Doelle v Bedey [2007] QDC 134

DISTRICT COURT OF QUEENSLAND CITATION: Doelle v Bedey [2007] QDC 134 PARTIES: DOUGLAS JAMES DOELLE Plaintiff V HEIKE M BEDEY Defendant FILE NO/S: Toowoomba D71/2005; Brisbane BD 2199/2006 DIVISION: Civil PROCEEDING: Claim ORIGINATING COURT: District Court of Queensland, Toowoomba DELIVERED ON: 27 June 2007 DELIVERED AT: Brisbane HEARING DATE: 14 June 2007 JUDGE: Alan Wilson SC, DCJ ORDER: 1 Plaintiff’s claim is dismissed 2 Plaintiff to pay the defendant’s costs of and incidental to the action assessed on the standard basis CATCHWORDS: DEFAMATION – SLANDER – QUALIFIED PRIVILEGE - report by defendant to police officer – circumstances in which made – whether occasion of qualified privilege – whether defence under Defamation Act 1889, s 16, arises DEFAMATION – SLANDER – CIRCUMSTANCES OF TRIVIALITY – unrepresented defendant – defence not pleaded – whether circumstances trivial Defamation Act 1889, ss 16, 20 Cases considered: Chappell v Mirror Newspapers (1984) Aust Torts Reports 80-691 Commonwealth Bank of Australia Ltd v Cooper (unreported, Supreme Court (SA), Doyle CJ, 28 February 1997) Croucher v Inglis (1889) 16 R at p. 778 Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 Jones v Sutton [2004] NSWCA 439 -- 1 of 9 -- 2 Perkins v NSW Aboriginal Land Council (unreported, NSWSC, Badgery-Parker J, 15 August 1997) Stergiou v Citibank Savings Ltd (1998) 148 FLR 244 Tipene v Apperley [1980] NZCL 1107 COUNSEL: Plaintiff self-represented Defendant self-represented SOLICITORS: [1] This is an action for damages for defamation. Neither party was legally represented. Mr Doelle alleges he was defamed by Mrs Bedey on two occasions: the first, on 31 January 2005 when she spoke some words to a police officer; the second, on 12 February 2005, when she allegedly said some words to and about him in the presence of a real estate agent, and her de facto husband. [2] These events occurred before the introduction of the Queensland Defamation Act 20051 and the previous legislation, the Defamation Act 1889, applies. Neither party was, unsurprisingly, familiar with this area of the law, or referred to the Act. The case was conducted in an unusual way. Mr Doelle, despite warnings about the risks involved, called two witnesses he said in his opening remarks would, he anticipated, either not be favourable (or actually hostile to) his evidence and his case. It was necessary to coax evidence from him about his alleged damages. Evidence in chief and cross-examination often involved statements, rather than questions. Mrs Bedey’s first language is not English, and she plainly struggled at times. Each party frequently diverted from the issues apparent from the pleadings, and it was difficult to discern what elements of their rather complex legal affairs – involving the police, the Small Claims Court, and some events referable to Residential Tenancy legislation – might be relevant. [3] Some things were, however, tolerably clear. Mr Doelle and his family rented some premises at 5701 New England Highway, Glenaven from Mrs Bedey in about 2002. She engaged a local real estate agent, Mr Smith, to manage the tenancy as her agent. The pleadings deal with that circumstance tersely, and in an uncontested way. It was apparent from things said during the trial that the landlord/tenant relationship was the genesis for a decline in relations between the parties and the backdrop to these and other proceedings in which they have been involved. [4] Mr Doelle believed he had exclusive tenancy of the property, including a shed. Sometime after his family began living there, however, Mrs Bedey and her de facto husband Mr Zellner returned to live in the shed2 . Shortly before 31 January 2005 she told him she wanted the tenancy to end. This probably occurred – it is not entirely clear – after he complained to the local authority about her residence in the shed3 , and she was told to cease living there4 . In any event, it is uncontested that sometime on the morning of 31 January he filmed parts of the property including the shed, and the short film he made shows Mr Zellner and, very briefly, Mrs Bedey. 1 Commenced 1 January 2006: Defamation Act 2005, s 2 2 T 25 ll 13 – 57, T 26 ll 1 – 26 3 T 14, ll 19 – 28; T 21 ll 37 - 48 4 T 26, ll 18 - 26 -- 2 of 9 -- 3 [5] The occasion of the filming was plainly infused with hostility, and involved subsequent accusation and counter-accusation. The sound track of the film has Mr Doelle making critical and insulting remarks about the premises, and also Mr Zellner, who appears in it (both inside and outside the shed) with a camera with which he appears to be taking photographs of Mr Doelle. Mr Doelle said the filming occurred on the day the parties were to appear in the Small Claims Court, in respect of proceedings concerning Mrs Bedey’s occupancy of the shed with Mr Zellner5 . Mrs Bedey complained to a local police officer about the filming that day, and alleged that it had occurred when she and Mr Zellner were still in their underwear. [6] The officer, Senior Constable Simpson, investigated the case on the basis her report may found a