Marsh v Pine Hills Football Club & Anor [2025] QDC 130

[1] In 2021, 2022 and 2023 the plaintiff played (soccer) football as a player registered with the first defendant, an associated incorporated under the Associations Incorporation Act 1981. As such, the first defendant's business and operations are controlled by its management committee.[1]
[2] On 22 August 2023 the first defendant issued a notice to the plaintiff stating that it would not accept any future applications for registration of her as a player. In response to her request for an explanation, an email was sent on 24 August 2023 ("the 24 August email"), purporting to represent the response of the whole of the committee. It was sent from the first defendant's general email account.
[3] The second defendant is a member of the first defendant's management committee. The plaintiff contends that she circulated the 24 August email, or an iteration of it in substantially similar terms, to the other member of the committee before the 24 August email was sent to the plaintiff ("the second defendant publication").

[5] The two applications are substantially inter-twined.
[6] The defendants complain that the SoC asserts that the publication of the 24 August email was only to the plaintiff. The plaintiff agrees that publication of allegedly defamatory material only to a plaintiff cannot amount to a publication actionable in defamation.[4] The plaintiff explains, through Counsel other than that who drafted the SoC, that the act of publication of the 24 August email is in fact an inferred publication by the first defendant's committee to its constituent members prior to the 24 August email being sent to the plaintiff. It is also explained that the second defendant publication, the one alleged against the second defendant, is a separate publication by the second defendant, probably before the asserted publication by the first defendant. The first defendant's liability is said to arise as a participant in the publication of both allegedly defamatory statements, on the basis of liability for the conduct of one or more members of the committee. The second defendant's liability is said to arise as the actual published of the second defendant's publication.
[7] It is submitted that these acts of publication are clear on the pleadings.[5] I do not agree. While it is possible, with the assistance of the explanations now provided, to see how the plaintiff may have intended to covey the allegations now explained, that is not the plain reading of the SoC. In my view, the SoC is vague, ambiguous or misleading to an extent that has the tendency to prejudice or delay the fair trial of the proceeding.
[8] The plaintiff's receipt of the 24 August email is pleaded early in the SoC, and under the heading "The defamatory publication".[6] The contents of the email are then pleaded in 13 separate sub-paragraphs, each of which are sequentially headed "Publication Number (1-13)".[7] The SoC then alleges that the first defendant was comprised of both a Board and a committee, that the Board "approved (and therefore had actual or constructive knowledge of)" the defamatory statements as well as "ready access" to the first defendant's general email account, and that the committee had actual or constructive knowledge of the defamatory statements as well as "ready access" to the first defendant's general email account.[8] Those pleadings do nothing to detract from the plain reading of an allegation of publication to the plaintiff alone.
[9] Paragraph 9 of the SoC then refers to the defamatory statements being "exposed" to, in effect the members of the committee and the Board, and to a likelihood that "it" would have been exposed to more people "through the 'grapevine effect' or republication". Read in context, the exposure seems to have been through the allegation that the two subject publications occurred through the use of the first defendant's general email account, however it is not explained how it is alleged this exposure in fact occurred. Mere presence on an email server does not necessarily amount to "exposure". The allegation requires better explanation.
[10] Further, that pleading does not distinguish between a republication and the grapevine effect, and the reference to "it" is confusing where the pleading alleges 13 defamatory publications, albeit in one document. The pleading is uncertain, and the allegation requires clarification.
[11] There are other difficulties for the plaintiff. The factual basis for the allegation of actual or constructive knowledge is not clearly pleaded, contrary to r. 150 of the UCPR. For example, does it refer to knowledge held by all the constituent members, some of them or only of the committee as an entity itself? How is the knowledge said to have been gained? The actual nature of the allegations should be clearly pleaded.
[12] In my view, the allegations of publication are, for reasons outlined above not properly pleaded. The lack of clarity around the issue of publication is further complicated by the role of the "Board", an entity not known under the Associations Incorporation Act 1981 and the lack of pleading as to how the role of this "Board" creates liability for the first defendant.
[13] Further, paragraph 14 of the SoC refers to the email as a whole, or an iteration of it on substantially similar terms (that is, a reference to the second defendant publication), rather than the 13 defamatory publications earlier alleged to be contained within them, and lists 10 imputations that are said to arise. The defendants are entitled to clarification as to whether it is alleged that the 10 imputations are said to arise from each of the earlier pleaded 13 publications, or from only some and if so, which ones. Alternatively, it may be that, as the use of the word "it" in paragraph 9 and as paragraph 14 as a whole tends to read, the imputations are said to arise from the whole of the document. However, it is unclear, and the ability to identify the source of the imputations is an important consideration in the framing of the defence. Those pleadings are confusing and ambiguous in their present form.
