Stebbings v Goding
[2013] QDC 108
•30 April 2013
DISTRICT COURT OF QUEENSLAND
CITATION:
Stebbings v Goding [2013] QDC 108
PARTIES:
JAMES FREDERICK STEBBINGS
(plaintiff/applicant)
v
GREG GODING
(defendant/respondent)
FILE NO/S:
4531/12
DIVISION:
Civil
PROCEEDING:
Application
DELIVERED ON:
30 April 2013
DELIVERED AT:
Brisbane
HEARING DATE:
18 April 2013
JUDGE:
Horneman-Wren SC DCJ
ORDERS:
1. That paragraph 8 of the further and better particulars of paragraph 10 of the defence contained in the plaintiff’s r 445 letter of 18 March 2013 be struck out.
2. That the defendant file and deliver any further particulars of paragraphs 4(b)(iv) and 10 of the defence within 14 days.
3. The costs of and incidental to the application are reserved.
CATCHWORDS:
PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – PARTICULARS – where the plaintiff brought an action for defamation against the defendant – where the plaintiff sought particulars of the defence of qualified privilege be struck out – where the particulars identified responsibilities of the role said to give rise to qualified privilege – where the plaintiff submitted that each particular failed to plea a basis for a duty to publish – whether particulars should be struck out
PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – PARTICULARS – where the plaintiff brought an action for defamation against the defendant – where the plaintiff sought particulars of the defence of triviality be struck out – whether particulars should be struck out
Defamation Act 2005, s 30, s 33
Uniform Civil Procedure Rules 1999, r 444, r 445, r 162
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366, cited
Chappell v Mirror Newspapers Pty Ltd [1984] Aust Torts Reports 80-691, cited
Guise v Kouvelis (1947) 74 CLR 102, cited
Howe McColough v Less (1910) 11 CLR 361, cited
Roberts v Bass (2002) 212 CLR 1, cited
Szanto v Melville [2011] VSC 574, cited
Toogood v Spyring (1834) 1 Cr M & R 181, cited
COUNSEL:
The Hon. M Foley for the plaintiff.
A Collins for the defendant.
SOLICITORS:
Cranston McEachern for the plaintiff.
Tress Cox Lawyers for the defendant.
The plaintiff seeks to have struck out five paragraphs of the defendant’s defence to defamation proceedings brought by the plaintiff. Four of the challenged paragraphs, 4(b)(iii); 4(b)(iv); 7(b)(ii) and 7(b)(iii) relate to the defendant’s defence of qualified privilege. The fifth challenged paragraph, paragraph 10, relates to the defendant’s defence of triviality.
Both the plaintiff and the defendant are Freemasons. The defendant is the Grand Superintendant of Workings (GSW) of the United Grand Lodge of Antient Free and Accepted Masons of Queensland (UGLQ). He is also the Director of Ceremonies (DC) of Burleigh Lodge 307, Meridian Lodge 404 and Millennium Lodge 535.
The defamation of the plaintiff is alleged to have occurred in two emails published by the defendant in November 2011 and May 2012.
Qualified Privilege
The first email – paragraph 4 of the Defence
The plaintiff had emailed a letter on 24 October 2011 addressed to the Grand Secretary, United Grand Lodge of Queensland. That letter had been published by the plaintiff to 17 people. In his letter the plaintiff had raised a number of matters concerning the conduct of the lodges of which the defendant is Director of Ceremonies. The concerns included the expression of the plaintiff’s opinion that “…these three lodges are not always being run according to the Book of Constitution to which we are all supposed to be bound”.
The defendant’s first email the subject of the proceedings consisted of comments which he had interspersed within the text of the plaintiff’s letter, and which he then published to the original recipients of the plaintiff’s letter.
In his defence, the defendant denies the defamatory imputations which the plaintiff alleges the defendant’s first email bore. The defendant further pleads that if the first email does bear the defamatory meanings alleged by the plaintiff, there was a lawful excuse for the publication because it attracted the defence of qualified privilege at common law and/or pursuant to s 30 of the Defamation Act 2005 (Qld).
In support of his pleading of the defence of qualified privilege, the defendant pleaded, at paragraph 4(b)(iii), that:
“The first email was published by the defendant, in the defendant’s capacity as GSW and DC.”