charge against Mr Doelle of unlawful stalking6 . The officer’s investigations were extensive and involved counter-allegations by Mr Doelle. No charges against either ensued. I accept Mrs Bedey’s evidence that she simply reported the event to the police officer, and he raised the possibility of the offence of stalking7 ; it is confirmed by the officer’s evidence, and her obvious hesitancy in English makes it improbable she framed her report in terms referrable to any specific offence under the Criminal Code Act 1889. [7] The plaintiff denies that, while he was videotaping the shed in which the defendant and Mr Zellner were residing, they were in their underwear. His film, which was tendered in the form of a DVD, shows the time as around 10.00am but Mrs Bedey’s evidence was that it was quite early, 7.00am or thereabouts. The quality of the film does not make it easy to discern the time of day. As Mrs Bedey said, it was high summer and the weather was probably hot. [8] Whatever the actual time of day I was ultimately persuaded that Mrs Bedey’s evidence, to the effect that she and Mr Zellner were in their underwear when they saw Mr Doelle just outside the shed and pointing a camera at them, was truthful despite the fact that nothing of that kind appears in Mr Doelle’s film. She tendered some photographs of Mr Doelle with what looks like a film camera, and those photographs appear to be taken from inside the shed. On the film however, one only sees Mr Zellner actually armed with a camera taking photographs of Mr Doelle when Mr Zellner is outside the shed. Either Mr Doelle was not actually filming when the photographs were taken from inside the shed, or his film has been altered to remove that part of it. Mrs Bedey’s evidence about these matters is consistent, too, with the report she made to Senior Constable Simpson later that day. [9] She raises a specific defence under the Defamation Act 1889, s 16(1)(b) about this incident and her complaint to the police officer – that it was a publication made in good faith for the purpose of seeking a remedy or redress for some private or public wrong or grievance from a person who has, or whom the person making the publication believes, on reasonable grounds, to have authority over the plaintiff with respect to the subject matter of such wrong or grievance. [10] It is well settled that it is the public duty of everyone who knows or reasonably believes that a crime has been committed to assist in the discovery of the wrongdoer 5 T 14, ll 31 - 35 6 T 35, ll 20 – 25; but, see T 36, ll 33 - 34 7 T 50, ll 37 - 40 -- 3 of 9 -- 4 and any complaint made or information given for that purpose to the police will, in the interests of society, be privileged and the mere fact the defendant volunteered the information will make no difference8 . As the duty has been put, ‘when a person has reason to believe that a crime has been committed, it is his duty and his right to inform the police’9 . [11] Although the matter was not ventilated in submissions, the question whether Mrs Bedey or Mr Zellner were in their underwear when Mr Doelle began filming may not be of great moment. Section 359B of the Criminal Code defines the offence of unlawful stalking in a broad fashion. It includes any ‘intimidating’ conduct which causes apprehension or detriment to the victim10 . Even if Mrs Bedey’s report to the police officer involved nothing more than is seen on Mr Doelle’s own film, the act of video-taping persons without their consent, through the windows or doors of their place of residence, while maintaining a loud, aggressive and critical running commentary (as Mr Doelle is heard to do on the soundtrack) is arguably something which might fall within the parameters of the legislation. [12] Section 16(2) of the Defamation Act 1889 places riders on the circumstances in which the defence can legitimately be used. The publication must be made in good faith and, in particular, must be relevant to the matters for which the protection was provided; the manner and extent of the publication must not exceed what is reasonably sufficient for the occasion; and the person who makes the publication must not be actuated by ill will to the subject of the report, or have any other improper motive, and believe the matter reported is not untrue. [13] The question whether Mrs Bedey’s report to the police officer satisfied these criteria was not, again, the subject of attention in either party’s case. The evidence of Senior Constable Simpson does not suggest it went, unreasonably or at all, beyond a relation of the events shown in the film except for the allegation about Mrs Bedey and Mr Zellner being at some time when they (not unreasonably) thought Mr Doelle was filming them, in their underwear. For reasons already explored, I accept that evidence. [14] The only remaining question concerns Mrs Bedey’s motive in making the report, and the possibility of ill will or something else improper. Mr Doelle alleged during his opening that the report was made on the very day he and Mrs Bedey were due to appear in the Small Claims Court11 , but that was not put to her or the police officer and, in any event, was not established to have any relevance and is not itself persuasive of some improper motive. It also was apparent from the police officer’s evidence that Mrs Bedey’s complaint was, later, voluntarily withdrawn by her but that did not occur in a way suggesting either that she acknowledged the report was untrue, or resiled from it 12 . I am, for these reasons, satisfied the defence was open and available to Mrs Bedey and that it is a good defence to this part of the plaintiff’s claim13 . 