Mather v Smith[2014] QDC 218

DISTRICT COURT OF QUEENSLAND

1. [1]
   On the hearing, I refused the application and reserved the reasons for judgment.

2. [2]
   I will outline the background to the proceeding and state my reasons for refusing the application.

Background

3. [3]
   This application is about a defamation case. A jury found that the defendant had defamed the plaintiff in a radio broadcast and judgment was entered for the plaintiff (Smith v Mather, unreported BD704/09, Clare SC DCJ, 04 July 2013).

4. [4]
   The respondent/plaintiff (“the plaintiff”), Mr Smith, had sued the applicant/defendant (“the defendant”), Ms Mather, for damages for defamation. The substance of the allegations against Ms Mather was that she defamed Mr Smith by suggesting that he had applied public resources for the private benefit of a particular citizen. The allegations were made in the course of an election campaign for the Rockhampton Regional Council in 2008.

5. [5]
   At the time of publication, both parties were councillors in the Livingstone Shire and opponents in the election for the Rockhampton Regional Council, to be held the next day. The defendant spoke on Radio 4RO about the conduct of the plaintiff as Chairman of the Works’ Committee. She had called the radio station for that specific purpose. The broadcast went throughout the Rockhampton district and beyond. On air, the defendant complained of the plaintiff’s role in the Council’s construction of a road for the exclusive benefit of one private individual, “a fisherman”.

The judgment at trial

6. [6]
   Her Honour Judge Clare SC on 04 July 2013 determined that the defamatory imputations concerned the plaintiff’s conduct while holding office for the Livingstone Shire Council. 

“[13] The defamatory imputations concerned the plaintiff’s conduct while holding office for the Livingstone Shire Council. They were broadcast in the context of his election campaign for a division within the area over the former Livingstone Shire, which was on the northern boundary of Rockhampton. The broadcast went beyond that area, to the Rockhampton region and as far south as 170 kilometres. The evidence elicited by defence counsel was that the wider audience of 4RO was unlikely to have any interest in the involvement of a committee of the Livingstone Shire Council regarding a particular road. The evidence was unchallenged and uncontradicted.

[14] The case differs from Roberts v Bass where the publication was limited to residents of the relevant electorate. The publication here went well beyond the electorate of the parties, and therefore had a scope wider than the speech made in Lang v Willis to “an unidentified audience” within the electorate. I am satisfied that the present publication was made to “too wide an audience” and that a substantial part of the audience did not have their requisite interest.  It follows I would reject the claim of traditional common law qualified privilege. The defendant’s right to free speech in the election was protected by the extended defence set out in Lange. It was qualified however by the requirement for reasonableness. Because the jury found the publication was unreasonable, the defamatory imputations were not protected.

[15] I give judgment for the plaintiff.”

7. [7]
   Her Honour, in a quantum judgment delivered on 31 October 2013, awarded to the plaintiff compensatory damages of $70,000.00 and aggravated damages of $15,000.00, with interest and costs (Smith v Mather, unreported BD704/09, Clare SC DCJ, 31 October 2013).

Court of Appeal

8. [8]
   The defendant filed a Notice of Appeal on 30 July 2013, to the Court of Appeal. She required leave to appeal. She sought to set aside her Honour’s judgment and costs orders. The Notice of Appeal also sought an order that there be judgment for the defendant with costs.

9. [9]
   The reasons justifying the granting of leave to appeal, stated simply, were that her Honour erred in fact and law in several respects, but primarily with respect to the issue of the listening audience area of the relevant radio broadcast upon which the impugned statements were made and upon which the defence of qualified privilege relied. The Court of Appeal refused leave to appeal.

This application

10. [10]
    The defendant subsequently, on 03 June 2014, filed an application in this court seeking the following orders:

“1. That the primary judgment of her Honour Justice (sic) Clare SC in the above identified action be set aside.

2. That cost (sic) be awarded in favour of the Applicant Mather in this Application and as the Defendant Mather in all previous actions against the Applicant Smith on an indemnity basis.

3. Any such further orders as this honourable court deems fair and just.”

Legal representation

11. [11]
    The defendant had requested in an affidavit filed in this proceeding to have a Mr Brookfield appear on her behalf as an advocate; or alternatively, that he appear and remain at the bar table to advise her, in effect, in the capacity of a Mckenzie friend.

12. [12]
    The plaintiff objected on the ground that in the course of Mr Brookfield’s involvement in communicating with the plaintiff’s lawyers, he was acting as though he was a solicitor and that this was in breach of the Legal Profession Act 2007; and that to grant the application would be tantamount to facilitating his apparent criminality (I note the correspondence, to which that reference was made, exhibited to the affidavit of Mr Gill that was filed by leave on the hearing).

13. [13]
    Frankly, I also reached the same conclusion about Mr Brookfield’s role and participation. He was quite rightly described by Mr Ferrett as an inter-meddler in these proceedings. I refused leave for Mr Brookfield to act in either of those capacities and directed him to sit at the back of the court.

14. [14]
    The defendant thereafter represented herself in the hearing of the application.

