Harvey v Henzell

Case [2015] QCA 261

SUPREME COURT OF QUEENSLAND

CITATION:

Harvey v Henzell & Ors [2015] QCA 261

PARTIES:

BARRY BERNARD HARVEY
(applicant)
v
WILLIAM ROY HENZELL
(first respondent)
SANDRA CAROLE HENZELL
(second respondent)
TANYA ANNE HENZELL
(third respondent)

FILE NO/S:

Appeal No 5757 of 2015
DC No 1237 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:


District Court at Brisbane – [2015] QDC 132

DELIVERED ON:

4 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

10 November 2015

JUDGES:

Margaret McMurdo P and Ann Lyons and Boddice JJ
Judgment of the Court

ORDERS:

1.   Leave to appeal is refused.

2.   The applicant is to pay the respondents’ costs of the application on the standard basis.

CATCHWORDS:

DEFAMATION – PRIVILEGE – ABSOLUTE PRIVILEGE – STATEMENTS MADE IN JUDICIAL PROCEEDINGS – where the applicant is seeking leave to appeal against an interlocutory decision of the District Court of Queensland pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – where the applicant argues that the primary judge incorrectly interpreted the Defamation Act 2005 (Qld) by interpreting the defence of absolute privilege too broadly – where the applicant argues that because the family report was not confidential, the statements made in the family report were not covered by the defence of absolute privilege – whether the primary judge erred in determining that the statements made in the family report were covered by the defence of absolute privilege

PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – PRACTICE – COSTS – where the primary judge ordered the applicant to pay the respondents’ costs of and incidental to the Notice of Intention to Defend, the Defence and the Application fixed in the sum of $2,000 – where the applicant argues that the primary judge made an error of fact and law in awarding costs to the respondents without any cost agreement or cost disclosure being made – whether the primary judge erred in making an order as to costs

PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – COMMENCEMENT OF ACTION AND PLEADINGS – where the applicant argues that the primary judge made errors of fact and law by stating that the applicant’s Claim and Statement of Claim were not pleaded or particularised appropriately and were an abuse of process – whether the primary judge erred in striking out the applicant’s Claim and Statement of Claim pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld)

Defamation Act 2005 (Qld), s 27
District Court of Queensland Act 1967 (Qld), s 118
Family Law Act 1975 (Cth), s 11C
Uniform Civil Procedure Rules 1999 (Qld), r 171, r 293

Banque Commerciale SA (In liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11, followed
Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70, distinguished
Hazan v Elias (2011) 255 FLR 338; [2011] FamCA 376,…

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Details
AGLC
Harvey v Henzell [2015] QCA 261
Case
[2015] QCA 261
Decision Date

CaseChat Overview and Summary

The applicant, Barry Harvey, is seeking leave to appeal against an interlocutory decision of the District Court of Queensland. The dispute revolves around defamation claims made by Mr Harvey against Tanya Henzell and others, who are currently involved in parenting proceedings with him in the Family Court of Australia. The District Court of Queensland was asked to decide whether statements made in a family report were covered by the defence of absolute privilege, and whether the court had correctly exercised its discretion to strike out Mr Harvey's claim and statement of claim as an abuse of process and to award costs to the respondents.

The primary judge found that the statements made in the family report were covered by the defence of absolute privilege as they were made in the course of proceedings before an Australian court, specifically the Federal Circuit Court of Australia. The judge also determined that Mr Harvey's claim and statement of claim were not sufficiently particularised and were an abuse of process, leading to the striking out of the claim and statement of claim, as well as the awarding of costs to the respondents. Mr Harvey argues that the primary judge erred in interpreting the Defamation Act 2005 (Qld) and in exercising its discretion to strike out his claim and statement of claim, as well as in awarding costs.

The court found that the primary judge did not err in interpreting the defence of absolute privilege, as the statements made in the family report were indeed covered by the defence. The court also found that the primary judge did not err in striking out Mr Harvey's claim and statement of claim, as they were not sufficiently particularised and amounted to an abuse of process. Furthermore, the court found that the primary judge did not err in awarding costs to the respondents. Consequently, the application for leave to appeal was refused.

As a result of the refusal of leave to appeal, the applicant is to pay the respondents' costs of the application on the standard basis.

