Rowe v Emmanuel Education Ltd (no 2)
[2013] QCAT 359
•27 March 2013
| CITATION: | Rowe v Emmanuel Education Ltd (no 2) [2013] QCAT 359 |
| PARTIES: | Chad Rowe (Applicant) |
| v | |
| Emmanuel Education Ltd t/as Emmanuel College (Respondent) |
| APPLICATION NUMBER: | MCD51637/12 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Clare Endicott, senior member |
| DELIVERED ON: | 27 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: |
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| CATCHWORDS: | NON PUBLICATION ORDER – threatened publication of material on social media – where allegations that material was defamatory – where submissions that publication would be an abuse of process Defamation Act 2005 s 27 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Chad Rowe |
| RESPONDENT: | Emmanuel Education Ltd t/as Emmanuel College represented by Corney & Lind Lawyers |
The application was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The Tribunal had made an order on an urgent ex parte basis to prohibit publication of the contents of any document filed in the Tribunal in this proceeding until 4pm on 27 March 2013. Directions were also made for the parties to file submissions about the application for a non-publication order sought by the College.
The respondent College had submitted to the tribunal in its application for a non publication order that material filed by Mr Rowe was defamatory of the respondent, its principal and its Board. The respondent submitted that the filing of the material by Mr Rowe constituted an abuse of process.
The evidence established that Mr Rowe had written a letter to the principal of Emmanuel College on the morning of 22 March 2013 and asserted that he will be setting up a Facebook page and website to outline material that is legally available to members of the public concerning his dispute with the College. Mr Rowe had written in his letter that the link will be broadcast over all social networks within the next week and will be available to anyone. Mr Rowe asserted in his letter that the site will be done in such a way to expose the truth concerning Emmanuel College, the treatment of its students and its parents. Mr Rowe asserted that the site will not be defamatory but simply report on the truth.
Through its lawyers, Emmanuel College asserted to Mr Rowe that the foreshadowed publishing would be defamatory and sought an undertaking from Mr Rowe that he would not publish online or otherwise any material or statement about Emmanuel College, its employees, officers or directors without providing the lawyers for the College with at least 2 business days to review such material or statements.
Mr Rowe responded on the afternoon of 22 March 2013 declining to give an undertaking. He asserted that if he published defamatory material, the College would have an action under the Defamation Act 2005. Mr Rowe acknowledged that the respondents might make an interlocutory application. He commented that if they did so, it will give him more material for his website and Facebook page.
In his submissions to the Tribunal, Mr Rowe denied that any defamatory documents exist in this proceeding. He submitted that material in the proceeding is protected by section 37 of the Defamation Act 2005. He also submitted that documents in the proceeding are already in the public domain and the College had not raised any concerns about the documents in their previously filed submissions in the minor civil dispute matter.
In the submissions filed on behalf of the College, the respondent argued that a non-publication order was necessary in the proper administration of justice to prevent Mr Rowe from filing documents or indeed giving oral evidence in QCAT containing scurrilous, unfounded, irrelevant and irrational allegations and then being free to publish those documents to the world under a cloak of absolute protection from the laws of defamation.
The respondent’s submissions referred to what were described as specific examples of scurrilous, unfounded, irrelevant and irrational material. In particular, the submissions identified 10 paragraphs in Mr Rowe’s affidavit sworn 19 February 2013, 12 paragraphs of his submissions of 18 March 2013 and another 28 paragraphs of his submissions of 21 March 2013 which the respondent contended contained this type of objectionable material. One such example relates to labelling the comments made by a person associated with the College as perjury and the respondents submit that this allegation could have no other purpose than to falsely tarnish the reputation of that person and of the College. This particular allegation of perjury is repeated in Mr Rowe’s supplementary submissions of 21 March 2013.
QCAT had not made a final decision on the minor civil dispute matter involving the parties. No findings had been made on the evidence relied on by the parties and no findings had been made on the credit of the parties. The member who makes a final decision in the dispute may reject some or all of the evidence of Mr Rowe or may prefer the evidence of the respondent whenever the evidence produced by the parties conflicts.
Mere reciting of facts by a party or an analysis of the evidence by a party to support a desired outcome in a document filed in the Tribunal or in oral submissions made at a hearing does not render the facts as sound or even truthful. Publication of those facts or of some analysis of the evidence will not inevitably promote the truth of a situation or add to an informed discussion in a public arena. The respondent submitted that Mr Rowe has filed documents containing scurrilous, unfounded, irrelevant and irrational allegations with an obvious ulterior motive to give himself a basis to republish that material as widely as possible with immunity from suit for defamation.
The respondent submitted that the material filed by Mr Rowe is an abuse of process by him. The respondent submitted that such a conclusion can be reached by reference to extrinsic facts. The respondent referred to proceedings on the same subject matter in the QCAT dispute brought by Mr Rowe in the Federal Magistrates Court, his delivery of a notice of claim against the College under the Personal Injuries Proceedings Act 2002 arising out of the same dispute and his threat to commence defamation proceedings against the College in the District Court arising out of the same dispute.
The respondent submitted that Mr Rowe’s answer to the non-publication application on the basis that the material will not be defamatory because it is protected by the Defamation Act 2005 is circular reasoning. The respondent submitted that by his own argument Mr Rowe has tacitly admitted that he wants to publish material that would constitute actionable defamation but for the protection given by section 27 (not 37) of the Act. As Mr Rowe asserts that he is in dire financial circumstances, the respondent submitted that an award of damages would not be an adequate remedy for any harm caused to the respondent and persons associated with the College by the publication of the material identified as objectionable.
I found the submissions of the respondent to be persuasive. The language used by Mr Rowe in the paragraphs identified by the respondent is emotive, bold in its assessment of the motives of the respondent and capable of being found to damage the reputation of the respondent and persons associated with the respondent. Many of the assertions identified by the respondents in its submissions are unfounded and appear to be of marginal or of no relevance to the dispute between the parties.
It would amount in my view to an abuse of process for Mr Rowe to publish untested and probable defamatory allegations on the basis that the documents which contain those allegations have been filed in QCAT or are contained in oral submissions recorded at a hearing and are already in the public domain. I accept the submissions of the respondent that Mr Rowe should not be permitted to use QCAT’s proceedings to make actionable assertions in documents filed in QCAT or in oral submissions which can then be published with impunity and protected from the risk of legal redress from the respondent.
The QCAT Act has provided QCAT with the power to regulate its proceedings and in an appropriate case such as this QCAT can prohibit the publication of information in the interests of justice. QCAT must deal with matters in a way that is fair and just. It is in my view unfair to permit one party to use QCAT’s proceedings for purposes unrelated to the just resolution of disputes and in doing so, to publish information that is untested and capable of damaging the reputations of persons caught up in the dispute.
Publication of the contents of documents filed in the Tribunal in this proceeding is prohibited except for the claim, the response to the claim and the decisions of the Tribunal until further order. Publication of evidence given orally before the Tribunal in this proceeding is prohibited. This order cannot prevent the lawful use of the documents as evidence in any proceedings in courts or tribunals established under the law of Queensland or Australia or of another Australian jurisdiction.
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