The plaintiff sought further and better particulars of “the specific responsibilities of the Defendant and its (sic) capacity as Grand Superintendent of Workings and Director of Ceremonies” giving rise to that allegation.
The defendant provided the following further and better particulars:
“1. As to paragraph 4 of the Defence:
(a) The specific responsibilities of the Defendant:
(i) In the Defendant’s capacity as GSW, pursuant to article 74 of the Constitution of the United Grand Lodge of Antient Free and Accepted Masons of Queensland (Constitution), included that the Defendant be as well informed as reasonably practicable with respect to “the Masonic condition of Lodges including their methods of working and whether or not the laws and regulations and resolutions of Grand Lodge are strictly carried out and complied with”; and
(ii) In the Defendant’s capacity as DC of the Burleigh, Meridian and Millennium Lodges, included that the Defendant arrange and direct all aspects of the processions and ceremonies conducted in relation to the Burleigh, Meridian and Millennium Lodges.”
On 11 March 2013 the plaintiff’s solicitors wrote a letter pursuant to r 444 of the Uniform Civil Procedure Rules 1999 in which they raised the complaint that the particulars provided to paragraph 4(b)(iii) of the defence were not relevant to the allegation that the first email was published by the defendant in the defendant’s capacity as GSW and DC.
The plaintiff did not elaborate on why those particulars were said not to be relevant to the allegations. However, it is to be recalled that the particulars which had been sought by the plaintiff were of the specific responsibilities of the offices held by the defendant giving rise to the allegation that the first email was published in the defendant’s capacity as the holder of those offices.
The particulars provided are responsive to the request. They indentify particular responsibilities. Whether the responsibilities so identified can, as a matter of fact, sustain the allegation would seem a matter for the trial.
The solicitors for the defendant responded with a letter pursuant to r 444 of the UCPR. Whilst maintaining that adequate particulars had already been provided, the defendant provided the following further and better particulars of paragraph 4(b)(iii) of his defence:
“1. The Defendant as GSW had:
(a) The responsibility to supervise lodges throughout Queensland; and
(b) The responsibility to advise the Grand Lodge with respect to the Masonic condition of lodges in Queensland and whether the affairs and workings of lodges are in accordance with authorised rituals and the Constitution of the United Grand Lodge of Antient Free and Accepted Masons of Queensland (Constitution).
2. The Defendant as DC had:
(a) The responsibility to see that the ceremonies of the Burleigh, Meridian and Millennium Lodges (Lodges) were carried out with propriety and decorum;
(b) The responsibility to investigate and respond to any allegations regarding the conduct of the Lodges;
(c) The responsibility to conduct the supper following the meeting, including making, introducing and/or organising toasts and responses;
(d) The responsibility to see that visitors were placed according to their rank during ceremonies; and
(e) The responsibility to see that Officers occupied their respective stations during ceremonies.”
Again, these are particular responsibilities identified by the defendant which are responsive to the request made. They include a responsibility to advise the Grand Lodge of, and to investigate and respond to any allegations in respect of, the very kinds of matters raised by the plaintiff in his letter of 24 October 2011 to the Grand Secretary.
The plaintiff submits that the defendant “has failed to plead a basis of a ‘duty to publish’ in his capacity as GSW and DC. Such a duty is necessary for the defence of qualified privilege …”.[1]
[1]Paragraph 9 of the plaintiff’s written outline.
The privilege will attach to communications “fairly made by a person in the discharge of some public or private duty, whether the legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned.”[2]
[2]Toogood v Spyring (1834) 1Cr M & R 181 at 193 [149 ER 1044 at 1049-1050]; as referred to with approval in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 per Gleeson CJ, Hayne and Heydon JJ at [9].
The reciprocity of duty or interest necessary for a defence of qualified privilege was described in Roberts v Bass[3] as follows:
“The common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it. Communications made on such occasions are privileged because their making promotes the welfare of society. But the privilege is qualified – hence the name qualified privilege – by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement.”
[3](2002) 212 CLR 1 at 26 [62] per Gaudron, McHugh and Gummow JJ.
In Bashford v Information Australia,[4] Gummow J observed that this statement from their Honours in Roberts v Bass is consistent with the proposition put in 1869 in Starkie on Slander and Libel[5] that “the ‘duty’ spoken of cannot be confined to legal duties which may be enforced by curial remedy, ‘but must include moral and social duties of imperfect obligation’ ”.
