Dorfler v Dwyer and Longbeach Publications Pty Ltd

[1998] QCA 221

IN THE COURT OF APPEAL	[1998] QCA 221
SUPREME COURT OF QUEENSLAND

Appeal No. 7739 of 1997.

Brisbane

[Dorfler v. Dwyer & Anor.]

BETWEEN:

WALTER DIETER DORFLER

(Plaintiff) Appellant

AND:

NAN DWYER

(First Defendant) First Respondent

AND:

LONGBEACH PUBLICATIONS PTY LTD
A.C.N. 010 201 019

(Second Defendant) Second Respondent

___________________________________________________________________________

Pincus J.A.
McPherson J.A.

Derrington J.

___________________________________________________________________________

Judgment delivered 7 August 1998

Joint reasons for judgment of Pincus J.A. and Derrington J., separate reasons of McPherson J.A..
concurring as to the orders made.

___________________________________________________________________________

APPEAL DISMISSED WITH COSTS

___________________________________________________________________________

CATCHWORDS: DEFAMATION - qualified privilege - where jury found publication

complained of was not defamatory - whether trial judge erred in directing the jury by confining their consideration to imputations pleaded rather than directing them to consider, in addition, imputations to slightly different effect - whether jury’s finding that publication was not defamatory was perverse - whether the jury’s conclusion on whether the publication was defamatory might have influenced the jury’s view about qualified privilege - whether the judge erred in putting to the jury the matters of public interest - whether the jury did not have the topics of public interest precisely identified - whether the evidence did not disclose any topic of public interest sufficient to attract the defence.

Criminal Code ss. 377(5) and (8)
Defamation Act 1889 ss. 16(1)(e) and (h)

Bellino v. Australian Broadcasting Corporation (1996) 185 C.L.R. 183

Counsel:	Mr R Hanson Q.C. with him Mr G Sowden for the appellant. Mr P D T Applegarth for the first and second respondents.
Solicitors:	Deacon & Milani for the appellant. McDonald Balanda & Arcuri for the first and second respondents.
Hearing date:	29 July 1998.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 7739 of 1997.

Brisbane

Before Pincus J.A.

McPherson J.A.

Derrington J.

[Dorfler v. Dwyer & Anor.]

BETWEEN:

WALTER DIETER DORFLER

(Plaintiff) Appellant

AND:

NAN DWYER

(First Defendant) First Respondent

AND:

LONGBEACH PUBLICATIONS PTY LTD
A.C.N. 010 201 019

(Second Defendant) Second Respondent

JOINT REASONS FOR JUDGMENT - PINCUS J.A. AND DERRINGTON J.

Judgment delivered 7 August 1998

This is an appeal from a judgment of the District Court in a defamation suit, tried by jury. The

judgment dismissed the appellant’s action, on the basis of the jury’s answers which were to the effect

that the publication complained of was not defamatory and that in any event the publication was

protected by qualified privilege. The notice of appeal and the outline of argument delivered on behalf

of the appellant challenged these propositions, but Mr Hanson Q.C., who did not appear below,

confined his oral argument to issues relevant to the question of whether the publication complained of

was defamatory. Mr Hanson argued for the appellant that the trial judge erred in that her Honour, by directions to the jury, confined their consideration to the imputations pleaded rather than directing them

to consider, in addition, imputations to slightly different effect. He also contended that the jury’s finding

that the publication was not defamatory was perverse.

It was pointed out during the course of the hearing that even if these oral arguments were

accepted, they would not justify an allowance of the appeal unless this Court were prepared to disturb

the conclusions reached with respect to the defences of qualified privilege. As to that, Mr Hanson,

while not abandoning the arguments advanced in the appellant’s outline with respect to those defences

confined his oral submission relating to them to one contention: that the wrong conclusion on the

question whether the publication was defamatory might have influenced the jury’s view about qualified

privilege and that there should therefore be a new trial.

