Zarth v Williamson
[2006] NSWCA 246
•6 September 2006
New South Wales
Court of Appeal
CITATION: ZARTH v WILLIAMSON & ORS [2006] NSWCA 246 HEARING DATE(S): 03 & 04/08/2006
JUDGMENT DATE:
6 September 2006JUDGMENT OF: Giles JA at 1; Bryson JA at 6 DECISION: Dismiss both Summonses for leave to appeal with costs. CATCHWORDS: DEFAMATION – defamation action in District Court by solicitors against clients who defamed them in communications to 1) Aussie Home Loans 2) their receptionist in front office 3) officer of Legal Services Commission – damages awards totalling $80,000 – leave to appeal sought on numerous grounds relating to – Common Law Qualified Privilege – conduct of trial re order of going into evidence on issue of malice – statutory absolute privilege in communication with Legal Services Commission DAct s.17J – determination by jury of issues accepted by counsel which did not include publication – excessive damages – other complaints – CA concluded poor prospects of success and no substantial departure from due administration of justice – consideration of discretion to grant leave to appeal – refused (ND) LEGISLATION CITED: Defamation Act 1974 (NSW) ss.7A, 13, 17F, 17J, 22
District Court Act 1973 (NSW) s.127(2)(c)CASES CITED: Webb v Bloch (1928) 41 CLR 331 PARTIES: Claimants – Henry Zarth and Karen Zarth
First Opponent – Neil Stewart Williamson
Second Opponent – Ronald William Winter
Third Opponent – Anthony Orazio Brischetto
FILE NUMBER(S): CA 40942/2005; CA 40626/2005 COUNSEL: Claimants’ counsel – Mr R Newell
Opponents’ counsel – Mr D A CaspersonnSOLICITORS: Claimants’ solicitor – L.C. Muriniti & Associates
Opponents’ solicitor - Coode & Corry
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 7421/2002 LOWER COURT JUDICIAL OFFICER: J.C. Gibson J LOWER COURT DATE OF DECISION: 08/11/2005
CA 40626/05
CA 40942/056 SEPTEMBER 2006GILES JA
BRYSON JA
1 GILES JA: These applications for leave to appeal were heard at greater length than is customary, and have produced more full reasons than customary. I am indebted to Bryson JA for the exposition in his reasons, which I have read in draft and with which I generally agree.
2 The amounts of the verdicts are not insignificant, albeit less than the $100,000 threshold for the purposes of an appeal as of right, and the costs must be great and material to the exercise of the discretion to grant leave. There can be said to be some importance to the parties in whether the claimants have been actionably defamatory of the opponents. As Bryson JA notes, however, the materiality of the costs is not necessarily in favour of a grant of leave. Even for defamation proceedings, litigation over 17 days and commensurate costs resulting in damages totalling at most $75,000, but in truth separate lesser amounts, is disproportionate to the interests at stake, and there are strong considerations that enough is enough.
3 Leave to appeal in relation to the interlocutory costs order, involving a few thousand dollars and without obvious error in the exercise of the judge’s discretion, could not responsibly be granted. As to the principal application for leave to appeal, the complaint that there had not been a jury’s determination of publication by Karen Zarth of the first e-mail message is without either substance or merit when the claimants participated in the conduct of the s 7A trial without submission of that question for determination; and it is sufficient that on the issue of common law qualified privilege, the judge did not err in principle in her consideration of whether the publications were on occasions of qualified privilege, and on the issue of absolute privilege under s 17J of the Defamation Act she again did not err in principle in coming to her factual decision on whether the publication of the fax of 29 November 2001 was for the purpose of dealing with the complaint to the Legal Services Commission. On both these issues the claimants wished to obtain from this Court findings different from those of the judge; but, while it may be that minds could differ on the findings, the judge’s findings were open. No error appears in the judge’s view of the s 13 defence, nor to my mind is there any substance in the contention that the damages awarded were appealably excessive.
