Watney v Kencian [2017] QCA 116

SUPREME COURT OF QUEENSLAND

CITATION: Watney v Kencian & Anor [2017] QCA 116

PARTIES: CHRISTOPHER DAUNT WATNEY (applicant) v JANET KENCIAN (first respondent) ANTHONY WOOLLEY (second respondent)

FILE NO/S: Appeal No 8720 of 2016 / DC No 52 of 2013

DIVISION: Court of Appeal

PROCEEDING: Application for Leave s 118 DCA (Civil)

ORIGINATING COURT: District Court at Cairns – Date of Judgment: 3 August 2016

DELIVERED ON: 6 June 2017

DELIVERED AT: Brisbane

HEARING DATE: 10 April 2017

JUDGES: Morrison and McMurdo JJA and Applegarth J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Leave to appeal granted.Appeal allowed.Judgment entered on 3 August 2016 set aside.The findings of the jury in answer to Questions 3(a) to 3(f) inclusive be set aside and affirmative answers be substituted for each of those answers.There be a new trial limited to the availability of defences of qualified privilege and honest opinion and, if applicable, damages.The respondents pay the applicant’s costs of the appeal, including the application for leave to appeal.Costs of and incidental to the proceeding at first instance be reserved to await the outcome of a new trial or further order in the event the matter does not proceed to trial.

CATCHWORDS: DEFAMATION – ACTIONS FOR DEFAMATION – TRIAL – FUNCTIONS OF JUDGE AND JURY – IN GENERAL – where the applicant, a private school principal, sued the respondents for defamation over 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 – where the applicant alleged that the publication conveyed a number of meanings about him – where the jury found the publication conveyed the meanings, but found that none of the meanings was defamatory – where the applicant submits that the jury’s findings that none of the meanings was defamatory were perverse – where having regard to the character and seriousness of each imputation and the context in which the imputations were conveyed, each part of Question 3 compelled an affirmative answer – whether the findings that none of the proven meanings was defamatory were ones that no reasonable jury could make – whether the jury’s findings caused a substantial injustice to the applicant / DEFAMATION – ACTIONS FOR DEFAMATION – OTHER PROCEEDINGS BEFORE TRIAL – STAYING ACTION – PRINCIPLE OF PROPORTIONALITY – where the usual order in a case like this would be to set aside the judgment in favour of the respondents, and order a new trial, restricted to the pleaded defences of qualified privilege and honest opinion and, if applicable, damages – where the respondents resist an order for a retrial, and invoke a principle derived from Jameel v Dow Jones & Co Inc [2005] QB 946 in support of an order the proceeding be permanently stayed – whether the Court should decline to order a retrial based on the principle of proportionality / Defamation Act 2005 (Qld) / Civil Procedure Act 2005 (NSW) / Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; [1998] NSWSC 4, cited / Australian Broadcasting Corporation v Reading [2004] NSWCA 411, cited / Bennette v Cohen (2005) 64 NSWLR 81; [2005] NSWCA 341, cited / Bleyer v Google Inc (2014) 88 NSWLR 670; [2014] NSWSC 897, considered / Bristow v Adams [2012] NSWCA 166, cited / Chalmers v Payne (1835) 2 CM & R 156; 150 ER 67; [1835] EngR 38, cited / Charleston v News Group Newspapers Ltd [1995] 2 AC 65; [1995] UKHL 6, cited / Evans v Davies [1991] 2 Qd R 498, cited / Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; (2005) 221 ALR 186; [2005] HCA 52, cited / Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334, cited / Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165; [2002] NSWCA 41, considered / Jameel v Dow Jones & Co Inc [2005] QB 946; [2005] EWCA Civ 75, considered / John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657; [2003] HCA 50, applied / Monroe v Hopkins [2017] EWHC 433 (QB), cited / Nevill v Fine Art and General Insurance Co [1897] AC 68, cited / O'Hara v Sims [2009] QCA 186, cited / Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16, cited / Smith v Lucht [2014] QDC 302, considered

COUNSEL: M A Jonsson QC for the applicant / A Boe with P J McCafferty for the respondent

SOLICITORS: MBS Lawyers for the applicant / Robertson O'Gorman for the respondent

MORRISON JA: I have read the reasons of Applegarth J and agree with those reasons and the orders his Honour proposes.

McMURDO JA: I agree with Applegarth J.

APPLEGARTH J: The applicant, a private school principal, sued the respondents for defamation over 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. The applicant alleged that the publication conveyed a number of meanings about him. The jury agreed, however found that none were defamatory.

The applicant submits that the jury’s answers to the question of whether each meaning, so conveyed, was defamatory are perverse. He points to the serious nature of the meanings, which reflected badly on him, personally and professionally. He seeks leave to appeal to correct a substantial injustice.