[14] The plaintiff's Counsel has conceded that the pleading has been "inelegantly" pleaded,[9] but argues that it was the product of gaps in the state of knowledge of the plaintiff at the time that it was filed, which gaps have been partly closed by the limited disclosure that has occurred since filing. It is argued that the plaintiff's case is now sufficiently well understood, given the disclosure that has occurred and the contents of the Reply, that the strike out application should be refused. I do not agree. There is still much that is unclear on the pleadings as to the plaintiff's case, which justifies the strike out.
[15] The defendants have applied for the strike out of the whole of the SoC, but also note that particular issue is taken with paragraphs 4 to 14 inclusive.[10] They accept it is open to give leave to replead. It would be open to strike out specific paragraphs but, given that any re-pleading may well change the overall structure of the SoC, rather than just "patching up" specific paragraphs, I consider it prudent to strike out the whole of the SoC, with leave to replead in 28 days.
[16] That order is made because the defendant's application for summary judgment cannot be granted, for the following reasons.
[17] Even on the basis of the plaintiff's case as explained in submissions, the defendants argue that the plaintiff cannot succeed as the publications of the 24 August email and the second defendant publication are, if established, publications occurring wholly within the organisational structures of the first defendant for the purposes of that business. It is argued that the allegations of republication and the grapevine effect are so vague and unsupported by fact as to mean there is no real prospect of success on those allegations.
[18] As to the former submission, the defendants rely on the observations of Giles JA in State Bank of New South Wales Ltd v Currububula Holdings Pty Ltd & Anor[11] where his Honour observed that it was open to hold that a communication to a company from a person outside the company, and which is received by a person on behalf of that company, is a communication only to the company and does not constitute publication. However, it is notable that the action in that proceeding was one for breach of contract, not an action in defamation. In so observing, his Honour distinguished an earlier decision of Hunt J in Traztand Pty Ltd v Government Insurance Office of New South Wales,[12] which was an action in defamation.
[19] Currububula was concerned with communications made by a person outside the organisation to persons within it. Traztand was concerned with communications made between persons within the organisation that were critical of the organisation itself, hence raising an issue as to whether there had been publication to persons other than the plaintiff. Each case is therefore factually different to the plaintiff's now understood case, which concerns publication to persons within an organisation about another within that same organisation. Each of those cases demonstrate the importance of understanding whether the communications were received by persons acting on behalf of the organisation, or in a capacity outside the remit of their engagement.
[20] The plaintiff has alleged that the communications were made maliciously and were motivated by unjustifiable purposes or ill-will towards the plaintiff.[13] This allegation was not the subject of specific complaint on the strike out application and may, if proven, be sufficient on its own to show that any publication was outside the remit of legitimate engagement within the organisation. It turns on issues of fact rather than law.
[21] It must also be noted that Giles JA couched his observations in guarded terms, and did not purport to set down a rigid rule. The limitations to the observations of Giles JA in Currububula were noted by Gibson DCJ in Castafiore v Uniting Church in Australia Property Trust.[14] Also, Hunt J in _Jones v Amalgamated Television Services Pty Ltd[15]_considered that publication of defamatory matter by one employee of a company to another can constitute a publication in law. It can therefore be seen that the issue is not clear cut.
[22] As it transpires, it is unnecessary to determine that issue of law. I am satisfied that this is a case where further disclosure, which has only been partly achieved, is desirable before it can be said that the plaintiff should be denied the ability to pursue the action. The facts are not settled, and it is not yet known if the respective rights of the parties turn upon questions of law.[16] This is a case where I consider it desirable to allow the plaintiff to clearly plead her case, now with the benefit of limited disclosure, before deciding if it can be determined in a summary manner.
[23] That consideration alone is also sufficient to dispose of the application in so far as it might be understood to refer to the republication and grapevine effect allegations separately, and is a further reason for declining to accede to the application in so far as it is concerned with the publication allegations.

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Judgment (16 paragraphs)

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