Saal v Barnes

[1992] QCA 226

IN THE COURT OF APPEAL	[1992] QCA 226
SUPREME COURT OF QUEENSLAND	C.A No.'s 102 and 103 of 1991
BETWEEN:

CAROLINE SAAL

(Plaintiff)

Respondent

- and

JANET KAY BARNES

(First Defendant)

Appellant

- and -

THOMPSON KING & PARTNERS (a firm)

(Second Defendant) Appellant

JUDGMENT OF THE COURT

Delivered the 24th day of June, 1992

The appellants have appealed against a judgment

delivered in the District Court on 4 November 1991 whereby
each was ordered to pay to the respondent $3,028.00 plus her
costs, including reserved costs, of and incidental to the
action to be taxed on the appropriate District Court Scale,
with the costs ordered to be paid by the first appellant to

be taxed on a solicitor and client basis.

The first appellant is a former employee of a company

in which the respondent was a director and the second
appellant is a firm of solicitors which acted for the first

appellant in disputes with the respondent.

After the first appellant ceased her employment with

the respondent's company and commenced a rival business,
ill-will developed between the first appellant and the
respondent and her husband. The first appellant experienced
business difficulties which she attributed to the respondent
and her husband, whom she suspected were defaming her. A
private investigator engaged by the first appellant had a
discussion with the respondent which he recorded on audio
tape. In that discussion, the respondent impugned the
honesty and integrity of the first appellant who, on that
and other bases, commenced separate actions for defamation
against the respondent and her husband. However, with the
exception of the respondent's statements to the private
investigator and perhaps one or two relatively minor
incidents, the first appellant had no evidence of
defamation.

A list of persons to whom it was suspected defamatory

statements might have been made by the respondent was
compiled by the first appellant, and the second appellant,
on her behalf, wrote to each of those persons in the

following terms:

"We advise we act on behalf of Ms. Janet Barnes in
relation to the abovementioned defamation action

instituted against Caroline Saal.

We enclose a copy of the relevant portion of our
client's Statement of Claim. You will note the
comments complained of are principally accusations of

dishonesty against our client.

Our client instructs us that these accusations are
totally false. Further, Ms. Barnes is able to clearly
demonstrate the `publication' of these comments to Mr

Kerri Myers.

Ms. Barnes is, however, greatly concerned that these
comments, or some of them, may have been repeated to
other persons within the medical profession with whom
our client deals in the course of her business.

We would be most grateful if you would consider the comments detailed in the Statement of Claim and contact our Mr Park to discuss the matter."

The portion of the Statement of Claim enclosed with the

letter included particulars of the respondent's defamatory
statements concerning the first appellant during the
discussion between the respondent and the first appellant's

private investigator.

The letter and extract from the Statement of Claim were

sent to different groups of persons on two separate
occasions, but with little success. There was only one
positive response on the first occasion, and the trial judge
held that the appellants were aware that it was less likely
that a positive answer would be received on the second
occasion, when the persons to whom the letters were sent
included friends of the respondent.

The respondent commenced the present action for

defamation against the appellants alleging that, by the
letters and enclosed extract from the Statement of Claim,
the appellants defamed the respondent by accusing her of

untruthfulness and a lack of integrity.

The argument on the appeal to this Court substantially

centred upon whether or not the appellants' defamatory
publications were excused by sub-section 377(3) of the
Criminal Code which, in the circumstances, depends upon
whether the publications were made in good faith for the

protection of the interests of the first appellant.

There was some disagreement between the first appellant

and her solicitor, an associate member of the second
appellant (a firm), concerning the reason for publishing the
letter and extract from the Statement of Claim. The primary
purpose seems to have been to obtain evidence that
statements similar to those which the respondent had made to
the first appellant's private investigator had also been
made by the respondent to other persons. Other suggested
aims were to communicate the first appellant's denial of
misconduct to persons to whom she might have been defamed
and thus protect her reputation and generate sympathy for

her in her business struggle with the respondent's company.

The defamatory assertion in the letters that statements

allegedly made by the respondent against the first appellant
were false was perceived to be a necessary corollary to
informing the recipients of the letters of the respondent's
statements as particularised in the Statement of Claim.

One of the requirements of good faith for the purpose of section 377 of the Criminal Code is that the manner and extent of the publication sought to be excused does not

exceed what was reasonably sufficient for the occasion.
Other considerations aside, the appellants' publications
failed to satisfy that test.

