Smith v Farren-Price[2004] QDC 146

CIVIL JURISDICTION

JUDGE ROBIN QC

and

SOUTHPORT

..DATE 01/04/2004

JUDGMENT

HIS HONOUR: It seems clear to me that both the plaintiff and the defendant have established the publication of defamatory material against them by the other. This occurred in the context of an unhappy body corporate whose name is Kings Row South.

Each of the parties in defence of the claim for damages for defamation sets up a defence of qualified privilege under section 16(1) of the Defamation Act (1889), in particular paragraphs (c) and (e). Mr Farren-Price also relies on a “tit for tat” defence bearing in mind that all publications by him occurred in November, 2001 following the earlier one, which was defamatory of him, which Mr Smith published in April of that year.

The Court of Appeal decision in Sorenson v. McNamara (2004) 1 Queensland Reports, 82 establishes that the context is of the kind where the qualified privilege defence is applicable unless it can be excluded by the claimant showing lack of good faith. In that regard, in an earlier decision of Anthony v. Rockett, noted in the headnote in the report of Sorenson v. McNamara, the applicability of the qualified privilege defence was also noted. At the beginning of the trial I indicated that the decision in Anthony v. Rockett established that in a similar brawl in the body corporate for The Sands at Surfers Paradise.

I interpolate that Sorenson and McNamara concerned Brentwood Apartments, also on the Gold Coast. I had been too ready to find that Mrs Rockett succeeded in establishing that Mrs Anthony's publications were not made in good faith. It is, of course, for the person defamed to prove lack of good faith rather than for the defamer to prove the presence of it.

Sorenson v. McNamara is important in establishing that within section 16(e) “information” includes a defendant's opinion about the plaintiff's conduct or attributes. There, the Court of Appeal was faced, as the Court is here, with proceedings between two honourable protagonists both wedded to their own genuine views of the facts and circumstances in which they were involved. I think that this is very much the situation here.

Neither the plaintiff nor the defendant, in my opinion, has succeeded in satisfying the burden of proof, which as claimant he bears, of the absence of good faith, see Section 17 of the Act. I am particularly conscious that the plaintiff, Mr Smith, complains of repeated publications. That would also a feature in Rockett v. Anthony, where they occurred over a much more spread out period of time.

The consequence is that both the claim and the counter-claim must be dismissed. Ordinarily that would be with costs. I have concluded it is preferable to make no costs order at the moment and, essentially, that is for the reason that Mr Farren-Price was unrepresented through the whole of the trial although he was represented at an earlier stage.

Mr Smith has represented himself only in this last week. I think it would be an unjust outcome given that virtually no time has been spent, during the protracted trial, in relation to the counter-claim if orders dismissing a claim with costs lead to Mr Farren-Price having to pay substantial legal costs when he was unrepresented himself.

Unless the parties want to say something, there will be no orders as to costs on the basis that, in present circumstances, that is a suitable way of balancing things out where both claims have failed.

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