MG v PJ[2024] QDC 119

1. [1]
   The plaintiff is MG. He is the brother-in-law of PJ and the uncle of PM. They are the defendants. The plaintiff is married to PJ’s sister, MC. The plaintiff alleges that he was defamed by PJ and PM in statements they made to police and others suggesting that he was a drunk who was violent and abusive toward MC and the defendants.

2. [2]
   The plaintiff must prove that the publications complained of have caused, or are likely to cause, serious harm to his reputation. Pursuant to a consent order, I am to determine this as a separate question prior to the trial. To decide if the plaintiff has proved ‘serious harm’, it is necessary to explain what the law requires the plaintiff to prove, and whether it has been proved having regard to the evidence presented at the hearing.

What does the law require the plaintiff to prove?

37. [3]
    Since 2021, it has been a statutory requirement of a cause of action for defamation that the plaintiff prove that the publication of a defamatory matter has caused, or is likely to cause, serious harm to their reputation. This is the result of the introduction of section 10A into the Defamation Act 2005 (Qld). Section 10A is similar to section 1 of the Defamation Act 2013 (UK), and identical to section 10A of the Defamation Act 2005 (NSW). The New South Wales Court of Appeal considered their cognate provision in Rader v Haines [2022] NSWCA 198. The plaintiff and defendants jointly submitted that the decision in Rader established the legal principles to be applied in deciding if the plaintiff has proved ‘serious harm’. In particular, the parties accepted Brereton JA’s analysis of the decision of the Supreme Court of the United Kingdom in Lauchaux v Independent Print [2020] AC 612; [2019] UKSC 27, which concerned the equivalent UK provision. This approach, with which I agree, permits me to briefly state the relevant legal principles.

37. [4]
    First, ‘serious harm’ involves harm that is more than merely substantial, though it need not be grave. But caution must be exercised in seeking synonyms for ‘serious’ – there being a risk that one merely substitutes other, equally imprecise terms. The determination of ‘serious harm’ is an inherently impressionistic exercise.

37. [5]
    Secondly, the plaintiff must prove serious harm to their reputation. This is concerned with the actual impact of the imputation, in all the circumstances, on the plaintiff’s reputation. It may arise from a combination of the inherent tendency of the words and their impact on those to whom they were communicated, but serious harm is not established by the gravity of the imputation alone, or the hurt feelings of the plaintiff.

37. [6]
    Thirdly, the matters to be considered will include the meaning of the words; the gravity of the imputations they conveyed; the situation of the plaintiff, including their existing reputation; the scale of the publication, which may include the inherent likelihood that the publication has or will become known to others; and the nature of the recipients, including their relationship with the plaintiff, and whether they are disposed to believe the imputations.

37. [7]
    Fourthly, a grave imputation may not result in serious harm where the publication is to a small number of people, well acquainted with the plaintiff, and who are not disposed to believe it. Similarly, an imputation might cause no serious harm to a plaintiff’s reputation if published to those who already view the plaintiff anathematically.^[1]

37. What is the meaning of the words complained of by the plaintiff?

37. [8]
    The plaintiff complains of five publications. First, statements made by the defendants to police during an interview on 19 January 2023. Secondly, the republication of some of these matters in a police protection notice (‘PPN’)^[2] issued to the plaintiff the same day. Thirdly, statements made by the defendants to Mr Kerry Kerr, the treasurer of the body corporate for the units where the plaintiff lived, on 20 January 2023. This included showing Mr Kerr a copy of the PPN. Fourthly, further statements made by the defendants to police on 20 January 2023. Fifthly, the republication of imputations from the fourth publication in a second PPN issued by the police on 20 January 2023.

37. [9]
    The defendants admit the first and fourth publications, which were statements they made directly to the police. They effectively admit the third publication to Mr Kerr, but say the PPN was only briefly reviewed and not retained by Mr Kerr. As for the second and fifth publications, the defendants admit the PPNs were issued and amount to a republication of the substance of the first and fourth publications, but deny they caused the PPNs to be issued.

37. [10]
    The second and fifth matters complained of concern a republication of the first and fourth publications. It is unnecessary for the present application to decide whether the republication was authorised, intended, or caused by the defendants. It is the effect of the statements admittedly made by the defendants, which were repeated in substance in the second and fifth publications, which is key to the present issue.

