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[2012] QSC 274
Supreme Court of Queensland
2012-09-13
Margaret Wilson J
Original judgment source is linked above.
Bennett & Philp as town agents for Winter Hilditch & Fotheringham for the plaintiff
[1] MARGARET WILSON J: The plaintiff claims damages, including aggravated damages, and injunctive relief against the defendant for defamation arising from the publication of two emails in 2009.
[2] The plaintiff is a professional arboriculturist. The case was conducted on the basis that there is no relevant distinction between an arboriculturist and an arborist. He is the managing director of Enspec Pty Ltd, which has conducted an arboriculture and environmental consultancy business since 1999. At all material times the plaintiff lived in Victoria, and the company carried on business there and in South Australia, New South Wales and Queensland, its principal clients being local authorities and utility companies.
[3] The defendant is a retired civil engineer. He has lived in a house at 193 Birdwood Terrace, Toowong since 1980 (but for four years when he lived overseas). When he first moved in, there was a eucalypt tree, which was then about 16 metres tall, on the footpath in front of the property.
[4] The tree grew considerably in ensuing years, and the defendant was long concerned about its safety. He complained about it to the Brisbane City Council.
[5] The Council engaged the company to inspect the tree and report on its safety. The company issued a report addressed to the Council and dated 15 December 2004. In June 2006 it issued an amended version of the report.
[6] From about January 2006 until 2011 the defendant sent hundreds of emails about the plaintiff, and published messages about him on his Twitter account and public online forums. The emails were sent to multiple recipients as well as the plaintiff.
[7] The plaintiff has sued upon two emails sent in 2009. I accept that he selected only two in the hope of containing the costs of the litigation. But he maintains that the sending of such a barrage of emails is relevant to his claim for aggravated damages.
[8] The plaintiff alleged, and the defendant admitted, that on 21 January 2009[1] the defendant published to 33 email addresses an email that included the following words:
"(a) 'Do you see that three arborists, Tom, Fletcher and Hallam, by acting in criminally collusive concert on 3 May 2005 may have destabilized the political system in Queensland';
(b) 'Sean, could you please consider the following undenied facts: ...
(i) 6. On 21 June 2006, Enspec's Mr Craig Hallam falsified the BCC and therefore government certificate claiming a tree he had never seen had a safe useful expected life of 100 plus years but the tree could fail at any time. Hallam never denies this criminal act ...;
(ii) 8. On 22 May 2007, Needham covered up crimes of Mr Hallam..."
[9] The plaintiff alleged that this email, in its natural and ordinary meaning, was meant and was understood to mean:
(a) that the plaintiff had colluded in a criminal way with two other arborists;
(b) that the plaintiff had falsified a government certificate;
[10] The defendant admitted the first two of those imputations; he denied the third because -
(i) he did not call or refer to the plaintiff as "a criminal";
(ii) he merely stated that the plaintiff engaged in criminal activities.
[11] The plaintiff alleged that the defendant published an email to 37 email addresses that included the following words:
"(a) 'Can our dishonourable & dishonest Former Helmsman, Beattie, actually forgive Hallam's Criminal Acts';
(b) 'The PCMC advised Hallam's crimes were out of Bounds ...'
(c) 'Can you not understand that the Victorian, Mr Craig Hallam, is a crook whose crimes are being covered by Australia's most dishonest journalists?';
(d) 'Worlds worst arboricultural Practice by dishonest Arborist Mr Craig Hallam in New Farm Park';
(e) 'Sir, please consider the following facts: 1. Arborist Mr Craig Hallam lied about his site inspection of a tree on 15 December 2004';
(f) 'On 21 June 2006, Arborist Hallam falsified his certificate';
(g) '...the mendacious and audacious Victorian arborist, Mr Craig Hallam'."
