Sorrenson v McNamara - [2003] QCA 149

SUPREME COURT OF QUEENSLAND

CITATION:

Sorrenson v McNamara [2003] QCA 149

PARTIES:

RAYMOND JOHN SORRENSON
(plaintiff/appellant)
v
MARK McNAMARA

(defendant/respondent)

FILE NO/S:

Appeal No 4592 of 2002
DC No 824 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

4 April 2003

DELIVERED AT:

Brisbane

HEARING DATE:

3 March 2003

JUDGES:

McPherson JA, Mackenzie and Philippides JJ

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

DEFAMATION – STATEMENTS AMOUNTING TO DEFAMATION – JUSTIFICATION – GENERALLY – defendant gave his opinion about the plaintiff to other unit owners – plaintiff board member – whether defendant’s opinion is ‘information’ – whether ‘subject’ should be narrowly defined – whether defendant actuated by ill will or believed the subject matter to be untrue

EVIDENCE – WITNESSES – REFRESHING MEMORY – GENERALLY – notes used to refresh memory by defendant not put to plaintiff in cross-examination – notes ruled inadmissible – whether should have allowed them and allowed rebuttal evidence to be given – defendant gave evidence by reading from notes – whether renders evidence inadmissible even when notes are produced on objection

Defamation Act 1889 (Qld), s 16(1)(e), s 16(2), s 17
Evidence Act 1977 (Qld), s 92

Botterill v Whytehead (1879) 41 LT 588, referred to
Cox v Feeney (1863) 4 F & F 13, referred to
King v Bryant (No 2) [1956] St R Qd 570, applied

COUNSEL:

P Hackett for the plaintiff/appellant

M J Eastwood for the defendant/respondent

SOLICITORS:

Gadens Lawyers for the plaintiff/appellant
Hislocks Lawyers for the defendant/respondent

McPHERSON JA: The plaintiff Raymond Sorrenson appeals against a decision dismissing his claim for damages for defamation in an action brought against the defendant Mark McNamara in the District Court at Southport. In May 2000 the parties were owners of units in the Brentwood Apartments on the Gold Coast. The plaintiff was a member of the committee of the body corporate of the building and had formerly been its chairman.

The source of the dispute giving rise to the proceedings was the conduct of Mr Kevin Hoey, who in May 2000 was, and for some two years or so before had been, the manager of the units. The defendant was dissatisfied with his performance in that role and had for some time been urging the committee, but without success, to terminate Mr Hoey’s management agreement.

On 14 May 2000 the defendant and his wife returned to the units after going out shopping and parked their car in the garage. The plaintiff and Hoey were in or around the garage area when the defendant made a remark in passing about the presence of an electric lead, which ran along the floor through the area in question. Hoey took offence at this remark, and head-butted the defendant. Punches were thrown and the two men fell to the ground in a struggle. The fracas came to an end only when someone…

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 Sorrenson v McNamara

Details

AGLC: Sorrenson v McNamara [2003] QCA 149
Case: [2003] QCA 149
Decision Date: 4 April 2003

CaseChat Overview and Summary

In the case of Sorrenson v McNamara, the appellant, a board member of a unit title scheme, brought a defamation claim against the respondent who had made disparaging comments about the appellant to other unit owners. The appellant argued that the respondent's statements amounted to defamation and sought to challenge the respondent's defence of justification. The case was heard in the Supreme Court of Victoria, which dismissed the appeal with costs. The legal issues before the court were whether the respondent's opinion constituted information, whether the subject matter of the statements should be narrowly defined, and whether the respondent was actuated by ill will or believed the statements to be untrue.

The court examined the nature of the respondent's statements and whether they amounted to defamatory information. It was determined that the respondent's opinion, while subjective, could still be considered information as it was communicated to other unit owners. The court also considered whether the subject matter of the statements should be narrowly defined, and found that a broader interpretation was appropriate in this case. Furthermore, the court evaluated whether the respondent was actuated by ill will or believed the subject matter to be untrue. It was concluded that the respondent's belief in the truth of the statements was genuine and not motivated by ill will.

In relation to the evidence presented, the court addressed the admissibility of notes used by the respondent to refresh their memory during their testimony. The notes had not been disclosed to the appellant prior to the respondent's cross-examination, and were subsequently ruled inadmissible. The court considered whether the notes should have been allowed and whether rebuttal evidence should have been permitted. The court also examined whether the respondent's reading from the notes during their evidence rendered it inadmissible, even when the notes were produced upon objection. Ultimately, the court found that the admission of the notes did not affect the overall outcome of the case.

The appeal was dismissed with costs awarded to the respondent. The court's decision was based on the conclusion that the respondent's statements did not amount to defamation, and that the respondent's defence of justification was valid. The court also found that the issues raised regarding the admissibility of the notes did not impact the overall outcome of the case.

Orders

Orders of the court

Appeal dismissed with costs

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

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CITATION:	Sorrenson v McNamara [2003] QCA 149
PARTIES:	RAYMOND JOHN SORRENSON (plaintiff/appellant) v MARK McNAMARA (defendant/respondent)
FILE NO/S:	Appeal No 4592 of 2002 DC No 824 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	4 April 2003
DELIVERED AT:	Brisbane
HEARING DATE:	3 March 2003
JUDGES:	McPherson JA, Mackenzie and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs
CATCHWORDS:	DEFAMATION – STATEMENTS AMOUNTING TO DEFAMATION – JUSTIFICATION – GENERALLY – defendant gave his opinion about the plaintiff to other unit owners – plaintiff board member – whether defendant’s opinion is ‘information’ – whether ‘subject’ should be narrowly defined – whether defendant actuated by ill will or believed the subject matter to be untrue EVIDENCE – WITNESSES – REFRESHING MEMORY – GENERALLY – notes used to refresh memory by defendant not put to plaintiff in cross-examination – notes ruled inadmissible – whether should have allowed them and allowed rebuttal evidence to be given – defendant gave evidence by reading from notes – whether renders evidence inadmissible even when notes are produced on objection Defamation Act 1889 (Qld), s 16(1)(e), s 16(2), s 17 Evidence Act 1977 (Qld), s 92 Botterill v Whytehead (1879) 41 LT 588, referred to Cox v Feeney (1863) 4 F & F 13, referred to King v Bryant (No 2) [1956] St R Qd 570, applied
COUNSEL:	P Hackett for the plaintiff/appellant M J Eastwood for the defendant/respondent
SOLICITORS:	Gadens Lawyers for the plaintiff/appellant Hislocks Lawyers for the defendant/respondent