SUPREME COURT OF QUEENSLAND
CITATION:
Smith v Lucht [2016] QCA 267
PARTIES:
BRETT CLAYTON SMITH
(applicant)
v
KENNETH CRAIG LUCHT
(respondent)FILE NO/S:
Appeal No 12772 of 2015
DC No 1983 of 2013DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:
District Court at Brisbane – [2015] QDC 289DELIVERED ON:
20 October 2016
DELIVERED AT:
Brisbane
HEARING DATE:
6 May 2016
JUDGES:
Margaret McMurdo P and Philippides JA and Flanagan J
Separate reasons for judgment of each member of the Court, Philippides JA and Flanagan J concurring as to the orders made, Margaret McMurdo P dissenting in partORDERS:
1. Pursuant to s 118(3) and s 118(6) of the District Court of Queensland Act 1967 (Qld) the applicant be granted leave to appeal, limited to the grounds of appeal concerning the application and construction of s 33 of the Defamation Act 2005 (Qld).
2. The appeal is dismissed.
3. Leave to appeal against the costs orders made 15 December 2015 be refused.
4. The applicant pay the respondent’s costs of and incidental to the appeal.
CATCHWORDS:
DEFAMATION – OTHER DEFENCES – where finding at first instance that defamatory imputations concerning the applicant were made by the respondent – where the respondent relied on s 33 of the Defamation Act 2005 (Qld) – where the trial judge dismissed the applicant’s claim for defamation on the basis of s 33 of the Defamation Act 2005 (Qld) – whether the trial judge erred in finding that a defence had been made out under s 33 of the Defamation Act 2005 (Qld)
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS OR PHRASES – where finding at first instance that defamatory imputations concerning the applicant were made by the respondent – where the respondent relied on s 33 of the Defamation Act 2005 (Qld) – where the trial judge dismissed the applicant’s claim for defamation on the basis of s 33 of the Defamation Act 2005 (Qld) – where the trial judge construed s 33 of the Defamation Act 2005 (Qld) as being limited to reputational harm – whether the words “any harm” in s 33 of the Defamation Act 2005 (Qld) extends to harm to feelings
Defamation Act 2005 (Qld), s 3(c), s 6, s 11, s 15(1)(g), s 26, s 34, s 33, s 36
District Court of Queensland Act 1967 (Qld), s 118Barrow v Bolt (2015) Aust Torts Reports 82-248; [2015] VSCA 107, considered
Barrow v Bolt [2014] VSC 599, considered
Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89; [2014] QCA 33, cited
Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691, considered
Cunliffe v Woods [2012] VSC 254, cited
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56, cited
Enders v Erbas & Associates Pty Ltd (2014) Aust Torts Reports 82-161; [2014] NSWCA 70, considered
Jones v Sutton (2004) 61 NSWLR 614; [2004] NSWCA 439
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- AGLC
- Smith v Lucht [2016] QCA 267
- Case
- [2016] QCA 267
- Decision Date
CaseChat Overview and Summary
The court considered the statutory context of section 33 of the Defamation Act 2005 (Qld) and whether the word "harm" in that section should be construed to include harm to feelings. The court noted that sections 34 and 36 of the Act also contain the word "harm" and that these sections provide for damages to bear a rational relationship to the harm sustained by the plaintiff and disregard the malice or other state of mind of the defendant except to the extent that it affects the harm sustained by the plaintiff. The court found that the use of "harm" in sections 34 and 36 encompasses both harm to reputation and harm to feelings. The court also noted that section 33 falls within a different division of the Act dealing with defences and that the use of the word "harm" in section 33 may be contrasted with the specific reference to the requirement in section 26, in respect of the defence of contextual truth, that the defamatory imputations do not further "harm the reputation" of the plaintiff.
The court found that the trial judge did not err in construing section 33 of the Defamation Act 2005 (Qld) as being limited to reputational harm. The court held that the use of the word "harm" in section 33 should be construed narrowly to exclude harm to feelings. The court found that the trial judge's construction of section 33 was consistent with the subject matter of the Act and the context in which the word "harm" was used. The court also noted that the use of the word "harm" in section 33 may be contrasted with the specific reference to the requirement in section 26, in respect of the defence of contextual truth, that the defamatory imputations do not further "harm the reputation" of the plaintiff.
The court dismissed the applicant's appeal and refused leave to appeal against the costs orders made 15 December 2015. The court ordered that the applicant pay the respondent's costs of and incidental to the appeal. The court held that the trial judge did not err in construing section 33 of the Defamation Act 2005 (Qld) as being limited to reputational harm and that the applicant's appeal should be dismissed.
Orders
Orders of the court
1. Pursuant to s 118(3) and s 118(6) of the District Court of Queensland Act 1967 (Qld) the applicant be granted leave to appeal, limited to the grounds of appeal concerning the application and construction of s 33 of the Defamation Act 2005 (Qld).
2. The appeal is dismissed.
3. Leave to appeal against the costs orders made 15 December 2015 be refused.
4. The applicant pay the respondent’s costs of and incidental to the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Sections 34 and 36 of the Act also contain the word “harm”. These sections provide:“34 Damages to bear rational relationship to harmIn determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.…36State of mind of defendant generally not relevant to awarding damagesIn awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.” The applicant submits and it may be accepted that the reference to “harm” in s 34 and s 36 encompasses both harm to reputation and harm to feelings. Such a construction of the word “harm” in these sections is consistent with the subject matter which they address, namely, damages for defamation. Both sections fall within Part 4, Division 3 of the Act which deals with remedies. In the same way that the use of “harm” in s 15(1)(g) is relevant to the remedy but not to the constitutive element of a claim under the Act, the word “harm” in s 34 and s 36 is relevant to the compensable harm suffered by a plaintiff. By contrast, section 33 falls within a different division, namely Part 4, Division 2 of the Act which deals with defences. The applicant however, further submits by reference to s 34 and s 36 that the word “harm” as it appears in s 33, s 34 and s 36 should be construed uniformly so that “harm” in s 33 encompasses both harm to feelings and harm to reputation. In support of this submission the applicant refers to observations of Kaye JA in Barrow v Bolt. His Honour had previously considered the meaning of the word “harm” in s 33 in Szanto v Melville. In that case his Honour observed:“The correct construction of the term “harm” in s 33 is not without difficulty. The use of the same word, in s 34 and in s 36, supports the view that the word “harm” encompasses both injury to reputation and injury to feelings. Indeed, the use of the word “harm”, in s 33, may be contrasted with the specific reference to the requirement, in s 26, in respect of the defence of contextual truth, that the defamatory imputations do not further “harm the reputation” of the plaintiff because of the substantial truth of the contextual imputations.” [83][83]Szanto v Melville at [161] per Kaye J. His Honour made a similar observation in Barrow v Bolt:“As a matter of statutory construction, the question, as I have already observed, is not without its difficulties. The use of the term ‘the harm’ in s 34 and 36 of the Act, militates in favour of the view that the phrase ‘any harm’, in s 33 does include injury to feelings and distress resulting from the publication of the defamatory material to other persons. On the other hand, the use of the term ‘harm’ in s 11(3)(c) of the Act tends to support the opposite conclusion.”[84][84]Barrow v Bolt at 69,700 per Kaye JA.