DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an action for damages for defamation. On about 16 February 2008 the defendant^[1]caused to be distributed a number of copies of a document in the form of an open letter written by him. The letter was written in Vietnamese; the plaintiff and the defendant are both of Vietnamese extraction. The plaintiff alleges that the contents of this publication defamed him. The letter was written and distributed by the defendant in his capacity as president of the Queensland Chapter of the Association of Veterans of the Republic of Vietnam Armed Forces. There is a counterclaim by the defendant and that body seeking damages for defamation in respect of a speech delivered by the plaintiff at a ceremony conducted by the Queensland Chapter of the Vietnamese Community in Australia,^[2]an organisation of which the plaintiff is the president. The defendant’s publication followed the plaintiff’s speech, and he said it was a response to it.

2. [2]
   The organisation of which the plaintiff is president is a body which has members, though I was told that anyone can join and there is no membership fee.^[3]It has in excess of 3000 members. It is run by a management committee, which includes the president and a treasurer, who are elected by the members every two years.^[4]I was told, and the evidence was not contradicted, that it is common for people of Vietnamese extraction to belong to this organisation. Although its name does not include the word “association”, at times that word was used to describe it, which at one point in the trial produced some confusion.^[5]I shall refer to the Queensland body of which the plaintiff is president as “the community” for convenience, and the Queensland body of which the first defendant is president, which is also the second defendant, as “the association”. I assume that the association is a body specifically for those who served as members of the armed forces of the Republic of Vietnam; I was told that it has a current membership of the order of 150:  p 72.

The parties

3. [3]
   The plaintiff completed his university education at the Saigon University in Vietnam in 1974, when he graduated from the School of Medicine; he had previously graduated in civil engineering and in law.^[6]He then served in the army of the Republic of Vietnam until 30 April 1974 when, following the fall of Saigon, he fled the country, arriving in Australia on 17 May 1975. Over the next three years he took the steps necessary to qualify as a medical doctor in Queensland, and he has subsequently practised as a general practitioner in a variety of south-side suburbs. He has evidently been a long-standing member of the community, having served as a vice president in 1976-77, and as media officer in 1979-81. He was national president of the Vietnamese community in Australia from 1981 to 1991. He is a member of a large number of medical, Vietnamese, and other organisations. He was at one time on the Australian Refugee Advisory Council for the federal government, a member of the Queensland Migrant Settlement Council, and on the Australian Aboriginal Reconciliation Council in Queensland. He was the first president of the Queensland Multicultural Council in 2007. He was awarded the medal of the Order of Australia in 1985, the Paul Cullen Award for service to refugees in 1992, and a Queensland Disaster Hero medal in 2011 for his efforts to raise funds for Queensland flood victims.

4. [4]
   The defendant served in the army of the Republic of South Vietnam for 16 years.^[7]He was for a time working with the Australian force in Vietnam; following its withdrawal, he was transferred to another unit. After the fall of Saigon he was taken prisoner and served seven and a half years in a prison in North Vietnam. One can only imagine the horrors to which he was subjected during that period, and the psychological scars he must bear because of it. He came to Australia in 1981. He was for a time a patient of the plaintiff, who was then operating a practice in a particular suburb, but ceased to be the plaintiff’s patient when that particular practice was discontinued:  p 13. He has for a long time been involved with the association. He worked at one time for a motor vehicle manufacturer; he is now retired:  p 74.

5. [5]
   Although he had some understanding of English and some ability to speak English, he gave most of his evidence through an interpreter, as indeed did most of the other witnesses. This process can be unsatisfactory, and I had the impression at times, particularly during cross-examination, that there was some misunderstanding on his part as to just what he was being asked. For example, at one point he appeared to imply that he was working for a time with the Department of Veterans’ Affairs;^[8]he later made it clear that this was not the case,^[9]and I suspect that what happened was that he had been earlier referring to the fact that, as president of the association, he was involved in dealing with the department on behalf of his members.^[10]

Background

6. [6]
   The parties, because of their respective positions, knew each other. The plaintiff said that he believed they had a good working relationship until this incident: p 14. It does appear, however, that there has been for some time some tension between the community and the association.^[11]One incident of which the plaintiff gave evidence followed some damage being caused to the flagpole outside the community premises in June 2006, which put the community to some expense for repair costs.^[12]The community had to raise money for these costs, and the plaintiff was evidently unhappy that apparently the association did not support this fundraising effort. That led to his saying in his speech at a New Year flag raising ceremony the things of which the defendants complain. Copies of the speech evidently came to be circulated in writing, but it was not disputed that the plaintiff had published the text of that speech by delivering it to the persons who were present at that ceremony. Again, the document is in Vietnamese; an English translation of it was put in evidence:  Exhibit 9.

7. [7]
   Within that document there is reference to a flag pedestal construction committee having been set up to rebuild the flagpole, and the following then appears:

“It is said that veterans are the backbone of the community, but the Veterans Association of Queensland, a member of the Republic of Vietnam Armed Forces Veterans’ Association of Australia, has been really an outsider in the reconstruction of the flag pedestal. The committee of free Vietnamese community has received no regards, and the flag pedestal rebuilding committee has obtained no contributions from the Veterans’ Association in Queensland. In review of the past 10 years of Dr Tran Trung Hoa’s term (1997-1999) and Mr Tran Hung Viet’s three terms (1999-2005), the Veterans’ Association of Queensland has passively stood by in every social, cultural, constructional and political work of the community. This is a heart-rending matter which should be mentioned in the hope that our veteran body will soon improve the situation in order to build a strong community and support the struggle for liberty and democracy in our homeland more effectively.”

Counterclaim

8. [8]
   This is the publication which is the subject of the counterclaim. It was alleged in the counterclaim (para 14) that this was published of and concerning the first defendant; this was denied in the reply and answer:  para 9(b). Whether a document is published of and concerning a party is a question of fact. It is not essential that the party be named as an individual, but it is necessary for there to be material in the publication which would serve to identify, directly or indirectly, the party alleged to have been defamed about whom the document is speaking. The defenants’ case was that the first defendant was identified because he was the current president of the body which was identified in the document, as was common ground (answer para 9(a)), so that in this way criticism of the policies being pursued by the association amounted to criticism of the first defendant.