The respondents submit that:there is no substantial injustice that requires correction, and that the case is not an appropriate one to trespass upon the jury’s function in deciding whether the applicant was defamed by the letter;alternatively, the Court should, as a matter of discretion, not order a retrial, and find that the due administration of justice demands that the proceeding be stayed on the grounds that the “resources of the court and the parties that will have to be expended to determine the claim are out of all proportion to the interest at stake.”¹

The facts

The letter in question, dated 21 June 2012, was headed “Repeated and Systemic Failures of Duty of Care in response to bullying at Trinity Anglican School White Rock (TAS)”. The letter is long and it is unnecessary to set it out. The jury, in answering the first question asked of it, found that an ordinary reasonable reader would have understood the letter to be “of and concerning the plaintiff”. The jury answered Question 2, as follows:

“Has the plaintiff established that the letter dated 21 June 2012 would have been understood by the ordinary reasonable reader as conveying in respect of the plaintiff any of the following imputations:

the plaintiff, as principal, is responsible in the sense of being Yes

morally blameworthy for a culture of denial of problems invo

lving bullying at TAS.

the plaintiff directed the production of misleading reports into Yes

bullying at TAS for the sole purpose of deflecting criticism and

to avoid litigation liability.

the plaintiff directed the production of misleading reports into Yes

bullying at TAS which vilely attacked and harmed a young girl

who was the victim of bullying.

the plaintiff’s failure to appropriately respond to bullying at Yes

TAS might have contributed to the suicide of a TAS student.

the plaintiff is responsible in the sense of being morally Yes

blameworthy for the deliberate misuse of information

provided to him about the defendant’s daughter.

the plaintiff is not fit to manage and oversee TAS. Yes”

Having answered “Yes” to each part of Question 2, the jury was then required to answer in respect of each imputation or meaning the following question:

“3. Has the plaintiff established that any imputation or meaning so conveyed would have been understood by the ordinary reasonable reader as defamatory of the plaintiff …”

Each imputation was then set out as a part of that question. The jury answered “No” to each part of Question 3. As a result it did not answer any more questions. Those questions were relevant to defences of qualified privilege and honest opinion. The jury’s answers to Question 3 led to judgment for the respondents with costs.

Relevant principles – appeals against jury verdicts

To overturn a jury finding, an appellant must establish that the finding was one that no reasonable jury, properly directed, could reach.² Restraint is exercised, particularly where a jury has found a publication is not defamatory.³ An appeal court is not entitled simply to substitute the answer that it would give to a question for that of a jury.⁴ It must approach the case on the factual basis most favourable to the respondent to the appeal.⁵ The essential issue is whether a verdict shows that the jury failed to perform its duty.⁶ The requirement to show that the finding is one that no reasonable jury could reach is sometimes captured by asking whether the finding was perverse.

Were the jury’s findings that each of the meanings were not defamatory findings that no reasonable jury could reach?

Each of the meanings which the jury found to have been conveyed reflected adversely on the plaintiff’s character, his professional competence or both. This is not a case in which the meaning in question was one which raised scope for debate about prevailing community standards.

The respondents do not advance an argument with respect to each imputation or meaning, arguing how a certain meaning might be said to be one which was not likely to injure the applicant’s reputation. Instead, they seek to elevate the issue to the general question of whether they published defamatory matter about the applicant. They submit that the inquiry should not be unduly focused upon an analysis of the answers given to the questions posed to the jury.

The practice of formulating questions for a jury in terms of the imputations or meanings contended for by the plaintiff is well-established, and predates the Defamation Act 2005 (Qld). The practice has obvious advantages. It sharpens the focus of certain substantive defences which relate to the defamatory imputations which the jury finds were in fact conveyed. It also has the advantage of allowing a judge to assess damages by regard to the defamatory meanings upon which the plaintiff succeeds and which the defendant fails to successfully defend.

This is not a case in which the jury was asked to give a general verdict by being asked whether the plaintiff had proven that he had been defamed.⁷ In this case the trial judge, with the support of the parties, adopted the conventional approach of asking specific questions of the jury. As the trial was conducted on that basis, it is not possible to ignore the jury’s answers and to imagine whether a single, general question, subject to suitable directions about the meanings to which the plaintiff was confined, would have permitted the jury to answer that the plaintiff was not defamed.

Having answered that each of the pleaded meanings had in fact been conveyed by the letter, the jury’s task in answering each part of Question 3 should have been a simple one. In respect of each meaning, the jury was required to consider whether that meaning was likely to make an ordinary reasonable reader think less of the plaintiff. The trial judge gave redirections to this effect, and explained that the issue was not what a particular person thought or felt. The issue was the likely effect of the imputation on the mind of an ordinary person.