[13] The plaintiff alleged that this email, in its natural and ordinary meaning, meant and was understood to mean:
(c) that the plaintiff is an aborist whose work is an example of world's worst practice;
[14] The defendant admitted imputations (b), (c) and (d); he denied imputation (a) because -
(i) he did not call or refer to the plaintiff as "a criminal";
(ii) he merely stated that the plaintiff engaged in criminal activities.
[15] The defendant admitted that the imputations pleaded were of and concerning the plaintiff, but denied that they were defamatory of him. He admitted that, by reason of the publication of the first and second set of imputations, the plaintiff -
(d) has and will continue to suffer loss and damage.
But he contended that the publications were not unlawful because of the defences pleaded in paragraphs 6 and 7 of his defence. In those paragraphs he denied that the emails bore the imputation that the plaintiff was a criminal and raised truth and qualified privilege by way of defence. At trial his counsel disclaimed reliance on qualified privilege.
[16] The Defamation Act does not contain a definition of defamatory matter, but it preserves the common law. At common law, it is generally accepted that material which tends to lower the plaintiff in the estimation of right-thinking members of the community is defamatory.[4]
[17] In the circumstances, I regard the defendant as having admitted that the first and second sets of imputations, if found, were defamatory.
[18] The defendant relied on truth as a defence. His case was that while the emails bore the admitted imputations, and even if they bore the imputation that the plaintiff is a criminal (which was denied), those imputations were true in substance and in fact and/or are substantially true pursuant to s 25 of the Defamation Act 2005 (Qld).
(a) whether the emails bore the imputation that the plaintiff is a criminal;
[20] In the first email, the defendant referred to the plaintiff "acting in a criminally collusive concert"; to his having engaged in "a criminal act"; and to "his crimes" having been covered up. In the second email, he referred to the plaintiff's "criminal acts" and twice referred to his "crimes".
[21] In Jones v Skelton[5]Lord Morris of Borth-y-Gest said -
"It is well settled that the question as to whether words which are complained of are capable of conveying a defamatory meaning is a question of law, and is therefore one calling for decision by the Court. If the words are so capable then it is a question for the jury to decide as to whether the words do, in fact, convey a defamatory meaning. In deciding whether words are capable of conveying a defamatory meaning the Court will reject those meanings which can only emerge as the product of some strained, or forced, or utterly unreasonable interpretation. In Capital and Counties Bank v George Henty & Sons[6] Lord Selborne said: 'The test, according to the authorities, is whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense.' The ordinary and natural meaning of words may be either the literal meaning, or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge, but is a meaning which is capable of being detected in the language used, can be a part of the ordinary and natural meaning of words.[7] The ordinary and natural meaning may therefore include any implication, or inference, which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the Court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense."
The test for determining whether the words used were capable of bearing the meaning that the plaintiff is a criminal is whether the ordinary reasonable person would understand them in that sense.
[22] I accept the submission of counsel for the plaintiff that there is little difficulty in determining that they do carry the meaning that he is a criminal. "Criminal" may be used as an adjective or as a noun. When used as a noun, its ordinary meaning is "a person guilty or convicted of a crime."[8] In ordinary parlance, a person is a "criminal" if he has committed a crime, whether or not he has been convicted of doing so, and to say that a person has committed a crime is to say that he is a criminal.
[23] I find that the emails carried the imputation that the plaintiff is a criminal.
[24] Counsel for the defendant enumerated four matters which, in his submission, require factual findings -
(a) Did the plaintiff inspect the tree on the nature strip in front of 193 Birdwood Terrace, Toowong on the morning of 15 December 2004?
(b) Did the plaintiff produce more than one report relating to the defendant's property?
(c) If the plaintiff did produce more than one such report, how did the later report/s differ from the original report?
(d) Did any such changes constitute falsification of the report?
[25] These are matters requiring factual findings along the way to determination of the ultimate questions of fact. I agree with counsel for the plaintiff's formulation of the ultimate questions of fact:
Has the defendant demonstrated the substantial truth of the following imputations -
(a) that the plaintiff colluded in a criminal way with two other arborists;
(b) that the plaintiff falsified a government certificate;
(c) that the plaintiff gave incorrect advice which led to the destruction of trees in New Farm Park; and
Did the plaintiff inspect the tree at 193 Birdwood Terrace on 15 December 2004?
