Hilder v Cairns Post Pty Ltd

[2000] QDC 50

IN THE DISTRICT COURT HELD AT CAIRNS

CIVIL JURISDICTION  Appeal No. 21 of 2000

BEFORE HER HONOUR JUDGE BRADLEY

JUNE 2000

[Hilder v Cairns Post Pty Ltd]

QDC [2000] 050

BETWEEN:                PETER FREDERICK HILDER

Applicant

AND:  CAIRNS POST PTY LTD

(ACN 009 655 752)

Respondent

REASONS FOR DECISION

1. The Applicant seeks leave pursuant to s.45 of the Magistrates Courts Act to appeal against a decision of a Stipendiary Magistrate given on the 17 March 2000 that judgment be entered for the Defendant (Respondent) and that the Plaintiff (Applicant) pay the Respondents’ costs of and incidental to the action.  The Applicant’s claim in the Magistrates Court was for damages for defamation resulting from the publication by the Respondent of an article in the Cairns Post on the 7 May 1997.

2. In his findings of fact, the Stipendiary Magistrate found that the words published were defamatory of the Applicant, (a custodial correctional officer), and was clearly not impressed with the journalist employed by the Respondent who was responsible for the article.  However, whilst he found that “the Defendant has displayed a somewhat cavalier attitude in its reporting of a sensitive issue, an issue likely to cause serious distress to blameless people”, he went on to find that “the plaintiff has not sufficiently identified malice or proved, to the requisite civil standard of proof, an absence of good faith.”

3. The Magistrate further found that in the event that he had been able to find in favour of the Applicant, he would have awarded the Applicant “something in the order of one thousand dollars” by way of damages. 

4. The grounds of the Applicant’s appeal, if leave is granted, are that:

5. The Magistrate erred in finding that there had been no lack of good faith;

6. The Magistrate’s finding in relation to quantum was manifestly inadequate.

In order to grant leave to Appeal, I must be satisfied pursuant to s.45 (2) (a) of the Magistrates Courts Act “that some important principle of law or justice is involved.”

1. In support of his Application, the Applicant asserts firstly, that given the Magistrate’s findings of fact, his finding that no absence of good faith had been established is clearly wrong.  As this is a “significant matter that goes to the root of the action” the Applicant argues that an important principle of law is involved.

2. Further the Applicant argues that the Applicant’s claim against the Respondent was being viewed as a “test case” by his fellow prison officers and that approximately one hundred custodial correctional officers were affected by the allegedly defamatory material and there are a number of potential claimants whose claims would be on similar if not identical grounds to that of the Applicant.  This being so, the Applicant argues that the importance of having the Applicant’s case decided correctly assumes more significance because of the number of similar potential cases which arise from the publication of the article.  It is therefore argued that, from the point of view of the administration of justice, repeated litigation involving the same issue should be avoided and that therefore an important principle of justice is involved.

3. Assuming for the purposes of this Application that the Appeal does have some prospect of success, and the finding by the learned Magistrate that the Plaintiff had not proven an absence of good faith could be successfully challenged, I am not however persuaded that an important principle of law is involved.  As was stated in American Express International Inc. v Hewitt [1]  “merely demonstrating that a decision is arguably or even probably wrong does not establish that an important question of justice is involved.” The case must be one of gravity, or affecting some important question of law, or affecting property of considerable value or one which is otherwise of public importance, or of a very substantial character in order to involve an important principle of law or justice.[2]   The principles of law involved here are well settled and are not contentious.  Similarly, the challenge to the finding in relation to quantum does not in my view involve an important principle of law or justice.

   [1] (1993) 2 QdR 352 at 353

   [2]  Wanstall v Burke (1925) QSR 295

4. The Applicant’s assertion that his case is something of a “test case” and that a number of similarly affected potential claimants would institute proceedings against the Respondent should the Applicant be successful, and that therefore justice demands that the Appeal be heard, does have some merit. Section 45 of the Magistrates Courts Act however places the onus on the Applicant to satisfy me that an important principle of justice is involved. The provisions of s.45 (2) (a) clearly have the intention of generally denying an unsuccessful litigant the right of appeal where the amount involved is not more than five thousand dollars. In this case the Magistrate assessed quantum (had it been payable on the facts) at “something in the order of one thousand dollars”. The legislature has clearly imposed restrictions on the right of appeal for public policy reasons and important principles involving justice and/or public policy of sufficient weight to override the public policy issue behind the legislation itself must be apparent before leave to appeal should be granted.

5. This is not a case where it is alleged that the trial was not conducted fairly or in accordance with the law.  Both parties were ably represented by counsel and whilst the Stipendiary Magistrate may have admitted to being inexperienced in the field of defamation law, it is not suggested that he was misled or that he misconstrued the law.  There is simply a challenge to one of his findings of fact.

6. Whilst the Applicant has not placed before me any material to support his assertion that “there are approximately one hundred custodial correctional officers who were affected by the defamatory material” and that a number of them are contemplating similar action against the Respondent, nevertheless it appears that the Respondent accepts that a “fighting fund” had been initiated and that some other officers were contemplating bringing their own actions.  The question is whether this circumstance amounts to an important principle of justice.

7. The assertion that the finding of fact may have some effect on potential claims by the Applicant’s fellow correctional officers does not confer upon the grievance of one unsuccessful litigant the status of “an important principle of justice”.  There is no evidence that the parties had agreed that the applicant’s action should be a test action binding other custodial officers or binding the respondent,[3]  Whilst it can be said that “a question going beyond the consequences of the decision upon the immediate parties” [4]  may amount to an important principle of justice, I cannot be satisfied that the circumstances of this case involve an important principle of justice.  The issue is not of such substantial character or of such public importance as to warrant the granting of leave to appeal. 

   [3]  See Horn v Brinkley (1933) QWN 43

   [4]  Doyle v James CA 69 of 1993 unreported

8. Leave to appeal is refused.