Trenham v Platinum Traders Pty Ltd

[2011] QDC 203

[2011] QDC 203

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

DOUGLAS JOHN TRENHAM	Plaintiff
and
PLATINUM TRADERS PTY LTD and DARRYL JOHN LOANE	Defendants

TOOWOOMBA

DATE 15/04/2011

JUDGMENT

HIS HONOUR:  The plaintiff is a real estate agent carrying on business here in Toowoomba and on the Darling Downs region.  He sues the first defendant, a company, and the second defendant, for damages for defamation.  The plaintiff alleges that the second defendant was an employee of the first defendant.  The first defendant is an accountancy practice and the second defendant is employed by the first defendant as an accountant with the first defendant.

The plaintiff alleges that on the 14th of June 2010 the first defendant and the second defendant published a letter.  It is alleged it was published to the plaintiff's business and to the Brisbane office of the Real Estate Institute of Queensland.  He also alleges that after the defendants had been advised the plaintiff considered the letter defamatory, the defendants republished the letter to the Office of Fair Trading Queensland. 

On each occasion the letter was on the letterhead of the business conducted by the first defendant.  The letter states in part, re the plaintiff's business, "I have recently been approached by a client for advice in respect of the above agency.  The information provided by my client is of a very serious nature involving suspicions of trust account fraud by the Copas principal, Mr Douglas Trenham.  My client suspects that during 2008 and 2009 calendar years, and possibly before and after, that funds were regularly being drawn from the agency's trust account for the payment of general operating expenses and personal debts of the principal.  The funds drawn against were typically deposits being held on real estate sales pending.  The funds would then be redeposited in time for settlement.

"My client is concerned that if the suspicions are correct that the practice may be getting out of hand and that eventually these actions may result in clients losing their funds.  Apparently it is commonly believed within the agency that this is going on, however both current and previous staff are concerned about the ramifications of speaking up."

The plaintiff claims $150,000 for damages for defamation. The first defendant, in its defence, says it did not publish the letter and that the second defendant acted outside the scope of his employment and was not authorised to publish the material, but in any event the material was not defamatory. But even if it was defamatory, it is subject to various defences as specified in the Defamation Act 2005 Queensland. The second defendant says he acted outside the scope of his employment, the material was not defamatory, and even if it was, it is subject to various defences specified in the Defamation Act.

The parties have corresponded about the disclosure made by the first defendant and the second defendant in the action. There is an application before me on behalf of the plaintiff for an order that the defendants provide to the plaintiff further and better disclosure of documents in accordance with the requirements of the Uniform Civil Procedure Rules within seven days. There is a cross-application before me by the first defendant and the second defendant. They apply for orders that, pursuant to rule 293 of the UCPR, judgment be given in favour of the first defendant and the second defendant in respect of the plaintiff's claim. Alternatively, that paragraphs 2(d) II, VII, VIII and X(a) of the statement of claim be struck out pursuant to rule 171 of the UCPR.

It is convenient to deal first with the application for summary judgment on behalf of the defendants against the plaintiff.  The first defendant says it did not publish the material.  That is notwithstanding the letter was sent by the second defendant on the first defendant's letterhead.  Both the first defendant by its director, and the second defendant, swear that the second defendant did what he did without the knowledge or consent or authority of the first defendant.  It is submitted the second defendant acted outside the scope of his employment.  In my opinion it is arguable in this case that the second defendant was acting in the course of his employment with the first defendant.  The issue will be one as a matter of fact for a Judge or jury hearing the action. 

The rule 293(2) of the UCPRs provides if the Court is satisfied that the plaintiff has no real prospect of succeeding on all or part of the plaintiff's claim, and there is no need for a trial of the claim or the part of the claim, the Court may give judgment for the defendant against the plaintiff for all or part of the plaintiff's claim. I am clearly, on the evidence, not satisfied the plaintiff has no real prospect of succeeding on all or part of the plaintiff's claim, and there is no need for a trial of the claim or part of the claim insofar as the first defendant is concerned.

