Pask v Coward

[1993] QCA 354

IN THE COURT OF APPEAL	[1993] QCA 354
SUPREME COURT OF QUEENSLAND	Motion No. 188 of 1993
Brisbane
Before	Mr Justice Davies

[Pask v. Coward]

BETWEEN:

NORMAN GORDON PASK Applicant

AND:

GARY COWARD Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 29/09/93

This is an application for leave to appeal under s. 92(2) of the District Court Act from an interlocutory order made by a District Court judge in a defamation action. In his plaint in that action the respondent pleaded that words published of and concerning him, in their natural and ordinary meaning, meant and were understood to mean, amongst other things:

"(c) that the plaintiff had dishonestly and/or deceitfully conducted his own business from the premises of the Dolphins Baseball Club while pretending to work for the club;

(d) that the plaintiff was guilty of dishonest and/or unethical business practices."

The applicant seeks to appeal against the refusal to strike out the word "dishonestly" in paragraph (c) and the phrase "dishonest and/or" in paragraph (d), both being sub-paragraphs of paragraph 6 of the plaint.

The first question before me is whether the contention that those words should have been struck out involves some important question of law or justice within the meaning of those terms in s. 92(2). My discretion to grant leave does not arise unless I reach an affirmative conclusion on that question.

Relevantly, the published words were:

"C. Contrary to Coward's obligation to devote the whole of his time and effort to the management and promotion of the Club, Coward saw to surreptitiously conduct businesses from the Dolphins premises on his own account without permission or consent from either the Club or myself, which action is totally intolerable."

As appears from his draft notice of appeal, and his submissions before me today, the appellant accepts that the correct test for determining whether an imputation is supported by the words published is "whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense". That is a statement of Lord Selbourne L.C. in Capital and Counties Bank v. George Henty & Sons which his Honour the learned District Court judge quoted in the course of citing a passage from Jones v. Skelton (1963) 1 W.L.R. 1362. There can, therefore, be no doubt that his Honour stated the correct test to be applied in this case.

It is also clear that his Honour thought that he was applying that test. He said:

"Applying the test described above I am of opinion that the words complained of are capable of bearing the imputations alleged in all but sub-paragraph 6(f). The references to dishonesty in sub-paragraphs (c) and (d) are not supported by specific allegations in the publication but such imputations might arise in the minds of the reasonable reader from the words complained of. The use by the plaintiff of club premises and his employer's time described as having being done surreptitiously implies a level of dishonesty in the form of deceit if not in fact a form of dishonesty suggesting criminal conduct. See Lilyville Pty Ltd & Anor. v. Mortison & Anor. (unreported) per Hunt J. Supreme Court N.S.W. 13 July 1990 where similar considerations were applied."

Mr Griffin Q.C. for the appellant contended however that his Honour did not apply that test. He fastened on to the use of the word "might" in the second sentence of the above passage and the reference to Lilyville Pty Ltd & anor. v. Mortison & anor.. As to the first of these it is true that if the second sentence stood alone it might be justifiably criticised in the way in which Mr Griffin criticised it. But it must be read in the context particularly of the opening words of the paragraph and the sentence which follows the sentence under attack; that is the sentence commencing "The use by ..." which Mr Griffin conceded was unexceptionable.

As to the second, his Honour was referring only to the fact that similar considerations were applied in the case cited. He did not say that he was applying any of the reasons in that case even if, as Mr Griffin submitted, that reasoning in some way differed from the test earlier stated by his Honour.

In my view therefore his Honour applied the correct test to the facts of this case. Whether, in applying it, he erred is not to the point. There is no important question of law involved.

As it was not contended that any important question of justice

was involved, the application must be refused.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Motion No.188 of 1993

Brisbane

[Pask v. Coward]

BETWEEN:

NORMAN GORDON PASK Applicant

AND:

GARY COWARD Respondent

_______________________________________________________________

__

DAVIES J.A.

_______________________________________________________________

__

Judgment delivered 29/09/1993
REASONS FOR JUDGMENT - THE COURT

______________________________________________________________________

APPLICATION FOR LEAVE TO APPEAL DISMISSED WITH COSTS.

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CATCHWORDS:

Counsel:	J. Griffin Q.C. for the Applicant D. Boddice for the Respondent
Solicitors:	Cranston McEachern & Co. as t/a for Clinton R. Smith & Associates for the Applicant Allan Dick Solicitors for the Respondent
Hearing Date(s):	29 September 1993