The appellant’s contentions criticising the trial judge’s approach to the pleaded imputations and

the jury’s answer to the question whether the material published was defamatory are not without

substance; they would ordinarily require to be dealt with in some detail. But in view of the course the

argument took, namely that the applicant’s written argument with respect to the privilege issue was not

supported by oral submissions, it appears to us that one should first deal with that issue.

Privilege

In March 1991 the second respondent published in its newspaper "The Gold Coast Mail" a

letter reading as follows:

" The experience of so many other cities shows that when the interests of small self-interest groups - who always seem to want to promote nothing other than sex and perversion - take precedence over the interests and needs of women, children and families the inevitable result is escalating rates of violent crime (particularly sex crimes) and an environment where the vast majority of people feel as though they are under siege.

Is this what Surfers Paradise and other parts of the Gold Coast are

experiencing now?
The outspoken Dieter Dorfler and [another person] would have Surfers Paradise turn into a ‘Paradise’ for perverts and criminals and a place which most decent law-abiding family-orientated people will avoid like the plague.

Is this what the people of Surfers Paradise want for themselves and their

families?

RICHARD Dent

Mansfield"

The first respondent was sued as the editor of the newspaper. The respondents pleaded two defences

of privilege, based on s. 377(5) and (8) of the Criminal Code, which later became s. 377(1)(a) and (b).

These provisions, together with other sections relating to defamation, have been relocated in the

Defamation Act 1889: see s. 16(1)(e) and (h) of that Act. With respect to the s. 377(8) defence, the

jury were asked a number of questions which we now set out, together with the answers given:

2.          On 13 March 1991, was a public discussion of any of the following subjects

for the public benefit:-

2(a) Q:  The plaintiff’s public advocacy of the type of image which the Gold

Coast should promote to attract visitors?

A:  Yes.

2(b)	The conduct and views of persons participating in the public debates in the
course of the Gold Coast City Council elections campaign and within the
Surfers Paradise business community concerning:

2(b)(i)	Q:	the public image of the Gold Coast?
A:	Yes.

2(b)(ii) Q:  the type of community which the people of Surfers Paradise want for

themselves and their families?

A:  Yes.

2(b)(iii) Q:	public safety?
A:  Yes.

2(c)	Q:	The public promotion of the Gold Coast by the Gold Coast nightclub
operators as a venue for sexually explicit forms of entertainment?
A:	Yes.
2(d)	Q:	The public promotion of Gold Coast nightclub operators of sexually
explicit forms of entertainment especially by nightclubs on the Gold
Coast?
A:	Yes.
2(e)	Q:	The conduct of the plaintiff’s and his company’s Surfers Paradise
nightclubs in providing sexually explicit forms of entertainment?
A:	Yes.
4.	Q:	Did the defendants act in good faith in making the publication?
A:	Yes.

In the outline of argument, the appellant made a number of complaints concerning the judge’s

and jury’s treatment of the public interest defence. These were, in summary:

1.          The trial judge allowed "wide general abstractions" to go to the jury as subjects

of public interest, contrary to the principles laid down in Bellino v. Australian

Broadcasting Corporation (1996) 185 C.L.R. 183.

2.          The judge should not have allowed the defence of public interest to go to the jury without precisely identifying the topics of public interest which the evidence

supported.

3.          The evidence did not disclose any topic of public interest sufficient to attract the

relevant privilege.

In para. 10 of the outline, submissions are made which are said to concern s. 377(5), but

examination shows that two of them - (k) and (l) - relate in truth to s. 377(8); however, these

paragraphs raise no additional point.

The first question to be considered, then, is whether the judge erred in putting to the jury the

matters of public interest referred to in question 2, set out above. It was held in Bellino that public

interest privilege under the Code:

". . . protects the publication of a defamatory imputation made in the course of or for the purposes of discussing the conduct of any person whose conduct, inherently, expressly or inferentially, invites public criticism or discussion". (221)

The principal judgment described the subjects of public interest particularised there as "wide

abstractions" (222). They were therefore regarded by their Honours as not being subjects of public

interest within the meaning of s. 377(8) of the Code. However it was held (223) that there were in truth

subjects of public interest, not being those particularised, discussed in the publication complained of.