The defendant’s submissions

15. [15]
    The defendant’s written submissions, in affidavit form, were based upon a “Report” (titled “Investigation Report into the Court Proceedings Judgement and Evidence Produced in Smith v Mather BD704 of 2009”, dated 31 May 2014) prepared by Mr Brookfield under the cover of “Australian Maritime Services, Corporate Investigations and Surveillance Division”. 

16. [16]
    The thrust of her submissions, based on the Report, were that there was a deliberate failure by the plaintiff to make full and proper discovery and that had this been done there would have been an alternative finding made by the trial judge in her findings; that the defendant’s statements made in the broadcast were factually correct and were within her right to make as a Councillor; that the three imputations found against her would not and could not have been made; and that her lawyers at the trial were entitled to believe that the plaintiff had made full and proper discovery.

17. [17]
    The plaintiff objected to the affidavit and the report in their entirety being read. The principal basis of objection was that Mr Brookfield was not an expert, yet his report was replete with opinions. Mr Ferrett for the plaintiff expressed the objection in written submissions, in the following way:

“The plaintiff objects to the whole of the affidavit of Mather filed with the application. The (affidavit) contains no evidence admissible on this application. The text of the affidavit is entirely argumentative. The ‘investigative report’ of Mr Brookfield annexed to the affidavit combines argument and factual assertion, but it is not in admissible form and is not led on the basis of information and belief.”

18. [18]
    I agreed with that submission. I refused leave for the affidavit and report to be read.

What happened at the trial?

19. [19]
    The document said to have been “discovered” (sic), that is “disclosed”, was a report by the CEO of the former Livingstone Shire Council (which upon amalgamation became part of the Rockhampton Regional Council).  The plaintiff gave evidence in the trial and in the course of his evidence referred to the report. 

20. [20]
    After that document had been referred to by Mr Smith, counsel appearing for Councillor Mather indicated that he was unfamiliar with the document. Copies were produced to him. He cross-examined on that document in the course of the trial. No objection was taken by him about non-disclosure or evidence of its content being adduced at trial.

Discussion

21. [21]
    It seems clear enough that it was the existence per se of the document that is said not to be known to the defendant, rather than the content.

22. [22]
    It is plain that the document was produced at trial. No objection to it was made by the defendant’s lawyers. Indeed, the document was produced at the request of the defendant’s counsel. Evidence of the content of the document was adduced at trial and relevant parts of it were tendered in evidence.

23. [23]
    The thrust of the defendant’s allegation appears to be that the document is ‘newly discovered evidence’, as described in rule 668 of the Uniform Civil Procedure Rules 1999 (“UCPR”). However, such an allegation is entirely unwarranted and contrary to the plain facts readily evident from the conduct of the trial. The defendant must have known those facts from the outset and before bringing this application.

24. [24]
    The defendant cannot establish, as she must do in order to succeed in the application, the two requirements that would enliven the rule; firstly, that the “fact in question” (the existence of the document) was unknown to her at the time judgment was delivered and the reasons published; and secondly, that the “fact in question”, had it been known, would have entitled her to a different judgment.

25. [25]
    The defendant’s counsel at trial did not allege that there had been a failure to disclose the documents earlier in time or that any issue arose in that respect. He was an experienced barrister in the field of defamation law.

26. [26]
    The document cannot be described as “fresh” or “newly discovered” evidence: in Wollongong Corporation v Cowan (1955) 93 CLR 435, Dixon CJ (with whom other members agreed) at 444 wrote the following:

“The discovery of fresh evidence in such circumstances could rarely, if ever, be a ground for a new trial unless certain well-known conditions are fulfilled. It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced, or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial.”

27. [27]
    In IVI Pty Ltd v Baycrown Pty Ltd [2007] 1 QdR 428, Jerrard JA at 439 cited the passage from the High Court, in the context of the relevant Queensland UCPR and a circumstance where the asserted non-disclosure of a document was said to enliven the rule in favour of an unsuccessful party at an earlier trial.

28. [28]
    The defendant, through Mr Brookfield’s correspondence and his Report, appeared to allege fraud on the part of a solicitor of the respondent’s firm in not having disclosed the document prior to trial. I reject that allegation. The document was part of the respondent’s documentary material at trial, although the solicitor currently having carriage of this application, who was not the solicitor at trial, does not know and is unable to say why that happened. Disclosure is an ongoing obligation. The production of the document at trial meets that obligation, subject to objection, for example on the grounds of late disclosure or surprise. No objection was taken at the trial.

29. [29]
    The application is misguided. There were no prospects of it succeeding.

30. [30]
    Accordingly, the application was dismissed.

Costs

31. [31]
    The plaintiff initially applied to be paid his costs of the application to be awarded on the indemnity basis. I indicated that such an application may be complicated by the defendant being self-represented and having difficulty in responding to the application. Mr. Ferrett took further instructions at the bar table, altered his position and applied for costs to follow the event, on the standard basis.

32. [32]
    Costs will be awarded to follow the event, on the standard basis.

Orders

1  Application refused.

2  The defendant is to pay to the plaintiff his costs of the application on the standard basis.