Q Ford Pty Ltd and Field v Vandenberg

[1993] QCA 14

IN THE COURT OF APPEAL

[1993] QCA 014

SUPREME COURT OF QUEENSLAND

Appeal No. 13 of 1992

Q FORD PTY. LTD.

(First Plaintiff) First

Appellant

- and -

IAN M. FIELD

(Second Plaintiff) Second

Appellant

- and -

JOHN VANDENBERG

(First Defendant)

- and -

CELIA KARP

(Second Defendant) Respondent

REASONS FOR JUDGMENT OF THE COURT

Delivered the Seventeenth day of February, 1993.

The appellants, who were the plaintiffs in the action below, appeal against the judgment which was entered against them in favour of the second defendant (the "respondent") which included an order that they pay the respondent's costs. The appellants had sued the respondent seeking damages for defamation in respect of two separate publications.

The company which is the first appellant conducts a motor vehicle business in Springwood and the second appellant is a director and manager of the company.

The local authority with jurisdiction in the area which includes Springwood is the Logan City Council. Amongst its functions is the regulation of advertising signs erected in its area.

At relevant times the Logan City Council (the "Council") imposed a height restriction on advertising signs which might be erected but it was prepared to waive the generally applicable limit if circumstances justifying the making of an exception could be shown.

The first appellant was the applicant for approval of a larger than usual sign, some eighteen metres in height as compared with the standard permitted height of fifteen metres. In the course of supporting its case for an exception to be made, the second appellant, acting on behalf of the first appellant, had some contact with the Council's agents and in particular with one Vandenberg, the first defendant, who was a health officer employed by the Council.

Court proceedings were subsequently commenced by the appellants against both the first defendant and the respondent but a settlement was reached with the first defendant shortly after the commencement of the trial. The trial then proceeded against the respondent alone.

The first defendant had written a report concerning the first appellant's application for approval of the sign and the report was addressed to and presented to the respondent, one of the Council aldermen. This report was identified in the proceedings as Schedule A.

On 15 November, 1988 there was a meeting of the Council held and one of the business items dealt with was a motion to rescind an earlier Council resolution of 1 November, 1988 which had restricted the height of the first plaintiff's proposed sign to the usual applicable standard height of fifteen metres. The motion sought in lieu the passing of a resolution to approve erection with a height of eighteen metres as had been proposed by the application although with various conditions, including one that the sign should include a clock of substantial size. The earlier resolution of the Council of 1 November, 1988 had resulted from a motion moved by the respondent and one other alderman. The stated basis upon which that resolution had been passed upholding the standard height restriction was that no "extenuating circumstances" (as they were called) were offered.

When the business of the motion to rescind the height restricting resolution of 1 November, 1988 and approve instead the application for an eighteen metre sign was reached, the respondent distributed within the meeting information in relation to the motion. This material was the report, Schedule A. Following the distribution of this material the Council resolved to move into private session to consider the item. The result was that the motions of which notice had been given were passed and the standard height restriction of fifteen metres was departed from in its application to the particular case. It was further resolved that the material which had been distributed by the respondent, Schedule A, should be withdrawn. This attempt to restrict the exposure given to Schedule A was not effective to keep from the press knowledge of its contents.

A representative of the press, one Hepburn who was a reporter with a local newspaper, the Albert and Logan News, had been present at the meeting and obtained a copy as a result of the distribution made by the respondent. A news item based upon the report was published in the local newspaper. That newspaper item, which became Schedule B, was different in form and content from Schedule A but the appellants' claim was that the respondent was responsible for and in the circumstances should be taken to have caused the publication of Schedule B because of her distribution to Hepburn amongst others of the Schedule A report. The two appellants brought their action based on the two separate publications, one of Schedule A at the Council chambers and another of Schedule B in the newspaper.

The first question for consideration is whether the appellants have established those matters where the primary obligation of proof lay upon them. Were the publications defamatory of each of the appellants? The learned trial judge decided this question against them.