As far as the material being not defamatory, again, I consider it is arguable it is defamatory.  It has been submitted that because there was an Office of Fair Trading finding that there had been three breaches of the Act supervised by the office, that therefore there is the basis to support defences.  I am mindful, Mr Anderson who appears on behalf of the plaintiff, submits that the defences have not been pleaded, however I take this application as being on the assumption that they are pleaded, but nevertheless consider it arguable that the letter was defamatory because it contained a much broader allegation than just technical breaches, what may be arguable, the technical breaches of the Act.  Even if they were serious breaches, the letter goes on to allege fraud on the part of the plaintiff and that he was, by imputation, drawing funds to pay general operating expenses and his personal debts.  In my opinion, that could be considered as something more than the three breaches that were found by the Office of Fair Trading.

As far as the second defendant is concerned, again it may be a question of fact for a Judge or jury to decide whether he was acting in the course of his employment.  My views are the same as to whether the material was defamatory or not, and whether the defences could succeed.  That is, I am of the view that it is arguable in all the circumstances the letter was defamatory, and the defences arguably do not apply. 

Therefore, I dismiss the application for summary judgment, and I'll hear the parties on the question of costs.  On the question of disclosure, this I consider is a little more difficult, however, the letter, the subject of the action, should be considered.  That is, its contents imply information being conveyed of a much broader basis than the documents that have been disclosed by the defendants.  That is, the two documents that have been disclosed by the defendants do not, in my mind, meet the inferences that seem to arise from the contents of the letter that's subject of the action.  The letter talks in terms of information about broad allegations, not just the timing of payments being made, but goes to the extent of dealing with allegations of payment of general operating expenses and personal debts. 

The other letter that I consider should be considered is the response by the second defendant in which he refers to the sources.  I should refer to the defence of the second defendant, which is also part of my reasoning.  Paragraph 8(c)VII 5 and 7, which allege the matter was based on sources of information and there was no reasonable grounds to dispute the integrity of those sources, and also it alleges the information subject of the matter was verified prior to publication by referring to the plaintiff's sale deposit cheque details.

To my mind there is an objective likelihood that disclosure has not been complied with in this case. There has already been the intervention of the Courts with respect to a person illegally accessing documents from the plaintiff's computer. In this context, I consider that an order ought to be made under rule 223(2) of the UCPR, and I order pursuant to rule 223(2) of the UCPR that the first defendant and second defendant file and serve on the plaintiff an affidavit stating that the following documents do not exist or have never existed, or the circumstances in which the following documents cease to exist or passed out of possession or control of the first defendant and second defendant. Namely all documents relating to the plaintiff's trust account including those documents that refer specifically to actual times and dates of account withdrawals or deposits, and secondly, all communications, emails, notes and letters between the first defendant, second defendant and the source or sources of the information alleged in the defences.

I will hear the parties on the question of costs of that application. 

Yes, Mr Anderson?

MR ANDERSON:  I'd seek the costs of both applications, the plaintiff having been successful in both respects.

HIS HONOUR:  Yes.  Mr Campbell?

MR CAMPBELL:  Your Honour, we haven't dealt with the strike-out part.

HIS HONOUR:  Oh, I'm sorry.  Well, thank you for that.  I've been too quick. 

As far as the strike-out is concerned, I consider no action need be taken except that I do order as it was accepted by Mr Anderson, paragraph 1(d)II be struck out. 

Yes.  I'm not prepared to make any other orders.

MR CAMPBELL:  All right, thank you, your Honour.

...

HIS HONOUR:  Yes, thank you, Mr Campbell.  On the disclosure application brought by the plaintiff, I order the costs of the application be each party's cost in the cause.  On the defendant's application for summary judgment, I dismiss the application.  I order the first defendant and second defendant to pay the plaintiff's costs to be assessed on the standard basis.  Yes, thank you, Mr Bailiff.

MR CAMPBELL:  And the application to strike out, your Honour?  The costs‑‑‑‑‑

HIS HONOUR:  Oh, well, that was the - that's the application.  It was - they were joint orders.

MR CAMPBELL:  Yes, your Honour.  Thank you.

HIS HONOUR:  So it's covered by that.

MR CAMPBELL:  Thank you, your Honour.

HIS HONOUR:  Yes, thank you.