[4]Supra at 416 [137].
[5]3rd Edition.
Gummow J also referred to the judgement of Griffith CJ in Howe McColough v Lees[6] where his Honour had explained:
“The term ‘moral duty’ is not used in a sense implying that a man who failed to make the communication under the circumstances would necessarily be regarded by this fellows as open to censure, but in the sense implying that it was made on an occasion on which a man who desired to do his duty to his neighbour would reasonably believe that he ought to make it.”
[6](1910) 11 CLR 361, 368 – 369.
Gleeson, Hayne and Heydon JJ in their joint judgment,[7] and Gummow J in his judgment, referred to the judgment of Dixon J in Guise v Kouvelis[8] where his Honour had said:
“The very width of the principles governing qualified privilege for defamation makes it more necessary, in deciding how they apply, to make a close scrutiny with the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication.”
[7]At [10].
[8](1947) 74 CLR 102 at 116.
In my view, in applying to have paragraph 4(b)(iii) struck out, the plaintiff approaches the issue of whether the defendant had a “duty to publish” too narrowly and restrictively. The plaintiff’s approach does not accommodate the breadth of the duty or interest in publishing the communication which may attract the privilege explained in the authorities.
Whether those responsibilities as identified by the defendant are able to, or do, sustain the allegation as to the circumstances of qualified privilege pleaded, is a matter which will require findings of fact to be made at the trial.
Paragraph 4(b)(iii) and the particulars provided should not be struck out.
Also in support of his pleading of the defence of qualified privilege the defendant has pleaded, at paragraph 4(b)(iv) of his defence:
“The Defendant, as DC of Burleigh, Meridian and Millennium, has the responsibility of supervising the conduct of the masonic ceremonies and ensuring that ceremonies are conducted in accordance with the ritual, the book of constitutions, and the laws and regulations of the UGLQ.”
In its letter requesting further particulars of 1 February 2013, the plaintiff, in respect of this pleading, sought “(p)articulars in the way in which the said publication arose from the alleged responsibility”. The defendant did not supply further and better particulars because he said that this was not a proper request.
No mention of the pleading at paragraph 4(b)(iv) of the defence was made in the plaintiff’s r 444 letter of 11 March 2013. The defendant’s solicitor raised this in a letter to the plaintiff’s solicitors on 13 March 2013. The plaintiff’s solicitor contested that interpretation of their r 444 letter in correspondence dated 18 March 2013. Before that letter was received by the defendant’s solicitors, they had replied by their r 445 letter of 18 March 2013. They reiterated that no complaint had been made with respect to paragraph 4(b)(iv) and provided no response concerning that paragraph, nor any further particulars of it.
The plaintiff’s solicitors in their letter of 18 March 2013 asserted that their r 444 letter had referred to “Request 1” and thus included paragraph 1(b) of the request for particulars which related to both paragraph 4(b)(iii) and (iv) of the defence. However, no part of the compliant in the r 444 letter is referrable to paragraph 4(b)(iv) of the defence, nor any failure to provide further particulars of that paragraph.
The defendant’s written outline of submissions, at paragraphs 19 and 20, proceeds on the misunderstanding that the particulars within the r 445 letter concerning the responsibilities of the DC were provided in respect of paragraph 4(b)(iv) of the defence. They were not. They were provided, as I have set out at paragraph 14 above, in respect of paragraph 4(b)(iii).
On the hearing of the application, counsel for the defendant submitted that the circumstances which are pleaded in support of the defence of qualified privilege are all those matters set out in paragraph 4 of the defence. They are matters which are to be considered together, not separately. It was, therefore, not correct to examine in isolation a sub paragraph of paragraph 4(b) to see if it would support the defence. That submission is correct; and it applies to the attack made by the plaintiff on paragraph 4(b)(iv).
Paragraph 4(b)(iv) should not be struck out.
Given that there has been a dispute between the parties as to whether paragraph 4(b)(iv) was subject to compliant in the r 444 letter, and given that the defendant’s written submissions were based upon an incorrect understanding of whether particulars of paragraph 4(b)(iv) had, in fact, been provided, I will order that the defendant deliver any further and better particulars for paragraph 4(b)(iv) of the defence within 14 days.