4 In these circumstances, in my opinion the discretion to grant leave to appeal should be exercised against the claimants.
5 I agree in the order proposed by Bryson JA.
6 BRYSON JA: Two applications for leave to appeal from decisions of her Honour Judge J. C. Gibson were heard together. The principal application for leave to appeal challenged the Trial Judge’s final disposition and orders. Her Honour heard and determined an action for damages for defamation brought by the opponents, who are partners in Reimer Winter Williamson, The Lawyers and practise at Penrith, New South Wales. Late in 2001 the opponents acted for the claimants in several pieces of conveyancing business which involved loan finance obtained from or through Aussie Home Loans: the claimants were concerned to expedite completion and retained the opponents’ firm, which also acted for the lender.
7 Judge J.C. Gibson awarded damages for defamatory imputations which the jury found were conveyed by three communications. The first was an e-mail message which in form was a message from the second claimant Karen Zarth addressed "To Whom It May Concern:” and dated 9 November 2001. On that day she prepared the message and sent it electronically to Henry Zarth the first claimant who is her father; he made some minor changes and sent it to Aussie Home Loans. The message referred to the purchase by Karen Zarth from Henry Zarth of the property at Werona Avenue, Claremont Meadows where she then lived, and set out history of the transaction from her decision to purchase the property from her father on 18 August 2001, her application through Aussie Home Loans for a loan and its approval by Liberty Finance; the relation between her purchase and other property transactions of Henry Zarth, instructions which he gave to the opponents’ firm and events in the transactions. There were matters of complaint at many points including “Due to the negligence of Reimer Winter Williamson – The Lawyers, my father now finds himself over committed to 3 properties under mortgage".
8 The concluding passages of the e-mail message were these:
Due to the fact, Reimer Winter Williamson - The Lawyers are prolonging settlement and are unable to explain why, could you please investigate and advise of the settlement date?
Due to the way my father and myself have been treated by this company, now and in the past, neither my father nor me will use them again. We will also strongly advise anyone we know against using them. This letter, and the questions asked, come as a result of Reimer Winter Williamson - The Lawyers' refusal to interact with me, or my father, in any way.
I now feel I have no alternative than to write you, asking for responses to these simple questions that I can not get elsewhere.
I look forward to your early response to my questions asked. Please advise me of your findings.In short, I feel that I have been treated in a discourteous, ignorant, unprofessional manner by a group of misinformed university graduates masquerading as though they have a law degree. I question the qualifications of the people who have been dealing with me. I believe that if this is the way this company conducts business, they do not deserve any payment from me or my father, and they definitely do not deserve a license to practice law.
9 Only the first claimant Henry Zarth made the second communication. In effect it was determined that on 9 November 2001 he said in the hearing of a receptionist employed by the opponents, in the reception area of their office: “This firm is that close to losing Aussie Home Loans work because of him” while pointing to the office of Mr Brischetto, and also said: "he doesn't realise I know people at Aussie Home Loans in high places".
10 The third defamatory communication was a copy of a fax message which Karen Zarth sent to Mr Brischetto on 29 November 2001; the defamatory communication consisted of her sending a copy to “Jim Milne -- Office of the Legal Services Commissioner Ombudsman". The message threatened proceedings if Mr Brischetto did not accept one of two options which were set out.
11 The opponents also relied on alleged imputations in a fourth communication, which the jury found was not defamatory.
12 The jury found that the first communication conveyed the following imputations and that the imputations were defamatory.
