Harvey v Henzell & Ors [2015] QCA 261

SUPREME COURT OF QUEENSLAND

CITATION: Harvey v Henzell & Ors [2015] QCA 261

PARTIES: BARRY BERNARD HARVEY (applicant) v WILLIAM ROY HENZELL (first respondent) SANDRA CAROLE HENZELL (second respondent) TANYA ANNE HENZELL (third respondent)

FILE NO/S: Appeal No 5757 of 2015 / DC No 1237 of 2015

DIVISION: Court of Appeal

PROCEEDING: Application for Leave s 118 DCA (Civil)

ORIGINATING COURT: District Court at Brisbane – [2015] QDC 132

DELIVERED ON: 4 December 2015

DELIVERED AT: Brisbane

HEARING DATE: 10 November 2015

JUDGES: Margaret McMurdo P and Ann Lyons and Boddice JJ / Judgment of the Court

ORDERS: **Leave to appeal is refused.**The applicant is to pay the respondents’ costs of the application on the standard basis.

CATCHWORDS: DEFAMATION – PRIVILEGE – ABSOLUTE PRIVILEGE – STATEMENTS MADE IN JUDICIAL PROCEEDINGS – where the applicant is seeking leave to appeal against an interlocutory decision of the District Court of Queensland pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – where the applicant argues that the primary judge incorrectly interpreted the Defamation Act 2005 (Qld) by interpreting the defence of absolute privilege too broadly – where the applicant argues that because the family report was not confidential, the statements made in the family report were not covered by the defence of absolute privilege – whether the primary judge erred in determining that the statements made in the family report were covered by the defence of absolute privilege / PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – PRACTICE – COSTS – where the primary judge ordered the applicant to pay the respondents’ costs of and incidental to the Notice of Intention to Defend, the Defence and the Application fixed in the sum of $2,000 – where the applicant argues that the primary judge made an error of fact and law in awarding costs to the respondents without any cost agreement or cost disclosure being made – whether the primary judge erred in making an order as to costs / PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – COMMENCEMENT OF ACTION AND PLEADINGS – where the applicant argues that the primary judge made errors of fact and law by stating that the applicant’s Claim and Statement of Claim were not pleaded or particularised appropriately and were an abuse of process – whether the primary judge erred in striking out the applicant’s Claim and Statement of Claim pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) / Defamation Act 2005 (Qld), s 27 / District Court of Queensland Act 1967 (Qld), s 118 / Family Law Act 1975 (Cth), s 11C / Uniform Civil Procedure Rules 1999 (Qld), r 171, r 293 / Banque Commerciale SA (In liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11, followed / Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70, distinguished / Hazan v Elias (2011) 255 FLR 338; [2011] FamCA 376, explained / Mann v O'Neill (1997) 191 CLR 204; [1997] HCA 28, followed / Pickering v McArthur [2005] QCA 294, considered / Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53, followed / Stanizzo v Sassu (2014) 18 DCLR (NSW) 282; [2014] NSWDC 90, considered / Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46, considered / Tryon v Clutterbuck and Attorney General (Cth) (2010) 246 FLR 193; [2010] Fam CAFC 229, followed

COUNSEL: The applicant appeared on his own behalf / P J Sweetapple for the respondents

SOLICITORS: The applicant appeared on his own behalf / No appearance for the respondents

THE COURT:

1. The applicant instituted proceedings in the District Court on 26 March 2015 claiming damages of $750,000 from the respondents for defamatory comments they allegedly made to a psychologist who prepared a Family Report in the course of Family Court proceedings. A Notice of Intention to Defend, a Defence and an Application for the applicant’s Claim and Statement of Claim to be struck out were filed by the respondents on 15 April 2015.

2. On 15 May 2015, the applicant’s Claim and Statement of Claim were struck out by a District Court judge who also ordered the applicant to pay the respondents’ costs of and incidental to the Notice of Intention to Defend, the Defence and the Application fixed in the sum of $2,000.

3. The applicant now seeks leave to appeal against this interlocutory decision of the District Court of Queensland pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld).