Question 3 broadly reflected the common law test of defamatory matter, namely whether “the published matter is likely to lead an ordinary reasonable person to think less of a plaintiff”.⁸ The issue for the jury was not whether the published matter in fact caused actual injury to the plaintiff’s reputation. It was the tendency of the proven meaning to affect reputation.⁹

The respondents’ argument about context

The respondents do not contend that each of the meanings, taken in isolation, would not tend to injure the applicant’s reputation or not cause an ordinary reasonable reader in the position of the Director-General to think less of the applicant. Instead, they rely on the context in which the proven meanings were conveyed to argue that it was open to the jury to answer each part of Question 3 in the negative.

They argue that, as with Question 2 about meanings, the jury was obliged to consider the matter complained of as a whole and in context.¹⁰ This included the attachments to the letter and the context in which the letter was sent. The context included the fact that the letter, together with its annexures, would have given the reader to understand that it was written by a parent about the conduct of the school, that there was a history that had resulted in a stalemate and that the parent was dissatisfied with the outcome of being told by the school authorities that nothing further would be done. It was a letter complaining about the inadequacy of an investigation, written to a single person with authority over the education system, and the letter was marked “Confidential”.

According to the respondents, an ordinary reasonable reader in the position of the letter’s recipient would have gleaned that the letter was from an over-excited parent, seeking to protect the interests of a child, complaining about the conduct of an investigation.

In oral submissions, counsel for the respondents argued that, despite the jury finding that the letter conveyed each of the meanings pleaded by the applicant, the context in which the letter was sent meant that an ordinary, reasonable reader would give those meanings no weight. Therefore it was open to the jury to find that, despite the meanings being conveyed, the letter was not defamatory because of its context.

Context

Context counts in deciding whether a publication conveys a defamatory meaning. In Nevill v Fine Art and General Insurance Co Ltd¹¹, Lord Halsbury stated:

“[I]t is necessary to take into consideration, not only the actual words used, but the context of the words.”

The form in which words are communicated may affect the meaning they convey to an ordinary, reasonable person, for example, because of the transient nature of the medium.¹² The mode of publication can affect the way in which the ordinary reader absorbs the information, including the amount of time they devote to reading or viewing it.¹³

In determining whether a publication conveys a defamatory meaning it is necessary to consider the context in which the words were used and the whole of the publication. It has long been established that words that are not defamatory in isolation may acquire a different meaning when they are read in the context of other statements.¹⁴ Conversely, “this or that sentence may be considered defamatory, but there may be other passages which take away their sting”.¹⁵ In rare cases, the inclusion of additional words completely removes something disreputable to the plaintiff stated in one part of the publication: “the bane and antidote must be taken together”.¹⁶ However, the mere presence of inconsistent assertions or a denial does not necessarily remove the defamatory charge or prevent the article being defamatory.¹⁷

Context is relevant to the meaning that is conveyed by the publication. The words complained of must be construed in their context. Words read in isolation, capable of conveying only an imputation of suspicion, may, in the context of the publication as a whole, convey an imputation of guilt. By contrast, words suggesting someone is guilty of certain conduct may, due to additional matters in other parts of the publication, impute something less than guilt, for instance, that reasonable grounds exist to suspect guilt.

It is necessary to consider the publication as a whole, and therefore is it not possible to isolate parts of a publication, such as a headline or an opening paragraph.¹⁸ The principle that a publication, such as a newspaper article, has to be read as a whole “does not mean that matters that have been emphasised should be treated as if they have only the same impact or significance as matters which are treated differently”.¹⁹

Just as context is relevant to the meaning that words convey, it also may be relevant to the defamatory quality of the meaning that is conveyed by the publication. In considering whether a meaning (or imputation) is defamatory, the jury considers the meaning in the context in which the words were published.²⁰ For example, words which ordinarily impute some wrongdoing may be said in obvious jest and on an occasion when an ordinary, reasonable person would not take them seriously.²¹ To take a different example, a publication may impute that a mother lied to her daughter. However, that would not be defamatory if the context was that the mother lied to an infant daughter about Father Christmas.²² This does not detract from the general proposition that it is defamatory to impute that someone lied or is a liar.²³

The relevant principle may be stated as follows: in determining whether an imputation is defamatory, the imputation must be considered in the context of the matter complained of.²⁴ This should not be seen as an encouragement for juries to depart from the task of asking whether the meaning which it finds the words conveyed is defamatory. Nor, as Mason P explained in Greek Herald Pty Ltd v Nikolopoulos²⁵, is the principle a “passport to sloppy or ambiguous pleading of imputations”. Therefore, in the example given, rather than a general imputation that “the plaintiff lied”, the context of the lie might have been spelled out in the pleaded imputation: “the plaintiff lied to her infant daughter in telling her about Father Christmas”.

In cases in which imputations are pleaded with appropriate precision, the principle that the jury must consider the imputations in the context of the matter complained of may have limited practical effect. The issue in any case will be whether there is anything, by way of context, that could supplement the bare imputation.²⁶

The proven meanings and their context

In answering each part of Question 3 in accordance with the trial judge’s directions, the jury was required to consider the likely effect of each imputation on a hypothetical reader (which Question 3 described as “the ordinary reasonable reader”).

None of the imputations was of a character which gave rise to an issue about contemporaneous community standards. There was no contention that the jury was faced with issues about the moral or social standard an ordinary, reasonable reader would apply.²⁷

An ordinary, reasonable reader would inevitably think less of someone about whom such imputations were conveyed unless something in the context of the matter complained of suggested otherwise.

In considering context in relation to the jury’s answers to Question 3, this Court is required to take a view of the facts most favourable to the respondents.²⁸ This includes assuming that the letter had the attachments which the respondents contend that the evidence suggests might have been attached to it. Therefore, it is not a matter of simply considering what meanings the five page letter conveyed and whether they were defamatory. One must consider the words complained of in the context of the letter as a whole and in the context of its attachments.

The fact that an ordinary, reasonable reader would have understood that the letter was written by a parent about the conduct of the school and that there was a history to the matter that resulted in the parent being dissatisfied with the outcome of the school’s investigation did not lessen the force of the things which the jury found the letter imputed about the applicant. The contextual matters pointed to by counsel for the respondents explain why they had escalated their grievances to the Director-General of Education. The possible inclusion as an annexure of an investigator’s report would not have detracted from what the letter imputed about the plaintiff and the school authorities. The annexures which were in fact attached were not clearly proven in the evidence, partly because the respondents did not give evidence. The annexures did, however, include an extract from a report which critiqued the earlier investigation report. The letter itself critiqued the investigator’s reports in some detail. The investigator’s reports were said to be “deliberately biased”, and to have “ignored the vast amount of documented incidents of school failures with respect to the school response to bullying”. The investigator’s reports were described as “in effect a ‘whitewash’ and slander of a minor”.

The fact that the letter was written by a parent, possibly over-excited out of a desire to protect a daughter, and asking for an investigation, did not alter the defamatory character of the meanings it conveyed about the applicant. The context was a carefully constructed and detailed letter. The context was unlike an imputation conveyed by an impulsive, ill-considered oral remark.

The fact that the letter was written to one person did not affect the defamatory nature of the meanings the jury found it conveyed to that person about the applicant. The one person was the Director-General of Education, who was described in the first paragraph of the letter as the “gatekeeper for the Federal Government education funding”. The letter concluded by stating that the letter and the attached documentation was sufficient to generate “an obligation on the part of the Queensland Department of Education to conduct a comprehensive and transparent investigation into what is going on at TAS”. The letter sought the Director-General’s assistance “to address the injustices perpetrated” by the school on the writer’s daughter. The fact that it was sent to only one person did not alter the defamatory quality of the imputations which the jury found the letter conveyed about the applicant. It simply required the jury to apply the ordinary, reasonable person test to a case of a single publication, not a mass readership.

The fact that the letter was marked “Confidential” added little, if anything, by way of context to assist the jury to decide Question 3. It reinforced that the letter and the allegations made in it were serious, and were not intended for general republication. The “Confidential” mark did not mean that the allegations were not intended to prompt action. They were. The respondents admitted that they were responsible for the letter’s republication to the Non-State School’s Accreditation Board because such republication was intended or authorised by them or was the natural and probable consequence of their publication of the letter to the Director-General. The “Confidential” mark was not a contextual factor which would reduce the weight which an ordinary, reasonable reader would place on the letter and the meanings it conveyed about the applicant.

I conclude that the letter’s context, including its annexures and the matters pointed to by the respondents in submissions, did little to supplement the imputations that the jury found were conveyed by it. That the letter was written by an aggrieved parent about a child did not detract from the defamatory quality of those imputations. The context was a letter written about important matters, requiring the intervention of the Director-General. The history to which the letter referred conveyed the seriousness of the matters contained in it. The context of the letter, along with the annexures and what the letter said about them, did not diminish the force of what was conveyed by the words complained of.

Conclusion

The jury found that the words complained of conveyed the following imputations or meanings about the plaintiff:

“(a) the plaintiff, as principal, is responsible in the sense of being morally blameworthy for a culture of denial of problems involving bullying at TAS.

the plaintiff directed the production of misleading reports into bullying at TAS for the sole purpose of deflecting criticism and to avoid litigation liability.

the plaintiff directed the production of misleading reports into bullying at TAS which vilely attacked and harmed a young girl who was the victim of bullying.

the plaintiff’s failure to appropriately respond to bullying at TAS might have contributed to the suicide of a TAS student

the plaintiff is responsible in the sense of being morally blameworthy for the deliberate misuse of information provided to him about the defendant’s daughter.

the plaintiff is not fit to manage and oversee TAS.”

An ordinary, reasonable reader would think less of someone about whom such imputations were conveyed. The context of the matter complained of does not alter this conclusion. The context was one of serious and considered allegations on matters affecting the welfare of a child, requiring the intervention of the Director-General of Education.

Having regard to the character and seriousness of each imputation and the context in which the imputations were conveyed, each part of Question 3 compelled an affirmative answer. Instead, the jury found that none of the proven meanings was defamatory. Their answers to Question 3 were answers which no reasonable jury could reach. The jury’s perverse answers to Question 3 caused a substantial injustice to the applicant.

The path to a perverse result

Because the applicant has established his case that, having answered Questions 1 and 2 as it did, the jury’s answers to composite Question 3 were perverse, it is unnecessary to canvass in detail the parties’ submissions about the course of the trial.

The respondents did not give or call evidence and, as a result, had the forensic advantage of the last address. Counsel for the respondents, Mr Boe, commenced his address after lunch on Friday, 29 July 2016. His address turned specifically to Question 3 shortly before the Court adjourned at 2.54 pm until Monday, 1 August 2016. He stated:

“Question 3 – and in the sense because it’s covering the same subject matter I’m not going to repeat the stuff I’ve just been saying to you. Apply your mind to the question that’s being asked of you. Has the plaintiff established that any imputation or meaning so conveyed would have been understood by the ordinary reasonable reader as defamatory of the plaintiff. It’s the next step along. This thing was marked ‘confidential’. It was a confidential complaint. Even the plaintiff accepted that confidential means it wouldn’t go anywhere else. When we think about defamation in our ordinary life, we’d think about stuff that’s on the internet news readers, newspapers. True it is that one single publication can be defamatory, but use your commonsense as to what an ordinary reasonable reader thinks of a letter sent marked ‘confidential’ to one person complaining about their daughter and asking for an investigation. That’s why I’ve grouped those first three questions together. I think you will comfortably find, even though the onus is not on me, that you will answer ‘no, no, no, no, no, no, no’ and then we can all go home.”

The address invited the jury to place weight on the fact that the letter was marked “Confidential” when deciding whether the imputation or imputations which the jury found to have been conveyed were defamatory. The fact that the letter was marked “Confidential” may have been relevant to the republications for which the respondents might be held liable and to the reasonableness element of the qualified privilege defence. However, it was not particularly relevant to Question 3 in respect of the admitted publication and republication. For the reasons given above, although the word “Confidential” formed part of the context in which the words complained of were published, it is hard to see how it affected their defamatory character. If anything, it reinforced rather than reduced the serious nature of the allegations. In oral argument on the appeal, counsel for the respondent acknowledged that the word “Confidential” was of “very marginal relevance” but was part of the context of a letter written by a parent complaining about the conduct of the school.

During its deliberations, the jury sent notes to the trial judge and its final note was:

“Your Honour, question 3, the problem we have is if an ordinary reasonable reader would understand what defamation is to make this assessment and whether the context that the letter was ‘confidential’ would have any effect on his assessment of whether it was defamatory.”

The note suggests a confusion in relation to Question 3, including the relevance of the fact that the letter was marked “Confidential”. The note was marked for identification at 4.49 pm on Tuesday, 2 August 2016, and counsel made some submissions about it. However, the jury was not kept that evening to obtain an answer to its question. The trial judge understandably proposed, with the agreement of counsel, that he should address the question the next morning when the jurors had “fresh minds”.

The Court reconvened at 9.30 am on 3 August 2016. The trial judge, having had the assistance of counsel, formulated a redirection. The jury returned at 9.46 am and the trial judge redirected them in relation to Question 3. The jury then retired at 10.01 am.

The jury reached its verdicts and at about 10.50 am.²⁹ Counsel for the respondent moved for judgment and judgment was entered.

It is true that counsel for the applicant did not seek a correction or redirection as to anything said in the respondents’ counsel’s address. However, this fact, together with the contents of the jury’s notes, tends to suggest that the jury was left for a long time with the impression that the fact that the letter was marked “Confidential” was particularly relevant to its assessment of whether each of the proven meanings was defamatory. The question for the jury was a simple one, to be undertaken essentially by reference to each imputation found to have been conveyed.³⁰ The trial judge’s redirection in response to the note which was received on the afternoon of 2 August 2016, with the agreement of counsel, addressed both Questions 2 and 3, and what was meant by the term “ordinary reasonable reader”. The redirection seemingly came too late to correct the confusion under which the jury had been labouring. The redirection did not prevent the jury from giving answers to each part of Question 3 which were perverse.

If the jury had understood its task in answering Question 3, then, having regard to the proven imputations in the context of the matter complained of, it would have asked whether each imputation was likely to lead an ordinary reasonable person to think less of the plaintiff. The jury’s answers suggest that it misunderstood the issue for its decision under Question 3, and that the redirection came too late and was ineffective to cure its confusion. It is not necessary to decide how the jury reached perverse findings on Question 3. Leaving aside the cause or causes of the jury’s answers to each part of Question 3, its answers were ones that no reasonable jury, properly directed, could make.

In the circumstances, a substantial injustice was occasioned to the applicant when judgment was entered for the respondents on the basis of the negative answers to Question 3. Leave to appeal should be granted to correct that substantial injustice, and the appeal allowed.

Should a retrial be ordered or the proceeding stayed?

The usual order in a case like this would be to set aside the judgment in favour of the respondents, and order a new trial, restricted to the pleaded defences of qualified privilege and honest opinion and, if applicable, damages.³¹ This is on the basis that the applicant proved each of the pleaded imputations and the jury’s answers to Question 3 were answers that no reasonable jury, properly directed, could reach. The respondents resist an order for a retrial, and invoke a principle derived from Jameel v Dow Jones & Co Inc³² in support of an order that the proceeding be permanently stayed.

The Jameel principle

In Jameel, a defamation claim was brought by a Saudi Arabian national in the Queen’s Bench Division of the High Court over an item on a website which was accessible via a hyperlink. Dow Jones ascertained that only five subscribers within the jurisdiction had accessed the item. Two did not know the plaintiff while the other three were “members of the claimant’s camp”, including his solicitor.³³ Dow Jones argued that no substantial tort had been committed in the jurisdiction, and that, in the circumstances, pursuing the expensive action was “disproportionate and an abuse of process”.

The English Court of Appeal was concerned “to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice”.³⁴ It was prepared to entertain the submission that pursuit of a libel action in the circumstances was an abuse of process. One reason was the introduction of new civil procedure rules which had a more flexible and more proactive approach to achieving the overriding objective of the rules. The second was the effect of the Human Rights Act 1998 (UK). It was said to “require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant’s reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged.”³⁵

The Court had regard to the issue of vindication. It concluded that if the claimant succeeded in the action and was awarded a small amount of damages for the damage done to his reputation within the jurisdiction, that his vindication would be minimal, and that the “cost of the exercise will have been out of all proportion to what has been achieved”³⁶. The proceedings were stayed.

Jameel was relied upon by the respondent in Bristow v Adams³⁷ who, by notice of contention, argued that the claim should have been dismissed as an abuse of process. The notice of contention was out of time and the Court refused an extension of time within which to file it. Basten JA (with whom Beazley JA and Tobias AJA agreed) acknowledged that the application in New South Wales of the principles discussed in Jameel raised a question of general public importance. However, the appeal was not an appropriate vehicle for their consideration. The application which succeeded in Jameel was a pre-trial application for a stay in order to avoid disproportionate expenditure on a trial. Jameel did not provide a basis for the granting of the relief sought by the respondent at the hearing of an appeal which challenged a judgment which had already been reached following a completed trial.³⁸ The point raised was a novel one and had not been raised below. In addition, Basten JA observed that, had a stay been sought prior to trial, there would have needed to be careful attention to the differences between English and Australian law. These included different civil procedure provisions. Also, account might need to be taken of the defence of triviality provided by s 33 of the Defamation Act 2005 (NSW) which has no English counterpart. In addition, reference was made in Jameel to the consequences of the Human Rights Act 1998 (UK).³⁹ Those issues were not addressed in submissions on the appeal.

In Bleyer v Google Inc⁴⁰, McCallum J considered the principle of proportionality derived from Jameel, and observations made by other judges, including the observations of Basten JA in Bristow v Adams. Her Honour considered the objective of civil procedure in New South Wales and the statutory power to stay a proceeding. McCallum J reached the conclusion that the New South Wales Supreme Court:

“has power, in an appropriate case, to stay or dismiss an action on the grounds that the resources of the court and the parties that will have to be expended to determine the claim are out of all proportion to the interest at stake. In my view, such disproportionality can properly be regarded as a species of abuse of process.”⁴¹

McCallum J went on to state that “the cases in which a stay will be granted on the basis of disproportionality will be rare.” Regard was had to the fact that the Court’s primary function:

“is to determine causes properly brought before it according to law and the merits of the case. Further, the value of the interest at stake will, at least in some instances, have to be assessed having regard to broader considerations than the sum of money involved.”

