Pavlovic v Karzon - [2023] QCA 37

SUPREME COURT OF QUEENSLAND

CITATION:

Pavlovic & Anor v Karzon [2023] QCA 37

PARTIES:

RENEE PAVLOVIC
(first applicant)
WANDULLA PTY LTD
ACN 061 467 865
(second applicant)
v
GEORGE RAYMOND KARZON
(respondent)

FILE NO/S:

Appeal No 11352 of 2022
DC No 92 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Southport – [2022] QDC 187 (Jackson QC DCJ)

DELIVERED ON:

14 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

6 March 2023

JUDGES:

Bond JA and Boddice AJA and Bradley J

ORDERS:

1.   The application to extend the time for filing the application for leave to appeal is allowed.

2.   The application for leave to appeal is refused.

3.   The applicants pay the respondent’s costs of the applications.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN GRANTED – where the application for leave to appeal was filed ten days out of time – where the delay was explained by a delay in receiving counsel’s advice – where the proposed grounds of appeal raise matters of substance – whether an extension of time should be granted for the application for leave to appeal

DEFAMATION – PRIVILEGE – QUALIFIED PRIVILEGE – STATEMENTS MADE IN RESPECT OF A DUTY OR INTEREST – PARTICULAR STATEMENTS – ON MATTERS OF COMMON INTEREST – where the respondent was the beneficial owner of a shop leased to a Thai massage business – where the Thai massage business was rumoured to be offering illegal sexual services – where the respondent and the first applicant were both members of the body corporate committee for the retail plaza in which the massage business was located – where the respondent was the chairman of the body corporate committee – where the first applicant sent an unsolicited email to other members of the body corporate committee accusing the respondent of knowing about and condoning the alleged provision of illegal sexual services – where the trial judge found that the communications were defamatory – where the trial judge found that the other members of the body corporate committee had no relevant interest in receiving the communication – whether the trial judge erred in finding that there was no occasion of qualified privilege

DEFAMATION – PRIVILEGE – QUALIFIED PRIVILEGE – REBUTTAL OF PRIVILEGE BY MALICE – EVIDENCE OF MALICE – where the trial judge found that the first applicant made no attempt to satisfy herself of the truth of the rumours on which the defamatory assertions were based – where the trial judge found that the first applicant used spiteful language which sought to ridicule and embarrass rather than to inform – where the trial judge found that the defamatory assertions were voluntary and spontaneous – where the trial judge found that the first applicant was in a separate dispute with the respondent which the first applicant regarded as petty – where the trial judge found that the second defamatory assertion…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pavlovic v Karzon

Details

AGLC: Pavlovic v Karzon [2023] QCA 37
Case: [2023] QCA 37
Decision Date: 14 March 2023

CaseChat Overview and Summary

Pavlovic v Karzon involved an appeal against findings of defamation and malice made by the District Court of Queensland. The primary issue was whether the trial judge erred in determining that the defamatory emails sent by Ms Pavlovic to members of the body corporate committee were not published under qualified privilege at common law, and whether the trial judge was correct in concluding that Ms Pavlovic acted with malice. The second issue was whether the trial judge erred in finding that Ms Pavlovic acted with malice in sending the defamatory emails. The trial judge found that the communications were defamatory and that there was no occasion of qualified privilege because the recipients had no relevant interest in receiving the communication. The trial judge also found that Ms Pavlovic acted with malice, as she did not attempt to verify the truth of the defamatory statements, used spiteful language, and was in a separate dispute with Mr Karzon. The Court of Appeal found that the application for leave to appeal was filed out of time but granted an extension due to a delay in receiving counsel's advice. However, the application for leave to appeal was ultimately refused. The Court held that the trial judge's findings were supported by the evidence and that there was no error in the trial judge's conclusions regarding qualified privilege and malice. The applicants were ordered to pay the respondent's costs of the applications.