Background

4. The applicant, Barry Harvey, and the third respondent, Tanya Henzell, currently have parenting proceedings before the Family Court of Australia in relation to their three year old son. Those proceedings were previously in the Federal Circuit Court of Australia. On 19 August 2014, Judge Lapthorn of the Federal Circuit Court of Australia made an order directing that the parties be interviewed for the purpose of a family report. Paragraph 10 of that order provided:

“That each party attend as directed by the Independent Children's Lawyer, all interviews for the purpose of any family report or psychiatric report commissioned by the Independent Children's Lawyer.”

5. The respondents all received correspondence from the solicitors acting for Tanya Henzell indicating that they were to attend an interview with a psychologist, Ms Emma Rzoska, for the preparation of a family report. That interview was to be conducted on 11 November 2014.

6. At the commencement of each interview, Ms Rzoska outlined to each respondents the purpose of the interview and advised that any statements made could be used in the Family Report which was to be provided to the court. In her affidavit, the third respondent, Tanya Henzell, swears that she was shown a copy of that Family Report in December 2014 and that she showed a copy of that report to the first and second respondents. She swears that she did not provide or forward the report to any other person. The first and second respondents have sworn similar affidavits.

The District Court proceedings

7. The applicant’s Claim in relation to the District Court proceedings was filed on 26 March 2015 and was as follows:

“The plaintiff claims: compensation for defamatory comments made to a Family Report Writer in a Family Report that has also been shown and sent to others, including but probably not limited to Judy Stewart, Asha Egan Judge Lapthorne and others from the Federal Circuit of Australia, Dr Ben McDarmont, and the Family Court.”¹

8. The applicant’s Statement of Claim also filed on 26 March 2015 was in the following terms:

“This claim in this proceeding is made in reliance on the following facts:

1.The defendants made defamatory statements about me in a formal Family Report about my personality, financial skills, relationships, control, and domestic violence amongst other false and defamatory statements.

2.These were forwarded to various bodies and individuals including, but probably not limited to, the Federal Circuit Court of Australia and Family Court, Judith Stewart and Asha Egan.

3.The sending of these caused the recipients to form negative opinions about me that have had a negative impact on my legal standing in the Courts and (sic) compromised the safety and best interest of my son JN as they led to dismissal and disregard of the firearms danger he has been proven to be in and had an impact on my contact and care with him.

The plaintiff claims the following relief:

$250,000.00 damages for non-economic loss

$500,000.00 aggravated damages”²

9. The Notice of Intention to Defend and Defence all provide that the statements were made to the writer of a family report in the context of a Federal Circuit Court of Australia proceeding. Furthermore, they plead that the statements made to the Family Court report writer were substantially true and published on an occasion of absolute privilege in the course of a proceeding in an Australian court.

10. Pursuant to an Application filed in the District Court on 15 April 2015, the respondents sought orders that the Claim and Statement of Claim be struck out as an abuse of process. Alternatively, they sought an order for summary judgment pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) as well as costs.

The District Court judge’s decision

11. In a set of reasons published ex tempore in the District Court on 15 May 2015, the learned primary judge was satisfied that all of the defendants (the present respondents) had been directed to attend the interview with the Family Court report writer pursuant to an order of a Federal Circuit Court judge made on 19 August 2014.

12. The primary judge was also satisfied that the Federal Circuit Court was an Australian court and that all of the statements made to the Family Court report writer were made in the course of proceedings. The primary judge was therefore satisfied that the statements made by the defendants to the Family Court report writer came within s 27(2)(b) of the Defamation Act 2005 (Qld). That section provides:

“27****Defence of absolute privilege

(1)It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.

(2)Without limiting subsection (1), matter is published on an occasion of absolute privilege if—

…

(b)the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to)—

(i)the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process); and

(ii)the publication of matter while giving evidence before the court or tribunal; and

(iii)the publication of matter in any judgment, order or other determination of the court or tribunal…”

13. The primary judge also considered that the statements made to the report writer and incorporated in the Family Report could be protected as a document created by the report writer under s 27(2)(b)(i) of the Defamation Act 2005 (Qld).

14. Given that the alleged defamatory statements were all subject to a claim of absolute privilege, the primary judge was therefore satisfied that the current applicant had no real prospects of succeeding on his claim and that there was accordingly no need for a trial. The primary judge considered that judgment could have been entered for the defendants against the applicant on that basis.