The second email – paragraph 7 of the Defence
The second email the subject of the proceedings was published by the defendant to several persons on 2 May 2012. At paragraph 7 of the defence, the defendant pleads the circumstances which he alleges gives rise to a defence of qualified privilege in respect of that publication. Those circumstances include, at paragraphs 7(b)(ii) and (iii):
“(ii) AGSWs (Assistant Grand Superintendant of Workings) represent the UGLQ at regular meetings of individual lodges and their role (amongst others) is to ensure the ceremony is conducted according to the approved ritual and to ensure that information is disseminated to the individual lodges:
(iii)The defendant (the GSW) receives enquiries from the AGSWs and is required to provide updates to the AGSWs on matters which impact upon the role and responsibilities of an AGSW;”
In respect of the allegation in paragraph 7(b)(ii) that the role of Assistant Grand Superintendants of Workings (who were the recipients of the second email) included “to ensure the ceremony is conducted according to the approved ritual and to ensure that the information is decimated (sic) to the individual lodges”, the plaintiff, in the request made on 1 February 2013, sought particulars of the source and nature of that role.
In respect of 7(b)(iii), the plaintiffs’ request for particulars was for the source and nature of the requirement of the GSW to provide updates to AGSWs on maters which impact on the role and responsibilities of an AGSW.
The particulars provided were:
“2. As to paragraph 7 of the Defence:
(a)Assistant Grand Superintendant of Workings (AGSW) is a rank of the Grand Lodge pursuant to the Constitution. The rank of AGSW is in relation to a District defined by the Board of General Purposes. Pursuant to article 77, AGSWs are required to visit each lodge within their respective Districts in order to report to the GSW on the general conditions of the lodges visited and “shall perform such special duties as the Board of General Purposes may direct”;
(b)A Grand Superintendant of Workings is an Office of the Grand Lodge pursuant to the Constitution and the requirement as pleaded in paragraph 7(b)(iii) of the Defence arose from the Defendant’s responsibility, as pleaded in 1(a)(i) above, and the practical necessity for the Defendant, as GSW, to liaise and work with his subordinate AGSWs.”
In their r 445 letter, the solicitors for the defendant provided the following further particulars:
“3.The source of the requirement is the Defendant’s Office in the Grand Lodge pursuant to the Constitution and as a matter of usage and custom.
4.The nature of the requirement is that the AGSWs assist the GSW to fulfil his responsibilities, as described … above.”
The plaintiff’s contention on the application in respect of paragraph 7 is the same as that in respect of paragraph 4: the defendant has failed to plead a basis of a duty to publish in his capacity as GSW and DC.
However, as with paragraph 4, the plaintiff’s approach to whether there was a “duty to publish” is too narrow. When properly viewed in light of the authorities discussed above, the matters pleaded in paragraph 7(b)(ii) and (iii) are relevant to whether there was a duty or interest on the part of the defendant to publish the communication and a corresponding duty or interest on the part of the AGSWs to receive it.
Again, whether the allegations as particularised are able to be established on the facts, and if established will support the defence of qualified privilege, are matters for trial.
Neither paragraph 7(b)(ii) nor 7(b)(iii) should be struck out.
Defence of triviality – paragraph 10 of the Defence
By paragraph 10 of his defence the defendant pleads a defence pursuant to s 33 of the Defamation Act 2005. He says of both the first and second emails that the circumstances of the publications were such that the plaintiff was unlikely to sustain any harm.
Particulars of this pleading were sought in the plaintiff’s request of 1 February 2013. The particulars provided were:
“3. As to paragraph 10 of the Defence:
(a)On or about 17 November 2011, the Plaintiff was informed that he was charged with offending the laws and regulations of the Craft on the basis that the Plaintiff was inciting disharmony against the Board of General Purposes;
(b)On or about 17 November 2011, the Plaintiff was informed that he was required to surrender his Grand Lodge Certificate and was not allowed to attend any Lodge Meeting until the Grand Lodge Certificate was returned;
(c)On or about 15 December 2011, the Plaintiff was informed that he was charged with Unmasonic Conduct and a Breach of Masonic Discipline on the basis that the Plaintiff openly alleged that during the period October 2009 to December 2011, senior members of the fraternity improperly, unlawfully and otherwise without lawful justification, falsified some or all documents evidencing the transfer of assets formally owned by Coolangatta Lodge No. 298 to the United Grand Lodge of Queensland.
