Sunshine Coast Newspaper Company Pty Ltd v. Rea

[2007] QDC 268

DISTRICT COURT OF QUEENSLAND

CITATION:

Sunshine Coast Newspaper Company Pty Ltd v Rea [2007] QDC 268

PARTIES:

SUNSHINE COAST NEWSPAPER COMPANY PTY LTD (ACN 56 009 795 859)

Appellant

v

JOHN DOUGLAS REA

Respondent

FILE NO:

67 of 2007

DIVISION:

Appellate

PROCEEDING:

Appeal from Magistrates Court

ORIGINATING COURT:

Magistrates Court, Maroochydore

DELIVERED ON:

9 November 2007

DELIVERED AT:

Maroochydore

HEARING DATE:

21 September 2007

JUDGE:

K.S. Dodds, DCJ

ORDER:

The appeal is allowed.

CATCHWORDS:

APPEAL – DEFAMATION – where appellant named wrong person as convicted of an offence – where appellant’s information sourced from media release of Government Department

Defamation Act 1899(Qld) s 13(1)(e), s 16(1)(c), s 16(1)(e),        

s 16(1)(h)

Magistrates Court Act 1921 (Qld) s 47

Uniform Civil Procedure Rules (Qld) r 765

Cases cited:

Adam v Ward (1917) AC 309

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419

Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183

Campbell v Associated Newspapers Ltd (1948) 48 NSWSR 301

Justin v Associated Newspapers Ltd (1967) NSWLR 61

Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309

Telegraph Newspaper Company Ltd v Bedford (1934) 50 CLR 632

COUNSEL:

Mr R Anderson appeared for the appellant

Mr G Diehm appeared for the respondent

SOLICITORS:

Biggs and Biggs Lawyers appeared for the appellant

Butler McDermott and Egan Lawyers for the respondent

1. This is an appeal by a defendant against a judgement in defamation proceedings in the Magistrates Court.  On 6 March 2007 His Honour gave judgement for the plaintiff (the respondent to the appeal) in the sum of $8000 in damages plus interest and costs.

1. The appeal is by way of rehearing.[1]  It proceeded on the evidence before the Magistrate.  The jurisdiction of the court is provided in section 47 of the Magistrates Court Act 1921.

   [1]Uniform Civil Procedure Rules, rule 765.

1. It may be accepted for the purposes of the appeal that the publication in question was defamatory.  It may also be accepted that the respondent was unable to show a lack of good faith on the part of the appellant in publishing the defamatory material.  This was conceded by counsel for the respondent at trial and was accepted on appeal.

1. The parties were agreed the appropriate defamation law was the Defamation Act 1889.

Background

1. On 16 November 2004 the defamatory publication appeared in the Sunshine Coast Daily Newspaper under the headline “Concrete boss fined for illegal river excavation”.  It read:

“A Sunshine Coast company director has been fined $5000 in Caloundra Magistrates Court for illegally excavating a watercourse and removing saleable quarry material from it.  Right Mix Concrete Pty Ltd company director John Douglas Rea pleaded guilty to two offences which occurred between April 1 and May 1, 2004 at the Mary River, Conondale

The Department of Natural Resources and Mines (NR&M) South East regional compliance manager Paul Connolly said excavation work was carried out within the banks of the river and about 60 cubic meters of sand from the riverbed was removed.

“The defendant did not have a permit to excavate within the river or remove the quarry material which is an offence under the Water Act 2000” Mr Connolly said.

“The sand that was removed from the river bed was then transported to Mr Rea’s concrete plant at Conondale.”

Mr Connolly said the unauthorised excavation in the river had the potential to adversely affect the ecological integrity of the river and contribute to a decline in water quality.

“The quarry material is also subject to the payment of royalties to the state.”

Mr Rea was also ordered to pay $82.40 in royalties and court costs of $62.30.”

1. The evidence before His Honour was that the NR&M Department media office issued a press release on 12 November 2004 in the following terms:

“Media Release

$5000 fine for illegal excavation and sand removal

12 November 2004

A Sunshine Coast company director was fined $5000 in Caloundra Magistrates Court yesterday (November 11) for illegally excavating a watercourse and removing saleable quarry material from it.

Right Mix Concrete Pty Ltd company director John Douglas Rae pleaded guilty to the two offences which occurred between 1 April 2004 and 31 May 2004 at the Mary River, Conondale.

Department of Natural Resources and Mines (NR&M) South East regional compliance manager Paul Connelly said excavation work was carried out within the banks of the river and about 60 cubic meters of sand from the riverbed was removed.

“The defendant did not have a permit to excavate within the river or remove the quarry material which was an offence under the Water Act 2000” Mr Connelly said.

“The sand that was removed the riverbed was then transported to Mr Rae’s concrete plant at Conondale.”

Mr Connolly said the unauthorised excavation in the riverbed had the potential to adversely affect the ecological integrity of the river and contribute to a decline in water quality.