15. The primary judge noted, however, that pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) the pleadings could be struck out as he was satisfied that the cause of action had a tendency to prejudice or delay a fair trial of the proceeding because there was no particularisation of the defamatory statements relied upon and it was otherwise an abuse of process.

16. His Honour was satisfied that an order should be made in terms of the Application. Accordingly, the Claim and Statement of Claim were struck out and costs were fixed in the amount of $2,000.

This application for leave to appeal

17. The applicant argues that leave should be given to appeal to this Court on the following grounds:

(i) The District Court judge incorrectly interpreted the Defamation Act 2005 (Qld) by interpreting the defence of absolute privilege too broadly and made an error of law in doing so, which was contrary to the court of superior jurisdiction stare decisis that he is required to follow and contrary to the Acts Interpretation Act 1954 (Qld).

(ii) The District Court judge made an error of fact and law by determining that the Claim and Statement of Claim were not pleaded and particularised appropriately.

(iii) The District Court judge made an error of fact and law by stating that the Claim and Statement of Claim were an abuse of process.

(iv) The District Court judge made an error of fact in determining that the statements were made in a court matter which attracted absolute privilege when the statements were not made in court and the privilege was not available.

(v) The District Court judge made an error of fact and law in awarding costs to the defendants without any cost agreement or cost disclosure being made.

Should the applicant have leave to appeal?

18. As previously noted, this is an application for leave to appeal against an interlocutory decision of the District Court of Queensland pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld). Leave would usually only be granted in circumstances where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected.³

19. In oral submissions before the Court, the applicant advanced an argument that s 11C of the Family Law Act 1975 (Cth) provides that reports which could be given to the court are not confidential and could be used for purposes other than in Family Court proceedings. The applicant argued therefore that because the family report was not confidential, this meant that the defence of absolute privilege was not available. The applicant also argued that s 11C is inconsistent with s 27 of the Defamation Act 2005 (Qld) and given that inconsistency, s 11C has to prevail.

20. Section 11C(1) of the Family Law Act 1975 (Cth) is in the following terms:

“11C****Admissibility of communications with family consultants and referrals from family consultants

(1)Evidence of anything said, or any admission made, by or in the company of:

(a)a family consultant performing the functions of a family consultant; or

(b)a person (the professional) to whom a family consultant refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;

is admissible in proceedings under this Act.”

21. The purpose of s 11C is to make it abundantly clear that a report, such as that prepared pursuant to the Federal Circuit Court order in this case, is in fact a report which is admissible in any Family Court proceeding. Section 11C removes any doubt as to whether such reports may or may not attract the privilege. Such reports are admissible in the proceedings and as such would clearly attract the privilege. The meaning of the section is in fact completely contrary to the proposition advanced by the applicant who seems to have argued that because the family report was not confidential, it could not attract the privilege. The applicant’s argument confuses the two concepts, as is evident in the following excerpt of the transcript of his oral submissions:

“APPELLANT: And in respect of the section 11 and the application of section 11, to abrogate section 27 of the Defamation Act, note 1 – which is part of the provision – states:

The communications of family consultants are not confidential.

And note 2 specifically – and I believe this is the authoritative statement – states that:

Subsection (1) does not prevent things said or admissions made by or in the company of family consultants from being admissible in proceedings other than proceedings under this Act.

In other words, I submit, your Honour that those two notes expressly state that things that are said in the course of a family report are not covered by absolute privilege, because if they were covered by absolute privilege you would not be able to use them in other proceedings. They would be subject to the confidentiality or subject to the – subject to the confidentiality under the Family Law Act.

THE PRESIDENT: So now, just to clarify, it’s section 11C that you’re talking about?

APPELLANT: Yes, your Honour.

THE PRESIDENT: Yes. And you don’t think that confidential – that saying that they’re not confidential simply means that they’re not confidential between you and the family consultant: that they will be reported to the court.

APPELLANT: Well, no, your Honour. It simply says:

Communications with family consultants are not confidential.

That’s what it says. And so under the – or in respect of the golden rule of legislative interpretation there’s no need to read anything more into that other than what the Commonwealth intended in putting that into the legislation.

A. LYONS J: But doesn’t that mean that it has clearly been said in that section that those reports are going to be used in the course of proceedings and, therefore, it is clear when they are used in the course of proceedings they are covered by the Defamation Act and it’s an occasion of absolute privilege?