[26] The plaintiff drove to Brisbane and stayed in a hotel at West End on 14 and 15 December 2004. I accept that while he was here he did work for several local authorities including the Brisbane City Council.
[27] According to the plaintiff, on 15 December 2004, he and Hugh Taylor (one of his employees at the time) tested a fig tree in Herschel Street in the city (which took between an hour and a half and two hours), then proceeded to Toowong. They met Mr Jason Jay Fletcher, an arborist in the employ of the Brisbane City Council, just around the corner from the defendant's house, and followed him to the nature strip outside the defendant's house where the eucalypt was situated. They were on site for between 30 and 45 minutes. Later that day, in the afternoon, they did some work at Kangaroo Point.
[28] The plaintiff told the Court that Mr Fletcher had instructed them that they were not to go on to the site without him because the Council had "an ongoing issue" with the defendant, and that they were not to enter into any conversation with the defendant on the site. He did not know the defendant, or anything about him, except that he was a ratepayer very concerned about a tree in front of his property.
[29] The plaintiff said that after they met up with Mr Fletcher and followed him to the site, Mr Fletcher identified the tree they were to test. While they were setting up the equipment necessary for testing the tree, the defendant walked down to the front of his property carrying a measuring tool of some description. Mr Fletcher engaged in conversation with the defendant, but the plaintiff made only a visual observation of him - he did not shake hands with the defendant or have any conversation with him.
[30] The plaintiff said he took some measurements of the tree using a manual set of callipers. Mr Taylor recorded those measurements on a piece of paper and then entered them into a laptop computer on site, loaded with software for sonic tomographic testing of the tree. A number of sensors were wrapped around the trunk of the tree, and a black box was positioned on the ground to receive the information from the sensors. That information was then transmitted to the computer which was mounted on a small table set up beside the tree.
[31] A photographic image bearing date "15.12.2004" was admitted into evidence. The plaintiff identified it as showing the tree in question. It depicted the sensors wrapped around the trunk, the black box on the ground and the computer. A man was standing behind the tree; his face was obscured by the trunk. The plaintiff told the Court that he was the man in the photograph.
[32] The plaintiff did not call either Mr Fletcher or Mr Taylor to give evidence. Counsel for the defendant submitted that the Court should infer that their evidence would not have assisted the plaintiff. Mr Taylor no longer works for Enspec and Mr Fletcher was never an employee of the plaintiff or his company. The plaintiff told the Court he had not thought of calling Mr Taylor. Elsewhere he had said that he was concerned about the cost of the litigation. In the circumstances, I decline to draw that inference.
[33] The defendant gave evidence that the plaintiff was not present at the site at 193 Birdwood Terrace on 15 December 2004. He sent two emails that day (at 11.53 am and at 11.47 pm) to his local councillor and others about Mr Fletcher's attendance at the site, in which he made no reference to the plaintiff.
[34] Counsel for the defendant submitted that there was evidence casting considerable doubt on the plaintiff's assertion that he attended the site on that day.
[35] Enspec's tax invoice for the work carried out for the Brisbane City Council that day, including the work at Birdwood Terrace, did not name the plaintiff as himself having carried out the work. The plaintiff did not produce his notes of the inspection.
[36] Counsel for the defendant referred to the plaintiff's worksheet for that day which showed work done for the Redlands Shire Council, and submitted that, given there were only two people associated with Enspec in Brisbane that day, viz the plaintiff and Mr Taylor, and that Enspec carried out work at Herschel Street and Kangaroo Point as well as Birdwood Terrace that day, it was not possible that they were both present at 193 Birdwood Terrace.