9. [9]
   The position was discussed by Hunt J in McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485 at p 487-8:

“A libel upon the whole of a class may be the subject of complaint by a member of that class who is not otherwise individually pointed to in what was published only if the matter complained of can fairly be read as defaming each member of that class. In determining whether the matter is capable of such an interpretation, the size of the class, the generality of the charge and the extravagance of the accusation may all be considered, although none is conclusive. Thus, the statement that all lawyers are thieves does not permit any lawyer to sue unless there be something in the matter complained of which points to him as one of those referred to. (However, an individual may be described, even if as a member of a class, if those who look on know well who is aimed at, he has a cause of action, and that is so whether or not the defendant intended to refer to him.)  On the other hand, the statement in the present case that all three members of the plaintiff’s firm were convicted SP operators clearly permits the plaintiff as one of that class to sue upon the basis of an imputation that he has been so convicted.”^[13]

10. [10]
    It may be that the policies of the association were necessarily so closely associated with the policies of the president of the association that to criticise the policies of the association is in substance to criticise the policies of the president. In those circumstances, the president may be defamed because “those who look on know well who is aimed at.” The latter part of the quote from the speech refers to the terms of two individuals ending in 2005, and suggests that the problem is continuing. If those individuals were the previous presidents of the association, who were succeeded by the first defendant, the implication that the problem was continuing would involve an identification of the first defendant with the policies criticised in relation to the two individuals named. Furthermore, the policies of the organisation may be determined by a small group such that criticism of the policies may be fairly interpreted as criticism of all of those who are determining the policies, and hence of each of them.

11. [11]
    The difficulty of all of these arguments, however, is that there is no evidentiary basis for any of them. There was no evidence that the two named individuals were the previous presidents, and no evidence of the management structure of the association, or evidence as to the extent of the power in fact available to the president of the association to determine policy, or indeed what the association did from time to time, nor was there any evidence that, within the relevant group to whom the publication was made, the first defendant was seen as so closely associated with or responsible for the policies of the association that criticism of the policies of the association could be interpreted as criticism of the first defendant. The defendant’s case was presented on the basis that such a proposition was self-evident, but I do not think that is so. In any case, it is not self-evident to me, and there was no evidence to support such a conclusion. In these circumstances, the proposition that the speech by the plaintiff was published of and concerning the first defendant is not made out. It follows that the counterclaim, so far as it is made by the first defendant, must fail.

12. [12]
    With regard to the counterclaim by the second defendant, it was submitted that the second defendant had never been properly made a party to the proceeding, and therefore could not counterclaim. The rules contemplate in r 178 that a counterclaim may be made against a person not already a party to the proceeding provided that it is also made against the plaintiff, but do not provide for a counterclaim to be made by a person not already a party to the proceeding. Accordingly, an order should have been obtained joining the second defendant as a party in the proceeding for the purpose of permitting it to counterclaim, or the second defendant should simply have brought a separate proceeding, which could then have been ordered to be heard together with the plaintiff’s claim against the defendant, and any counterclaim by the defendant. Neither of these was done, and what occurred was not in accordance with the rules. That does not mean it was a nullity:  r 371. Nevertheless, the point was taken by the plaintiff in the reply and answer, and although no application was made to strike out the counterclaim by the second defendant, it was persisted in before me.

13. [13]
    It is, however, unnecessary for me to decide whether this factor alone would justify me in dismissing the purported counterclaim by the second defendant. There is another fundamental obstacle to that counterclaim: it was neither alleged nor proved that the second defendant, the association, was a body corporate able to sue and be sued by that name. It is not possible to tell from the pleading or the evidence before me whether the body identified as the second defendant is a body corporate or simply an unincorporated association. It would not be of assistance if the national body, of which the Queensland Chapter is a part, is a body corporate, if the Queensland Chapter is not itself a body corporate, since it is the Queensland Chapter which has purported to bring the counterclaim. An unincorporated association cannot bring an action for defamation (or for that matter anything else), and I consider that this is a fatal deficiency in the purported counterclaim by the second defendant. In these circumstances there can be no question of my making an order validating what has been done irregularly. The counterclaim by the second defendant should also be dismissed, or perhaps more appropriately struck out.

14. [14]
    In these circumstances, it is unnecessary for me to determine whether the counterclaims should also be dismissed on the ground that they were vexatious. This point was also raised by the plaintiff, on the basis that only nominal damages of one dollar was sought by each of them. However, the fact that a plaintiff does not seek substantial damages for defamation, but merely seeks by the proceeding to clear his name by obtaining a finding from the court that he has been defamed, is not an illegitimate use of such a proceeding, even if it is a rare one. That a plaintiff disclaims any desire to obtain monetary compensation in addition to having his good name cleared by a finding that he was defamed has been regarded as grounds justifying an award of nominal damages.^[14]

15. [15]
    The course followed by the defendants, of claiming only nominal damages, is certainly unconventional, but if a party is prepared to accept a favourable decision as sufficient vindication of his good name, it does not seem to me that in principle a claim for defamation becomes vexatious merely because the party bringing it disclaims any desire to obtain substantial damages. Money and reputation are incommensurables, a fact which has in the past caused problems with the assessment of damages for defamation, but also means that in my opinion the counterclaim would not have been vexatious merely because of a failure to claim other than nominal damages. It may be as well that for those of Vietnamese extraction the relative importance of reputation and honour and the receipt of financial compensation may be different from for those of Anglo-Saxon descent. In any case, I do not treat the counterclaims as vexatious, but they fail on the merits.

16. [16]
    The plaintiff’s speech does have this additional significance; I accept that the defendant’s action in writing and causing to be circulated the open letter to the plaintiff was a response to what the plaintiff said on this occasion.^[15]There was evidence from one witness who was at the time a member of the association that he went to a meeting where there was a pile of copies of this document which were handed out to those present, who were then asked to take some to distribute them, something he said he refused to do.^[16]I accept that that occurred. He also said that there had been discussion about this at at least one previous meeting of the association, which met every two months.^[17]The date of this meeting was not identified precisely in his evidence, but there could not have been two such meetings between the speech and when the defendant’s letter was distributed, and on this basis it was submitted that the discussion must have been at a meeting before the plaintiff’s speech, so that it was evidence of hostility to the plaintiff other than in relation to the speech.