37. [11]
    The defendants also admit much of the effect of the imputations conveyed by the publications. The admitted effect of the imputations may be summarised as follows:

3. (a)
   The plaintiff consumes excessive amounts of alcohol daily, which exacerbates his existing behavioural issues.

3. (b)
   The plaintiff has a long history of being verbally abusive towards his wife, who suffers dementia, including by degrading her and insulting her intelligence.

3. (c)
   The plaintiff has physically assaulted his wife by grabbing her around the throat and pinning her to the ground.

3. (d)
   The plaintiff is a danger to his wife and others.

3. (e)
   The plaintiff’s behaviour towards his wife warranted and provided grounds for police intervention.

3. (f)
   The plaintiff threatened his wife.

3. (g)
   The plaintiff threatened to kill the defendants.

3. (h)
   The plaintiff’s threats of physical harm caused the second defendant to fear for his life, his family’s safety, and the safety of his property.

3. (i)
   The plaintiff’s threats meant it was necessary for the second defendant to take measures to protect himself and his family.

3. (j)
   The plaintiff is aggressive, erratic, and dangerous.

3. (k)
   The plaintiff’s behaviour warranted police intervention.

37. [12]
    The defendants deny that the first, second and third publications imply that the plaintiff’s behaviour towards women is aggressive and threatening. Having regard to the statement of claim, I doubt the publications complained of could convey the meaning alleged. That is because each publication is concerned with conduct of the plaintiff directed towards his wife or the defendants. There is little to support a conclusion that the publications implied the plaintiff behaved this way towards women in general. But this is not a matter I need to resolve as this imputation is, in the circumstances, much less significant than those admitted by the defendants. Even if it is assumed that the publications convey this imputation, that adds very little to the gravity of the imputations admitted by the defendants.

37. To whom were they published?

37. [13]
    A matter to consider is the nature of the people who received the publications, their relationship with the plaintiff, and whether they are disposed to believe the imputations.

37. [14]
    The first publication was made to unidentified officers of the Queensland Police Service. The second publication was the republication of the first in the PPN. The plaintiff alleges its contents have been made known to Mr Kerr by reason of the third publication. The fourth publication was made to unidentified officers of the Queensland Police Service, the contents of which were republished in the second PPN and comprise the fifth publication. The plaintiff pleads that apart from police and Mr Kerr, five other residents of the unit complex where he lives are aware of at least some details of the publications.

37. [15]
    The plaintiff also relies upon the ‘grapevine effect’ to say the publications are likely to spread further among residents of the unit complex. In evidence, the plaintiff said there were 33 units in the complex, but only seven were ‘owner occupier’.

37. [16]
    The publications were made to a very small number of people who may be divided into three groups: the police, other residents of the unit complex, and family members of the plaintiff. Putting to one side the potential for a ‘grapevine effect’, it seems only about a dozen people are aware of the publications.

37. [17]
    Of these groups, it can be assumed the police are disinterested actors whose role, consistent with legislation, is to investigate and act where they reasonably suspect domestic violence has been committed.^[3] There is no evidence of any prior or continuing relationship between the plaintiff and individual police officers. As to whether the police believed the imputations, support for that conclusion can be found in the issuing of the PPNs. A PPN may only be issued if a police officer reasonably believes that a person has committed domestic violence.^[4] This suggests the police believed at least enough of the matters the subject of the publications to form a reasonable belief that the plaintiff had committed domestic violence.

37. [18]
    There is little evidence to permit any conclusion about the relationship between the plaintiff and other residents of the unit complex, much less whether any of them had existing opinions about the plaintiff’s reputation. Mr Kerr’s evidence was to the effect that before the publications, the plaintiff and his wife seemed happy, and he did not hear a harsh word between them. Mr Kerr said he had no reason to suspect either would do harm to the other. He also described the plaintiff as someone who could be ‘loud’, which put a few people off, but Mr Kerr did not hear the plaintiff abuse people generally. Mr Kerr’s unit was four floors away from where the plaintiff lived, such that Mr Kerr could not hear what went on in the unit. Mr Kerr also said he worried about the amount of alcohol the plaintiff drank and that he might drive while drunk. Mr Kerr said nothing of his perception of the plaintiff after becoming aware of the first PPN. All he said was that other unit owners asked him about the incident because they were concerned and wanted to understand what had occurred.

