater-Steele argues that the learned Magistrate has drawn a distinction between an allegation of a spiteful campaign and an imputation that a person involved in that campaign “was a spiteful person”, and that, in so doing, he has placed too legalistic an interpretation upon the words and, in turn, confused a question of law with a question of fact. In my view, the Magistrates conclusions on paragraph 5(a) are not confusing. Certainly, he did not specifically separate the two findings in his reasons. He sits as the arbiter of law and fact and it would be quite unrealistic to expect him to artificially separate the two roles. Clearly, his finding that the letter is not in itself defamatory carries the implication that he was satisfied as a matter of law that the postscript was capable of carrying the defamatory imputation alleged in paragraph 5(a). His factual findings, as previously referred to, are clear. He was entitled to make the finding of fact that the words did not carry that imputation. I agree with the submission made by Mr Green, and mentioned by the learned Magistrate in his reasons, that the postscript to the letter described conduct and did not directly ascribe or attribute any particular quality or condition to any person. To hold in favour of the Appellant's argument on this point, would require reference to an unusually suspicious disposition and not that of the ordinary reasonable person of fair and average intelligence: Slaytor v Daily Telegraph Newspaper Co Ltd (1906) 6 CLR 1 at 7; Keogh v Incorporated Dental Hospital of Ireland (1910) 2 IrR 577 at 586; Lewis v Daily Telegraph Ltd (1964) AC 234.

(c) The Magistrate did not consider the defences pleaded

1. [10]
   The Magistrate did not make any distinct finding that the publication was excused. He clearly did not do so because he found that there had been no publication of a defamatory matter. Again, a fair reading of his reasons for judgment reveals findings of fact that are not seriously challenged by the Appellant and which, nevertheless, bear on the defences raised. The amended defence, filed 22 July 1998, pleaded truth (section 15 Defamation Act 1889) and qualified protection (section 16(c) and (e)). The reply and answer, filed 24 July 1998, was not a proper pleading in that it did not contest the defences, rather it pleaded that “allegations of fact” contained in paragraph 7 (the relevant paragraph) are denied. Mr Green submits that under the then pertaining Rules of Court, and at common law, such a failure was fatal to an attack on the defences: Watpac Australia v North Queensland Newspapers (unreported judgment of the Supreme Court of Queensland of Justice Williams, delivered 10 April 1997); Kleins v ACP (No 2) (1965) NSWR 1407 at 1409. However, I agree with Mr Linklater-Steele that this is essentially a pleading point, which should have been made pre-trial. Good faith was clearly an issue at the trial, and not on the limited basis contended for by Mr Green. In any event there are a number of findings of the Magistrate which bear on the defences pleaded, for example that the publication was not excessive, that the Respondent clearly believed it to be true, and that there was sufficient relationship between the parties to express “in terms as set out”. In addition to some of those already mentioned, there are a number of other findings relating to the issue of good faith. The Magistrate found that the Respondent was a careful and honest person who had no intention to defame the Appellant. If the Magistrate had found intention to be an element of the tort of defamation, he would have been in error: Gatley 9^th ed., paragraph 3.12. This finding is also directly relevant to some of the allegations pleaded in paragraph 8 of the Statement of Claim. In light of these findings, it is difficult to see how the Appellant could have satisfied the onus of establishing an absence of good faith (section 17 Defamation Act 1889). It is unfortunate that the learned Magistrate did not go on to consider each of the defences.

1. [11]
   Whether a publication of defamatory matter is excused by virtue of qualified protection is a question of law: Telegraph Newspapers Co Ltd v Bedford (1934) 50 CLR 632; Calwell v Ipec Australia Limited (1975) 135 CLR 321. In deciding the matter it is necessary for the Court to consider the imputations conveyed by the matter: Pervan v The North Queensland Newspaper Co Ltd and Anor (1991) Aust Torts Reports 81-119 per Thomas J (as His Honour then was) at 69-121. As I have previously noted, because of his finding that the letter was not defamatory of the Appellant, the learned Magistrate did not go on to specifically consider the defences. Nevertheless, the learned Magistrate did make findings, which on the evidence are unimpeachable, that would support a conclusion that the Respondent acted in good faith, and that the publication, in the circumstances, was excused by virtue of section 16(1)(c) or (e) or both. The Appellant also makes complaint about the Magistrates finding that the publication was not excessive. In this regard Mr Linklater-Steele referred to Bellino v The Australian Broadcasting Corporation (1995-1996) 185 CLR 193 at 232. In my view, there is no merit in this argument. The finding was open on the evidence and reasonable in the light of the other findings made by the Magistrate.

(d) Costs

1. [12]
   Notwithstanding his dismissal of the Plaintiff's claim, the Appellant submits that the Magistrate should not have ordered the Appellant to indemnify the First Respondent for her liability to pay the costs of the Second Respondent. The Magistrates order was quite conventional: Johnson v Ribbins (1977) 1 All ER 806 at 810-811 per Gott CJ, followed by Ryan J in Swisstex Finance Pty Ltd v Lamb (1993) 2 QdR 463 at 465. Ordinarily the order is not expressed in terms of an indemnity, but rather an order is made that the successful defendant's costs against the plaintiff include the costs it is ordered to pay to the third party. Presumably, the order was expressed in terms of an indemnity because that order was sought in the pleadings. The Appellant's argument is that the Respondent's claim against the Second Respondent could never have succeeded. This argument should be rejected. The Appellant unsuccessfully opposed the issue of the Third Party Notice. Certainly, the Magistrate made no findings in relation to the Third Party Claim, nor was he obliged to do so, in the light of his decision. Further, the Appellant complains that she had no opportunity to make submissions on this point. I have set out above the course of the proceedings. On 3 September 1999, the Magistrate heard submissions and then delivered his reasons, including the costs order. Mr Linklater-Steele was present for the Appellant; indeed the Magistrate adjourned briefly to enable the parties to discuss quantum. There was no attempt to reopen the costs order for argument and it is too late to complain now.

Costs of the Second Respondent on Appeal

1. [13]
   The Second Respondent was served with the Notice of Appeal and appeared at the hearing of the appeal by counsel, Mr Garrick. The Appellant submits that the presence of counsel was not necessary given that the Second Respondent had filed an outline of argument on 4 July 2000 in which it advised the Court, inter alia, that it “does not advance any substantive submissions”. The problem with that argument is that the Notice of Appeal stated that on the hearing of the appeal “the appellant will seek to adduce fresh evidence”. All parties certified the appeal was ready for hearing on 25 August 2000, on which day a Request for Trial Date was filed. I was informed by Mr Garrick that he had never been informed of the Appellant's decision not to seek to adduce fresh evidence, which fact had certainly been communicated to the Court and the First Respondent in a timely way. In any event, I am of the view that it was appropriate for the Second Respondent to be represented by counsel. Notwithstanding its expressed attitude to the appeal, the Second Respondent could not know what this Court would decide.

Orders

1. [14]
   In the circumstances, the order of this Court are as follows: