Beattie v Jamieson

[2006] QCA 319

COURT OF APPEAL

McPHERSON JA
HOLMES JA
ATKINSON J

Appeal No 109 of 2006

PETER BEATTIE  Applicant/Defendant

and

WILLIAM ROBINSON JAMIESON                Respondent/Plaintiff

BRISBANE

..DATE 28/08/2006

JUDGMENT

MR M D MARTIN (instructed by Clarke Kann) for the appellant

MR K HOWE (instructed by Baker Johnson Lawyers) for the respondent

McPHERSON JA:  This is an application for leave to appeal against a decision given in the District Court on 9th December 2005.  The applicant was the defendant in an action tried by a Judge alone and brought by the respondent plaintiff for damages for defamation in which his Honour gave judgment for $36,000 in addition to some $1,821.37 by way of interest to the date of trial.

That amount is less than that for which an appeal lies by right, hence the need for leave of the Court to appeal against it.  Ordinarily, it requires compelling reasons to persuade this Court that leave should be granted to appeal in a case of a judgment for less than the appealable amount.  The reason is that in fixing that amount the legislature has demonstrated a general intention that in such relatively small matters no appeal lies as of right.

Both the costs to the parties and the inconvenience to the Court in time spent on small matters militate against the grant of leave to appeal in such instances.  Here, however, the parties are businessmen and the actual or potential damage to their reputations of an adverse judgment in one way or another is therefore likely to be serious.

They were both engaged in occupations on the Gold Coast and the matters at issue arose out of the management of a substantial block of units at Surfers Paradise.  A considerable number of unit holders are therefore interested in the outcome in so far as it impacts on the affairs of the relevant body corporate and their interest in that and in the affairs of those units.

What is more, the reasons for judgment in these proceedings do appear to me to involve some surprising conclusions.  His Honour held that the several defamatory imputations alleged by the plaintiff in his pleadings were all to be found in or to arise from the published matter.  To take only one example, in relation to the first publication in a letter of 23rd July 2002 forwarded to the other unit holders in preparation for a general meeting at which the plaintiff was removed from office as chairman, the imputation alleged is that the plaintiff had organised a group of owners to support him in "improper conduct."

I confess to having difficulty in seeing that any such imputation or innuendo is capable of being extracted from the published matter complained of.  The same is arguably so of the, or some of the, other imputations that are alleged to arise which the trial Judge found to be established.

In addition, the defendant relied upon s.16(1)(e) of the Defamation Act 1889 to raise a defence that he was communicating to other unit owners information as to which he believed on reasonable grounds that they had an interest in knowing the truth.  On the face of it that appeared to be so.

His Honour nevertheless held that under s.16 subsection 2 and s.17 this defence was not available to the defendant because he admitted that in publishing the matter impugned he was "electioneering".  One view of that explanation might be thought to be that it conferred on the defendant somewhat greater freedom to express himself on the subject of the plaintiff's conduct and his right to remain as chairman than might possibly otherwise have been the case.

In any event, it does suggest to my mind that the finding of absence of good faith, which was that of a Judge and not a jury verdict, is, or may be, open to challenge on this appeal.  I am attempting to express myself with some circumspection on these issues because, although we have looked at the prospective appeal and formed an impression of its prospects of success, we wish to avoid being thought to have made up our minds about it.

One reason for exercising caution is that we are all agreed that the hearing of any appeal cannot proceed today having regard to the present state of the outlines of argument already submitted to us.  That of the respondent in particular fails to address the critical issues of fact and law.  In saying this, I should add, that I am aware that Mr Howie, who appears for the respondent on this occasion, was not counsel at the trial and presumably was not counsel who prepared the outlines of argument.  That outline consists of nothing more than a lengthy narrative of the plaintiff's personal history and of the events that preceded the publications.

It is accompanied by the bare and unqualified assertion that "the tenor of the [publication] is one of impropriety on his part in body corporate affairs and for the need to remove him from office."  To my mind, this written outline of submission, which I notice is not signed by counsel, must be resubmitted in a form that demonstrates the basis in law and fact of the plaintiff's claim and explains why the conclusion that the defendant lacked good faith should not be reviewed.

In my view, this is a matter in which leave to appeal should be granted and I would order that the costs of this application be costs in that appeal.  That is all I wish to say on the matter.

HOLMES JA:  I agree.

ATKINSON J:  I agree.

McPHERSON JA:  The order is that there will be leave to appeal and that the costs of and incidental to this application be costs in that appeal.

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