Mather v Smith (No 1)

Case [2014] QCA 65

SUPREME COURT OF QUEENSLAND

CITATION:

Mather v Smith (No 1) [2014] QCA 65

PARTIES:

GLENDA MARY MATHER
(applicant)
v
JOHN THOMAS SMITH
(respondent)

FILE NO/S:

Appeal No 6982 of 2013
DC No 704 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

25 February 2014

JUDGES:

Margaret McMurdo P and Fraser JA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for leave to appeal granted.

2.   Appeal dismissed.

3.   Applicant to pay the respondent’s costs of the application and the appeal.

CATCHWORDS:

DEFAMATION – PRIVILEGE – QUALIFIED PRIVILEGE – IN GENERAL – where the applicant made defamatory imputations during a radio interview – where numerous questions were put to the jury at trial – where the primary judge held that there had been no determination on the defence of common law qualified privilege because the jury had not been asked whether the audience to whom the imputations were published was too wide – where the primary judge then made findings of fact and determined the defence should fail – where the applicant argues the jury’s answers established qualified privilege as the respondent had not challenged privilege on the grounds of the publication being too wide – whether the effect of the extent of the publication upon common law qualified privilege was in issue

DEFAMATION – PRIVILEGE – QUALIFIED PRIVILEGE – FUNCTIONS OF JUDGE AND JURY – where numerous questions were put to the jury at trial – where the primary judge held the jury had made no determination on the defence of common law qualified privilege – where the primary judge made findings of fact necessary to decide upon the defence of qualified privilege because the jury had already been discharged – whether the trial judge erred in embarking on that fact finding exercise and deciding whether the publication was protected by qualified privilege

DEFAMATION – PRIVILEGE – QUALIFIED PRIVILEGE – IN GENERAL – where the defamatory imputations were broadcast by a radio station – where the applicant argues qualified privilege was still available where the publication’s audience included persons who did not have a legitimate interest in hearing the information – whether the publication could attract qualified privilege in such circumstances

Defamation Act 2005 (Qld), s 22(2), s 22(5)(b)

Adam v Ward [1917] AC 309, cited
Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79; [2010] HCA 25, cited
Andreyevich v Kosovich (1947) 47 SR (NSW) 357; [1947] NSWStRp 2, cited
Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535, considered
Braddock v Bevins [1948] 1 KB 580, cited
Calwell v Ipec Australia Ltd (1975) 135 CLR 321; [1975] HCA 47, cited
Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195, considered
Hebditch v MacIlwaine [1894] 2 QB 54, cited

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AGLC
Mather v Smith (No 1) [2014] QCA 65
Case
[2014] QCA 65
Decision Date

CaseChat Overview and Summary

In Mather v Smith (No 1), the respondent, Smith, sued the applicant, Mather, for defamation over statements made during a radio interview. The primary judge had determined that there was no determination by the jury regarding the defence of common law qualified privilege, as the jury had not been asked if the audience to whom the imputations were published was too wide. Consequently, the primary judge proceeded to make findings of fact and ruled that the defence of qualified privilege should fail. Mather contended that the jury's answers established qualified privilege, as Smith had not argued that the publication was too wide. The court had to determine if the extent of the publication affected the common law qualified privilege.

The court examined the roles of the judge and the jury in defamation cases involving qualified privilege. The trial judge had posed numerous questions to the jury regarding the defence of qualified privilege. However, the primary judge found that the jury had not made any determination on this defence. Since the jury had already been discharged, the primary judge proceeded to make necessary findings of fact to decide the defence of qualified privilege. The court needed to assess whether the trial judge erred in undertaking this fact-finding exercise and deciding whether the publication was protected by qualified privilege.

The court held that the primary judge did not err in making findings of fact and deciding the defence of qualified privilege. The court found that the trial judge correctly determined that the defence of qualified privilege failed. The court further held that the extent of the publication did not affect the common law qualified privilege, even if some of the audience did not have a legitimate interest in hearing the information. Therefore, the court dismissed the appeal, granting leave to appeal but ordering the applicant to pay the respondent's costs of the application and the appeal.

Orders

Orders of the court

1. Application for leave to appeal granted.

2. Appeal dismissed.

3. Applicant to pay the respondent’s costs of the application and the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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