Schedule A may be dealt with first. It is a document of some two and a half closely typed pages. Notwithstanding the way in which the learned trial judge has expressed some of his findings, it is not necessary to set the contents out in full. It is sufficient to say that it contains a review of the difficulties experienced by the Council in endeavouring to maintain a policy restricting height of advertising signs and it speaks of pressures to make exceptions. It refers to the physical features at the site proposed for the first appellant's sign and concludes that a height limited to the standard fifteen metres would be preferable. It says that none of the matters advanced by the second appellant on his company's behalf establish "any exceptional and extenuating circumstances". It mentions that the approach of another local authority which it names would not have been any more favourable to the applicant and it specifically rejects a suggestion that the addition of a clock to the erected sign would justify making a departure from the policy. There is no need to say more on these general features of Schedule A. When closely studied they do no more than provide some background to the application itself and to the Council's policy and they make the particular remarks which are complained of neither more nor less offensive. It is now necessary to set out in full one paragraph from the body of the Schedule A report containing the matter which is complained of:

"The suggestion of a clock did not occur until such time as when Councils height restrictions policy became apparent to Mr Field, and is obviously used as "bait" in order to obtain approval. It should be noted that during an on site inspection in connection with the Q Ford sign during which I advised Mr Field of Council's policy on height restrictions for signs Mr Field replied "I am not worried about the policy, there are ways and means of getting around the Alderman (sic)" or words to that effect. At the time I considered this remark as to be extremely disparaging to the integrity of Council as it appeared to me that corruption or cronyism by Alderman (sic) was implied."

Schedule B is the material which appeared on the front page of the Albert and Logan News in the issue for 18 November, 1988. A somewhat dramatic presentation of the news item was essayed by the reporter but the following quotation sets out the more significant portions of the general matter included in it:

" SIGN REPORT ROCKS OUR ALDERMEN

The Logan City Council has been rocked by a health officer's report which involves allegations of cronyism among aldermen.

The report was prepared for Alderman Celia Karp by a council Health Department officer to support her case against the erection of an 18 metre-high sign with clock on the corner of Vanessa Boulevard and the Pacific Highway.

Ald Karp, who wants the sign limited to 15 metres in height, distributed the report at last Tuesday's council meeting.

Council's senior officers had not sighted the report before the meeting and it had not been presented to council via the normal channels.

A copy of the report vanished from the Press Box after council's lunch break and following the break Full Council resolved to 'withdraw' the report and gave approval for the 18m sign.

The sign had been rejected at a previous council meeting ...

Aldermen then adjourned for lunch to read the

report.

After the lunch break council went into
camera and called the report's author before them.

The council then resolved the report be withdrawn and then voted in favour of the 18 metre sign. Ald Ken Heard and Ald Karp voted against the approval..."

Within the article, Schedule B, there appeared the following material which the argument advanced on behalf of the appellants relied on as possessing more significance:

"

In the report the Health Department official

refers to an alleged conversation with a city
businessman.

-"At the time, I considered this remark (part of the alleged conservation) (sic) to be extremely disparaging to the integrity of council as it appeared to me that corruption or cronyism by aldermen was implied.""

In Schedule B there is no actual identification of the city businessman who is referred to and nothing connects him with any application for the erection of an eighteen metre sign at the corner of Vanessa Boulevard and the Pacific Highway. No part of the article says anything which could imply that the unnamed city businessman, for purposes of his own, was intending to join in or take advantage of the corruption or cronyism which is attributed to the aldermen.

In the absence of some further feature, Schedule B is not capable of conveying a meaning defamatory of either of the appellants. Even if in any reader's mind some identification of the city businessman with the second appellant was made (and no additional facts were pleaded to support such a connection), the article, whatever it says about the aldermen, does not contain a hint of anything defamatory of the unnamed city businessman. The case attempted to be made out on the basis of Schedule B clearly cannot succeed since there is nothing in it defamatory of either appellant.

In dealing with Schedule A the learned trial judge thought that a reader of the item would conclude that the author was relying only on the material contained in the report when he drew and expressed the conclusion which is recorded in these words:

"At the time I considered this remark as to be extremely disparaging to the integrity of Council as it appeared to me that corruption or cronyism by Alderman (sic) was implied."