(a) the plaintiffs, as solicitors, acted with gross negligence in acting for Ms Karen Zarth's father in respect to a property transaction;
(b) the plaintiffs, as solicitors, engaged in gross delay in acting for Ms Karen Zarth's father in relation to a property transaction;
(c) the plaintiffs were hopeless solicitors who didn't know what they were doing in that their firm kept asking for documents and information which Ms Zarth had clearly already supplied;
(d) the plaintiffs were guilty of outrageous overcharging in that they did hardly anything while Ms Zarth did all the work;
(e) the plaintiffs acted outrageously in requesting $500.00 on account of disbursements for searches for the Zarth property transactions, when they already had searches on their file;
(f) the plaintiffs were misinformed University graduates who did not have a Law degree but masqueraded as though they had a Law degree;
(h) the plaintiffs engaged in gross professional discourtesy in that neither they nor any member of their firm returned Ms. Zarth's phone calls.(g) the plaintiffs were not qualified to practise Law;
13 The jury found that the second communication conveyed the following imputations and that they were defamatory:
(b) the third plaintiff's conduct had caused him to be reported to people in very high places at Aussie Home Loans.(a) the third plaintiff's conduct had caused the firm to be very very close to losing a major client;
14 The jury found that the third communication conveyed the following imputations to Mr Jim Milne and that they were defamatory.
(a) the third plaintiff was stupid in that he had difficulties reading a fax in plain English;
(b) the third plaintiff illegally took $750.00 from Karen Zarth and her father for fees for a job not done;
(c) the third plaintiff engaged in outrageous conduct as the solicitor in that he refused to act as directed by Karen Zarth and her father;
(d) the third plaintiff was guilty of professional misconduct as a solicitor;
(e) the third plaintiff, as a solicitor, attempted to blackmail an apology from Karen Zarth;
(f) the third plaintiff, as a solicitor, acted illegally in that he breached the Electronic Transactions Act by coming into possession of a private, confidential and personal e-mail;
(g) the third plaintiff had outrageously refused to repay $6,121.27 that was owing to Karen Zarth despite correspondence from the State Revenue Office saying such moneys would be deposited into Karen Zarth's bank account;
(i) the third plaintiff's conduct in acting for Karen Zarth and her father was so bad that he was being personally investigated by Mr. Milne, the officer of the Legal Services Commissioner Ombudsman for professional misconduct.(h) the third plaintiff was a coward who was not brave enough to contact Karen Zarth direct;
15 The Trial Judge decided the issues in the proceedings which remained after the Jury had decided the questions assigned to them by s.7A of the Defamation Act 1974 (NSW). For reasons published on 8 November 2005 the Trial Judge awarded damages to the first opponent Mr Williamson of $15,000 in respect of the first publication, a judgment against both claimants, and $2,500 in respect of the third publication, a judgment against the second claimant Karen Zarth only. The Trial Judge awarded the second opponent Mr Winter $15,000 for the first publication, a judgment against both claimants, and $2,500 for the third publication, a judgment against the second claimant Karen Zarth only. The Trial Judge awarded to the third opponent Mr Brischetto $30,000 in respect of the first publication, a judgment against both claimants, $5,000 in respect of the second publication, a judgment against the first claimant Henry Zarth only and $10,000 in respect of the third publication, a judgment against the second claimant Karen Zarth only. The Trial Judge also made arrangements for interest to be determined. The Trial Judge awarded the costs of the proceedings to the opponents, and having regard to offers of compromise, ordered that the costs be assessed on the indemnity basis.
16 The damages awarded against the first claimant totalled $65,000, the damages awarded against the second claimant totalled $75,000; of which $60,000 is a liability that they both bear. We were not told the amount of interest awarded but it was not suggested that it was so much as to bring the judgment against either claimant to $100,000 so that there would be an appeal as of right. Leave to appeal is required under s.127(2)(c) of the District Court Act 1973 (NSW). The Court of Appeal was not given any assessment of the amount of costs payable by the claimants but those costs must be very large and must outweigh the damages awarded: the Trial Judge gave a list of the dates of the hearing which shows five days for the Jury proceedings and 12 days for proceedings before the Judge (some of which may have been directions hearings taking less than a full day); and also there were written submissions.