37. [19]
    In these circumstances, I cannot come to any conclusion about whether other residents had an existing opinion of the plaintiff’s reputation, or whether they were disposed to believe or disbelieve the imputations conveyed by the publications.

37. [20]
    There was similarly limited evidence from family members who may have become aware of the publications. WK and NK, each a daughter of the plaintiff, deposed to a pre-existing poor view of the plaintiff. Each thought the plaintiff drank too much, was verbally abusive towards his wife, and had been physically abusive towards her as well. It seems unlikely that knowledge of the publications has changed their dim view of the plaintiff.

37. [21]
    MM, the plaintiff’s brother, thought that the plaintiff was a hard-working man who was loyal to his family. He thought that the plaintiff enjoyed a good relationship with his daughters prior to the publications. This is a little at odds with the evidence of WK and NK. MM described in some detail what he saw as the effect of these events on the plaintiff but said nothing of his own perception of the plaintiff’s reputation. In cross-examination, MM described the plaintiff as someone who would ‘get on the grog’ and become short-tempered. He said that he would swear at and insult his wife at times when he was angry with her. MM gave evidence that in February 2023, just after the publications, he thought the plaintiff was ‘toxic’ and in need of mental health assistance. This was a view he had reached at around the time of the events of late January 2023 and was based on his observations of the way in which the plaintiff treated his daughters. He also deposed that he considered the family dynamic was toxic well before January 2023.

37. [22]
    The plaintiff pleads the ‘grapevine effect’. His evidence suggests that others in the unit complex have become aware of some of the publications. But beyond the assertion in the statement of claim that an ‘ordinary reasonable observer [would] draw an unfavourable conclusion about the Plaintiff and his character’, there is nothing from which to gauge the magnitude of the effect on his reputation among the wider community.

37. [23]
    The matters identified above mean that it is difficult to determine the extent to which the publications have harmed the reputation the plaintiff enjoyed. This has significance where the plaintiff bears the burden of proving his reputation has been, or is likely to be, seriously harmed.

37. What was the effect of the publications on the plaintiff’s reputation?

37. [24]
    The plaintiff alleges serious harm to his reputation in events which have occurred after the publications.

37. [25]
    First, he says that he has experienced multiple unpleasant interactions with the police, which are said to be indicative of the police having a low opinion of the plaintiff. It was not disputed that the plaintiff has had multiple unpleasant experiences with the police. But the cause of these experiences was in contention.

37. [26]
    The plaintiff admitted that he drove while very intoxicated on 20 January 2023. His blood alcohol concentration was 0.182%. He was stopped by police in the early hours of the morning while driving back to his unit.

37. [27]
    A year later, on 18 and 19 January 2024, the plaintiff twice breached the first PPN by telephoning his wife. In cross-examination, the plaintiff said this was a deliberate decision that he took because ‘he chose to care more for his wife than for the [PPN]’.

37. [28]
    On 18 January 2024, the plaintiff obstructed a police officer. When asked by me what he had done, the plaintiff was unwilling to answer. Despite pleading guilty to the charge before a Magistrate, the plaintiff claimed to not understand what it was that he had done wrong to constitute the charge.

37. [29]
    The police were also aware of an allegation that the plaintiff assaulted one of the defendants.

37. [30]
    These matters provide a sufficient explanation for any unpleasant interactions with the police that the plaintiff has experienced. There is no reason to think that any unpleasantness, as perceived by the plaintiff, stems from the publications as opposed to the plaintiff’s own poor conduct set out above.

37. [31]
    The individual police officers who heard the defendants’ publications and decided to issue the PPNs can be assumed to have believed some of what was said by the defendants. Otherwise, the power to issue a PPN was not engaged. From this it follows that the police officers thought the plaintiff had committed an act of domestic violence. In turn this leads to a conclusion that, to the extent the police officers thought about the plaintiff’s reputation, their esteem for him was diminished. This indicates some harm to the plaintiff’s reputation, but I am not persuaded that on its own or in combination with the other matters discussed, it amounts to serious harm.