8 Tipene v Apperley [1980] NZCL 1107 9 Croucher v Inglis (1889) 16 R at p. 778 10 Criminal Code Act 1889, Chapter 33A 11 T 7, ll 17 - 21 12 T 36, ll 43 – 57; T 58 ll 1 - 10 13 Set out in the plaintiff’s Statement of Claim at paras 3, and 7 -- 4 of 9 -- 5 [15] On 12 February 2005 the parties and Mr Zellner and the real estate agent, Mr Smith, met there to discuss matters arising out of the end of the tenancy. The meeting took place over about 1.5 hours. Unbeknownst to the other parties Mr Doelle had a small concealed tape recorder. Later, he made a transcript of what was said during the meeting. The tape is of very poor quality and the voices are obscured by background noise but I am satisfied pages 35 and 36 of the transcript record what can be heard on the tape and, in particular, that Mrs Bedey said words to Mr Doelle to the effect that he had ‘killed a man’. [16] The evidence is, again, confusing but it appears the statement also has some roots in past dealings between the parties. It occurred after what the tape and transcript show to be long and sometimes quite heated discussions about things which had occurred on the property during Mr Doelle’s tenancy, and disputes about repairs and rectification. Mrs Bedey says she was upset and distressed, and said something about the death of another person, but denies the transcript accurately records what she said. [17] The relevant part of the transcript (‘M’ is the plaintiff; ‘B’ is the defendant, and ‘J’ is the real estate agent, Mr Smith) reads: J. So the posts. I don’t know how to help you’s. I really don’t. B. No. He doesn't want. He doesn't want to help. And if it doesn't want help. You know because. M. Because I’m not a very something else. If they were there. Yes I would of left them their. Because I wouldn't of use my energy to get them out. J. That’s how I probably. How would view it. Why would I pull the posts out? B. To be spiteful. M. Why bother? No, not to be spiteful. J. To be honest. B. He done it to the person and he killed the man afterwards. M. Hay! (sic) B. He done the same thing to the. $120 you rented the house for. M. How do you know? B. Very cheap. M. How do you know? B. You told me. M. No I never. B. Well, you did. M. No I didn’t. B. And then. M. Then I killed the man, did I? J. Just hanging on a second. B. Yes. M. Hang on. Hang on. J. No. No really that’s got nothing to do with this. M. No. No. She’s going. She’s waffling on. She’s waffling on at the mouth. J. That’s got nothing to do with me and this rental. I really can’t be involved with some other issue. M. You the. She said the (sic) killed someone. J. I can’t get involved. M. Well, that’s murder. J. Well. M. Well. Now she is accusing me of not stalking. But murder. J. That has nothing to do with the rental. So I just don’t want to get involved. The only issue’s that we got here was the oil, the trees, the phone, the light and the posts. M. Yeah! B. And we. He doesn't want to agree on those things. So. -- 5 of 9 -- 6 M. And steeling (sic) the water? B. I did not steal any water. (emphasis added) [18] The evidence about the tape and transcript is, again, contentious. Mrs Bedey denies she said the emphasised words attributed to her in this passage. Mr Doelle alleged, when she cross-examined him, that after he said ‘Well. Now she is accusing me of not stalking. But murder’ that she said ‘Yes’; but that does not appear in the transcript, and Mr Doelle’s evidence in support of the allegation was unimpressive: first, he said it was ‘…on the tape’14 ; then, that it ‘…couldn’t be picked up because (Mr Smith) was talking above – trying to talk above everyone to change the subject’15 . [19] Otherwise, the transcript shows, the parties appear to have reached a final agreement about matters that were in contention concerning the plaintiff’s tenancy and, also, to have agreed that the agent could release the plaintiff’s rental bond to him. What happened then is, again, unclear. [20] Both Mr Smith and Mr Zellner gave evidence that they did not hear Mrs Bedey say anything including the words ‘murder’ or ‘killed’ or ‘killer’ or ‘murderer’. Mr Doelle was reluctant to cross-examine Mr Zeller, and only did so when it was suggested that, if he maintained Mr Zellner was present at the critical time, it would be prudent for him to put his case16 . The last time Mr Zellner is recorded saying anything, on the tape and in the transcript, is some ten pages before the passage set out above and it is simply unclear whether he was actually present at that time. It was not put to Mrs Bedey or Mr Smith that Mr Zeller was there. Mr