17 The amount of the costs awarded is not part of the matter in issue involved for the purpose of s.127(2)(c); but the involvement of a very large liability for costs is, in my opinion, relevant to the discretion to grant leave to appeal. On the one hand the involvement in the controversy of liability for amounts which are undetermined but which obviously reach a much larger total than $100,000 is a discretionary element favouring the grant of leave to appeal; on the other hand the very large resources, not only of money but also of the time and attention of the Court and of the parties which has already been expended on a relatively small controversy not inherently important to anyone other than the parties to it (although plainly very important to them) is a factor adverse to the grant of leave to appeal. I attribute greater weight to evaluation of the strength of the attack which the claimants wish to make upon the District Court's decision, to the overall prospects of success, and to any adverse implications for the administration of justice overall if the decision of the District Court is not reconsidered.
18 Counsel for the claimants put forward a number of matters which were proposed to be grounds of the principal appeal.
19 The claimant's counsel contended that the proposed appeal involves important issues of legal, juridical and social policy about the relationship between solicitors and clients and communications for the purpose of that relationship, and the treatment of statutory absolute privilege and of common law qualified privilege: it was contended that the outcome according to which there was no privilege protection of any kind is perverse as a matter of principle and alarming in practice. These contentions were overstated to the point of extravagance. In relation to each publication and each imputation the claimants pleaded a defence of qualified privilege under the common law and statutory qualified privilege under s.22 of the Defamation Act. The Trial Judge said (Judgment [119]) that no written submissions as to the availability of s.22 had been made and expressed the view that the Defence could not succeed on findings of facts that she had made. This was not debated on the application for leave to appeal.
20 When dealing with common law qualified privilege the Trial Judge opened consideration by saying (Judgment [121]-[122]):
122. The question of whether there is an interest or duty, whether legal, social or moral, to make such a communication is whether people of ordinary intelligence and moral principles, in the position of the defendant, would have considered it a duty to communicate the imputations to those to whom the imputations were published. The test concerning whether such a duty or interest actually exists is an objective test and the subjective belief of the publisher is irrelevant.121. A publication may be made on an occasion of qualified privilege at common law if it is made on an occasion where the person who makes the communication has an interest or duty, whether legal social or moral, to make it to the person to whom it is made and the person to whom it is made has a corresponding interest or duty to receive it. This reciprocity is essential.
This statement of the test was not attacked in submissions before the Court of Appeal. Her Honour made some further statements about the operation of qualified privilege at common law which it is not necessary to set out now.
21 The Trial Judge decided that none of the imputations conveyed by the first publication was published on an occasion of qualified privilege at common law and stated reasons (Judgment [126]-[135]). In my understanding this disposition was based on her Honour's judgment, after review of the nature and circumstances of the imputations and their publications, on whether the publisher had a duty or interest which justified making the imputations and whether the recipients or some of them had a duty to receive or an interest in receiving them. Her Honour said (Judgment [130]) that it was never made clear what the duty or interest of Aussie Home Loans was in knowing about the delay of some solicitors, and that the complaint had little or no relevance to the actual transactions in which the claimants were involved; that the imputations were unequivocal allegations of misconduct, of outrageous overcharging, assertions that the opponents were not qualified to practise law and the like and that these were not imputations that had anything to do with the claimants’ conveyance (Judgment [133]). Her Honour said (Judgment [133]): “Insofar as Aussie Home Loans was being asked to do anything it was being warned that a solicitor on its panel was conducting itself in such a way that it did not deserve any payment and ‘definitely do not deserve a licence to practise law’” and also determined (Judgment [134]) “While there might be circumstances in which Aussie Home Loans might need to know about the dissatisfaction of a client, what Aussie Home Loans was being asked to do was to make sure that the plaintiffs were not permitted to charge any fees for their work, together with some form of suggestion that they ought not to be permitted to practise law."
22 The Trial Judge concluded to the effect that in her finding there was no interest or duty of the claimants to communicate the imputations to Aussie Home Loans, nor did Aussie Home Loans have a corresponding interest or a duty to receive the communication with the imputations; there was no reciprocity, when the circumstances in which the imputations were conveyed were considered. This is an unremarkable conclusion on the facts and I see no reason of substance to think that the Trial Judge reached that conclusion without taking any important considerations into account; and no substantial reason to think that the conclusion may have been wrong.