37. [32]
    That is so for at least two reasons.

37. [33]
    First, a belief that the plaintiff had committed an act of domestic violence would do little to change the opinion of a police officer considering the matters set out above.

37. [34]
    Secondly, police officers are expected to be professional and disinterested. The reputation of the plaintiff is unlikely to be of any concern to them, beyond matters which might affect how police officers deal with the plaintiff. Whether or not this amounts to harm to the plaintiff’s reputation, it does not amount to serious harm.

37. [35]
    Next, the plaintiff asserts that he has already suffered harm in the form of a breakdown in family relationships, a voluntary withdrawal from participation in the activities of the body corporate, the shame and embarrassment he personally feels, and what are said to be the ‘psychological effects’ the plaintiff has experienced. These are matters which, if true, are no doubt of concern to the plaintiff. But they do not establish harm to his reputation, much less serious harm. A person’s reputation is the character they bear in public estimation. That is, what other people think of the person.^[5] Hurt feelings may be relevant to the assessment of damages which follows a finding of reputational harm but is irrelevant to the establishment of a cause of action.^[6]

37. [36]
    Thirdly, the plaintiff contends that the inherently serious nature of the imputations means that even though they were not published widely, I should infer that serious harm to the plaintiff’s reputation has been, or will be, the result. I do not accept that contention. While there is merit to the plaintiff’s submission that the general public tends to accept as true assertions made in documents issued by the police, it was only Mr Kerr who saw the PPN. The allegations it contained were serious. Notwithstanding that Mr Kerr gave no evidence to this effect, it might be inferred that he thought less of the plaintiff because he saw the PPN. But I am not persuaded that the publication to Mr Kerr alone is capable of amounting to serious harm. The situation is analogous to the notion that a single bad deed would not by itself destroy a person’s reputation. Similarly, the diminished opinion of one person would usually be insufficient to establish that someone’s reputation, which is concerned with public estimation, has been seriously harmed.

37. [37]
    It may be that others in the unit complex have become aware of the publications to some extent. But on the evidence before me, I am not satisfied that they now hold a lesser opinion of the plaintiff because of this knowledge. If I am wrong about that, the limited number of persons aware of the publications is a powerful indicator that there has been no serious harm to the plaintiff’s reputation. The potential damage to the plaintiff’s general reputation in the community from a handful of people in the unit complex thinking less of him does not amount to serious harm.

37. [38]
    The ‘grapevine effect’ means that more people may become aware of the publications. But there is no prospect that enough people will learn of the publications to cause serious harm to the plaintiff’s reputation. That is because it is unlikely that the plaintiff’s reputation is of any concern to people outside of his family and residents of the unit complex. Of the latter, only a few are permanent residents. The rest mostlikely have little interest in the plaintiff and his reputation, beyond the immediate curiosity that may have been sparked by the attendance of police in January 2023. Knowledge of the publications is likely to be of passing interest only.

37. [39]
    The evidence relied upon by the plaintiff can establish only moderate harm to his reputation among a handful of people. The evidence falls well short of proving that serious harm has been, or is likely to be, caused by the publications.

37. Conclusion

37. [40]
    I am not satisfied it is more probable than not that the publications complained of have caused, or are likely to cause, serious harm to the reputation of MG. The publications may convey the imputations that the plaintiff is a drunk who is verbally and physically abusive to his wife and is a danger to the defendants. But the narrow scope of the publication and the absence of sufficient evidence of reputational harm leads me to conclude that the plaintiff has not suffered, and is not likely to suffer, serious harm to his reputation.

37. [41]
    The consequence of my conclusion would seem to be that the claim must be dismissed, but I will hear from the parties as to the appropriate orders and on the issue of costs.

37. Addendum

37. [42]
    After hearing from the parties, the following further orders were made:

3. 3.
   The claim is dismissed.

3. 4.
   The plaintiff is to pay the defendants’ costs of the proceeding on the standard basis according to the Magistrates Court scale, other than the costs of the application for the determination of the question of serious harm which is to be according to the District Court scale.