The judge thought that the words attributed to Mr Field could not amount to anything defamatory of Mr Field if the author's interpretation of the alleged remark is not taken into account. The judge then continued saying that even taking it into account but noting that no additional facts are quoted in the report to support it, the interpretation would not be accepted by any reader. A reader would, on the contrary, reject the interpretation as fanciful or, in His Honour's words, as involving the drawing of a "long bow".

This approach of the learned trial judge cannot, with respect, be accepted. Instead of considering the view which would be taken by an ordinary reader of the report (and this is the exercise which must be undertaken: see, e.g. Jones v. Skelton [1963] 1 W.L.R. 1362 at 1371), it seems to display reluctance to detect any defamatory imputation.

Counsel for the appellants said with some justification that to brush aside the interpretation attributed by the author of the report who heard Mr Field's remark displayed an incorrect approach as it allowed nothing for the manner in which the remark may have been uttered. What, after all, would be made of the report if it contained no quotation from Mr Field at all but merely said "The speaker then said something which clearly conveyed to me that to secure approval of the application he intended to take advantage of the aldermen's tendency to corruption". An even stronger consideration which operates is the fact that the quoted remark is far from depriving the author's interpretation of a basis. It can be seen to offer some support for it. It cannot be accepted, as His Honour did, that the quoted remark is devoid of all mischievous attribution so far as Mr Field is concerned. The judge seems to have read the quoted words as being no more than equivalent to "I am confident that when the aldermen are made aware of my arguments they will be persuaded of their merit". Any such interpretation overlooks the loaded significance in context of the phrases "ways and means" and "getting around". The reality is that both the quoted remark and the interpretation of it placed side by side within the report are interdependent and lend meaning and significance each to the other. The question is whether this portion of the report in its ordinary and natural meaning, that is its meaning to a reasonable reader, is defamatory of the appellants or either of them.

It is not possible to accept that the report, Schedule A, is not defamatory of the second appellant. The defamatory meaning which is attributed in para. 6(b) of the statement of claim, "That the Second Plaintiff intended to be a party to corruption or cronyism", or some meaning similarly phrased is clearly the ordinary natural meaning.

The reasoning adopted by His Honour which led him to resist this conclusion cannot be accepted. It is to be noticed that the judge at one point expressed his conclusion in terms more appropriate to a ruling of law saying that the material in Schedule A was not capable of being defamatory of the appellants whereas, sitting without a jury, his task was to decide whether the words complained of were defamatory of the appellants. His Honour, however, may be taken to be stating his view on the factual question by the finding which he made in those words. If this Court on appeal considers that such a finding as the trial judge made is clearly incorrect there is no obstacle in the way of substituting the correct conclusion.

The next question is whether the first appellant, the company, is also defamed because of the imputations upon its managing director who was speaking and acting at the relevant time on behalf of his company. We are in a position where we are able to consider this question untrammelled by findings below since the trial judge's different and, as it must be said, incorrect approach did not lead him to express a conclusion on this point. On this aspect His Honour was content to say no more than "that the first plaintiff company could conceivably be the victim of defamation in circumstances akin to these if a managing director who is readily identifiable as being the moving force behind a company is said to be corrupt".

The conclusion has already been expressed that the words in Schedule A conveyed that the second appellant intended to be a party to corruption or cronyism as para. 6(b) of the amended statement of claim had alleged. The question now is whether Schedule A which in another place refers to the proposed advertising sign as being "the Q Ford sign" taken with the further facts that the second appellant was a director and the active manager of the company's business also defamed the first appellant. We were referred to a passage in Bognor Regis U.D.C. v. Campion [1972] 2 Q.B. 169 at 175 quoting Gatley on Libel and Slander, 6th ed. (1967) at 409 and an American case, Warner v. Ingersoll (1907) 157 Fed.R. 311 which encourages the need to be wary in distinguishing between a defamation upon a company and one "solely" upon its officers or members. Being, then, suitably on guard the present case is nevertheless one where imputations are cast upon the second appellant not just for some individual action of his own but because of actions which it is implied he was prepared to undertake in his capacity as his company's active representative and to achieve an objective which was desired for his company. In these circumstances his actions are and should be seen as the company's actions so that any disreputable activity by him would automatically and at the same time constitute improper conduct by the company not just as a matter of legal theory but as a matter of practical judgment made by readers who are informed of the activity and aware of the connection between the company and its managing director.

