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Bill Karageozis as trustee for the bankrupt estate of Siobhan Lamb v Sherman

Unreported Citation:

[2023] QCA 258

EDITOR'S NOTE

In this matter the Court of Appeal reversed the decision made by the primary judge, instead finding that a defamatory police report which had been made by a person, containing allegations which fell short of a crime, had been published on an occasion of qualified privilege and was thus protected by the defence. The approach which the court has taken indicates that “community of interest” in determining a defence of common law qualified privilege is not to be taken narrowly as “to do so may unduly restrict the operation of the defence”.

Mullins P and Dalton and Flanagan JJA

15 December 2023

The male respondent and the female appellant were work colleagues who commenced a sexual relationship which lasted for a period of time. However, unbeknownst to the respondent, the appellant was in a de facto relationship with someone else. When the respondent became aware of the other de facto relationship, he ceased his relationship with the appellant and informed the appellant’s other de facto partner. Shortly thereafter, the appellant made two communications which were alleged to have been defamatory. The first was to a Senior Constable of police. The second was to the respondent’s ex-wife’s lawyers. The respondent sued the appellant for defamation. This appeal concerned only the publication to the police officer.

The appellant’s oral communication to police about the respondent was in these terms:

“[Respondent/plaintiff] and I worked together for the same company. [Respondent/plaintiff] worked in the Brisbane office and I worked in the Sydney office. We met at a work event in August 2019 and started an on-again-off-again relationship that lasted 7 months. I ended the relationship in February 2020 after [respondent/plaintiff] stopped listening to me and the line between our work life and our relationship became blurred. After I ended the relationship, [respondent/plaintiff] continued to contact me through various means which, on the whole, I ignored.

On Friday 13 February 2020 I was forced into resigning my job by the CEO of the company after he found that I held shares in and was a stakeholder in a rival company. I believe that [respondent/plaintiff] provided this information to the CEO because they are good mates.

On Friday 13 March, [respondent/plaintiff] sent me a text message saying, ‘Can I call you?’ I wrote back ‘Not comfortable with this at all.’ [Respondent/plaintiff] then replied saying ‘Can I call you?’

Over the following days, [respondent/plaintiff] contacted my family and attempted to arrange a time to drop my belongings back to me. [Respondent/plaintiff] told me that he would contact the university I attend and advise them that I had applied for my current course fraudulently unless I responded to his calls and texts.

I do not want to have any further contact with [respondent/plaintiff] and I do not want any [sic.] my personal belongings which are still in his possession”. [6].

At first instance, the primary judge found that the appellant had defamed the respondent in the course of making the oral complaint to police. [2], [6]. The primary judge accepted that the imputations arising from the publication to the police officer were that the respondent was a petty person and is the kind of person who engages in domestic violence. Further, the judge determined that the defence of qualified privilege as there was no “community of interest” in the sense of a duty to speak and to listen to what was being conveyed. [19]–[20]. The judge found too that the appellant was actuated by malice which meant qualified privilege did not apply. [27].

On appeal, the Court disagreed with the findings of the primary judge. As to the finding below that the imputation arising from the publication was that the respondent was the kind of person who engages in domestic violence, the Court considered that given the appellant been the victim of domestic violence, a police officer was the appropriate person to complain to [11], and, the information given to the police officer fell short of any express or implied description by the appellant that the respondent had engaged in domestic violence because the “attempts described [in the communication to police] were so serious, repeated, prolonged or obviously unwelcome that the description of the respondent’s behaviour carried the imputation that he was the kind of person who engages in domestic violence”. [12]–[14].

As to the finding below that the imputation arising from the publication was that the respondent was a petty person, the Court took the view that the communication was made in serious circumstances, to a police officer and most of the behaviour described was serious, rather than petty. [16].

The Court accepted the appellant’s challenge to the primary judge’s conclusion that the first publication was not made on an occasion of qualified privilege at common law. In the lead judgment, Dalton J held as follows:

1.It is not the case that qualified privilege will only attach to a report to police when the conduct reported is criminal. That approach takes too limited a view of the reciprocity which is the foundation of the privilege. Instead, “[n]o narrow view should be taken of the pursuit of a duty or interest [by the publisher] in what was said. To do so may unduly restrict the operation of the defence”: see Cush v Dillon (2011) 243 CLR 298, [22]. [21];

2.A fundamental duty of police is keeping the peace, which necessarily includes deterring people from engaging in potentially criminal conduct. That is especially relevant in the domestic violence setting, since the potential for domestic violence may be indicated by behaviour which is not criminal. That being so, the law must not disallow the reporting of concerns about such behaviour to police. Whilst qualified privilege will never apply as a defence where there is malice and communications to the police are not protected by absolute privilege, in cases where there is genuine concern about behaviour, a reciprocal interest and duty between the publisher and the police may exist even if the behaviour reported is not criminal. [22];

3.An individual who provides information to police, or makes a complaint, is unaware of what information they already have. In the current matter it was not the case that it was suggested that the respondent was already known to police. Put simply a complainant is not in the position of being able to gauge the significance of the information reported in the context of other information already held by police. Further, “[p]olice may well have an interest in receiving information which could never be evidence in a court of law because it is hearsay, or even rumour. It may nonetheless be very helpful to a police investigation, or it may bring about a duty to investigate. Another matter to bear in mind is that, particularly with cases which involve disclosure of information which is very personal, or which a complainant may feel is shameful, a complainant might give broad, general, or even incomplete information to police. The person providing information to police may be distressed, not thinking rationally, or frightened for the consequences to themselves, or others, of speaking to police. There may be many reasons why what is reported to police does not amount to a criminal offence”. [23]–[24];

4.The primary judge incorrectly found that there was no community of interest or reciprocal duty and interest between the defendant and the police officer when she made a complaint to him. What was reported was behaviour which was “serious enough” and potentially indicative of a propensity to engage in domestic violence. [25];

5.Regarding malice, the onus fell on the plaintiff to prove to a high standard of cogency that the dominant motive for the defendant’s communicating with the police officer was a desire to injure him. The evidence before the primary judge did not suffice to draw an inference that the predominant motive of the defendant in communicating the defamatory material to the police officer was malice. [34].

Disposition

The Court reversed the judgment below and entered judgment for the defendant female on the basis of qualified privilege.

A Jarro

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