Although her solicitor's evidence was that the first

appellant was "totally convinced" that she had been defamed
to each of the persons to whom the letter was sent, he was
aware of the basis for her supposed conviction which it was
apparent was not more than a "mere suspicion", as it was
described by the trial judge. A statement by the first
appellant taken by the solicitor which was in evidence
demonstrated that that suspicion was without any supporting
foundation in some instances and supported by little more
than speculative inference in some others, in which it was
apparently related to nothing or little more than refusal of
the first appellant's business overtures. Indeed, the very
terms of the defamatory letter which they published indicate
that the appellants were uncertain whether those to whom it
was sent were persons to whom the first appellant had been

defamed by the respondent.

It involves no rigid or technical approach to the

concept of good faith for the purpose of section 377 of the
Criminal Code to reject the argument that the course
followed by the appellants was no more than what was

reasonably sufficient in such circumstances.

Accordingly, the appellants' appeals against the

judgment in favour of the respondent fails.

The first appellant also appealed against the order

that the costs which she was ordered to pay to the

respondent are to be taxed on a solicitor and client basis.

It was common ground that that order was made under sub-

rule 118(1) of the District Court Rules, 1968 which provides
for such an order when a plaintiff makes an offer to settle
which is not accepted by a defendant and the plaintiff
obtains a judgment no less favourable than the offer to
settle. In such circumstances, the District Court is
required to order the defendant to pay the plaintiff's costs
on a solicitor and client basis unless the defendant shows
that another order for costs is proper in the circumstances.

Some months prior to the trial, the respondent had made

an offer to settle the action for $1,000.00 plus party and
party costs on the District Court Scale. The offer expired

without acceptance by the first appellant.

Shortly before the trial, the respondent intimated

that she proposed to seek leave to amend her claim to
include damages on additional grounds and leave to amend was
granted at the commencement of the trial. But for the
amendment, the respondent would have received less than the
amount for which she had offered to settle. However, in

the end she received more.

The trial judge considered that the attitude and

conduct of the first appellant in respect of other aspects
of the litigation had obstructed settlement and increased
the costs. Accordingly, being satisfied that the power to
order the first appellant to pay the respondent's costs
fixed on a solicitor and client basis under sub-rule 118(1)
of the District Court Rules, 1968 had been activated, he
concluded that he should make such an order. He considered
that, while the first appellant's omission to accept the
respondent's offer might have been justified by the
circumstance that, by her offer, the respondent sought more
than she was entitled to as her case was then pleaded, the
first appellant's obstructive attitude and conduct in the
litigation meant that she had not shown that a different

order for costs was proper in all the circumstances.

There is no error of principle demonstrated in the

approach adopted by the trial judge, and this Court ought

not interfere with the exercise of his discretion.

It was suggested that some minor correction of the form

of the order for costs is required but, if that is so, it

can be attended to in the District Court.

The order of this Court is that the appeals be

dismissed with costs to be taxed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No.'s 102 and 103 of 1991
Before the Court of Appeal
The President Mr. Justice Davies Mr. Justice Derrington
BETWEEN:

CAROLINE SAAL

(Plaintiff)

Respondent

- and

JANET KAY BARNES

(First Defendant)

Appellant

- and -

THOMPSON KING & PARTNERS (a firm)

(Second Defendant) Appellant

JUDGMENT OF THE COURT

Delivered the 24th day of June, 1992

MINUTE OF ORDER:	Appeals dismissed with costs
CATCHWORDS:
Counsel:	Mr Mulholland Q.C. with him Mr Boulton for the first Appellant
Mr Crowe for the second Appellant
Mr R. Hansen Q.C. with him Mr Varitimos for the Respondent/Plaintiff
Solicitors:	Messrs. Walker Pender for the first Appellant
Messrs. Clayton Utz for the second Appellant
Messrs. Power and Power as agents for Michael J. Miller for the Respondent/Plaintiff

Hearing Date: 20/05/92

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No.'s 102 and 103 of 1991
BETWEEN:

CAROLINE SAAL

(Plaintiff)

Respondent

- and

JANET KAY BARNES

(First Defendant)

Appellant

- and -

THOMPSON KING & PARTNERS (a firm)

(Second Defendant) Appellant

__________________________________________________

__

The President
Davies JA
Derrington J
__________________________________________________

__

Judgment of the Court delivered on 24th day of June

1992

__________________________________________________

__

Appeals dismissed with costs.