23 However in the course of her consideration and as the last sentence of para. [133] the Trial Judge also said, after the passage I have earlier quoted “In fact, this was at all relevant times, I find, the motivation of the defendants, namely that they were seeking to bring pressure on Aussie Home Loans to make the plaintiffs forego their legal fees." As her Honour had earlier directed herself, the test concerning whether a duty or interest actually exists is an objective test and the subjective belief of the publisher is irrelevant. Consistently with her Honour's direction (and I am not undertaking an examination in detail of the basis of common law qualified privilege) the motivation of the defendants is also irrelevant; if any duty or interest actually exists as an objective matter the motivation of the person making the communication, whether a good or bad motivation, would not make the communication any less a performance of the duty. I see no reason to doubt that the last sentence of para. [133] would have been a relevant consideration if her Honour had been disposing of a Defence under s.22; the judgment shows that the Defence under s.22 had been disposed of earlier. The last sentence of para. [133] does not appear to me to have had any influence on the Trial Judge’s later consideration of common law qualified privilege, or on the conclusion that none of the imputations conveyed was published on an occasion of common law qualified privilege. In my view the sentence under challenge, which has some relation to consideration later in the judgment of an issue of malice, was introduced incidentally and was not part of the dispositive reasoning on common law qualified privilege which, if the sentence is disregarded, explained the conclusion reached quite clearly.
24 With respect to the second communication and the imputations in it the claimants’ counsel made little development of the contention that common law qualified privilege should have been found to protect it, and I am unable to see that that privilege has any possible application. The Trial Judge dealt with this question very shortly; plainly she took a similar view to mine, and I regard that as appropriate.
25 The Trial Judge also found that the third communication and the imputations conveyed by it were not protected by common law qualified privilege because (Judgment [137-139]) on considering the matter complained of and the circumstances in which the letter was sent her Honour found that it was clear that the second claimant was not interested in making a complaint but was using the complaints mechanism as a weapon to intimidate the opponents into accepting one of the options referred to; Mr Milne of the Legal Services Commission was referred to only as someone who had received a copy; and it was found that the purpose of the publication was to use the complaints procedure to obtain the collateral advantage of intimidating the opponents into reducing their fees or dropping them altogether; and the imputations published did not relate to any duty or interest between the second claimant and Mr Milne. In my opinion there are no reasonable prospects of its being shown on appeal that this part of the decision was not correct.
26 Counsel for the claimants contended that complaints are characteristically made to advance the interests of the complainant and that demonstration that a complaint was made in pursuit of an interest is not a demonstration of the absence of any concurrent proper purpose: nor a demonstration of malice. As propositions of logic these are correct, and pursuit of advantage and proper purpose may not be mutually exclusive. As propositions of fact and degree, the conclusions that pursuit of interest was the purpose and that furtherance of a complaint was not were plainly open to the Judge as she found the facts.
27 Generally submissions of the claimants’ counsel on common law qualified privilege were directed to reviewing the relevant facts and contending that different conclusions should have been reached: this is not enough as grounds must be shown for deciding that the factual findings under appeal were wrong; and in my opinion no such grounds were shown. The attention of the claimants’ counsel to the third publication was rather directed to the claim of absolute privilege.
28 The Trial Judge went on to deal at considerable length (Judgment [140]-[188]) with contentions and findings relating to malice; para. [140] opened with these words:
- 140. I now turn to consider whether, by reason of the malice of the defendants, the protection of the defence has been lost, in the event that I have erred in finding that none of the publications was made on an occasion of qualified privilege at common law.