Orders

Orders of the court

1. Leave to appeal is refused.

2. The applicant is to pay the respondents’ costs of the application on the standard basis.

Background

Background to the litigation

The applicant now seeks leave to appeal against this interlocutory decision of the District Court of Queensland pursuant to s 118(3) of the District Court of QueenslandAct 1967 (Qld).Background The applicant, Barry Harvey, and the third respondent, Tanya Henzell, currently have parenting proceedings before the Family Court of Australia in relation to their three year old son. Those proceedings were previously in the Federal Circuit Court of Australia. On 19 August 2014, Judge Lapthorn of the Federal Circuit Court of Australia made an order directing that the parties be interviewed for the purpose of a family report. Paragraph 10 of that order provided:“That each party attend as directed by the Independent Children's Lawyer, all interviews for the purpose of any family report or psychiatric report commissioned by the Independent Children's Lawyer.” The respondents all received correspondence from the solicitors acting for Tanya Henzell indicating that they were to attend an interview with a psychologist, Ms Emma Rzoska, for the preparation of a family report. That interview was to be conducted on 11 November 2014. At the commencement of each interview, Ms Rzoska outlined to each respondents the purpose of the interview and advised that any statements made could be used in the Family Report which was to be provided to the court. In her affidavit, the third respondent, Tanya Henzell, swears that she was shown a copy of that Family Report in December 2014 and that she showed a copy of that report to the first and second respondents. She swears that she did not provide or forward the report to any other person. The first and second respondents have sworn similar affidavits.The District Court proceedings The applicant’s Claim in relation to the District Court proceedings was filed on 26 March 2015 and was as follows:“The plaintiff claims: compensation for defamatory comments made to a Family Report Writer in a Family Report that has also been shown and sent to others, including but probably not limited to Judy Stewart, Asha Egan Judge Lapthorne and others from the Federal Circuit of Australia, Dr Ben McDarmont, and the Family Court.”[1][1]ARB 14. The applicant’s Statement of Claim also filed on 26 March 2015 was in the following terms:“This claim in this proceeding is made in reliance on the following facts:1.The defendants made defamatory statements about me in a formal Family Report about my personality, financial skills, relationships, control, and domestic violence amongst other false and defamatory statements.2.These were forwarded to various bodies and individuals including, but probably not limited to, the Federal Circuit Court of Australia and Family Court, Judith Stewart and Asha Egan.3.The sending of these caused the recipients to form negative opinions about me that have had a negative impact on my legal standing in the Courts and (sic) compromised the safety and best interest of my son JN as they led to dismissal and disregard of the firearms danger he has been proven to be in and had an impact on my contact and care with him.The plaintiff claims the following relief:$250,000.00 damages for non-economic loss$500,000.00 aggravated damages”[2][2]ARB 16.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Pursuant to an Application filed in the District Court on 15 April 2015, the respondents sought orders that the Claim and Statement of Claim be struck out as an abuse of process. Alternatively, they sought an order for summary judgment pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) as well as costs.The District Court judge’s decision In a set of reasons published ex tempore in the District Court on 15 May 2015, the learned primary judge was satisfied that all of the defendants (the present respondents) had been directed to attend the interview with the Family Court report writer pursuant to an order of a Federal Circuit Court judge made on 19 August 2014. The primary judge was also satisfied that the Federal Circuit Court was an Australian court and that all of the statements made to the Family Court report writer were made in the course of proceedings. The primary judge was therefore satisfied that the statements made by the defendants to the Family Court report writer came within s 27(2)(b) of the Defamation Act 2005 (Qld). That section provides:“27 Defence of absolute privilege(1)It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.(2)Without limiting subsection (1), matter is published on an occasion of absolute privilege if—…(b)the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to)—(i) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process); and(ii) the publication of matter while giving evidence before the court or tribunal; and(iii) the publication of matter in any judgment, order or other determination of the court or tribunal…” The primary judge also considered that the statements made to the report writer and incorporated in the Family Report could be protected as a document created by the report writer under s 27(2)(b)(i) of the Defamation Act 2005 (Qld). Given that the alleged defamatory statements were all subject to a claim of absolute privilege, the primary judge was therefore satisfied that the current applicant had no real prospects of succeeding on his claim and that there was accordingly no need for a trial. The primary judge considered that judgment could have been entered for the defendants against the applicant on that basis. The primary judge noted, however, that pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) the pleadings could be struck out as he was satisfied that the cause of action had a tendency to prejudice or delay a fair trial of the proceeding because there was no particularisation of the defamatory statements relied upon and it was otherwise an abuse of process. His Honour was satisfied that an order should be made in terms of the Application. Accordingly, the Claim and Statement of Claim were struck out and costs were fixed in the amount of $2,000.This application for leave to appeal

Ratio Decidendi

Legal Principle Established

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