(d)On or about 24 April 2012, the Plaintiff was notified that the Board of General Purposes of the United Grand Lodge of Queensland proposed to recommend to the Grand Lodge that the Plaintiff be expelled from the Craft.”
In their r 444 letter on 11 March 2013 the plaintiff’s solicitors complained in respect of these particulars that:
“It is by no means clear how or in what way the events referred to … give rise to circumstances such that the Plaintiff was unlikely to sustain any harm or were trivial within the meaning of Section 33 of the Defamation Act 2005. The Plaintiff is left to guess at the case he has to meet in paragraph 10 of the Defence.”
In their r 445 letter, the defendant’s solicitors, whilst again asserting the adequacy of the particulars already provided, provided the following further particulars:
“5.In his email to the Grand Secretary dated 24 October 2011, the Plaintiff named the Defendant and raised issues in relation to whether the ceremonies and business of the Lodges were being conducted according to the Constitution.
6.The Plaintiff requested that the issues the Plaintiff raised be brought to the attention of the Grand Master and the Board of General Purposes. The publication of the First and Second Email was in circumstances where the defendant was the appropriate person (holding the office of GSW and DC) to respond to the allegations made by the plaintiff.
7.The publication of the first email and second email was in circumstances where the Board of General Purposes had already suspended the Plaintiff and charged him with offending the laws and regulations of the Craft.
8.The Plaintiff was unlikely to sustain any harm because the Board of General Purposes already considered the Plaintiff’s conduct to be unmasonic.”
Notwithstanding the provision of those particulars, in this application the plaintiff makes the same compliant about the adequacy of the pleading of the triviality defence as made in the r 444 letter as set out above.
The defence of triviality was recently considered by the Supreme Court of Victoria in Szanto v Melville.[9] Kaye J at [155] referred to the decision of the New South Wales Court of Appeal in Chappell v Mirror Newspapers Ltd[10] in which it was held that the phrase “the circumstances of the publication” as contained in s 33 of the Defamation Act did not encompass the nature of the antecedent reputation of the plaintiff.
[9][2011] VSC 574.
[10][1984] Aust Torts Reports 80-691, page 68942.
In my view, the final paragraph (paragraph 8) of the further particulars provided in the r 445 letter as set out above seeks, impermissibly, to include the plaintiff’s antecedent reputation within the circumstances of the publication. That paragraph of the particulars should be struck out under r 162 of the UCPR.
In Szanto v Melville, Kaye J also set out a number of points about the triviality defence which had been made by Moffitt P in Chappell v Mirror Newspapers. Those points were that:
1. The defence is directed entirely to the circumstances of the publication.
2. In particular, the central issue concerns the “… quality of the publication in respect of its proneness to cause harm”. The enquiry is directed to the moment of publication. “Actionability does not depend upon an enquiry as to what thereafter happens and in particular whether or not harm in fact probably resulted from the publication”.
3. It is important that full force be given to the words “the circumstances of the publication”. There should not be substituted an enquiry where the “in all the circumstances” the plaintiff would probably not suffer harm.
4. The content of “circumstances of the publication” must admit of some context, but only such context as would serve to define the circumstances of the publication, and their relevant operation in relation to the likelihood of harm.
5. “Publication” is the act of communication, by which the defamatory imputation is conveyed to a recipient of it. Thus, the “circumstances of the publication” include any special circumstances of the recipient, such as his or her relationship to the defamed party.
The particulars otherwise provided in respect of paragraph 10 of the defence, in my view, could only be relevant to the circumstances of publication in the contextual sense referred to in point 4 above. They are only relevant in that sense to the defence of triviality.
The defendant in his written submissions says that “(t)he determination of whether the circumstances were “trivial” is a matter for the fact finder. The particulars provided allow for that argument to proceed.” Insofar as that submission seeks to advance the particulars provided beyond context it ought to be rejected. It directs the enquiry beyond the moment of publication such that an “in all the circumstances” test would be applied.
However, given the relevance of those particulars to the context of the publication they should not be struck out.
I will order that the defendant provide any further and better particulars of paragraph 10 within 14 days.
Orders
1. That paragraph 8 of the further and better particulars of paragraph 10 of the defence contained in the plaintiff’s r 445 letter of 18 March 2013 be struck out.
2. That the defendant file and deliver any further particulars of paragraphs 4(b)(iv) and 10 of the defence within 14 days.
3. The costs of and incidental to the application are reserved.
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