Orders

Orders of the court

1. The application to extend the time for filing the application for leave to appeal is allowed.

2. The application for leave to appeal is refused.

3. The applicants pay the respondent’s costs of the applications.

Background

Background to the litigation

There are two issues in the proposed appeal. The first is whether the trial judge erred in finding Ms Pavlovic did not publish the emails on occasions of qualified privilege at common law. The second is whether the trial judge erred in finding Ms Pavlovic acted with malice when she sent the emails.Facts not in dispute Broadwater Plaza is a body corporate scheme at Hope Island. It comprises nine shops and one petrol station. At the relevant times, Wandulla owned the petrol station and one of the shops, and companies ultimately controlled by Mr Karzon owned two shops. At the relevant times, Ms Pavlovic was a member of the body corporate committee, as a nominee of Wandulla, and Mr Karzon was chairperson of the committee. Bridget Blinco was employed by the manager of the body corporate. In 2015, one of the “Karzon” shops was leased, through a managing agent, to the operator of a Thai massage business. The lease was for a term of three years. On 7 September 2018, Ms Pavlovic sent the first email to Ms Blinco, and to her father and one of her brothers who were the directors of Wandulla. She copied the email to a solicitor for Wandulla. The first email conveyed four imputations each defamatory of Mr Karzon.[2][2]His Honour found the first email meant and was understood to mean that: Mr Karzon is the owner of the shop from which he knew an illegal brothel operated; Mr Karzon is the owner of a shop from which he knew an illegal sex trade was being conducted; Mr Karzon is a dishonourable person who sought to cover up illegal activities that were being run from premises he owns; and Mr Karzon is a person who knowingly supports and receives money from criminal activities: [2022] QDC 187, [37], [39]-[46]. The first email was not sent to Mr Karzon. However, within three hours, Ms Pavlovic sent an email to Mr Karzon and four other committee members (Mr Corby, Mr Wenger, Mr Law, and Ms Hachem) referring to the first email, which appeared in the chain below her email to them. On 12 September 2018, Ms Pavlovic sent the second email to Ms Hachem. She copied it to the other committee members, including Mr Karzon. The second email conveyed two imputations each defamatory of Mr Karzon.[3][3]His Honour found the second email meant and was understood to mean that: Mr Karzon is a liar in that he made false denials when confronted with allegations of wrongdoing; and Mr Karzon leased premises to a tenant who he knew was running an illegal business that was offering sexual services for an exchange of money: [2022] QDC 187, [38], [49]-[52].Qualified privilege at common law As the trial judge identified, there was no controversy between the parties about the principles governing the common law defence of qualified privilege. The defence operates where there is a “privileged occasion”. As Lord Atkinson summarised it in Adam v Ward, that is:“an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.”[4][4][1917] AC 309, 334.

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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CITATION:	Pavlovic & Anor v Karzon [2023] QCA 37
PARTIES:	RENEE PAVLOVIC (first applicant) WANDULLA PTY LTD ACN 061 467 865 (second applicant) v GEORGE RAYMOND KARZON (respondent)
FILE NO/S:	Appeal No 11352 of 2022 DC No 92 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Southport – [2022] QDC 187 (Jackson QC DCJ)
DELIVERED ON:	14 March 2023
DELIVERED AT:	Brisbane
HEARING DATE:	6 March 2023
JUDGES:	Bond JA and Boddice AJA and Bradley J
ORDERS:	1. The application to extend the time for filing the application for leave to appeal is allowed. 2. The application for leave to appeal is refused. 3. The applicants pay the respondent’s costs of the applications.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN GRANTED – where the application for leave to appeal was filed ten days out of time – where the delay was explained by a delay in receiving counsel’s advice – where the proposed grounds of appeal raise matters of substance – whether an extension of time should be granted for the application for leave to appeal DEFAMATION – PRIVILEGE – QUALIFIED PRIVILEGE – STATEMENTS MADE IN RESPECT OF A DUTY OR INTEREST – PARTICULAR STATEMENTS – ON MATTERS OF COMMON INTEREST – where the respondent was the beneficial owner of a shop leased to a Thai massage business – where the Thai massage business was rumoured to be offering illegal sexual services – where the respondent and the first applicant were both members of the body corporate committee for the retail plaza in which the massage business was located – where the respondent was the chairman of the body corporate committee – where the first applicant sent an unsolicited email to other members of the body corporate committee accusing the respondent of knowing about and condoning the alleged provision of illegal sexual services – where the trial judge found that the communications were defamatory – where the trial judge found that the other members of the body corporate committee had no relevant interest in receiving the communication – whether the trial judge erred in finding that there was no occasion of qualified privilege DEFAMATION – PRIVILEGE – QUALIFIED PRIVILEGE – REBUTTAL OF PRIVILEGE BY MALICE – EVIDENCE OF MALICE – where the trial judge found that the first applicant made no attempt to satisfy herself of the truth of the rumours on which the defamatory assertions were based – where the trial judge found that the first applicant used spiteful language which sought to ridicule and embarrass rather than to inform – where the trial judge found that the defamatory assertions were voluntary and spontaneous – where the trial judge found that the first applicant was in a separate dispute with the respondent which the first applicant regarded as petty – where the trial judge found that the second defamatory assertion…