[37] The worksheet was compiled to assist the company's administrative staff in raising monthly invoices. I have no reason not to accept the plaintiff's evidence that he did work in the Redlands on 14 December, and completed his report about it on 15 December, and that that is why it was recorded against the latter date.
[38] There was other evidence in the form of phone records, receipts and travel documents corroborating the plaintiff's evidence that he was in Brisbane that day.
[39] There was controversy as to the species of tree at 193 Birdwood Terrace. The defendant contended that the plaintiff's misidentification of it in the report Enspec submitted to the Council was indicative of his not having attended the site. In the report he identified it as "Eucalyptus microcorys Tallowwood". The defendant maintained that it was a Brown Bloodwood, the botanical name for which is Corymbia trachyphloia. Another arborist, Mr Adam Tom, identified it as a Brown Blackwood in January 2005.[9] When it was put to the plaintiff in cross-examination that it was a Brown Bloodwood, he responded that the species have similar characteristics in their bark, and that they assessed it as a tallowwood when they were on site.
[40] Misidentification of the species (if it was such) may go to the quality of the examination performed that day - but that is not the issue in this case.
[41] The defendant agreed that Mr Fletcher attended the site that day with two other men. He accepted that the photograph depicted the scene as it was that day.
(b) Mr Fletcher engaged the defendant in conversation, but there was no conversation between the defendant and the plaintiff;
(c) the plaintiff is the person depicted in the photograph; and
(d) the plaintiff undertook testing of the tree that day.
[43] The defendant contended that the plaintiff colluded with Mr Fletcher and Mr Taylor in falsifying "a government certificate" when claiming to have inspected the tree at Birdwood Terrace on 15 December 2004 when he had not done so and by making a number of false amendments to the report he provided to the Brisbane City Council.
[44] I have found that the plaintiff did inspect the tree.
[45] Whether the tree was in fact a Brown Bloodwood rather than a Tallowwood was not established. The evidence went no further than to show a difference of opinion about its proper classification.
[46] On 21 June 2006 the plaintiff sent an email to Mr Fletcher in these terms -
Attached to this e-mail are two PDF files, one being the original sent to council in December 04 and the second is a amended version of just the tree in question located adjacent to 193 Birdwood Terrace Toowong.
Can you please note that the original PDF file of December 04 had additional tests included in the report which were conducted for council while we were in Brisbane. When requested the original report was amended to have only the information for 193 Birdwood Terrace Toowong included, the page numbering was not altered, hence why they are not in sequence as noted by the adjoining property owner.
If BCC legal advises need further clarification please do not hesitate to contact me.
[47] However, as the plaintiff acknowledged, what was sent on 21 June 2006 was an amended version of the report. Like the earlier version, it bore the date 15 December 2004. It consisted of four pages numbered sequentially. There were alterations beyond the removal of the pages relating to the trees in Herschel Street and at Kangaroo Point. He said that the changes were made at the request of Mr Fletcher, who was the client. His explanation for saying in the email that the only changes related to the deletion of material about the other trees inspected on the same day - that it was email correspondence, just a brief document - was weak and unconvincing.
The inspection was undertaken using a Sonic Tomograph.
[49] Both versions contained the same graphic depiction of the test results at the test point, including -
[50] Counsel for the defendant submitted that there were some significant changes. To understand those changes it is necessary to compare the contents of the original report with the contents of the report provided on 21 June 2006.
There were the following underlined differences in the accompanying text -
The Picus© Sonic Tomograph test clearly shows (lower right insert) that this Eucalyptus microcorys has no active fungi.
The test results indicate 99% of the test area is sound wood. There is 0% of altering wood (wood being altered by the fungus) and active fungus.
From the form of the fungi in the test result indicates the fungi entered the tree through the basal area nearest to the house. This has occurred either by mechanical damage or from insect activity.
The time frame allowed before the tree is dangerously unsafe and removal is the only option will be determined by the rate of spread of the fungus.
