Martin v Trinh and Anor (Civil Dispute)
[2016] ACAT 47
•19 May 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MARTIN v TRINH & ANOR (Civil Dispute) [2016] ACAT 47
XD 1262/2015
Catchwords: CIVIL DISPUTE – defamation – claim not supported by evidence
Legislation cited: Civil Law (Wrongs) Act 2002 s 139A
Tribunal: Senior Member G Lunney SC
Date of Orders: 19 May 2016
Date of Reasons for Decision: 19 May 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1262/2015
BETWEEN:
STEPHEN MARTIN
Applicant
AND:
CATHERINE TRINH
First Respondent
AND:
ERIS BEDE O’BRIEN
Second Respondent
TRIBUNAL: Senior Member G Lunney SC
DATE:19 May 2016
ORDER
The Tribunal Orders that:
The application is dismissed.
………………………………..
Senior Member G Lunney SC
REASONS FOR DECISION
This is a civil dispute application dated 9 November 2015, and filed on the same date. It is a claim for damages for defamation including punitive and aggravated damages. Particulars of claim are attached to the application.
The particulars filed with the application allege defamation by the both respondents on different occasions. It is alleged that the first respondent defamed the applicant when she gave sworn evidence on 7 August 2015 in proceedings in the Magistrates Court of the Australian Capital Territory. The second respondent is alleged to have defamed the applicant in a conversation with the first respondent on or before 7 August 2015. These particulars were refined later as referred to below.
Publication is alleged to a number of people generally identified by occupation.
The particulars are not set out in the manner commonly adopted for pleadings, and a part of the particulars set out ‘the background to this matter’. The following background description includes the material contained in the particulars of claim.
The parties at the relevant time, lived in a high rise apartment block in Canberra referred to as the Nishi Building having a multilevel underground car park. It is a mixed use building with some commercial premises at lower levels. It contains a hotel bearing the name Hotel Hotel, and a cinema.
On 30 June a blue Saab car driven by the first respondent at about 12.26am entered the car park. The second respondent was also in the car. The applicant had at least one storage cage adjacent to a car park space in the basement containing some furniture. Shortly after the car entered the carpark, the storage cage was knocked over. CCTV footage showed the second respondent running from the area and waving to the first respondent.
It is assumed that at the time that the cage fell over, it damaged a fire sprinkler mounted in the ceiling causing water to escape and flood the area. This caused water damage to the contents of the cage. The applicant says that the cage itself was not damaged, and screws used to attach it to an adjoining cage had not been damaged.
Later that morning at about 9.30am the applicant and his wife went to inspect the cage and found the second respondent attempting to right it. Two employees of the managing agent were present and they went into the foyer of the building. The second respondent would not disclose his identity and left after a short time with a parting riposte of ‘so sue me’.
The applicant made further efforts to establish the identity of the occupants of the car, and on 22 July 2015 the first respondent was leaving the car park when the applicant tapped on the car window and said something to her that made her apprehensive. On 5 August 2015 the applicant attended her place of employment, a school, where she was a teacher, and spoke to the receptionist who sent the first respondent an email telling of the applicant’s presence. The applicant asked to see the principal.
The applicant said that he had gone to the school to get the first respondent’s address so that a damages claim could be served. He said that he left a note for her asking her to contact him. She said that she did not receive a note. On 7 August 2015 she applied for a personal protection order against the applicant, and an interim order was made by the Chief Magistrate. She withdrew her application before it progressed to a hearing for a final order.
In the application for damages for defamation the applicant alleges:
The actions of the respondents has (sic) caused me great distress and injury to my reputation at [the school], the City Police Station and in the legal community, namely at the ACT Magistrates’ Court and with my wife’s tenant.
Particulars of Claim
In the course of preparation of the matter for hearing, the applicant prepared and filed an affidavit which was affirmed on 4 January 2016, and filed the same day. Paragraphs 6 and 7 of that affidavit clarified and expanded the particulars of the allegations of defamation made by the applicant in the Application. They were as follows (I have numbered them):
6. Catherine Trinh has defamed me on the following occasions to the following people:
1.1One or more employees of “Hotel Hotel”, or the officers of its corporate owner “Hotel Ip Pty Limited”, on or before 7 August 2015 (page 3, line 20) the exact words being unknown to me, but to the effect I was harassing and/or intimidating her.
1.2One or more people at the Legal Aid Office in Canberra, namely that I was harassing and/or intimidating her and was a danger to her children on or before 7 August 2015 (line 32, p3).
1.3A male member of the Australian Federal Police (p3, line 24 on or before 7 August 2015).
1.4Constable Forbes of the Australian Federal Police (that she feels afraid by (sic) me) on or after 7 August 2015, the imputation being that I am a dangerous person likely to cause physical harm to her
1.5Registry staff at the ACT Magistrates’ Court, including [the Registrar] and [another staff member], the Chief Magistrate, a bench clerk, a court recorder and anyone in the courtroom on 7 August 2015, to the effect that I am an intimidator of people and a danger to her.
1.6To the Principal and various staff at [the school], including their receptionist [name withheld], that I was harassing and/or intimidating her and had inflicted personal violence towards her, and upon republication of the defamation by means of the service of notice of the Interim Personal Protection Order.