17. [17]
    Unfortunately the defendant was not cross-examined about this, nor was the plaintiff’s evidence on this point challenged in cross-examination. In these circumstances and given the fact that both gave evidence through an interpreter, so that there is at least the risk of misunderstanding, I am overall not prepared to reject the defendant’s evidence that his letter was in response to what was said by the plaintiff in the speech,^[18]a copy of which was subsequently circulated to some extent. That is supported by the content and timing of the defendant’s open letter.

The defamatory publication

18. [18]
    I find that the defendant distributed or caused to be distributed 300 copies of an open letter to the plaintiff, a copy of which was Exhibit 2. That document is in Vietnamese, but I was provided with two translations into English, Exhibit 3 and Exhibit 4, each of which is said to be by an accredited translator:  p 15-6.^[19]Apart from this, the interpreter who attended at the trial and who interpreted for a number of the witnesses said that in his opinion Exhibit 4 was translated more accurately, though he did not agree with all of the translation of Exhibit 4. He then gave evidence of the differences between Exhibit 4 and how he would translate the document. The practical effect is that I have three versions of an English translation of the relevant publication. I have the advantage that the interpreter was cross-examined on his evidence, so that any issues about the translation would at least have been exposed for his consideration, and for that reason I accept that the English translation of the relevant publication is that shown in Exhibit 4 subject to the amendments which would have been made by the interpreter.^[20]

19. [19]
    For convenience, I will set out the relevant parts of the translation in Exhibit 4 with the amendments made by the interpreter; the original document is some five pages in length:

“To all the honourable fellow countrymen and comrade-in-arms in Queensland.

Dear ladies, gentlemen and comrade-in-arms,

During the past few days Dr Bui Trong Cuong, president of the Vietnamese Community in Queensland has written an open letter with the context of criticising and framing the Veterans’ Association. … May I make my presentation about and reply to the fact that the Veterans’ Association has made no contribution to the community for the past 10 years, as Dr Bui Trong Cuong’s letter has framed us. This is an unfounded allegation to mislead the public and defend the Viet Tan confederates in Queensland. The following is what will be shown in detail so that you all and comrades can clearly see why the Mr Cuong, for long, has not voiced criticisms of the Veterans’ Association, but is raising his voice to dishonour the veterans at the moment. …

THE INAPPROPRIATE CONDUCTS

Dr Cuong considers the Veterans’ Association the backbone of the (Vietnamese) community. That sounds interesting, but everyone knows that the president of the Community is the one who just exploits other people’s bone and blood to get himself advancement and reputation. And why are there so few people to attend the meeting held by the community or to make little contribution to it?  He has respectable appearance [but]^[21]after working side by side, we understand that the president is the person who bites the hand that feeds him. He got other people (outside the community) to do clerical work, make invitation letter for the community, but he shied away from his responsibilities as happened some misunderstandings caused by him. This is the case of Viet at 4EB radio station that everyone knows. That incident disintegrated the community here for a time. From such experience, few volunteers dared to contribute to the community. …

In a meeting of the community, Dr Cuong loudly called upon the societies to boycott the SS Weekly by not putting in advertisements in it, and not reading it, and didn’t agree to let the SS Weekly be delivered to the community office to be distributed to the^[22]fellow countrymen and in the community. … And then everyone was surprised and gossiped because only one week later, the president asked the SS Weekly to print the communiqué of the community. Whoever could be brazen to do that?  Now that SS Weekly was well up on, he flattered and praised it. Mr President, do you still remember your calling for the boycott of the SS Weekly?  We repeat that to remind you and want you not to thoughtlessly charge the Veterans’ Association with not helping make contributions to the community (because the president forgets easily). … Was not that the community president’s attitude of^[23]despise and contempt?  Obviously, how can we veterans partly contribute to the community when the president assumes such an attitude? …

We demonstrate his domination, pride and disregard to us veterans:

…

President Bui Trong Cuong’s ‘generosity’:

Does everyone know how much he contributes for the common good?  I have just heard tell of a thing that doesn’t surprise anyone in Queensland. … Now, of hundreds of stories, one is about what I witnessed concerning Dr Bui’s generosity:  One Australian combatant interfered to stop a Vietnamese young man who snatched money from a Vietnamese girl; the combatant was then stabbed to death. Considering that this was a heart-rending story concerning the honour of the Vietnamese community, some veterans and I raised money in order to partly console the victim’s family. We came from table to table, asking for money. When we approached Dr Cuong’s table, he stood up and walked out^[24]as if he had some pressing business. On other occasions of raising funds, Dr Cuong generously gave $50, at the very most. It was lucky if he sometimes gave more than that amount. …

We veterans would ask you, Dr Cuong, in the construction of the monument, have you given even one dollar?  And on so many other stories, we had to keep silent since we don’t want to discredit the community because of an individual. Now that you have spoken up today, we’re bound to answer in return. You must ask yourself whether you deserve to ride on the veterans’ back.

Why is Dr Bui Trong Cuong unworthy?

… You have acted as president of the community in so many terms; who helped you gain reputation and why have people kept away from you recently?  You must take pains to think and blame yourself. Why do you blame us veterans?  On behalf of us veterans, I give the following reasons why we can’t be horses for you to ride. The first:  your behaviour as a self-styled superior, haughtiness and biting the hand that feeds you. The second:  about the ability and manage and work, you’re a zero. That is because I wonder whether you listen to other people’s suggestions when you don’t know about anything or make wrong decisions. … I cited a few abovementioned facts so that gentlemen, you can see why we veterans are so disappointed by the leader of the community. It’s no use for us to contribute our opinions because he’s made decisions based on his only. …  I assert:  you do not deserve to get our standing by your side and giving you a hand.