“The quarry material is also subject to the payment of royalties to the State.  It was removed without an allocation notice from the department and the defendant did not pay any State royalties for the use of the material” he said.

Mr Rae was also ordered by the court to pay $83.40 in royalties and court costs of $62.30.

Mr Connelly said that as the sand was taken for commercial purposes and its removal had the potential to seriously damage the waterway the court viewed the matter seriously.

“Our resources need to be carefully managed so that all resource users are operating on a level playing field” he said.

“Our natural resource laws are about resources users, the community and the environment a fair go”.

For Further information contact Paul Connelly

Phone [phone]

After hours 0439 876 180

Media Officer Marnie Stitz – [phone] or 0411 657 182”

1. The article in the newspaper was sourced from the media release.  The appellant neither had nor sourced any other information regarding the subject matter.

1. The information in the media release and in the newspaper article was factually incorrect.  Relevantly the respondent had not been prosecuted, pleaded guilty and fined.  Rather a private company Right Mix Concrete Pty Ltd of which the respondent was one of the Directors was prosecuted, pleaded guilty and fined.

The Defence

1. The defences pleaded by the appellant and rejected either expressly or impliedly by His Honour were the following sections of the Defamation Act 1899 (the Act):

Section 13(1)(e)

Section 16(1)(c)

Section 16(1)(e)

Section 16(1)(h)

1. The grounds of the appeal were that His Honour erred in rejecting these defences.  All except section 16(1)(c) were expressly rejected by His Honour in his reasons for judgement.  Section 16(1)(c) was not referred to in those reasons.  The failure to deal with this subsection in the reasons was also a ground of appeal.

1. It may be accepted that a successful prosecution under the Water Act 2000 for the offences was a matter about which readers of the Sunshine Coast Daily had an interest in being informed.  It may be accepted that fact was a matter of public interest.  In addition of course a further fact was published namely the purported identity of the offender.  It was the publication of that fact in addition to the other facts that was defamatory. 

Section 13(1)(e) of the Act

1. The subsection provides that it is lawful to publish in good faith for the information of the public at the request of any government department, officer of State or police officer, any notice or report issued by such department or officer for the information of the public.

1. The subsection provides a protection for publication of a notice or report issued by any government department, officer of State or police officer for the information of the public.  It is made lawful to publish in good faith the notice or report at the request of the government department, officer of State or police officer.

1. In Campbell v Associated Newspapers Ltd (1948) 48 NSWSR 301, a similar provision of the Defamation Act 1912 (NSW) was pleaded in defence of a defamation action. On demurrer Jordan CJ said that to qualify for the protection the notice or report must be of a genuinely official nature and must be issued in such circumstances that it may fairly be regarded as issued for the information of the public. It must be published in the form or substantially in the form in which it was supplied.[2]  Street J said that the publisher (newspaper) must publish the notice or report in the exact form in which it was issued by the organ of the State.   The protection only covered the actual words in the form in which they were used.  There must be no omission or addition.  “The report must not be rearranged or dressed up in order to render it more arresting or more readable from a journalistic point of view --- It is not permissible to edit or embroider the report to add defamatory captions or to make other alterations, additions or substitutions.”

   [2] At 303.

1. In rejecting this defence His Honour concluded the publication in the appellant’s newspaper had deviated from the text of the media release.  Some sentences had been omitted and a neutral heading of the media release had been replaced with the heading “Concrete boss fined for illegal excavation”.  He concluded there had been too much of a departure from the media release.

1. I am not persuaded His Honour erred by taking that view of it.  The most flagrant variation between the press release and the publication was the headline.  It is squarely within what Street J was referring to when he said, “it is not permissible to edit or embroider the report, to add defamatory captions or to make other alterations, additions or substitutions.”

Section 16(1)(c) of the Act

1. The section provides a lawful excuse for publication of defamatory matter if inter alia the publication is made in good faith for the public good.  Was the publication of the court proceeding, wrongly informing that the respondent had been convicted and headlining that in the manner it was, for the public good?

1. This and the other provisions of qualified protection in section 16 are considered to be based upon public policy.  “The principle upon which these cases are founded is a universal one, that the public convenience is to be preferred to private interests and that communications which the interests of society require to be unfettered may fairly be made by persons acting honestly without actual malice, notwithstanding that they involve relevant comments condemnatory of individuals”.[3] 

   [3] Adam v Ward (1917) AC 309 at 349. See also Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 654-7; Justin v Associated Newspapers Ltd (1967) NSWLR 61 at 75.

1. In his reasons His Honour did not expressly deal with this provision although it had been pleaded in the defence.  The reason for His Honour’s omission is not apparent.  The failure to do so was an error.  The questions then are, was it shown the publication related to a matter it was for the public good to publish and if so was the appellant’s intention in publishing it for the public good.  These questions are to be determined by reference to all the circumstances under which the publication was made.[4] 

   [4]Telegraph Newspaper Company Ltd v Bedford (1934) 50 CLR 632 at 656.