APPELLANT: Well, no, your Honour, I don’t believe it does. And I believe to read that into it would be, again, going beyond the judicial discretion of this honourable court, given that it’s Commonwealth legislation and it has greater application than an inconsistent State piece of legislation.

BODDICE J: But, Mr Harvey, the absolute privilege doesn’t work on the basis that, therefore, the matter can’t be given in evidence. What absolute privilege says is that if you have said something as part of court proceedings it’s still given in evidence and it forms the evidence of the proceeding. It just is that a person can’t sue for defamation in relation to what you said. It doesn’t stop the evidence from being given.

APPELLANT: I’m not submitting that it does. Whether it’s given or not is a matter for the Family Court of the Federal Circuit Court of Australia or those courts of jurisdiction. I believe the authority that I wish to present with respect to the position of family report writers and family consultants that has been stated by the Family Court and the – or by the Family Court shows that it’s not – that the functions of a report writer are not court matters and are not judicial, so do not fall into the meaning of section 27 of the Defamation Act. That’s what I’m saying, is that section 27 – that this matter does not fall into the defence of the protection of absolute privilege, because the Family Law Act states that those statements are not privileged and also states – I believe it states that expressly in section 11C (emphasis added).”⁴

22. The applicant also argued that the function which a Family Court report writer performs is not a judicial function and therefore such a report cannot attract the privilege claimed. The applicant further argued that because family reports “may” be received into evidence by a judge that meant that a report would only attract privilege if it was in fact received into evidence and was relied upon by the judge. Reference was made in this regard by the applicant to the decision of Tryon v Clutterbuck.⁵

23. There is no doubt that the court in Tryon v Clutterbuck stated that whilst the opinion evidence of a report writer may assume significance in the exercise of a discretion by the court in proceedings in which it is received, it does not mean that the task undertaken has “discretionary or judicial elements”.⁶ It is correct to argue that a report writer does not exercise judicial functions and their task is not analogous to a judicial function in any respect. However, a report does not have to be prepared by a judicial officer in order to attract the privilege. Section 27 of the Defamation Act 2005 (Qld) provides that matter is published on an occasion of absolute privilege if it is published in the course of proceedings of an Australian court and specifically includes matter which is in any document which is filed, lodged or otherwise submitted and matter which is published while giving evidence. A report by a family report writer is covered under s 27. There is no requirement that the evidence or report has to be relied upon or even specifically referred to in order to attract the privilege as argued by the applicant.

24. The applicant also made reference to s 69ZU of the Family Law Act 1975 (Cth) which provides that the court could not take into account an opinion expressed by a family consultant unless the parties to the proceedings gave their consent or the family consultant gave their opinion as sworn evidence. However, this provision was repealed on 7 December 2011 under Schedule 2 of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) and will therefore not be considered in this application for leave to appeal. It is worth noting, however, that in Hazan v Elias,⁷ Watts J held that the words of s 69ZU were inconsistent with the words of s 11C of the Family Law Act 1975 (Cth). He was satisfied that the Commonwealth did not wish to contradict itself and concluded that the inconsistencies between the sections were not intended.⁸ He concluded that s 11C is a general provision which allows anything said by or in the presence of a family consultant into evidence, subject to the 1975 (Cth) and the 1995 (Cth). It did not go so far as to allow someone participating in the interview to tender a secretly recorded tape of the interview as of right.

“It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. It extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings. It is said that it extends to any document published on an ‘occasion properly incidental [to judicial proceedings], and necessary for [them]’.

It is also settled law that absolute privilege attaches to statements made in the course of quasi-judicial proceedings, ie proceedings of tribunals recognised by law and which act ‘in a manner similar to that in which a Court of justice acts’. Various considerations are relevant to the question whether proceedings are quasi-judicial. However, the overriding consideration is ‘whether there will emerge from the proceedings a determination the truth and justice of which is a matter of public concern’. The privilege extends to members of tribunals and to ‘advocates, litigants, and witnesses’. And its scope is no less extensive in other respects than in the case of statements made in the course of judicial proceedings.” (citations omitted and emphasis added)

28. There was no doubt that all the alleged defamatory statements were the subject of a claim of absolute privilege and that any claim by the applicant for damages for defamatory statements was doomed to fail. It would be truly extraordinary and offensive to sound public policy if a person who complied with a court order to attend an interview to provide information for the purpose of a court report could then be sued for defamation. Section 27 of the Defamation Act 2005 (Qld) prevents such an eventuality. The applicant had no reasonable prospects of succeeding on his claim.