That was said to be “an important consideration in the context of defamation, where vindication for reputation is not wholly measured or achieved in financial terms, even though the remedy must be given in the form of monetary compensation.”⁴²

In Smith v Lucht⁴³, McGill SC DCJ considered an application seeking an order that the plaintiff’s defamation action be stayed. Reliance was placed by the applicant upon the decision in Bleyer. His Honour noted that the concept of proportionality between cost and importance had been picked up, to some extent, in the provisions of the New South Wales Civil Procedure Act 2005, at least so far as the parties are concerned.⁴⁴ There was no equivalent provision in Queensland. His Honour also noted the observations of the New South Wales Court of Appeal in Bristow v Adams.

After analysing the plaintiff’s claim and relevant authorities, McGill SC DCJ concluded that the plaintiff had “at least potentially a claim for more than nominal damages for defamation which, on the face of it, he is entitled to pursue”.⁴⁵ It was said to be “a strong thing to say that such a claim involved such a disproportionality between the cost to the parties and the community of litigating the claim and the interests at stake that the pursuit of it would amount to a kind of abuse of process”. His Honour was not persuaded by the analysis in Bleyer. In the absence of a requirement in Queensland “for proportionality in relation to costs or expense, either for the parties or the community”, a plaintiff who has a good cause of action according to the law in Queensland is entitled to pursue it.⁴⁶ If damages fall below certain limits there may be costs consequences.⁴⁷

In Ghosh v NineMSN Pty Ltd⁴⁸, the New South Wales Court of Appeal considered an appeal from a decision which concluded that the plaintiff had shown a “continuing disregard of the obligation to conduct litigation not only with the rules of court, but with basic courtesies”.⁴⁹ The proceedings were found to be an abuse of process. The primary judge also had regard to the principle of proportionality. The Court of Appeal upheld the trial judge’s conclusion by reference to the first source of power. Macfarlan JA (with whom Leeming JA and Adamson J agreed) concluded that it was unnecessary to review the primary judge’s consideration of the authorities concerning the dismissal of the proceedings for want of proportionality. Macfarlan JA observed:

“It is sufficient to say that the dismissal of proceedings simply upon the basis of a lack of proportionality, without the presence of further facts favouring that result, is likely to be justified only rarely.”⁵⁰

The parties’ submissions

The respondents submit that the present case presents an appropriate vehicle to order a permanent stay. They argue that the applicant should not be permitted to continue to use the Court’s resources “to inflict further oppression and injustice” upon the respondents. The respondents note that in this case:Publication was made to only two persons, including republication by the original recipient;The limited publication is consistent with the applicant, assuming success, only being entitled to a comparatively modest award of damages, and one that is disproportionate to the cost to be borne by the parties and the community;The parties have already had an eight day trial and also various interlocutory skirmishes, including an appeal to this Court;⁵¹It may be assumed that any retrial will consume at least a similar amount of time and perhaps longer as the respondents did not give evidence at trial.

The applicant replies that it is not to the point that there was only limited publication, since the imputations are serious and reflect adversely upon the applicant’s professional reputation, his fitness for his role as school principal and his honesty. His reputational interests are neither trivial nor inconsequential, and even a limited publication may justify an award of substantial damages.

Next, the applicant notes that the protracted duration of the trial and the potentially protracted duration of any retrial is an inevitable consequence of the respondents’ procedural choice for a jury trial. Having prevailed in that choice, the respondents ought not now be heard to complain about the expense and delay occasioned by a jury trial.

The applicant did not argue whether the principle in Jameel, as recognised in Bleyer, should be recognised as part of the law of Queensland, including whether any differences in provisions governing civil procedure are a basis upon which to distinguish Bleyer.

Consideration

In my view it is inappropriate and unnecessary for this Court to decide in this case whether the Jameel principle should be adopted. It is inappropriate because the differences between English, New South Wales and Queensland law were not the subject of full argument. It is unnecessary to decide the point for the reasons which follow, and which assume for the purpose of argument, that the principle of proportionality discussed in Bleyer may be invoked by a defendant in an appropriate case.

It should not be assumed that if the applicant succeeds at a new trial, that damages will only be nominal. The imputations are serious and defamatory. Notably, no defence of triviality was pleaded or relied upon at trial.

The applicant is correct in contending that the respondents should not now be permitted to complain about the costs associated with a jury trial. The applicant was content to proceed to trial without a jury. It was the respondents who insisted that the matter be tried with a jury.