The Court also held that the subjects of public interest discussed (not being those particularised) were

such as to entitle the defendant to the protection of s. 377(8) if the jury found that discussion of those

subjects were for the public benefit, unless it were also found that the publication was not made in good

faith (230).

If one examines the subjects of public interest on which the jury was asked the questions set

out above, it can be seen that each of them relates to the conduct of a person or persons; further, that

in each instance that conduct is plainly of such a kind as inherently to invite public discussion, if not

criticism. It is true that the topics in the subparagraphs of question 2(b) might perhaps be described as

"abstractions"; however, the questions asked do not relate directly to those topics but rather to the

conduct and views of persons participating in certain debates about them.

It follows, in our opinion, that the first basis of the appellant’s attack on the public interest

defence fails.

The second complaint is that the jury did not have the topics of public interest precisely

identified; since the appellant failed as to each of them, he must, in order to succeed, show that none

was sufficiently identified. The subjects about which questions were asked are of varying breadth; but

we note that those which were held in Bellino to be proper were not particularly narrow, one being the

administration of the police service by the Commissioner of Police (222, 223). The only matter of

comparable breadth put before the jury here is that dealt with in question 2(b), but that appears to us,

in the circumstances of this case, to be specified with adequate precision. Since it is evident that the

other subjects were precise enough, there is in our view nothing in this ground.

The third ground raised is that the evidence did not disclose any topic of public interest sufficient

to attract the defence. It does not appear to us that this ground has any substance. There was

substantial discussion of a public kind, relating to the relevant topics, before the letter was published;
in any event, "the defamatory publication may itself initiate a discussion for the purpose of" s. 377(8):

Bellino at 223.

It follows that all the bases of attack on the defence under s. 377(8) of the Code fail. It is

unnecessary to discuss the questions raised under s. 377(5).

The remaining issue, put forward by Mr Hanson before us, is whether the jury’s answers to the

questions just discussed should be treated as suspect because of what is said to be the jury’s erroneous

answer to the first question put to them, which was whether the publication was defamatory of the

appellant. As to that, no ground appears for thinking that the jury failed to give proper and independent

attention to the questions concerning the public interest defence. They were asked to and did answer

all the questions. Further, as a matter of logic, if the jury were wrong in their answer to the first

question, that should not have had any bearing upon their approach to the questions related to the

defence of privilege; resort to such a defence is only necessary if the publication in respect of which the

defence is raised is a defamatory one.

Conclusion

The questions argued orally related, in the end, principally to the effect of the appellant’s having

pleaded what are sometimes described as false innuendoes and whether, having done so, he was

nonetheless entitled to have the jury consider whether the publication was defamatory on bases other

than those pleaded. The peculiarity of the pleading is that it does not appear to set out any innuendo

directly based upon what one might have thought to be the most relevant part of the letter in question, namely the sentence beginning "The outspoken Dieter Dorfler . . .". In this connection, the decision of

the High Court in Chakravarti v. Advertiser Newspapers Ltd (1998) 154 A.L.R. 294, was discussed;

it seems to us unnecessary to determine the bearing of that decision on the pleading in the present case.

In our opinion the arguments advanced against the judge’s and jury’s acceptance of the defence

under s. 377(8) must be rejected and there is, therefore, no need to discuss the other grounds raised.

The appeal is dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 7739 of 1997

Brisbane

Before Pincus J.A.
McPherson J.A.
Derrington J.

[Dorfler v. Dwyer & Anor.]

BETWEEN:

WALTER DIETER DORFLER

(Plaintiff) Appellant

AND:

NAN DWYER

(First Defendant) First Respondent

AND:

LONGBEACH PUBLICATIONS PTY. LTD.
A.C.N. 010 201 019

(Second Defendant) Second Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 7 August 1998

I agree with the joint reasons of Pincus J.A. and Derrington J. for dismissing this appeal with

costs.