Haddon v Steele

[2011] NSWCA 323

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Haddon v Steele [2011] NSWCA 323

Hearing dates:

4 October 2011

Decision date:

04 October 2011

Before:

Allsop P at 1 and 17
Giles JA at 16

Decision:

Application for leave to appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

DEFAMATION - finding of qualified privilege - no finding of malice - no error in approach of primary judge.

APPEAL - civil - procedure - significant costs expended for small award of damages not necessarily a basis for leave to appeal - Civil Procedure Act 2005 (NSW), s 60 considered.

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 60
Defamation Act 2005 (NSW), s 30

Category:

Principal judgment

Parties:

Bruce Haddon (Applicant)
The Reverend Dominic Steele (First Respondent)
Evan Batten (Second Respondent)

Representation:

Mr M G McHugh, Ms C Dobraszczyk (Applicant)
Mr K P Smark SC, Ms S T Chrysanthou (Respondents)
Neville & Hourn Legal Pty Limited (Applicant)
HWL Ebsworth Lawyers (Respondents)

File Number(s):

2009/297442

 Decision under appeal 

Citation:

Haddon v Forsyth [2011] NSWSC 123

Date of Decision:

2011-03-08 00:00:00

Before:

Simpson J

File Number(s):

2009/297442

Judgment

1. ALLSOP P : This is an application for leave to appeal against orders made by a judge in the common law division, that the verdicts be entered for the defendants with costs.

1. The matter concerns alleged defamation said to have taken place in and about the affairs of an Anglican Church at Annandale. The plaintiff sued on five imputations and three were found. Those imputations are set out in [7] of the primary judge's reasons.

1. Her Honour found justification by truth and qualified privilege at common law and under the Defamation Act 2005 (NSW), s 30 . Malice was rejected. A contingent finding of damages assessed at $5,000 was made by her Honour.

1. Written submissions have been filed by the parties, signed by counsel. They will remain with the file and I do not propose to set them out. I take the opportunity of thanking counsel for those submissions.

1. One matter should be noted in respect of those submissions. The respondent, in para 25, indicated that the question of knowledge of falsity in respect of malice had not been the subject of submissions. In fact, it had and that was recognised in argument before us.

1. The short reason why, in my view, leave should be refused, is that I do not consider there are reasonable prospects of success in relation to qualified privilege under s 30 of the Act and in relation to the question of malice. I am not persuaded in that regard that her Honour erred in her conclusion of actual interest, under s 30(1).

1. Further, to the extent that it is said that the communication may, on one view, have been sent to persons said not to have an interest in it, including the wives or partners of persons to whom it was sent, a matter of which I am not persuaded), I do not consider that there are reasonable prospects of success of that additional publication or the publication as a whole being viewed as excessive.

1. Further, any appeal if leave were granted would likely raise by way of notice of contention, a question of the satisfaction of s 30(2), raised in the evidence.

1. A challenge is made to the finding of malice. There was a full scale attack at trial on the relevant witnesses whose motives were called into question and her Honour rejected that. No sufficient ground has been identified to call into question her Honour's views in that regard.

1. To the extent that it is said that her Honour failed to deal with known falsity, I am unpersuaded from an examination of the reasons, that this is so, notwithstanding some, if I may respectfully say, infelicity in expression at [340] in relation to what is a motive, as listed in [339]. In defence of her Honour, her Honour was quoting what others stated were motives. Subparagraph (a) can be seen not to be a motive but rather motive is limited to subparagraphs (b) and (c).

1. These conclusions mean that there is no real prospect of success in relation to an appeal over $5,000 or such higher figure as might be reasonably contemplated. While money is not always determinative in a defamation matter, given the importance of reputation, the prospects here, in my view, are either not real or insufficient to warrant an appeal in a matter of the amount contingently awarded by her Honour.

1. These views about qualified privilege and malice mean that it is unnecessary to deal in detail with the other complaints put forward, in particular, with justification and what, in an appropriate context, might be an important question as to the relationship between the common meaning of the phrase, "sexual harassment", and its statutory meanings in Commonwealth and State legislation. In any event, here, I am not persuaded that her Honour was not looking at the matter in the context of both imputations and truth at a somewhat lower level, given the formulation of the imputations and the particular facts at hand. It should be noted in this respect that fundamentally the applicant did not criticise her Honour's evaluation of the primary facts.

1. Further, the existence in the judgment, of the elucidation of those primary facts, removes to a significant degree, any effect of the conclusion of truth of the imputation of sexual harassment if a more serious meaning is given to that phrase outside what I apprehend to be the meaning involved in the imputation as pleaded and found by her Honour. Finally, in my view, the criticisms of her Honour's conclusions about imputations four and five, have no real prospects of success. Her Honour directed herself correctly and drew an evaluation which was open to her.

1. Finally, I should say this. It was said that the costs of the parties were significant and indeed that the costs of one side in this litigation were $500,000. Whilst it is always legitimate to recognise that a small verdict may have come at the price of significant legal costs, it should not be thought that if parties run thirteen day trials and expend enormous amounts on costs on what ultimately is a small prize of damages that will necessarily be a basis for leave to appeal. I make no criticism of counsel or solicitors involved in this regard. I do not have the facts at hand and the matter is not one which is before us. I would only wish to emphasise that defamation is no exception to the operation of the Civil Procedure Act 2005 (NSW), s 60 .

1. Once again, I would thank counsel for their assistance in the matter.

1. GILES JA : I agree with the President. In particular, I would wish to associate myself with his remarks concerning the significance, or perhaps the lesser significance, of costs where parties have engaged in costly litigation with a relatively small result in money terms when it comes to considering a grant of leave.

1. ALLSOP P : The orders of the Court are that the application for leave to appeal be dismissed with costs.

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Decision last updated: 21 October 2011