Tree to be retained. No further testing is required unless the trees conditions chances or the site conditions are altered. Decompaction around the critical root zone would benefit the long-term retention of this tree.
The Picus© Sonic Tomograph test clearly shows (lower right insert) that this Eucalyptus microcorys has very little active fungi. The fungus extends from the western side of the tree.
The test results indicate 99% of the test area is sound wood. There is 0% of altering wood (wood being altered by the fungus). The remaining 1% is active fungus.
The active fungus is contained within the outer wood area of the tree.
From the form of the fungi in the test result indicates the fungi entered the tree through the basal area nearest to the house. This has occurred either by mechanical damage from the pillic or from insect activity.
The time frame allowed before the tree is dangerously unsafe and removal is the only option will be determined by the rate of spread of the fungus.
Tree to be retained. No further testing is required unless the trees conditions changes or the site conditions are altered. Decompaction around the critical root zone would benefit the long-term retention of this tree. This tree has a SULE of 100+ years.
[51] Counsel for the defendant accepted that the following changes were insignificant -
On page 1, 'On the' immediately prior to '15th December 2004' is on the line above '15th December 2004'[11]
'On the' immediately prior to '15th December 2004' is on the same line as '15th December 2004'[12]
On page 1, Enspec's details are listed[13]
On page 1, Enspec's details are not listed[14]
The date the report was prepared by Hallam is correctly recorded on page 1[15]
The date the report was prepared by Hallam is not correctly recorded on page 1[16]
On page 1, it is stated that 'This document cannot be reproduced in any format without written consent from Enspec'[17]
Professional associations list does not include 'Queensland Arborist Association'[19]
Professional associations list does include 'Queensland Arborist Association'[20]
[52] He contended that the differences which he summarised in this table were significant -
'the fungus extends from the western side of the tree.'[24]
'the remaining 1% is active fungus.[26]
'The active fungus is contained within the outer wood area of the tree'[28]
'This three has a SULE of 100+years.'[32]"
[53] The first five of these changes all related to the presence of fungus. As the plaintiff explained, they provided an explanation for the obvious inconsistency in the earlier report which referred to 99% of the test area as being sound wood, leaving the remaining 1% unexplained. The words "from the pillic" were meaningless, and I accept that they somehow crept in, innocently, when the document was being amended.
[54] There was no evidence to support a finding that the making of the first five changes involved any deliberate falsehood.
is concerning, and I will address it separately below.
[56] In cross-examination, counsel for the defendant sought to make some unexplained point about the following reference to "decompaction" which appeared in the same terms in both versions under the subheading "Recommendations" -
"Decompaction around the critical root zone would benefit the long-term retention of this tree."
As I understood the plaintiff's evidence, this was a gratuitous recommendation, beyond the scope of Enspec's retainer to perform the sonic tomography testing. He said -
"It was just an observation that we put in that it was very compacted there."
It was put to him that there "could not have been" decompaction around the critical root zone, which I took to mean that decompaction could not have been carried out in that area, because of the presence of rock. He replied -
"Oh, I don't know, you'd have to excavate that to know that."
I did not detect any dishonesty in his answer. There was no amendment of the report in this regard, let alone any false amendment.
[57] "SULE" is an acronym for "safe useful life expectancy". An arborist named Jeremy Barrell devised a 12 step methodology for arriving at the SULE of a tree. It was contained in a document Mr Barrell published called "Tree A to Z". According to the plaintiff, it was intended for use only in relation to development sites. In 2007, after both versions of the plaintiff's report had been prepared, Mr Barrell apparently disavowed his SULE methodology.
[58] The plaintiff conceded that he did not undertake any of the 12 steps when he inspected the tree on 15 December 2004. But he maintained that they "would have" assessed the health of the wood at the point where the sonic tomographic testing was performed, and that the wood at that point had a useful life expectancy of 100+ years.
