Doherty v Steele

[1999] QCA 139

99.139

COURT OF APPEAL

McPHERSON JA
THOMAS J

MOYNIHAN J

Appeal No 6531 of 1998

JOHN GERARD DOHERTY	Appellant/Plaintiff
and
PATTI STEELE	Respondent/Defendant
BRISBANE

..DATE 20/04/99
THOMAS J: This is an appeal against a judgment by a District Court judge, sitting

without a jury, who dismissed the appellant's claim for damages for defamation.

The grounds of appeal in essence challenge His Honour's determination that the

words used were not defamatory of the appellant. That conclusion, of course, was

upon a question of fact.

The background to the words of which the appellants complain is that the

respondent had suffered the effects of tree-felling and subsequent burning activities

by the appellant, who is a developer, on land adjacent to her property. She wrote a

letter to the Daily News, which is a newspaper circulating in Warwick. The extracts

from that fairly long letter which were relied upon by the appellants are as follows:

"We live on tree-studded land in Ogilvie Road and have done so for the last
nine years. The neighbourhood around us was also tree studded until land
adjoining ours was purchased by a developer. Come for a drive along
Ogilvie Road from the east and notice the heavily treed blocks - until you

get to Mr Doherty's estate, that is!

... When is Warwick Shire Council going to put through their "tree protection

act" to stop the vandalisation of the environment by rogue developers out to make a quick dollar without any consideration to the people already living in the area.

When is the person issuing the fire permits going to actually come and look
at the size of the pile being burnt BEFORE issuing the fire permit? How can
a permit be issued a week before the trees are even cleared? Surely the
size of the pile and the position of where it is being burnt is pertinent to the
issuing of a fire permit. Consideration for neighbours has to be sought, but
did you realise those who gave permission have all had homes built by the

developer and the pile of trees wasn't next to their fenceline but ours?"

The sting of the defamation which is relied upon by Mr Douglas QC, who appears

for the appellant, is that the letter means that the appellant could get a permit from

persons for whom he had done favours in the past and therefore that he had

obtained it corruptly. Slightly wider issues had been litigated but by the time of final

address, as His Honour recorded in the reasons, the position taken on behalf of the
appellant was largely that which is now taken on behalf of

Mr Douglas, namely that the only defamation relied upon was the alleged allegation

of corrupt or dishonest conduct on his part. It was submitted that the trial judge

ought to have found that having regard to the fact that the letter was published in a

newspaper it would have been understood by an ordinary reasonable person to

mean that the appellant had improperly influenced persons in authority to issue

permits required for the purposes of his business.

The dominant impression one gets upon reading the letter is that the appellant was

criticising bureaucrats for lack of energy and interest in the relevant task of issuing a

fire permit. It is difficult to see why it should be assumed that the reference in the

quoted passages to the obtaining of permission for the fire was only to the authorities

rather than also the neighbours whose permission would have to be obtained.

Mr Douglas submitted that His Honour, although stating the correct tests, failed to

apply them in reaching the conclusion that he did. However, it seems to me that

there is nothing in the criticism that His Honour drew too fine a distinction in

identifying the fact that neighbours' permission would need to be sought, and indeed

the letter itself suggests this. The words "those who gave permission" immediately

follow the statement "Consideration for neighbours has to be sought ..."

Furthermore, I find it difficult to know why it should be assumed that any reader

would think that homes built for the persons referred to, which His Honour

correctly, in my view, thought would be taken as referring to the neighbours, would

be taken to be homes of officials. Even if such an interpretation were given to the

words it is difficult to know why it should be assumed that houses were built for

those persons free of charge or upon some improper arrangement as distinct from
having built homes for satisfied customers. At every level I find it impossible to

consider that the inference which Mr Douglas says must have been drawn from

these words should have been drawn.

As I mentioned earlier, the appeal is on a question of fact. It does not concern the

process of a judge ruling that words are capable of bearing a defamatory meaning.

It concerns the actual fact-finding process which resulted in the finding of no

defamatory meaning.

In essence the appeal seeks this Court's ruling that these words must have been

found to be defamatory or that the learned judge's finding was not reasonably open.

A fairly wide latitude is open to the fact-finder on such an issue. In Farquhar v.

Bottom (1980) 2 New South Wales Law Reports 380 at 386, Hunt J (Common

Law Division) observed:

"[T]here is also a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual."

Far from being satisfied that the defamatory inference ought to have been drawn I

express my agreement with the learned trial Judge's conclusion that they did not or

should not have been construed in that fashion. His Honour's reasons are logical,

balanced and no error has been disclosed in them. I would dismiss this appeal.

McPHERSON JA: I agree.

MOYNIHAN J: So do I.

MR O'SULLIVAN: I seek costs on this.
McPHERSON JA: The order is the appeal is dismissed with costs.

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