As regards the struggle against and opposition to the communists, you are not needed in order that we veterans can resist them. Not once were you, but your representatives, present at demonstrations, while other veterans and I always were. Is that true? … I would ask you, Mr Cuong, for the last over 20 years, have you even taken pains to go BY BUS, day and night, with us and our fellow countrymen in our struggle or demonstration? … While other presidents take hardship, sharing rain and shine with their fellow countrymen, you are opposing communists by airplane … and by the funds.

Formerly, we supported you with all our heart, but living together, people have their masks taken off. Therefore, sorry to say that you must not be sad and should punch yourself on the chest, saying ‘it is my fault, anyhow.’  Besides, if Dr Cuong, president of the Vietnamese community in Queensland, would like to have a dialogue on anything with us veterans, we’re ready to receive you at the association’s office …”

The imputations

20. [20]
    The plaintiff relies on the following imputations, that the plaintiff:

“(a) was deceitful and deceptive;

2. (b)
   was neglectful, two-faced, selfish and self-centred;

3. (c)
   unlawfully and improperly used monies from the Vietnamese Community Fund;

4. (d)
   had a convenient memory, was not generous in nature and took advantage of others;

5. (e)
   was not an honest person; and

6. (f)
   was not a trustworthy person.”

21. [21]
    The defence in response was in the following somewhat curious terms:

“The defendant denies that he used such exact words in paragraphs (a), (b), (d), (e), (f), but admits that there were similar implications, which were fair comments, based on honest opinion. Further the defendant denies subparagraph 6(c) because he was merely stating his opinion on the matter on behalf of his association (QLVNCH), in which he honestly believed that it was true at the time. The statement was justifiable and he imparted the comments in good faith.

PARTICULARS

The document was written in Vietnamese and the defendant does not agree with the accuracy of the translation as alleged in this paragraph. The translation was incorrect and biased … The defendant published the article in an attempt to clarify or respond to an unfounded and baseless statement made by the plaintiff. The purpose of subparagraph 6(c) is an attempt to state that the plaintiff was not as generous as other former presidents. Nowhere in the defendant’s article did he mention the word unlawful.”

22. [22]
    Counsel for the plaintiff submitted that this amounted to an admission that the publication carried the defamatory imputations relied upon. I am not at all sure that it goes that far, though it does not clearly deny anything other than that part of paragraph (c) that used the term “unlawfully”. In any case, I find that the publication did carry the imputations referred to in paragraph (a), (b), (d), (e), and (f), and the imputation that plaintiff improperly used money from the Vietnamese community fund.

23. [23]
    I accept that the latter part of the letter does imply, and hence carries the imputation, that the defendant used money from the Vietnamese community fund to travel by air to Canberra rather than travelling with others on the bus, and that this was an improper use of such funds, but I am not persuaded that the material published in fact conveyed the inference that the plaintiff acted unlawfully in using money in this way. What matters is what was conveyed by the document and the document did not assert or imply that anything which was done was unlawful, as distinct from being inappropriate. Accordingly, I find imputation 6(c) proved only in part, not that part which alleged that the plaintiff in using this money had acted unlawfully.^[25]All the imputations found were obviously defamatory of the plaintiff.^[26]

Defences

24. [24]
    Paragraph 6 of the defence is apparently directed to raising a number of defences, although it does not do so clearly. There is a reference to fair comment and honest opinion, and later that the statement was justifiable and he imparted the comments in good faith. The defence of justification under s 25 of the Act is established if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. Assuming that the intention was to raise this plea, it was not sustained by any evidence. There was no evidence to prove that any of the imputations were substantially true, assuming that they were statements of fact.

25. [25]
    In particular, insofar as there was an issue about whether the plaintiff had used money from the Vietnamese community fund to fly to Canberra, there was no evidence that that was substantially true, and compelling evidence to the contrary, from the plaintiff,^[27]and from the treasurer of the community in Queensland, that such a thing had not happened while he was treasurer and that he was not aware of any such incident in the past from the records of the community.^[28]Indeed, under cross‑examination the defendant conceded that the plaintiff had not used money from the fund to fly to Canberra, and said he accepted the plaintiff’s evidence to that effect.^[29]

26. [26]
    The difficulty here for the defendant is that what he is really trying to do is to run a defence that he honestly believed at the time of the publication what he said about this matter was true. That is relevant to a defence of qualified privilege at common law,^[30]but that alone is not a defence to the publication of a defamatory imputation. There is no equivalent in the Defamation Act of s 24 of the Criminal Code. There is in s 31 a defence of “honest opinion”, but it is quite a limited one:  it is confined to an expression of opinion rather than a statement of fact, it must relate to a matter of public interest, and must be based on proper material. Most of the innuendoes complained of were matters of opinion, but the question of whether the plaintiff’s airfares were paid from the fund is a matter of fact, so a defence of honest opinion on that matter is not available.

27. [27]
    There is also the difficulty that the requirement of a basis on proper material means that the opinion must be based on material that is substantially true, or was otherwise published on an occasion which attracted the protection of some provision of the Act: s 31(5). In relation to the other imputations, which would more naturally be described as expressions of opinion, it was not proved by the defendant that any of these were based on material that was substantially true, or had been published in circumstances where a defence was available in respect of that publication. Indeed, apart from the fact that such a defence was not in terms raised in the pleading, it did not appear to me that there was any serious attempt to establish such a case by evidence in the trial. The defence of fair comment at common law is essentially the same as the defence of honest opinion in s 31(1) of the Act, so that, if fair comment at common law is also raised by the defence, it fails for the same reasons.

28. [28]
    Apart from this, later paragraphs of the defence alleged that the publication was trivial, and that the publication was a response to the material published by the plaintiff, as referred to earlier. Section 33 of the Act provides a defence if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm, which is described as a defence of triviality. Apart from the statute, this would be perhaps a matter which went to the quantum of an award of damages rather than a defence as such. However, a similar defence was provided by s 20 of the Defamation Act 1889, and covered for example a case where the publication was only to a small number of persons well acquainted with the plaintiff and able to make a judgement of their own knowledge as to the likelihood that there was any substance to the imputation conveyed:  Doelle v Bedey [2007] QCA 395 at [10].

