SUPREME COURT OF QUEENSLAND
CITATION:
Watney v Kencian & Anor [2017] QCA 116
PARTIES:
CHRISTOPHER DAUNT WATNEY
(applicant)v
JANET KENCIAN
(first respondent)ANTHONY WOOLLEY
(second respondent)FILE NO/S:
Appeal No 8720 of 2016
DC No 52 of 2013DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:
District Court at Cairns – Date of Judgment: 3 August 2016DELIVERED ON:
6 June 2017
DELIVERED AT:
Brisbane
HEARING DATE:
10 April 2017
JUDGES:
Morrison and McMurdo JJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. Leave to appeal granted.
2. Appeal allowed.
3. Judgment entered on 3 August 2016 set aside.
4. The findings of the jury in answer to Questions 3(a) to 3(f) inclusive be set aside and affirmative answers be substituted for each of those answers.
5. There be a new trial limited to the availability of defences of qualified privilege and honest opinion and, if applicable, damages.
6. The respondents pay the applicant’s costs of the appeal, including the application for leave to appeal.
7. Costs of and incidental to the proceeding at first instance be reserved to await the outcome of a new trial or further order in the event the matter does not proceed to trial.
CATCHWORDS:
DEFAMATION – ACTIONS FOR DEFAMATION – TRIAL – FUNCTIONS OF JUDGE AND JURY – IN GENERAL – where the applicant, a private school principal, sued the respondents for defamation over a letter which was published to the Director-General of the Queensland Department of Education, and republished to the Chairperson of the Non-State Schools Accreditation Board – where the applicant alleged that the publication conveyed a number of meanings about him – where the jury found the publication conveyed the meanings, but found that none of the meanings was defamatory – where the applicant submits that the jury’s findings that none of the meanings was defamatory were perverse – where having regard to the character and seriousness of each imputation and the context in which the imputations were conveyed, each part of Question 3 compelled an affirmative answer – whether the findings that none of the proven meanings was defamatory were ones that no reasonable jury could make – whether the jury’s findings caused a substantial injustice to the applicant
DEFAMATION – ACTIONS FOR DEFAMATION – OTHER PROCEEDINGS BEFORE TRIAL – STAYING ACTION – PRINCIPLE OF PROPORTIONALITY – where the usual order in a case like this would be to set aside the judgment in favour of the respondents, and order a new trial, restricted to the pleaded defences of qualified privilege and honest opinion and, if applicable, damages – where the respondents resist an order for a retrial, and invoke a principle derived from Jameel v Dow Jones & Co Inc [2005] QB 946 in support of an order the proceeding be permanently stayed – whether the Court should decline to order a retrial based on the principle of…
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- AGLC
- Watney v Kencian [2017] QCA 116
- Case
- [2017] QCA 116
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the jury's findings that none of the proven meanings was defamatory were ones that no reasonable jury could make, and if so, whether this caused a substantial injustice to the applicant. The applicant contended that the jury's findings were so contrary to the evidence that they warranted a new trial. The respondents, however, argued that the principle of proportionality, derived from the decision in Jameel v Dow Jones & Co Inc, should be invoked to permanently stay the proceeding, rather than order a new trial. The court needed to determine whether to decline ordering a retrial based on this principle.
The court found that the jury's findings were indeed perverse, as no reasonable jury could have concluded that the meanings were not defamatory given the evidence presented. The court emphasised the importance of ensuring that the jury's findings were not based on an error of law or a perverse interpretation of the evidence. Consequently, the court set aside the judgment entered on 3 August 2016 and substituted affirmative answers for the jury's findings. The court ordered a new trial limited to the pleaded defences of qualified privilege and honest opinion, and, if applicable, damages. The respondents were also ordered to pay the applicant's costs of the appeal, including the application for leave to appeal. Costs of and incidental to the proceeding at first instance were reserved to await the outcome of a new trial or further order in the event the matter did not proceed to trial.
Orders
Orders of the court
1. Leave to appeal granted.
2. Appeal allowed.
3. Judgment entered on 3 August 2016 set aside.
4. The findings of the jury in answer to Questions 3(a) to 3(f) inclusive be set aside and affirmative answers be substituted for each of those answers.
5. There be a new trial limited to the availability of defences of qualified privilege and honest opinion and, if applicable, damages.
6. The respondents pay the applicant’s costs of the appeal, including the application for leave to appeal.
7. Costs of and incidental to the proceeding at first instance be reserved to await the outcome of a new trial or further order in the event the matter does not proceed to trial.
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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