29 The paragraph setting out conclusions (Judgment [188]) was introduced by these words:
- 188. In the event that I have erred in finding that none of the imputations in each of the three publications was published on an occasion of qualified privilege at common law, I find that each of the publications was motivated by malice towards the plaintiffs. ... Thus each of these publications, although purporting (at least in the case of the first and third publications) to be some kind of consumer complaint, was in fact published for the collateral advantage of intimidating the plaintiffs into acting without fee on the defendants’ conveyance.
30 As I do not think that leave to appeal should be granted to enable examination of the Trial Judge's conclusions on common law qualified privilege it might perhaps be enough to say nothing about her Honour's consideration of malice; but malice had much attention in submissions by counsel, and I will make some observations.
31 The claimants’ counsel complained to the effect that the Trial Judge had not allowed him to lead evidence from the first claimant, in his evidence in chief, on his purpose in making the first communication and on the imputations he intended to convey by the e-mail of 9 November 2001, so as to show that there was no malice; yet the Trial Judge allowed the opponents’ counsel to cross-examine him (or it may have been both claimants) on matters relevant to malice, and expressed findings based on that material. The suggestion was to the effect that the trial had not been conducted in a fair and even-handed way. I do not regard this as a complaint of substance.
32 First, while the claimants bore the onus of proof of facts relevant to their Defences including statutory and common law qualified privilege, it was not their obligation to lead evidence in chief rebutting malice or other improper purpose in making the communications; not in principle but particularly as there was no allegation of malice in the pleading before the opponents’ Reply dated 13 May 2005. It was open to the opponents to attempt to prove malice or improper purpose in support of their traverse of an element in the statutory defence of qualified privilege under s.22, namely the element of the conduct of the claimants in publishing the matter being reasonable in the circumstances, mentioned in subs. (1)(c). It may also have been relevant for the opponents to show malice in relation to common law qualified privilege. It was for the opponents to raise the issue, by cross-examining the claimants and perhaps in other ways, and it was open to the claimants to lead evidence rebutting any case of malice. It was in no way irregular that the opponents were allowed to raise the issue, while if the claimants had been allowed to raise the issue in chief they would have been in the position referred to, not altogether clearly, as "splitting their case" which is potentially a source of difficulty should they later wish to embark on rebuttal evidence.
33 A second matter on which I observe relates to the particular question which the Trial Judge rejected, giving rise to the contention that she had not allowed the claimants to go into evidence on malice. While the first claimant Mr Henry Zarth was giving evidence in chief on 10 December 2004 he dealt with the circumstances in which he received the form of the e-mail dated 9 November 2001 from the second claimant Karen Zarth on the evening of that day, considered and altered its terms and forwarded it to Ms. Alison Stevens of Aussie Home Loans and then, on the morning of 10 November 2001 sent the e-mail to Mr Steve Lucas of Aussie Home Loans. He said (t.1351) that he felt some concerns about what had been said in the e-mail about reasons for delays in the Werona Avenue transaction. He was then asked (t.1351 l.45):
Q. What was the position with the Wyong property at this stage?
A. That had already settled by the due time of – I think the week before it was due at the end of October.
Q. How did that affect your state of mind?Q. As a consequence of that, what was the position with your mortgage commitments?
A. Well, the fact that Wyong had settled had meant that I had another mortgage to pay, and because the [Werona] property matter hadn't settled yet, I was still responsible for that, so in the end I was responsible for the three mortgages, the very situation I couldn't afford to have happened.
A. Well –
At this point counsel for the opponents objected.
34 There was an argument at some length with references to authority, and in ruling on the evidence the Trial Judge said (t.1356): “I will not permit the first defendant to give self-serving evidence of what he says his state of mind at the time of reviewing this publication is. I will not permit the question."