1. In Telegraph Newspaper Company Ltd v Bedford (1934) 50 CLR 632 it was held the public good may be regarded as; in the interests of the community; for the welfare of society; for the good of society in general; for the common convenience and welfare of society.[5]

   [5] At 662.

1. It may be accepted that the subject matter of the publication, the successful prosecution and penalty, was a matter it was for the public good to ventilate.  It may be accepted that the appellant’s intention in publishing was for the public good.  Whether it was shown that the actual publication related to a matter it was for the public good to publish required consideration of the circumstance that what was published was not the truth.  In Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 the New South Wales Court of Appeal said “In no objective sense could it therefore be said that publication could be for the public good where it is made with reckless indifference to the truth of what is published even if the subject matter of the publication could be taken to be a subject which it is for the public good to ventilate. That suffices to deny the defence. This is so, even if it could be said that something published with reckless disregard for its truth or falsity satisfied the subjective element as being with the intention of ventilating the subject for which it is for the public good to ventilate”.[6]

   [6] At paragraph [1282].

1. In this case the appellant made no enquiry regarding the matter in the press release.  It would have been a simple matter to do so.  There was no urgency to publish, confirmed by the delay in publishing.  But lack of enquiry is not necessarily conclusive of a reckless indifference of the truth.  All the surrounding circumstances are relevant.

1. The evidence does not establish a reckless indifference to the truth on the part of the appellant.  The source of the information was one which could reasonably be considered respectable and regarding the nature of its content, reliable.  It may have been prudent to do a check (particularly with hindsight) but in the circumstances here that is not reckless indifference to the truth.

1. This aspect of qualified privilege was established.

Section 16(1)(e) of the Act

1. The subsection provides that is a lawful excuse for the publication of defamatory matter if the purpose of the publication is to give information to the person to whom it is made (here the readers of the newspaper) with respect to a subject as to which they have or are believed on reasonable grounds to have “such an interest in knowing the truth as to make the publication reasonable under the circumstances”.

1. A purpose of publication of the Sunshine Coast Daily newspaper is to give information to its readers.  They have an interest in being informed of a successful prosecution and penalty imposed for breach of the Water Act 2000.  The publication of defamatory material, here, that the respondent was the offender, is excused so long as the readers interest in knowing the truth was such to make the publication reasonable.

1. His Honour rejected this defence because he considered that by creating and publishing the headline referred to earlier, the focus or emphasis was placed upon the person of the respondent rather than upon the subject, that is the successful prosecution and punishment for the offence. 

1. His Honour found himself unable to accept that the appellant’s conduct in what it published was reasonable.

1. I consider that His Honour’s conclusion about the application of this head of qualified privilege was open to him on the evidence.  I would not interfere with it.

Section 16(1)(h) of the Act

1. The subsection provides that it is a lawful excuse if the publication is made, inter alia, for the purpose of the discussion of some subject of public interest, the public discussion of which is for the public benefit and insofar as the defamatory matter consists of comment the comment is fair.

1. His Honour held that the defence had no application because the publication informed that the respondent had been convicted and fined, an untrue assertion   It could not apply because what was published was untrue and this could not be for the public benefit.  Moreover, the publication was not a discussion, rather it was a statement.   

1. In Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309, section 377(8) of the Criminal Code (Qld) was the subject of consideration. The section was in similar terms to section 16(1)(h) of the Act. The case was concerned with the publication of defamatory comment. The court held that the truth of the facts upon which the comment was based was relevant to the question of good faith. Absent lack of good faith, that the facts turned out not to be true did not exclude the operation of the defence.

1. In Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 it was held that the discussion of some subject of public interest was a reference to the conduct of a person “engaged in activities that either inherently, expressly or inferentially invited public criticism or discussion.” [7]   “The term is used in a limited sense to refer to the conduct of a person or institution whose conduct invites public criticism or discussion and should not be interpreted to refer in a broad sense to issues of public concern such as ‘organised crime and corruption in Queensland” or “trafficking in illegal drugs”.    “The defamation must be published in the course of or for the purposes of a discussion of the conduct of some person or institution that invites public criticism or discussion ---”.  “The defamatory publication may itself initiate a discussion for the purpose of the subsection.  It is not necessary that there should be an existing discussion of the subject before a publication attracts the operation (of the section) or that the defamatory matter should be published in the course of or for the purposes of a public discussion about the subject—”.[8]

   [7] At 221.

   [8] At 222-223.

1. His Honour was incorrect in his view that what was published was not part of a discussion but was a statement.  However I consider His Honour’s conclusion that the publication wrongly naming the respondent as the person convicted and fined for illegal river excavation was not for the public benefit, a conclusion open to him on the evidence.  It may be accepted the publication of a conviction and punishment for breach of the Water Act 2000 was a subject of public interest and that discussion of that was for the public benefit.  However, wrongly naming the respondent as the person convicted (the defamatory matter) was not relevant to any discussion for the public benefit

1. The appeal is allowed.  The learned magistrate’s judgement and orders are set aside.  I order judgement be entered for the appellant against the respondent.