Berge v Thanarattanabodee

Case [2018] QDC 121


DISTRICT COURT OF QUEENSLAND

CITATION:

Berge v Thanarattanabodee [2018] QDC 121

PARTIES:

PETCHVILAI BERGE
(plaintiff/appellant)

v

SHAPA THANARATTANABODEE
(defendant/respondent)

FILE NO/S:

BD4934/17

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Holland Park

DELIVERED ON:

29 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

27 April 2018

JUDGE:

Jarro DCJ

ORDERS:

The appeal be allowed.1.       

The judgment and order of the Magistrates Court made on 8 December 2017 be set aside.2.       

The proceeding be remitted to the Magistrates Court for rehearing and determination according to law before a different Magistrate.3.       

Unless either party applies for (or the parties otherwise agree to) a different costs order within 14 days of this judgment:4.       

the respondent will pay the appellant’s costs of the appeal to be assessed on the standard basis;(a)   

an indemnity certificate pursuant to sections 15(2) and 16(1)(a) of the Appeal Costs Fund Act 1973 is granted to the respondent in respect of the costs of the appeal.(b)   

CATCHWORDS:

DEFAMATION – DAMAGE TO REPUTATION – where there are defamatory imputations made on social media

DEFAMATION – DEFENCES –  JUSTIFICATION – whether the statements of the defendant were true in substance and effect

APPEAL AND NEW TRIAL – EVIDENCE – ONUS OF PROOF IN DEFAMATION PROCEEDINGS – where findings of fact were made without supporting evidence – where there was a failure to give proper weight to admitted facts and facts not in dispute – where the learned Magistrate erroneously reversed the onus of proof – where assessment of harm suffered by the plaintiff relates to matters  going to credit – where there was a failure to consider and make findings about certain aspects of the evidence

APPEAL AND NEW TRIAL –  NATURAL JUSTICE – where the learned Magistrate failed to accord natural justice to the plaintiff – where the plaintiff was not put on notice about findings of fact made without supporting evidence

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – where it is just and reasonable to compensate the successful appellant for costs but inequitable for either party to bear the costs of the appeal

Appeal Costs Fund Act 1973, ss 15, 16

Defamation Act 2005, s 25

Magistrates Court Act 1921, ss 45, 47

Allesch v Maunz (2003) 203 CLR 172, applied

Bjelke-Peterson v Warburton [1987] 2 Qd R 465, cited

Chakarvati v Advertising Newspapers Ltd (1998) 139 CLR 519, cited

Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, cited

Duffy v Google Inc [2015] SASC 170, cited

Fox v Percy (2003) 214 CLR 118, applied

Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321, applied

Hemelaar & Anor v Walsh & Ors [2017] QDC 151, cited

Henry v TVW Enterprises Ltd [2009] WAR 475, cited

Lee v Wilson (1939) 51 CLR 26, cited

Uren v John Fairfax & Sons (1934) 117 CLR 118, followed

COUNSEL:

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Details
AGLC
Berge v Thanarattanabodee [2018] QDC 121
Case
[2018] QDC 121
Decision Date

CaseChat Overview and Summary

The appeal before the Queensland Court of Appeal in Berge v Thanarattanabodee concerns a defamation case that arose from comments made on social media. The plaintiff, Ms Berge, alleged that the defendant, Mr Thanarattanabodee, defamed her by making derogatory comments on Facebook. The case was initially heard and decided by a Magistrate in the Magistrates Court of Queensland, who found in favour of the defendant. Ms Berge then appealed against the decision, arguing that the Magistrate made findings of fact without supporting evidence, failed to give proper weight to admitted facts, and did not accord her natural justice. The defendant cross-appealed on the issue of costs.

The key legal issues in the appeal were whether the Magistrate erred in finding the defendant's statements were justified, and whether the Magistrate's findings of fact were supported by evidence and accorded natural justice. The court had to consider whether the statements were true in substance and effect, and whether the defendant's defence of justification was valid. Additionally, the court examined whether the Magistrate correctly applied the onus of proof and whether the plaintiff was given an opportunity to respond to the findings of fact.

The Court of Appeal found that the Magistrate had made findings of fact without supporting evidence, failed to give proper weight to admitted facts, and did not accord natural justice to the plaintiff. The court held that the Magistrate had erroneously reversed the onus of proof, which affected the assessment of harm suffered by the plaintiff. The court also found that the Magistrate failed to consider and make findings about certain aspects of the evidence. Consequently, the appeal was allowed, and the judgment and order of the Magistrates Court were set aside. The proceeding was remitted to the Magistrates Court for rehearing and determination according to law before a different Magistrate. The respondent was ordered to pay the appellant’s costs of the appeal, and an indemnity certificate was granted to the respondent in respect of the costs of the appeal.

Orders

Orders of the court

The appeal be allowed.1.

The judgment and order of the Magistrates Court made on 8 December 2017 be set aside.2.

The proceeding be remitted to the Magistrates Court for rehearing and determination according to law before a different Magistrate.3.

Unless either party applies for (or the parties otherwise agree to) a different costs order within 14 days of this judgment:4.

the respondent will pay the appellant’s costs of the appeal to be assessed on the standard basis;(a)

an indemnity certificate pursuant to sections 15(2) and 16(1)(a) of the Appeal Costs Fund Act 1973 is granted to the respondent in respect of the costs of the appeal.(b)

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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