29. [29]
    In the present case the publication was more widespread, and was not confined to people who would be unlikely to think any differently of the plaintiff as a result, either because they were already firm friends or bitter enemies of his, or because they would be likely to be indifferent to what was said about him. The plaintiff is in a position of some prominence because of his presidency of the community, as is the defendant because of his presidency of the association, and things said by the defendant about the plaintiff would I think therefore be likely to be of interest to people of Vietnamese extraction, whether or not they were members or active members of the community or the association. In this matter the defendant has failed to prove that the circumstances of the publication were such that the plaintiff was unlikely to sustain any harm.

30. [30]
    The defendant also submitted that the document was not defamatory because it was written in Vietnamese, and was not published within the community at large, but was only restricted to a particular group: p 94. I have some difficulty in seeing how that prevents the material published from being defamatory; it is possible for a plaintiff to be defamed by a publication to one other person. Counsel for the defendant relied on Tolley v Fry [1931] 1 KB 467. That was a case where the majority of the Court of Appeal treated the publication as an example of true innuendo, which failed because there was no evidence of any special facts known to those to whom an advertisement was published causing them to attach to it the meaning alleged in the innuendo. Apart from the fact the decision of the Court of Appeal was reversed by the House of Lords,^[31]that was a case where the defamatory innuendo did not depend upon the words used but solely upon the circumstances in which the publication took place.^[32]The fact that the publication is in a foreign language does not make it a case of true innuendo. I am prepared to take judicial notice that there are a significant number of people in the community who can read Vietnamese, a proposition which was in any event obvious in the light of the evidence in this case. That submission was misconceived.

Qualified Privilege

31. [31]
    It is next necessary to consider that aspect of common law qualified privilege which arises in the context of a public response to a public attack. The leading judgment in Australia on this matter is Loveday v Sun Newspapers Ltd (1937) 59 CLR 503. In that case the plaintiff had been dismissed from relief work with a municipal council, and an association of relief workers had taken up his cause, and had written to newspapers complaining about victimisation of him by the council. The town clerk prepared a reply to this and both the complaint from the association and the reply by the town clerk were published in a newspaper. The plaintiff then sued the town clerk and the newspaper alleging that the reply had defamed him. Latham CJ said at p 511:

“An occasion is the subject of qualified privilege if both the plaintiff and the defendant have an interest in the subject matter to which the alleged libel relates and if the publication of the libel is made in protection of the defendant’s interest. In the present case it is plain that the plaintiff was interested in the administration by the Canterbury Municipal Council of the system of employing relief workers. He had been a relief worker himself and had been dismissed from his employment as such. The defendant Jay was the executive officer of the Council which administered the relief system. He had an interest in defending his own reputation as well as the reputation of his council, in relation to the administration of that system. If either Jay or the council were attacked in relation to that administration Jay was entitled to reply to the attack and the occasion would be privileged.”

32. [32]
    His Honour added at p 512:

“The statement of which complaint is made was published in the press. It cannot, however, be urged in this case that the extent of publication was in excess of the necessity of the case so as to provide evidence of malice. The plaintiff himself had chosen the public press for the purpose of giving publicity to his complaint and he cannot complain if the defendant uses the same medium for reply. It was urged that evidence of malice was to be found in the fact that the defendant did not plead justification and therefore was in the position of not contesting the falsity of a defamatory publication. It is obvious that the fact that a defendant does not allege, when litigation has begun, that a defamatory statement is true, is no evidence whatever that he knew that it was false at the time when he made it. It was further argued that the fact that the defendants refused to apologise and pay costs was evidence of malice. Such a proposition is plainly untenable.“

33. [33]
    His Honour went on at p 514 to approve a statement from Gatley On Libel and Slander, 2^nd Ed (1929) p 293:

“A person whose character or conduct has been attacked in the public press is entitled to appeal to the same tribunal in his defence and vindication, and if, in answering such attack, he makes relevant defamatory statements about the person who has attacked him, such statements are prima facie privileged.”

34. [34]
    Starke J at p 515-6 expressed the same principle in similar terms:

“A man who attacks another in or through a newspaper cannot complain if that other repels or refutes the attack for the purpose of vindicating himself. He has appealed to the public and provoked or invited a reply. A person attacked has a both and an interest in repelling or refuting the attack, and the appeal to the public gives it a corresponding interest in the reply. Occasions of this kind are privileged and communications made in pursuance of a right or duty incident to them are privileged by the occasion. … The privilege is not absolute:  in case a person is attacked the answer must be relevant to the attack and must not be actuated by motives of personal spite or ill will independent of the occasion on which the communication was made.”

35. [35]
    His Honour went on to hold that it was not necessary to plead or prove that the statement published was true. The third member of the court, Dixon J, dissented in relation to the question of whether a particular factual issue should have been withdrawn from the consideration of the jury, but it does not seem to me that his Honour’s analysis of the principles in the passages referred to earlier differed in substance from the other members of the court.

36. [36]
    The decision was cited as authoritative by McHugh J in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 at [65]-[67]. That was a dissenting judgment, but what is significant is that his Honour regarded the principle as established, although not applicable in that case; his Honour went on to distinguish the facts of the particular case then before the court, which were somewhat different. The majority judgments deal with the issues of qualified privilege, and in particular the question of identification of the reciprocity of duty and interest, in a way which was more specific to the particular issues in that case.

37. [37]
    Loveday was also recently cited as authoritative by the New South Wales Court of Appeal in Trad v Harbour Radio Pty Ltd [2011] NSWCA 61 at [110]. In that case the court also discussed in more detail similar statements of principle by Dixon J in Penton v Calwell (1945) 70 CLR 219 at 233-4:

“The foundation of the privilege is the necessity of allowing the party attacked free scope to place his case before the body whose judgment the attacking party has sought to affect. In this instance, it is assumed to be the entire public. The purpose is to prevent the charges operating to his prejudice. It may be conceded that to impugn the truth of the charges contained in the attack and even the general veracity of the attacker may be a proper exercise of the privilege, if it be commensurate with the occasion. If that is a question submitted to or an argument used before the body to whom the attacker has appealed and it is done bona fide for the purpose of vindication, the law will not allow the liability of the party attacked to depend on the truth or otherwise of defamatory statements he so makes by way of defence.”