[59] The sonic tomography testing and its results are indicative of some testing of the health of the tree at the test point. But there was nothing in the original report consistent with the plaintiff's having estimated its life expectancy, whether using the SULE methodology or otherwise. The insertion of
in the amended version of the report was a change deliberately made. It was false and misleading in that it was a representation that the safe life expectancy of the tree had been assessed, that it had been assessed using the SULE methodology, and that it had been found to be in excess of 100 years, when it had not been assessed in any way. Further, it drew no distinction between the health of the whole tree and its health at the test point.
[60] I find that plaintiff falsified his report by inserting the reference to the tree's SULE in the amended version. The defendant's assertion in his second email -
"On 21 June 2006, Arborist Hallam falsified his certificate" (Emphasis added.)
Did the plaintiff collude in a criminal way with two other arborists in issuing a government certificate?
[61] The defendant's characterisation of the plaintiff's report to the Brisbane City Council upon his inspection of the tree as a "government certificate" was simply wrong. Enspec submitted a report to the Brisbane City Council dated 15 December 2004. I am satisfied that it was produced using a word processing program. It was a technical report on the testing of three trees (one at Herschel Street, one at Birdwood Terrace and one at Kangaroo Point), prepared and signed by the plaintiff and issued by his company, and delivered to the Council. It was not issued by or on behalf of the Council or any other government or local government entity.
[62] The finding that the insertion of the reference to the SULE of the tree in the amended version was deliberately misleading is an insufficient foundation for a conclusion that the imputation that the plaintiff colluded in a criminal way with two other arborists in issuing a government certificate was substantially true. There is no evidence of criminal collusion in the production of the report or the amendment of it, and there was no "government certificate" issued.
Did the plaintiff give incorrect advice which led to the destruction of trees in New Farm Park?
[63] The defendant alleged that in or about June 2007 the plaintiff carried out an inspection of trees in New Farm Park for the Brisbane City Council and provided the Council with advice in relation to their condition. He alleged that the advice was incorrect and that it led to the destruction of certain Jacaranda trees and a Coral Cockspur tree.
[64] There was no evidence led in support of these allegations. Cross-examination established no more than that the plaintiff tested some trees in the park in July and September 2007. Counsel for the defendant made no submissions in relation to these allegations.
[65] In short, the allegation was not established.
[66] In relation to the first email, I find that none of the imputations was true or substantially true.
[67] In relation to the second email, I find that the imputations that the plaintiff was dishonest and that he was a liar are substantially true. Neither of the other imputations was true or substantially so.
[68] Accordingly, I find that the plaintiff was defamed by the publication of both emails.
[69] In cross-examination the defendant declared his intention not to make any further public statements about the plaintiff or to publish material about him on the internet. But he reserved his right to speak to the Crime and Misconduct Commission (the "CMC"), the Parliamentary Committee of the CMC, the Ombudsman, and politicians both at State and local government level.
[70] The plaintiff seeks damages and injunctive relief.
[71] After the conclusion of the oral hearing counsel made written submissions on liability and quantum. Neither dealt with the effect (if any) on the assessment of damages of my findings that the plaintiff was dishonest and that he was a liar.
[72] Counsel for the plaintiff made submissions in support of injunctive relief, but senior counsel for the defendant did not.
[73] In the circumstances, I have resolved to ask counsel for further written submissions on the assessment of damages and what, if any, injunctive relief should be granted in light of my findings.
[74] When those submissions are to hand, I will consider the relevant evidence and make any necessary findings on it, assess quantum, and decide whether to issue an injunction.
[1] Statement of claim at [2]; Reply to amended defence at [2].
[4] Sim v Stretch [1936] 2 All ER 1237.
[5] [1964] NSWR 485 at 491 (Privy Council)
[6] (1882) 7 App. Cas. 741 Lord Selborne said, at p. 745.
[7] See Lewis v Daily Telegraph Ltd [1963] 2 All ER 151.
[8] The New Shorter Oxford English Dictionary (1993); The Macquarie Dictionary (1987).
Hallam
Ross [2012] QSC 274