35 This was followed by a discussion in which counsel for the claimants told the Trial Judge that he intended to produce a great deal of evidence going to the question of Henry Zarth’s purpose in effecting the publication and explained the purpose in these terms (t.1356): “His purpose in effecting the publication, because in order to establish or to be part of the evidence assisting the court on the question - which I expect my friend to urge upon you - that the defendants were actuated by an improper purpose and that that improper purpose predominated." There were then exchanges between counsel and the Trial Judge in which her Honour said to the effect that she would not permit Henry Zarth to give self-serving evidence of what he said his purpose in publishing the document of 9 November 2001 was. This exchange concluded with her Honour saying (t.1357):
- Her Honour : Mr Newell, Mr Zarth will be cross-examined on the particulars of malice which are set out in the reply by Mr Casperson. That will be the basis on which he will establish malice. Self-serving statements by your client to the effect that he was not malicious, in my view, should not be permitted.
36 The question which was rejected was not an appropriate vehicle for testing the admissibility of evidence on the part of the claimants on the issue of malice. The Trial Judge's direction last quoted was not a ruling on the admissibility of evidence and should be understood to be a direction about the conduct of the trial; and in my view it was plainly correct. Henry Zarth was cross-examined upon his purpose in effecting the publication, and in the cross-examination and by re-examination had the opportunity to explain his purpose; it could not credibly be said that the direction precluded the first claimant from putting into evidence his position in that respect.
37 A third matter relating to malice is that the Trial Judge's rulings upon which the proceedings were disposed of were not produced by the Trial Judge's consideration of issues of malice; the Trial Judge gave careful attention to her conclusions and reasons on that subject, but plainly as an alternative ground and not the principal ground upon which the proceedings were disposed of.
38 In my view leave to appeal should not be granted so as to enable the issue of malice to be examined further. I see no reasonably arguable ground on which to attack the Trial Judge’s dealing with the subject, and no ground for thinking that, even if there was an error, the error affected the disposition of the proceedings.
39 The claimants’ counsel also sought to attack the Trial Judge's disposition of the issue of a statutory absolute privilege for the third communication and its imputations to Mr Milne an officer of the Legal Services Commission. The pleaded Defence referred to s.17F of the Defamation Act but submissions and the Trial Judge's ruling related to s.17J which so far as relevant provides:
- (1) There is a defence of absolute privilege:
(a) for a publication to or by any of the following:
...
(ix) the Legal Services Commissioner,
...
- for the purpose of the making or referral of a complaint, or the investigation, hearing or review of a complaint, under Pt.10 of the Legal Profession Act 1987, ...
40 In disposing of this issue the Trial Judge said (Judgment [192]-[195]) to the effect that the fact that a copy of the letter went to the Legal Services Commission, in the context of there being a complaint on foot (as there was) does not mean that the publication is automatically taken to be for the purpose of the execution or administration of the Legal Profession Act 1987 (NSW); and went on to find that what the claimants were trying to do by the letter was clearly seeking to persuade the opponents to reduce or abandon any claim the firm had for legal fees, and using the fact that a copy of the letter was going to Legal Services Commission as a bargaining chip. Her Honour said (Judgment [193]): "The document speaks for itself", and found that the letter was not written to the Legal Services Commission for the purpose of investigation of a complaint. Her Honour found (Judgment [194]): “It was written to the third plaintiff to frighten him into waiving fees" and hence found that it was not written for the purpose referred to in s.17J(1). This was the subject of observations to the effect that to find one purpose is not to exclude another: I dealt with these earlier. In my opinion there are no substantial grounds for contending that this finding was wrong. The terms of the communication strongly support the finding.
41 Another application for leave to appeal, earlier in date, related to an interlocutory order for costs which the Trial Judge made on 15 April 2005 at what I understand it to be a directions hearing relating to directions in detail for lodging written submissions.
