Watney v Kencian & Anor

Here, Applegarth J (Morrison and McMurdo JJA agreeing) considers both the question of the impact of context upon the defamatory meaning of a publication (the alleged context in this case included that the publication in question had been written by an “over-excited parent” to only one person and had been marked as “confidential”) and the availability of a permanent stay of proceedings arising from the “principle of proportionality, as explained by the English Court of Appeal in Jameel v Dow Jones & Co Inc [2005] QB 946, in Australia. As to the first issue, although reaffirming the relevance of context to the question of defamatory meaning, his Honour held that the context did not detract from the defamatory quality of the words published in this case. As to the second issue, his Honour declined to determine whether the law as set out in Jameel is part of the law in Queensland without full argument on the point. In any event, his Honour was otherwise unpersuaded that it would apply given the facts of the case.

Morrison and McMurdo JJA and Applegarth J

6 June 2017

The applicant, a school principal, sued the respondents for defamation in relation to a letter which was published to the Director-General of the Queensland Department of Education and republished to the Chairperson of the Non-State Schools Accreditation Board. [3]. The applicant alleged that the letter conveyed a number of meanings about him, each of which was defamatory. [3]. The jury agreed that the letter conveyed the imputations as alleged by the applicant. [3], [6]. The jury did not, however, find that the applicant had established that the imputations or meanings conveyed by the publication were defamatory. [7]. The applicant submitted that the jury’s answers to the questions of whether each meaning was defamatory were perverse, and sought leave to appeal on that basis. [4].

Applegarth J (with whom Morrison and McMurdo JJA agreed) explained that, to overturn a jury finding, an appellant must establish that the finding was one that no reasonable jury, properly directed, could reach. [8]. His Honour considered that each of the meanings found by the jury “reflected adversely on the [applicant’s] character, his professional competence or both”. [9].

The respondents sought to rely on the context in which the meanings were conveyed to argue that it was open to the jury to answer the question of whether each meaning was defamatory in the negative. [15]. The relevant context included that it was “a letter complaining about the inadequacy of an investigation [into bullying at the school], written to a single person with authority over the education system, and the letter was marked ‘Confidential’”. [16]. The respondents argued that an ordinary reasonable reader would have realised that the letter was “from an over-excited parent, seeking to protect the interests of a child, complaining about the conduct of an investigation”. [17]. An ordinary reasonable reader would therefore have given the conveyed meanings no weight. [18].

While accepting that context is relevant to both the meaning and the defamatory quality of the meaning conveyed, Applegarth J held that these contextual matters “did not lessen the force of the things which the jury found the letter imputed about the applicant”. [21], [23], [30]. The fact that the letter was written by an over-excited parent “did not alter the defamatory character of the meanings it conveyed”. [31]. Nor was the defamatory nature of the meanings altered by the fact that the letter was written to one person or marked confidential. [32]. His Honour concluded that “having regard to the character and seriousness of each imputation” (set out at [35]) and the context in which the imputations were conveyed” the jury’s answers were ones that no reasonable jury, properly directed, could have given.  In the circumstances a substantial injustice was occasioned to the applicant when judgment was entered for the respondent. [45]–[46].

The respondents resisted an order for a retrial, and sought an order that the proceeding be permanently stayed, relying on the “principle of proportionality” derived from Jameel v Dow Jones & Co Inc [2005] QB 946. [47]. In that case, the English Court of Appeal stayed proceedings on the grounds that the vindication of the claimant’s reputation would be minimal and the costs would have been out of proportion to the outcome achieved. [50]. The respondents argued that the present case was an appropriate vehicle to order a permanent stay, on the basis that (i) the publication was made to only two persons, (ii) the applicant would only be entitled to a modest award of damages, disproportionate to the cost of the proceedings to the parties and the community, (iii) the parties had already had an eight day trial, and various interlocutory proceedings, including an appeal to the Court of Appeal, and (iv) any retrial would consume a similar amount of time. [57].

Applegarth J reviewed the first instance and appellate authorities which had considered whether the principle of proportionality from Jameel formed part of the common law of Australia. [51]–[56]. His Honour was ultimately of the view that it was inappropriate and unnecessary, in the present case, for the Court to decide whether the Jameel principle should be adopted. [61]. It was inappropriate because the differences between English, New South Wales (where Jameel has been accepted), and Queensland law were not the subject of full argument. [61]. It was not necessary because his Honour found the respondents’ arguments, assuming for this purpose that the principle of proportionality could be invoked, unpersuasive. [61].

First, it could not be assumed that the applicant’s damages would only be nominal. [62]. Secondly, it was the respondents who had insisted that the matter be tried by jury. The respondents could therefore not complain about the costs or delays associated with a jury trial. [63]. Thirdly, his Honour noted that the existence in Queensland of a statutory defence of triviality may be a basis upon which to distinguish English from Australian law on this point. [64]. In this case, the respondents neither pleaded a defence of triviality, nor sought to invoke the Jameel principle by seeking a permanent stay of the proceedings at an early stage or seeking an order that the case be tried by judge alone. [65]. Taking these matters into account, his Honour concluded:

“Assuming for the purpose of argument that the Jameel principle applies in this State, and having regard to the stage at which the proceeding has reached, I am not persuaded that this is one of the rare cases in which a stay would be granted on the basis of disproportionality”. [67].

In the result, his Honour considered that the interests of justice would be served by an order for a new trial. [67]. The Court made orders accordingly.

J English