Creek & Creek v O'Malley - [2001] QSC 122

SUPREME COURT OF QUEENSLAND

CITATION: Creek & Creek v O’Malley & Queensland Newspapers P/L
[2001] QSC 122

PARTIES: THOMAS CREEK
(First Plaintiff)
JOAN CREEK
(Second Plaintiff)
BRENDON O’MALLEY
(First Defendant)
QUEENSLAND NEWSPAPERS PTY LTD
(Second Defendant) FILE NO/S: 66 of 1999

DIVISION: Trial

PROCEEDING: Application

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON: 20 March, 2001

DELIVERED AT: Cairns

HEARING DATE: 8 March, 2001

JUDGE: Jones J

ORDER: 1. The application is allowed.
2 2. I declare that The Courier Mail article published on 26
July, 1997 referred to in the pleadings does not convey any of the imputations concerning the second plaintiff which are pleaded in paragraph 8 of the Statement of Claim.
3. The costs of and incidental to the application are reserved.
4. I give the parties leave to make written submissions on the question of costs.

CATCHWORDS: PROCEDURE – COURTS AND JUDGES GENERALLY – application pursuant to r 483 UCPR – order for decision and statement of case for opinion – whether making of order “just and convenient” taking into account judicial process.

DEFAMATION – ACTIONS FOR DEFAMATION – STATEMENTS AMOUNTING TO DEFAMATION – whether newspaper article conveyed imputations pleaded in plaintiffs’Statement of Claim – whether publication capable of conveying the imputation – whether in fact meaning was
2

conveyed.
Bass v Perpetual Trustee (1999) HCA 9, considered.
Landsell Pty Ltd (in liq) v REI Building Society (1993) 113
ALR 643, considered.
Reading Australia Pty Ltd v Australian Mutual Providence
Society (1991) FCA 718, considered.
Cairns City Council v Xontan (1999) QSC 215, considered.
Jones v Skelton (1964) NSWR 485, considered. Uniform Civil Procedure Rules 1999 (Qld) Defamation Act 1889 (Qld)

COUNSEL: Mr. J. Bradshaw for the Plaintiffs
Mr. P. Applegarth for the Defendants

SOLICITORS: Miller Harris as town agents for Thynne & Macartney for the defendants

[1] This is an application by the defendants pursuant to r 483 of the Uniform Civil Procedure Rules (UCPR) for the determination before trial of the issue whether an article published in The Courier Mail on 26 July, 1997 conveyed any of the imputations pleaded in paragraph 8 of the plaintiffs’Statement of Claim.

[2] The first plaintiff died during 1999 but this fact has not yet resulted in any amendment of the title of the action. Though the second plaintiff has indicated an intention to pursue the claim she was not represented on the hearing of this application. I will hereafter refer to her as “the plaintiff”. Mr. Bradshaw of counsel, who was at one time retained and who appears to have given advice to the plaintiff, has sought leave to appear as amicus curiae. His involvement was not opposed by the applicant and he has been allowed to make submissions on behalf of the plaintiff.

[3] The published article, other than for a short reference to the plaintiffs, concerned the plaintiffs’ daughter, Patricia Creek, and her foster parenting of a child, Melita. Patricia instituted proceedings in the District Court at Cairns for damages for defamation against the proprietors…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Creek & Creek v O'Malley and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] QSC 122
Decision Date: 20/03/2001

CaseChat Overview and Summary

The case of Creek & Creek v O'Malley involved an application by the defendants for a preliminary determination of a defamation issue under r 483 of the Uniform Civil Procedure Rules (UCPR). The plaintiffs, Thomas Creek and Joan Creek, sued the defendants, Brendon O'Malley and Queensland Newspapers Pty Ltd, for defamation based on an article published in The Courier Mail on 26 July 1997. The plaintiffs argued that the article conveyed certain defamatory imputations about them, specifically concerning their alleged irresponsibility, lack of respect for Aboriginal law, and financial wastefulness.

The defendants argued that the article did not convey any defamatory imputations concerning the plaintiffs. They sought a preliminary determination of this issue to potentially narrow the scope of the trial. The court agreed to consider the issue separately, examining whether the article was capable of conveying the imputations and whether it actually did so. The court found that the words in question, which stated that the plaintiffs' phone had been disconnected, were used in their natural and ordinary sense, and did not reasonably imply any of the defamatory meanings suggested by the plaintiffs. Therefore, the court held that the article did not convey any defamatory imputations about the plaintiffs.

The court allowed the application, declared that the article did not convey the defamatory imputations pleaded, and reserved the costs of the application. The parties were given leave to make written submissions on the question of costs.

Orders