Brose v Arnold [2020] QCA 162

SUPREME COURT OF QUEENSLAND CITATION: Brose v Arnold [2020] QCA 162 PARTIES: TRACEY ANN BROSE (applicant) v TRUDY ARNOLD (respondent) FILE NO/S: Appeal No 4053 of 2020 DC No 148 of 2016 DIVISION: Court of Appeal PROCEEDING: Application for Extension of Time s 118 DCA (Civil) ORIGINATING COURT: District Court at Southport – [2020] QDC 15 (Muir DCJ) DELIVERED EX TEMPORE ON: 10 August 2020 DELIVERED AT: Brisbane HEARING DATE: 10 August 2020 JUDGES: McMurdo and Mullins JJA and North J ORDERS: 1. The time within which to make the application for leave to appeal be extended until 9 April 2020. 2. The application for leave to appeal be refused with costs. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the District Court dismissed the applicant’s claim of defamation against the respondent – where the application for leave to appeal was made nine days out of time – whether leave to appeal should be granted Praxis Pty Ltd v Hewbridge Pty Ltd [2004] 2 Qd R 433; [2004] QCA 79, followed COUNSEL: R J Anderson QC, with H Blattman, for the applicant M T de Waard, with N Boyd, for the respondent SOLICITORS: Bennett & Philp Lawyers for the applicant Mills Oakley Lawyers for the respondent [1] McMURDO JA: This is an application for leave to appeal against a judgment of the District Court which dismissed the applicant’s claim against the respondent. The -- 1 of 3 -- 2 application for leave to appeal is made nine days out of time. Leave to appeal is required by s 118(3) of the District Court of Queensland Act 1967. [2] The applicant was the principal of the Tamborine Mountain High School when she was suspended from that role pending the outcome of an investigation into alleged misconduct by her. She had considerable support from members of the Tamborine Mountain community and an internet discussion website, together with a private Facebook page, were established with a view to garnering support for her. Hundreds of people signed the petition and commented on these forums. Most of them supported the applicant’s position; however, a relatively small number were strongly critical of her, and that group included the respondent, who published a post in the early hours of one morning which was in strongly critical terms. Both forums were shut down within a week and the applicant was reinstated as principal of the school within a couple of months. [3] Shortly after, she commenced legal proceedings against eight individuals, including the respondent, who had posted criticisms of her on the forums. Originally, she claimed $150,000 damages from each defendant, together with an injunction to restrain them from making any further defamatory statements. Subsequently, she increased the claim against each to an amount of $220,000. All eight defendants filed defences. [4] The applicant settled with four defendants and, after a four week trial, her claims against the other four were resolved by judgments, the reasons for which ran to 135 pages. Against two defendants, the applicant succeeded and was awarded in each case $3,000 in damages. An injunction was issued against each of them to restrain any republication. Against the respondent and the other defendant, the claim was dismissed. At times prior to the trial, the respondent had legal representation. By the time of the trial, she was unrepresented and bankrupt. She did not appear at the trial, but it remained for the applicant to prove her case against her. [5] The trial judge found that the publication carried the imputations which were pleaded, but the applicant failed because, in the judge’s conclusion, they were not defamatory, in that they were unlikely to make any ordinary, reasonable reader think less of the applicant. It is unnecessary to set out the reasons of the judge on that critical question. They largely appear on two pages of the judgment, but an analysis of that reasoning would also require a consideration of other parts of the judgment and, of course, the evidence. However, as to the purpose which might be served by allowing this case to go further, mention should be made of her Honour’s reasoning at paragraph 246 of the judgment, where she said this: “Thirdly, the ordinary reasonable reader would take an impressionistic approach to their reading of this post, and in doing so would form the immediate view that it should be ignored and disregarded as a baseless, exaggerated, meaningless, emotive rant, with no explanatory context, by an ill measured, angry and irrational person with no regard for common decency. The ordinary reasonable reader would not be swayed by such a rant, particularly given the overwhelming level of support for the plaintiff on both websites.” [6] That finding of fact that the publication was not defamatory of the applicant is likely to have been affected by the judge’s having heard considerable evidence over the course of this long trial from several witnesses. -- 2 of 3 -- 3 [7] It is submitted for the applicant that the trial judge made a number of errors in reaching her conclusion; however, it is not suggested that this case raises any point or principle which would have an importance for any other case, nor can it be said that her Honour’s reasoning and, most importantly, her conclusion, is plainly incorrect. [8] Her Honour said that had she found that the applicant was defamed by the respondent, she would have awarded damages in the sum of $2,000. That is the outcome which is sought in this Court. The applicant was ordered to pay the respondent’s costs. However, in that respect, the respondent did not participate in the trial and had become unrepresented prior to it. There were also several interlocutory orders for costs which had been made in favour of the applicant against the respondent and other defendants, which remained unaffected by the final order for costs. Further, in her separate judgment dealing with the costs of the proceedings, the judge recorded that on the respondent’s Facebook page, she had apologised for making the comments and attempted to retract them, deeply regretting their making. [9] Undoubtedly, the applicant requires leave to appeal. It is not sufficient in every case for an applicant for leave to point to an arguable ground of appeal. In Praxis Pty Ltd v Hewbridge Pty Ltd [2004] 2 Qd R 433; [2004] QCA 79, at [12], this Court held that “the fact that an error of fact or law arguably has occurred in the reasons leading to the judgment is not necessarily enough: if it were, there would be no point in imposing the additional requirement of obtaining leave to appeal.” This is not a case where it can be said that the applicant has been denied the opportunity, through a judgment in her favour, of having her reputation vindicated. The comments of the trial judge, which I have quoted earlier, should indicate why that is so. And as I have said, there has also been an apology by the respondent. [10] The amount sought for damages, together with the applicant’s delay in applying for leave to appeal, indicate that she became minded to do so only when ordered to pay the respondent’s costs. She does not suggest that there was any error by the judge in making the costs order, which ought to be corrected by this Court. She seeks to have the costs order set aside only by the means of setting aside the dismissal of her claim. Ultimately, her proposed appeal is apparently intended to serve only the purpose of avoiding an order for costs, the amount of which is unquantified but ought not to be substantial. Especially where she did not apply for leave to appeal within time, in the circumstances which I have described, the interests of justice do not require that leave to appeal should be granted. I would extend the time within which to apply for leave to appeal until 9 April 2020 but refuse the application for leave to appeal with costs. [11] MULLINS JA: I agree. [12] NORTH J: I agree. [13] McMURDO JA: The orders will be that the time within which to make application for leave to appeal be extended until 9 April 2020; the application for leave to appeal be refused with costs. -- 3 of 3 --