DEFAMATION BY ERIS O’BRIEN
7.Eris O’Brien has defamed me to:
2.1[Name withheld ‘S’] of “Civium Strata People (ACT)” the Strata Manager (of the “Owners’ Corporation” of Building Unit Plan 3989) on or before, 7 August 2015 saying I was harassing O’Brien, including detailing occasions of alleged harassment to (S).
2.1Catherine Trinh on 7 August 2015 saying that I was “well known because (I) had followed other residents and intimidated them”.
The hearing
The hearing was attended by the applicant. He called his wife as a witness. The second respondent appeared in person. He had previously filed a power of attorney by the first respondent authorising him to act on her behalf. The applicant gave evidence and tendered documents. His documentary evidence included an affidavit affirmed by him of some 61 pages and 396 paragraphs. He also tendered a transcript of the Magistrates Court proceedings with a recording taken by the recording system. He called the first respondent as a witness. There was no answer to her call outside the hearing room. She had not been in attendance at the hearing. She had not been subpoenaed.
The respondents called no evidence.
Consideration
Particular 1.1
This particular alleges publication to certain persons associated with Hotel Hotel. It is clear that the applicant does not know and therefore cannot say what words spoken by the respondent he relies on, but asserts that their effect was that he was harassing or intimidating her. He calls in aid part of her evidence given in the Magistrates’ Court that she went to the reception of the hotel and “told them what happened.”
This evidence does not support the allegation made either directly or by inference. It is not possible to establish with any relevant level of probability that any defamatory words were said in the conversation alleged.
Particular 1.2
This relies on an assumption that what was said to ‘people’ at the Legal Aid Office was defamatory. There is no evidence that the first respondent said the words alleged. It can be inferred that anything that was said was covered by legal professional privilege and also was ancillary to the proceedings conducted on 7 August 2015 in the Magistrates Court.
This particular is not made out.
Particulars 1.3 & 1.4
These particulars rely on assumption and are not based on any established evidence. There is no evidence of any defamatory communication with a member of the Australian Federal Police let alone the named constable. The issue of qualified privilege does not arise.
These particulars are not made out.
Particular 1.5
This particular alleges defamatory communication to staff at the Magistrates Court prior to the hearing on 7 August 2015 and during it. The defamatory communication was said to be to the effect that the applicant was ‘an intimidator of people and a danger to (the first respondent)’.
There is no evidence that communications to that effect were made, nor from which any such communication could be inferred. In any event, the communications referred to were made either during judicial proceedings in a Court or ancillary to those proceedings.
This particular is not made out.
Particular 1.6
6.Catherine Trinh has defamed me on the following occasions to the following people:
....
To the Principal and various staff at [the school], including their receptionist [name withheld], that I was harassing and/or intimidating her and had inflicted personal violence towards her, and upon republication of the defamation by means of the service of notice of the Interim Personal Protection Order.
This particular seems to rely on two forms of communication. The first conversations at unspecified times and in unspecified circumstances with staff of the school. The second is the content of the personal protection order served or sent to the school as part of the court proceedings.
As to the first alleged communication, it is in the form of a non-specific assertion with no particularity of the time, circumstances or particularity of words spoken. It is unsupported by evidence, is speculative and no evidence has been advanced that could support an inference to that effect.
As to the second, the matter contained in the order made by the Court is the subject of privilege. In any event, in my view it does not contain defamatory material.
This particular must fail.
Particular 2.1
This particular appears to rely on a series of emails tendered in evidence. These do not contain defamatory material. References to harassment are references to the feelings of the second respondent and not to allegations made to third parties of harassment by the applicant.
This particular is not made out.
Particular 2.2
7.Eris O’Brien has defamed me to:
Catherine Trinh on 7 August 2015 saying that I was “well known because (I) had followed other residents and intimidated them”.
This allegation seems to be based on some evidence given by the first respondent in the Magistrates Court when she said the following:
Body corporate manager told my partner that like he’s actually well-known because he has followed other residents and intimidated. Followed them to the car park and intimidated them.
Neither of the two respondents gave evidence. There is no direct evidence that the second respondent told the first respondent anything on the alleged subject. It might be possible to infer from the circumstances that there was some conversation between the first and second respondents about the topic of the second respondent’s conversation with the strata manager. However, without some evidence of the detail of what was said I am not prepared to speculate on the content of this conversation.
I do not consider that paragraph 3.1 of the respondents’ response constitutes either an admission or evidence of any conversation. However should I be incorrect in that view, the communication would come under the provisions of section 139A of the Civil Law (Wrongs) Act 2002 relating to qualified privilege. The applicant submitted that this defence was defeated by the malice of the respondents. His submission and the asserted factual basis for it is set out in his affidavit. I do not accept any of his arguments as I do not accept any of his factual assertions. In my view malice has not been established.
This particular must also fail.
Conclusion
The claim is not supported by evidence, and the application must fail. The application is dismissed.
………………………………..
Senior Member G Lunney SC
HEARING DETAILS
FILE NUMBER: | XD 1262/15 |
PARTIES, APPLICANT: | Stephen Martin |
PARTIES, RESPONDENT: | Catherine Trinh & Eris Bede O’Brien |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | N/A |
TRIBUNAL MEMBERS: | Senior Member G Lunney SC Member D Byrne |
DATES OF HEARING: | 30 March 2016 |
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