38. [38]
    That was a judgment at first instance, where his Honour distinguished the principle from the facts of the case before him, and struck out a defence of qualified privilege; on appeal a majority of the Full Court varied the order by allowing the defendant leave to amend the plea and particulars. Nevertheless, there appears to be no disagreement with the general statements of principle:  see for example the joint judgment of Latham CJ and Williams J (with whom Rich J largely agreed) at pp 242-243. In Trad (supra) the court held that it was necessary for the matter complained of to be relevant to the occasion of qualified privilege, and that mere retaliation which cannot be described as an answer or explanation is not protected; the privilege extends only so far as to enable the defendant to repel the charge brought against him, not to bring fresh accusations against his adversary:  [111].

39. [39]
    In that matter, the jury found the following imputations were conveyed and were defamatory of the appellant:

“(a)the plaintiff stirred up hatred against a 2GB reporter which caused him to have concerns about his own personal safety;

2. (b)
   the plaintiff incites people to commit acts of violence;

3. (c)
   the plaintiff incites people to have racist attitudes;

4. (d)
   the plaintiff is a dangerous individual;

7. (g)
   the plaintiff is a disgraceful individual;

8. (h)
   the plaintiff is widely perceived as a pest;

10. (j)
    the plaintiff deliberately gives out misinformation about the Islamic community;

(k)the plaintiff attacks those people who once gave him a privileged position.”

40. [40]
    In application of this aspect of the defence of qualified privilege, the court said at [112]:

“Imputations (a), (b), (d) and (g) were based upon a misapprehension of the facts, but that is not fatal to the defence. They constituted a legitimate response to the public attack on the radio station. As indicated above, imputation (c) was in our view not a legitimate response and was not accordingly an answer or an explanation. Taken in context imputation (g) describing the appellant as a disgraceful individual, could be seen as little more than vulgar abuse, but to the extent it was defamatory it was sufficiently linked to the public attack on the respondent to be part of a legitimate response. Describing the appellant as a pest (imputation (h)) was also vulgar abuse, and not, in our view, a relevant response. Imputation (j) concerning misinformation ranges more widely, but, we would accept, was within the latitude of response allowed to a party attacked, which seeks to undermine the credibility of its attacker. Imputation (k) was a not bona fide answer or retort by way of vindication fairly warranted by the occasion.”

41. [41]
    It followed that the appeal court concluded that the defence should not have been upheld in relation to three of the imputations found. It is apparent from the approach adopted in this decision, which as a decision of an intermediate appellate court is worthy of considerable respect, that there is a degree of latitude of response allowed to a party attacked,^[33]but that there are limits to what response can be said to be relevant to the occasion of qualified privilege.

42. [42]
    The authorities in support of the principle were distinguished by the Court of Appeal in New South Wales in Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448. That case involved an allegation that defamatory things had been said about the plaintiff who was a member of the council of a motoring organisation, and who had been publicly critical of the leadership of that organisation, during an interview by one of the defendants of the president of that organisation. The court at p 459 accepted the statements of principle in Gatley and Loveday (supra) but distinguished them on the basis that the relevant statements found to have been defamatory were statements by the radio commentator, and not made by the president of the organisation who had been subjected to the public criticism. There was no basis upon which such privilege as that person might have enjoyed could be extended to the commentator and his employer, the radio station. Accordingly it did not matter that the radio station may have been protected by privilege in respect of statements made by the president during the interview.

43. [43]
    That gives rise to this consideration: I have held that the statements made by the plaintiff were not shown to have been published of and concerning the defendant. They were, however, identified by the defendant as criticism of the association of which he was president, and I consider that in his position as president of the association he was an appropriate person to respond on behalf of the association to that criticism.^[34]  In my opinion therefore he is within the scope of the privilege because he is expressly replying on behalf of the association to that criticism.

44. [44]
    The plaintiff submitted that the defence of qualified privilege had not been properly pleaded, but it seems to me that, although the pleading is somewhat discursive and unsatisfactory, the various matters which need to be pleaded in order to raise the defence of qualified privilege on the basis of the principle in Loveday (supra) were fairly raised in what was said in the defence, even if not in the conventional way, and that the defence set out all necessary material facts to raise that issue. The plaintiff has in fact, in the amended reply, in paragraph 3(d), raised the issues which are relevant in response to a defence of qualified privilege on that basis. Although the authorities were not cited in addresses, which is why I subsequently invited written submissions on them from both counsel, it did seem to me that the relevant factual issues were in fact litigated during the trial^[35]. I should not therefore refuse to determine the matter because of any inadequacy on the part of the defendant’s pleading.

45. [45]
    I do not think it matters that the defendant’s publication was in the form of an open letter and distributed by hand, rather than in the form of a speech on a public occasion; both involved statements to that part of the public which might be characterised as those of Vietnamese extraction living in Brisbane. The plaintiff’s speech was on an occasion where there was likely to be a significant gathering of such people, and the defendant’s open letter was written in Vietnamese and was therefore likely to be communicated effectively only to such people. Although the particular means by which the relevant section of the public were addressed was not the same in the two cases, I think that there was a sufficient similarity between the practical target audience in each case for the principle to apply:  both publications were in effect directed to the same segment of the public.

46. [46]
    In fact, the plaintiff’s speech was subsequently republished in a Vietnamese language newspaper; there was no evidence of a similar publication of the defendant’s open letter, though there was evidence that there had subsequently been articles dealing with the matter published in a Vietnamese language newspaper.^[36]It is not clear that the republication by the newspaper of the plaintiff’s speech was intended by the plaintiff, but as I have said I do not think that that matters since I think the plaintiff’s speech was a sufficient appeal to the opinion of the relevant segment of the public.