The conclusion should be reached that both of the

appellants were defamed by the publication of Schedule A.

In advancing their arguments on the appeal in respect of Schedule A, counsel for the appellants were content to rely only on the publication of the document by the respondent to the reporter Hepburn, that is notwithstanding the allegations in the statement of claim and the form of their notice of appeal, they did not seek to rely on the publication by the respondent to the aldermen present at the meeting. The judge below had found that there was a publication to the aldermen.

The narrowing of the appellant's contentions on the appeal appeared from their counsel's opening submissions, and counsel for the respondent in his following address interpreted the appellants' position in this fashion. No dissent on this aspect was registered by the appellants' counsel in their reply.

The Court was left to assume that the appellants' new position may have been adopted because they assessed their chances of overcoming the respondent's defences under s. 377 of the Code as not encouraging so far as the publication to the aldermen was concerned. However that may be, and whatever statutory justification may have existed under the Code for the respondent to air these particular defamatory matters at a council meeting, there could not be available any privilege or other defences which would cover the separate publication which had been made to the journalist Hepburn by directly providing him with a copy of Schedule A.

The publication of the imputation to a newspaper reporter who happened to be present, implying that the appellants were of a corrupt disposition must be held to exceed what, if anything, was reasonably sufficient for the protection of the interests of the respondent or other persons or for the public good or what was reasonably sufficient for the purposes of public discussion of a topic for the public good. The correct conclusion is that the appellants should be taken as having established that good faith on the part of the respondent was absent and that the two specific defences raised under s. 377 both fail.

This leaves the matter of damages for consideration.

The trial judge assessed $4,000 for each appellant in respect of a publication both to the aldermen and the reporter Hepburn, that is the publication of Schedule A.

The judge separately assessed, in respect of the publication of Schedule B, in reasons which are sufficiently clear on this point the sums of $10,000 and $20,000 for the first and second appellants respectively. This Court having concluded that Schedule B is not defamatory of either of the appellants, is not further concerned with any assessment of damages in respect of it.

There are however difficulties in accepting that the judge's assessment of damages in respect of the Schedule A publication provides an appropriate award of the damages that the appellants have suffered. The judge did not explain how he arrived at his assessment although, no doubt, he would have considered that he was responding to his judicial obligations in undertaking that task. One difficulty is in seeing how he could make an appropriate assessment of the damage suffered as a result of a particular defamatory publication when he could detect nothing defamatory in it and counsel for the respondent conceded that this was a problem. He responded to the difficulty by asking for an order for a new trial if his arguments on the other issues did not succeed. Counsel for the appellants did not support the request for a new trial and seemed content for their entitlement to a figure for damages to be pronounced upon by this Court.

The next difficulty is that the assessment of damages by the trial judge for each Plaintiff in the amount of $4,000 in respect of the publication of Schedule A was on account of the publication found to have been made both to the aldermen and the reporter. Since on the appeal publication to the aldermen was not relied on by the appellants, it might be thought that these separate sums of $4,000 would call for some reduction. However, in assessing the sums the judge said that he was obliged to bring "into account the settlement proceeds from the first defendant".

Counsel for the respondent was unable to point to anything which might oblige the judge to bring that settlement sum into account other than by referring the Court to s. 24 of the Defamation Law of Queensland, a statute passed in 1889.