42 At the directions hearing of 15 April 2005 counsel for the claimants sought an opportunity or further opportunity to make written submissions so as to deal with a contention to the effect that publication had been conceded in the course of the s.7A trial before the jury. This led, in some way which it is not necessary to state in detail, to her Honour treating as an issue in the proceedings, and later determining, an issue whether the second claimant was liable in respect of the first publication as a republication, in that she communicated it to the first claimant in circumstances where there was a want of care with respect to whether he would further communicate it. It may not have been correct for her Honour to deal with the issue in this way; but in any event the issue was determined adversely to the second claimant. The opponents in their Statement of Claim issued 9 January 2002 alleged, in quite general terms, that both the claimants published the first communication, an allegation which was sufficient to raise involvement of the person who prepared the document as well as of a person who sent it on in liability for defamation on principles explained in Webb v Bloch (1928) 41 CLR 331. What facts underlay the involvement of the second claimant in the publication were not investigated at the jury trial under s.7A, which was the proper occasion for issues of fact relating to publication to be determined; see the opening words of s.7A(4). The jury answered questions which had been prepared by the opponents’ counsel and agreed with the claimants’ counsel which did not seek findings on any subject relating to publication at all; the questions appear to assume publication and require the jury to make findings relating to the imputations and whether they were defamatory.
43 This produces an appearance of irregularity in that the Jury did not decide the issue of publication, alleged by the opponents and not admitted on the pleadings by the claimants, at the stage in the proceedings where it fell to be decided. In high technicality it could be said that the opponents did not obtain a finding on the issue of publication on the only occasion when they had an opportunity to do so. However it was not contended that the opponents should fail for that reason. The absence of findings on publication went without complaint and without remark all through the hearing before the Trial Judge alone, and that hearing would have been superfluous if the high technicality I mentioned had any relation to the realities of the conduct of the action; and only became a matter of complaint when, at a much later stage when written submissions were being prepared after the hearing of the remaining issues before the Trial Judge, counsel for the opponents contended that publication had been conceded, and counsel for the claimants disputed this. Whether or not publication was expressly conceded (and the Court of Appeal was not shown any record of an event in which it clearly was conceded) the proceedings were conducted before the jury on the basis that the jury was not asked or required to make findings on publication: the opportunity, and in a regular course the only opportunity to obtain findings of fact about publication was the jury trial, and the claimants’ counsel did not ask for any findings bearing on publication or object to the Trial Judge's directions to the jury or any other aspect of the jury trial on the ground that publication was not dealt with; on the contrary counsel accepted questions for the Jury which would not have been appropriate if publication then remained in issue. After that point it was altogether beyond possibility that the question of publication could be reopened; to do so would involve setting aside the jury's findings on the ground of irregularity when the respect in which they were said to be irregular was something in which the claimants’ counsel had concurred and participated. Such a decision is not even possibly within the range of what the Court of Appeal might do in the exercise of its discretionary powers to order a new trial after findings by a jury.
44 The Trial Judge took a severely adverse view of the course taken in dealing with this issue and in its effect on following out earlier directions for written submissions: her Honour made a special costs order imposing some of the costs relating to the written submissions and the application of 15 April 2005 on the claimants, on the indemnity basis. She also ordered assessment and payment forthwith, but those things did not happen and these costs are unpaid. As they have not been assessed the amount involved is not known, but is unlikely to be more than $2,000 or $3,000 or some amount in that order. Nothing submitted to the Court of Appeal raised any doubt in my mind about the Trial Judge's exercise of discretion, and the sum involved does not warrant leave to appeal against the interlocutory costs order.
45 It was also contended that leave to appeal would be granted so as to review the awards of damages, which it was contended were excessive. I do not regard the awards of damages as calling for consideration of whether they are excessive; in relation to the nature and content of the imputations and their relation to the opponents’ professional lives, the amounts awarded are not high at all. It was also contended that for the second publication the Trial Judge should have upheld a Defence based on s.13 of the Defamation Act: I see no substance in this contention as the likelihood of harm was clear in all three cases. In my judgment the claimants’ prospects of success in the proposed appeal are very poor, and there are no substantial grounds for disquiet about the proceedings before the Trial Judge: nothing has been shown to me which was a substantial departure from the due administration of justice. In my opinion the Court of Appeal should refuse leave to appeal against the Trial Judge’s final disposition and orders.
46 In my opinion the Court of Appeal should dismiss both summonses for leave to appeal with costs.
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