47. [47]
    The issues in relation to this matter therefore come down to the question of whether the publication by the defendant was actuated by actual malice, and whether the published statements lacked a sufficient connection to the occasion of qualified privilege, or was more than a response to the attack which had been published on the association. That attack was of a fairly limited nature: broadly speaking it alleged that the association had not been providing as much support as it ought to have been to the work of the community, with particular reference to financial support of the project for repairs to the flagpole. That would I think justify a response pointing out, as parts of the circulated publication did, that there were things which the association had done which supported the community, or which were apparently directed to that end. It would also, on the authorities, justify statements attacking the credibility of the plaintiff with a view to showing that what he said about the association was not worthy of belief, but not mere vulgar abuse of him.

48. [48]
    None of the imputations relied on by the plaintiff were related to anything said directly by way of response to the criticism of the association, but it could I think be said that imputations (a), (e) and (f) were relevant to the general credibility of the plaintiff, and in that way within the latitude allowed by way of a reply. I do not think however, that the authorities allow any form of adverse statement about the plaintiff to fall within the scope of the protection merely because anything which might tend to make people feel less favourably disposed to the plaintiff might thereby indirectly tend to make people less willing to believe what the plaintiff said by way of criticism of the association. There are limits to the scope of the privilege, and it seems to me that imputations (b), (c) (to the extent that it was made out), and (d) are not sufficiently closely related to the general credibility of the plaintiff to bring them within the scope of the privilege.^[37]

Malice

49. [49]
    The other issue to be decided is the question of actual malice, which was raised by the plaintiff and relied on. The plaintiff relied on a number of matters as constituting evidence of malice, the first being the nature and content of the publication itself, and the personal nature of the attack made on the plaintiff. Some of the things said in the course of the open letter are quite a serious personal attack, and certainly justify the description of vulgar abuse.^[38]Overall the content of the letter would be some evidence of malice. I am a little wary about the extent to which I can rely on that, however, in circumstances where I am working from a translation rather than the original words published by the defendant, which I have but cannot understand.

50. [50]
    Malice is concerned with the actual state of mind of the defendant, rather than the effect conveyed by the words used, though of course the words used can justify an inference as to his actual state of mind. For this purpose what is relevant to malice is the question of whether some purpose foreign to the privilege in question caused the defendant to use the words that he used.^[39]Hence mere generalised ill will felt toward the person defamed will not be sufficient, there must be evidence that the making of the statement was actuated by an improper motive.^[40]To show malice it is necessary to show that the dominant purpose in making the relevant statements was not the proper purpose which afforded the occasion of the privilege.^[41]It does not matter whether the defamatory statements are incorrect,^[42]but knowledge on the part of a defendant that the statement is untrue will be evidence of malice, generally conclusive evidence.^[43]

51. [51]
    It is also important to bear in mind that the onus is on the plaintiff to establish actual malice, that is to say to prove that the defendant was not using the occasion for its proper purpose, that is not shown simply by the rejection of the defendant’s evidence that he positively believed in the truth of what he published.^[44]This is the real significance of the defendant’s evidence that he honestly believed that the money from the plaintiff’s trip had come from the community fund. In these circumstances, in the present case there is no direct evidence that the purpose motivating the defendant had in mind when making the statements was other than to respond to what the plaintiff had said about the association. Whether the defendant was so acting therefore becomes a matter of inference.

52. [52]
    It is I think easier to draw that inference when one is dealing with the actual words used by the defendant rather than dealing with an English translation of something which was published in a foreign language. There is also the difficulty that the process of drawing an inference as to the actual state of mind on the basis of the words used is likely to be more difficult when dealing with a person with a different cultural background. There was no evidence, expert or otherwise, to the effect that there were particular expressions used which would only be used in Vietnamese in order to convey a deliberate insult, or conversely that expressions used were such as to indicate that there was not an intention deliberately to insult. I suppose the correct approach for me to adopt is to disregard any such cultural differences in the absence of evidence that they are in fact of any significance in the particular case, but I am nevertheless somewhat more cautious about drawing inferences against the defendant on this basis for this reason.

53. [53]
    Another matter relied on was that the defendant had failed to respond to the letters of demand requesting an apology. It is sufficient to refer to the rejection of that proposition in the passage from the judgment of Latham CJ in Loveday at p 513 cited above.^[45]It was also submitted that the pursuit of the counterclaim was evidence of malice, because it was unsustainable and was vexatious as it sought damages of only one dollar. I do not think, however, that the pursuit of the counterclaim was vexatious for that reason, as I have mentioned earlier, and on the whole I do not think the pursuit of the counterclaim was suggestive of malice, even though I found that it failed.

54. [54]
    There was some evidence that the defendant had referred to the plaintiff at a meeting of the association in a disparaging way,^[46]but this evidence was expressed in fairly vague terms, and it does not necessarily mean that the defendant in the open letter was motivated by a purpose other than to reply to the plaintiff’s criticism of the association. It was also alleged that there was evidence of malice in failing to make any inquiry about whether the plaintiff had misused community funds before publishing the statement. It occurs to me that the absence of an inquiry is rather evidence suggestive of a bona fide belief in the state of affairs communicated rather than evidence of malice. Negligence is not malice.^[47]

55. [55]
    It was also said that there was malice shown in having members of the association pack the public gallery in the court during the trial,^[48]so as to intimidate the plaintiff and his witnesses, but I think it is understandable that members of the association who were supporters of the defendant would be concerned about his position and would want to come along to support him, and I am not aware that others who were wishing to attend the court and be present in the public gallery were in fact turned away because as it happened the court in which I was sitting for the trial has only a very limited public gallery.^[49]The courts sit in public and people are entitled to sit in the public gallery so long as they behave decorously and are not excluded by a proclamation as to witnesses, and it is not uncommon for people in the public gallery to be supporters of parties. I do not regard this as evidence of malice on the part of the defendant.