This section is not relevant to the assessment which we must consider since it refers only to the admissibility of evidence in mitigation of damages in actions for the publication of defamatory matter in "periodicals" (which are defined to include newspapers). The publication of Schedule A, unlike the Schedule B publication, was not made in a periodical. Queensland has not followed the amendment made in England by s. 12 of the Defamation Act of 1952 (U.K.) extending to all defamations the rule which previously applied only to libels in newspapers. The position at common law was that in mitigation, evidence could not be given of damages claimed or recovered from other persons:

McGregor on Damages,

see 15th ed. (1988) at para. 1688. assessment of damages which he made in respect of the Schedule A publication by giving some unspecified weight to the settlement sum agreed to be paid by the first defendant.

The argument of counsel for the appellants did not concede that any reduction should be made to the two amounts of $4,000 assessed below. Since the appeal was brought on the issue of liability only with no challenge to quantum, the appellants would not be entitled to ask for fresh assessments which would increase those figures. As already mentioned, counsel for the appellants did not request a new trial.

The effect then is that unless a new trial is ordered, the sums of $4,000 already assessed should be accepted as the upper limits of the awards which should now be made. In view of the relatively modest sums in issue, we do not think that a new trial should be ordered but conclude that in this rather difficult situation we should proceed to make fresh assessments constrained only by the upper limits referred to. The error which has occurred in making assessments (cf. Associated Newspapers Ltd. v. Dingle [1964] A.C. 371) the doubtful basis on which they were made and the altered basis now relied on by the appellants justify this Court in making its own assessments.

The publication to a working journalist of the defamations of both appellants which this Court sees in the Schedule A material was potentially serious. However, because that journalist did not republish those defamations as he might have done, the appellants' loss must be small.

We would substitute for the assessments of $4,000 in each case awards of $2,000.

This then leaves for consideration the question of appropriate cost orders. The appellants sued for damages alleging two separate defamations resulting from publications by the respondent. The judgment of this Court is that they should succeed in respect of one but fail in respect of the other. Having failed completely below against the respondent, they have succeeded on appeal in respect of only one of two publications, viz. the Schedule A report, and only in respect of the publication of that report to Hepburn, not in respect of its publication to the aldermen. It should be ordered that the respondent pay to the appellants one quarter of the taxed costs of the hearing below and of the appeal, including reserved costs if any.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 13 of 1992

Before the Court of Appeal

The Chief Justice Mr Justice Davies Mr Justice Pincus

Q FORD PTY. LTD.

(First Plaintiff) First

Appellant

- and -

IAN M. FIELD

(Second Plaintiff) Second

Appellant

- and -

JOHN VANDENBERG

(First Defendant)

- and -

CELIA KARP

(Second Defendant) Respondent

REASONS FOR JUDGMENT OF THE COURT

Delivered the Seventeenth day of February, 1993.

MINUTE OF ORDER:	Appeal allowed in part.
In each case substitute for the awards of $4,000 damages made below, awards of $2,000.
The respondent to pay to the appellants one quarter of the taxed costs of the hearing below and of the appeal, including reserved costs if any.
CATCHWORDS:	DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - Report prepared for local authority - Wh statements capable of being defamatory - Wh defamatory in fact - Wh qualified privilege - Wh fair comment.
COUNSEL:	C.E. Hampson, Q.C., with him J. Lee for the appellant.
D. Fraser for the respondent
SOLICITORS:	Goodfellow & Scott for the appellant. Bowdens for the respondent.

DATES OF HEARING: 31 July and 3 August, 1992.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 13 of 1992

Q FORD PTY. LTD.

(First Plaintiff) First

Appellant

- and -

IAN M. FIELD

(Second Plaintiff) Second

Appellant

- and -

JOHN VANDENBERG

(First Defendant)

- and -

CELIA KARP

(Second Defendant) Respondent

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

The Chief Justice Mr Justice Davies Mr Justice Pincus

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

Reasons for judgment of the Court delivered

the Seventeenth day of February, 1993

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

Appeal allowed in part.

In each case substitute for the awards of
$4,000 damages made below, awards of $2,000.
The respondent to pay to the appellants one
quarter of the taxed costs of the hearing
below and of the appeal, including reserved
costs if any.