The existence of a statutory defence of triviality may be a basis upon which to distinguish the positions in England and in Australia. However, that argument would depend upon an assessment of whether the defence of triviality is adequate to protect defendants and the court system from being vexed by the type of proceeding at which the Jameel principle is directed. Arguably, a defendant who has a viable defence of triviality should be able to invoke the Jameel principle at an early stage of proceedings so as to avoid the costs associated with defending a matter to trial, and in seeking to uphold a judgment in its favour, upon appeal. If the Jameel principle and the defence of triviality may co-exist, then they provide different forms of protection. As Basten JA noted in Bristow, the application which succeeded in Jameel was a pre-trial application for a stay of proceedings in order to avoid disproportionate expenditure on a trial.

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; orseeking an order that the case be tried by a judge alone so as to avoid a potentially long trial.

Having sought a jury trial and litigated a jury trial to judgment, it is rather late for the respondents to invoke the Jameel principle by complaining about the costs and duration of a jury trial.

Assuming for the purpose of argument that the Jameel principle forms part of the law of Queensland, this is not one of the rare cases in which the principle might be applied to permanently stay a proceeding. The applicant has a claim for more than nominal damages which he is entitled to pursue. Even assuming that any award of damages will be modest, as McCallum J observed in Bleyer, vindication of reputation is not wholly measured or achieved in financial terms. A modest award of damages may have adverse costs consequences for the applicant, especially if the respondents have made offers to settle under the rules. The costs of the proceedings to date have, no doubt, been substantial, partly because of the respondents’ insistence upon trial by jury. However, the costs of the respondents’ insistence on a trial by jury should not be weighed in assessing whether “the resources of the court and the parties that will have to be expended to determine the claim are out of all proportion to the interest at stake.”⁵²

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. The applicant has established that he was defamed. Due to perverse findings by the jury in relation to Question 3, certain factual issues in relation to the defences were not decided by the jury and other issues about defences were not decided by the trial judge. The interests of justice are served by an order for a new trial at which the availability of defences and, if applicable, damages are decided. The applicant’s request for an order for a new trial could hardly be described as an abuse of process in the circumstances. It is the conventional order made in a case such as this.

The fact that a new trial is ordered by this Court does not preclude the parties from attempting to mediate a resolution in the light of the evidence that was given at the first trial. It does not preclude the parties, in the interests of confining the length of any new trial, from consenting to an order that the trial be by a judge without a jury and, if practicable, by the judge who conducted the first trial. However, mediation referral orders and orders about the conduct of the new trial and its mode are matters for the District Court.

Conclusion

The applicant has established that the jury’s answers to Question 3 are answers that no reasonable jury, properly directed, could reach. The respondents’ argument that the Court should, as a matter of discretion, not order a new trial and, instead, stay the proceeding is unpersuasive. I propose the following orders:Leave to appeal granted.Appeal allowed.Judgment entered on 3 August 2016 be set aside.The findings of the jury in answer to Questions 3(a) to 3(f) inclusive be set aside, and affirmative answers be substituted for each of those answers.There be a new trial limited to the availability of defences of qualified privilege and honest opinion and, if applicable, damages.

Questions of costs remain. The applicant seeks his costs of the appeal. As to the costs of the action, he seeks orders that:the respondents pay his costs thrown away by or as a result of the new trial; andthe costs of and incidental to the proceeding below should otherwise be reserved.

My present view is that the costs of the appeal, including the application for leave to appeal, should follow the event so that the respondents are ordered to pay the applicant’s costs in that regard. As for costs at first instance, ultimately it will be a question for the trial judge:whether the costs of the proceedings, including the costs of the previous trial, or part of it, should follow the event;whether the costs thrown away by or as a result of the new trial should be ordered to be paid by the respondents.

Therefore, I propose that the costs of and incidental to the proceedings at first instance be reserved to await the outcome of the new trial or further order in the event the matter does not proceed to trial.

Footnotes

1. Bleyer v Google Inc (2014) 88 NSWLR 670 at 681 [62]. ↩

2. John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; 77 ALJR 1657 at [6], [185] (“Rivkin”); O'Hara v Sims [2009] QCA 186 at [78] (“O'Hara”). ↩

3. Rivkin at [18], [19], [184]; O'Hara at [90]. ↩

4. Rivkin at [6], [17], [184]. ↩

5. At [17]. ↩

6. At [17]. ↩

7. As to the historic tension between seeking a general or a special verdict see Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171. ↩

8. Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at 467 [5] (“Chesterton”). ↩

9. At 466 [4] – 467 [6] citing Lord Atkin in Sim v Stretch [1936] 2 All ER 1237 at 1240. ↩

10. Bennette v Cohen (2005) 64 NSWLR 81 at 91 [25], citing Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 at 172 [19] – 173 [270] (“Greek Herald”). ↩

11. [1897] AC 68 at 72 cited in Mullis & Parkes, Gatley on Libel and Slander, 12th ed, Thomson Reuters (2013) [3.30] (“”).