56. [56]
    Finally it was alleged that his refusal to apologise unreservedly to the plaintiff was evidence of malice. Apart from the authority referred to earlier, it did seem to me that the defendant did apologise in the witness box for the statement that he made about the plaintiff using the community funds to purchase his airfare.^[50]What he was not prepared to do was to put the apology in an open letter and distribute it in the same way as the earlier open letter, unless the plaintiff was also prepared to apologise for what he had said in his speech about the association.^[51]I think that the apology in the witness box in a public court room was a significant step, particularly in circumstances when there was evidence that one of the people in the gallery was a journalist working for a Vietnamese newspaper,^[52]so that there was the prospect of the fact of the apology being published in the Vietnamese press. I do not regard the defendant’s unwillingness to take the further steps sought in counsel’s question as evidence of malice. If anything, it suggests that the defendant’s concern about what the plaintiff said about the association was genuine.^[53]

57. [57]
    On the whole therefore there was some evidence of malice, but overall no very compelling evidence of malice. The defendant in the witness box was not a very satisfactory witness. He gave no plausible explanation for the use by him of such strong language consistent with an absence of malice. In the witness box he was critical of the plaintiff, seeking to support some parts of the letter: p 77, 79.^[54]The onus is on the plaintiff in relation to malice, but the question has to be decided on the balance of probabilities and in the light of the whole of the evidence in the trial, and it would be unsurprising if the evidence of the defendant as to his state of mind at the relevant time did throw some light on that issue.

58. [58]
    I should mention one omission from the evidence led before me: although there is a reference in the defendant’s open letter to what might be described as some political division within the Vietnamese community,^[55]this was not an issue explored in evidence by either side, and counsel for the plaintiff did not rely on any political difference as amounting to evidence of malice. In these circumstances, although I suspect that there are political differences between the parties somewhere in the background of this litigation, that is not something I take into account in relation to the question of malice.

59. [59]
    In the light of all of the evidence, I am not persuaded on the balance of probabilities that the defendant was actuated by actual malice against the plaintiff in the relevant sense, that is, that his purpose in making the statements was other than to respond to the plaintiff’s criticism of the association. Although there was some evidence, arising from the content of the defendant’s publication, which was in parts not sufficiently connected to the occasion of the privilege, overall I am not satisfied that the plaintiff has discharged the onus. It follows that the defence of qualified privilege succeeds, but only in part.

Damages

60. [60]
    I should add that if it had been necessary for me to consider if there was malice in relation to those imputations which I found were not within the scope of the privilege, I would have concluded that the statements in the open letter which supported those imputations were made for a purpose other than that of responding to the plaintiff’s criticism of the association. That follows essentially from the reasoning involved in concluding that they were not sufficiently connected with the scope of the privilege. If a person, in responding to public criticism, says things which are not sufficiently closely connected with that purpose, that supports the inference that the defendant in saying those things was not doing so genuinely for the purpose of responding to criticism from the plaintiff, but was motivated by some extraneous purpose.

61. [61]
    The plaintiff is a person of some prominence within the Vietnamese community, and the wider Queensland community, as indicated by the matters referred to earlier. There was evidence which I accepted he has a high reputation.^[56]I accept that the plaintiff was genuinely distressed by having this document published, and particularly by that part of it which indicated that he had had his airfare paid from the community fund.^[57]A significant number of copies of the document were distributed among people of Vietnamese extraction, and there is no reason to doubt that word of it would have spread widely among such people.

62. [62]
    There was no evidence of special damage or economic loss, although the plaintiff claimed that his ability to function effectively as a medical practitioner had been interfered with because of the stress that he had been under as a result of the publication. I think the real significance of this evidence is that it supports a conclusion that the plaintiff was genuinely distressed by what was said about him in this way. On the other hand, the defendant did I think effectively withdraw in the course of the trial the specific assertion which did particularly upset the plaintiff, and did apologise for that, and I think that was also a matter of some significance.

63. [63]
    Aggravated damages were sought, on the basis of the defendant’s failure to respond to letters of demand and to apologise prior to the trial, indeed it was submitted on behalf of the plaintiff, to apologise unreservedly even at the trial, and by the way in which the plaintiff has conducted the case including prosecuting the counterclaim. I have already said something about the counterclaim, and do not consider that it provided grounds for an award of aggravated damages. There were difficulties and unsatisfactory features about the defendant’s pleading, but I do not think that any of that was the produce of a deliberate desire on the part of the defendant to conduct the case in a way which would upset the plaintiff. It may be that a failure to respond to letters of demand could be a ground for aggravated damages, but in all the circumstances I am not persuaded that it is appropriate in the present case to award aggravated damages.

64. [64]
    I had the benefit of extensive researches from counsel for the plaintiff into comparable awards, and counsel for the plaintiff relied in particular on the decision in Hocken v Morris [2011] QDC 115. There was some similarity to the present case there in that there were a series of posters, at least 60 in number, defaming the plaintiff displayed in the suburb where the plaintiff lived. That was a fairly widespread publication of the defamatory statements, though not as widespread as publication in the mass media. General damages of $50,000 was awarded, together with the sum for aggravated damages and interest. On the other hand, in that case the defamatory statements alleged much more serious conduct, that the plaintiff was the person responsible for a notorious abduction of a teenage boy and his presumed subsequent murder. That I think was a significantly worse thing to say about someone than what was said about the plaintiff in the present case.

65. [65]
    Otherwise the collection of decisions in the Schedule merely served to illustrate that awards for damages in defamation matters in Queensland vary widely, but are generally lower than in Hocken. There are a large number of variables which can be taken into account in the assessment of damages, the conduct of the plaintiff, his position and standing, the nature of the libel, the mode and extent of the publication, the timing and extent of any retraction or apology and the whole conduct of the defendant in relation to the proceeding.^[58]Any reason why the words of the defendant are particularly likely to carry weight among the people concerned, and the extent of the actual distress caused to the plaintiff, seem to me also to be relevant considerations. Vindication of the plaintiff’s reputation is a significant factor, even after an apology.^[59]Even allowing for these matters, it seems to be somewhat difficult to reconcile all of the decisions referred to in the Schedule. There are also the considerations that under the 2005 Act which was not in place at the time of most of the decisions in the Schedule, there is a cap on the quantum of general damages in most circumstances, and by s 34 there must be an appropriate and rational relationship between the harm to the plaintiff and the amount of the damages.

66. [66]
    In all the circumstances in this matter I assess compensatory damages of $20,000. I will not award aggravated damages. I shall deal with the questions of interest and costs when judgment is delivered.