29. As a Notice of Intention to Defend had been filed, pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) the respondents (as defendants in that proceeding) were able to apply for judgment against the applicant as plaintiff. The primary judge was correct in concluding that there was no need for a trial and that judgment could be given for the defendants against the applicant in the proceeding, as he had no prospects of success.

30. Ultimately, however, the primary judge made an order in accordance with the Application and simply struck out the Claim and the Statement of Claim. Rule 171 of Uniform Civil Procedure Rules 1999 (Qld) provides that a pleading may be struck out if it discloses no cause of action, has a tendency to prejudice or delay the fair trial of the proceeding or is otherwise an abuse of the process of the court. The applicant argued that the primary judge was also in error in this regard in concluding that the pleadings failed to particularise the defamatory statements. The applicant argued that his pleadings were sufficient and that he was not required to provide the evidence he would ultimately rely upon at trial. The applicant also referred to the decisions of Robert Bax & Associates v Cavenham Pty Ltd,¹⁴ Pickering v McArthur,¹⁵ Dare v Pulham¹⁶ and Banque Commerciale SA (In liq) v Akhil Holdings Ltd¹⁷ to argue that the pleadings should not have been struck out. In particular, he argued that the decisions of Dare v Pulham¹⁸ and Banque Commerciale SA (In liq) v Akhil Holdings Ltd¹⁹ observe that faults in pleadings are not fatal to a claim and statement of claim and that the decision of suggests that pleadings can only be struck out if there is concrete evidence showing that a claim is doomed to fail at trial. He further argued that the pleadings were in the correct form and should not have been struck out because the current respondents understood the basis of his claim and were able to respond to it.

“Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings. But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed, though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence.” (citations omitted)²³

33. But in the later decision of Banque Commerciale SA (In liq) v Akhil Holdings Ltd, the High Court held that:

“The function of pleadings is to state with sufficient clarity the case that must be met. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities.” (citations omitted)²⁴

34. The primary judge was correct to strike out the applicant’s pleadings under r 171 of the Uniform Civil Procedure Rules 1999 (Qld), as they not only disclosed no reasonable cause of action but they also failed to particularise the defamatory statements relied upon. In Stanizzo v Sassu,²⁵ which was one of the decisions relied upon by the applicant, the pleadings were also struck out because the statement, which was alleged to have contained the defamatory material, was made in circumstances which were protected by absolute privilege.

35. Before making an order as to costs, the ex tempore reasons of the primary judge indicated that he heard submissions from the parties and made an order that the applicant pay the current respondents’ costs in the amount of $2,000. No transcript of that part of the hearing on 15 May 2015 has been provided. Clearly, however, costs normally follow the event. The order as to costs was appropriate and reasonable in circumstances where counsel had been engaged.

36. It follows that there is no basis for a claim that an appeal is necessary to correct any injustice to the applicant.

37. As the applicant has no prospects of success in his proposed appeal, the application for leave to appeal should be refused with costs.

Orders

38. The orders of the Court are as follows:

39. Leave to appeal is refused.

40. The applicant is to pay the respondents’ costs of the application on the standard basis.

Footnotes

1. ARB 14. ↩

2. ARB 16. ↩

3. Pickering v McArthur [2005] QCA 294, [3]. ↩

4. T1-15 ll 1-47 to T1-16 ll 1-15. Note that the “appellant” should have been referred to as the “applicant” throughout the transcript of this application for leave to appeal. ↩

5. (2010) 246 FLR 193. ↩

6. (2010) 246 FLR 193, [28]. ↩

7. (2011) 255 FLR 338, [38] and [63]. ↩

8. Hazan v Elias (2011) 255 FLR 338, [38]. ↩

9. Hazan v Elias (2011) 255 FLR 338, [40]. ↩

10. Hazan v Elias (2011) 255 FLR 338, [63]. ↩

11. Hazan v Elias (2011) 255 FLR 338, [65]. ↩

12. (1994) 182 CLR 104. ↩

13. (1997) 191 CLR 204, 211-212. ↩