Zellner is heard speaking German earlier on the tape, and lapsed into that language during his evidence. It was plain he is not comfortable in English. It is at least possible he did not follow the conversations recorded on the tape – Mr Doelle, who knows him better, appeared to accept he could not give evidence without a translator17 . Whatever occurred, I have no reason to disbelieve Mr Zellner’s evidence that he heard nothing material. [21] Mr Smith also said he did not hear Mrs Bedey use any words of the kind appearing in the transcript. When cross-examined he was pressed by Mr Doelle with the fact that words he used, appearing in the passage recited earlier and at p 36 of the transcript, ‘No. No really that’s got nothing to do with this’ and, ‘That’s got nothing to do with me and this rental. I really can’t be involved with some other issue’ and, ‘I can’t get involved’, were consistent with him having heard what was said by Mrs Bedey, but he remained steadfast18 . [22] It is possible, of course, that his denial involves an error of recollection (which he was prepared to concede19 as a possibility, although not as to whether he actually heard Mrs Bedey speak these words) and in the circumstances revealed by the transcript of the relevant exchange that would not be surprising. While it is more probable than not that he was close by at the relevant time, the parts of the recording 14 T 23, line 30 15 T 23, ll 34 -35 16 T 57, ll 11 - 53 17 T 12, ll 6 - 8 18 T 30 ll 25 – 26; ll 36 - 44 19 T 31, ll 5 - 11 -- 6 of 9 -- 7 following Mrs Bedey’s words, ‘He done it to the person and he killed the man afterwards’ show he was silent until, in fact, Mr Doelle said, ‘Then I killed the man, did I?’ at which point he is heard to intervene. As Mr Smith said, these events occurred over two years ago and towards the end of a long and, as the tape and transcript vividly confirm, exhausting and unpleasant process in which he was attempting to mediate all matters to do with the tenancy and the disputes which surrounded it, many of which were very minor and can not unreasonably be described as nitpicking, or suggestive of bloody-mindedness. It is also possible that he simply failed to understand what Mrs Bedey said; her remarks came out of the blue, and may have involved a reference to some earlier conversation between her and Mr Doelle20 . [23] In any event the words he is heard to speak are consistent with his determination to ignore, and not be distracted by, irrelevant and argumentative statements the parties might make to each other. If that was his state of mind – and the words strongly imply it – his denial accords with his apparent resolve at the time. Whether he did not hear, or chose not to, his denial was convincing. [24] Despite these denials I am, nevertheless, satisfied after listening to the tape and notwithstanding the difficulties it presents that Mrs Bedey did say words of the kind set out in the passage of transcript recited above. She can be heard on it, saying those things. [25] Mr Doelle’s Statement of Claim alleges that the imputation21 arising from her words is that he ‘…murdered a man who was his previous landlord’. Both in their ordinary meaning, and in context, this imputation is not unreasonable and the words are, on their face, defamatory22 . [26] The first difficulty for the plaintiff is, however, the absence of persuasive evidence that they were published to anyone. The only other persons possibly present were Mr Zellner and Mr Smith and, in the circumstances analysed earlier and for the reasons given then, I am simply unpersuaded they actually heard the defamatory matter or, if Mr Smith was present to hear it, that he paid it any attention and did not immediately put it out of his mind and promptly forget it. [27] That is an unusual circumstance in the history of the jurisdiction and, perhaps unsurprisingly, I have been unable to find a case in which it arose. The proposition that an action for slander must involve publication to an auditor is, however, logical and compelling. As the learned author of ‘Defamation Law in Australia’ 23 says, at pp 108-9: Publication may be made by any means of communication – orally, in writing or by conduct – but there must be communication from one person to another. If the recipient cannot or does not comprehend (hear, read or see) the material, there has been no communication and therefore no publication. [28] Even if a different conclusion had been reached about Mr Smith’s evidence it is arguable that the circumstances of publication, effectively to only one person and in a form which, as the evidence shows, would not necessarily have been understood 20 T 22, ll 8 - 16 21 For the purposes of s 4(1) of the Defamation Act 1889 22 Ibid; and see, eg, Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 23 Patrick George; LexisNexis Butterworths, Australia, 2006 -- 7 of 9 -- 8 by him, are trivial. Those circumstances may have entitled Mrs Bedey to plead s 20 of the Defamation Act 1889, which provides: 20 Trivial matters not in writing In any case other than that of words intended to be read, it is a good defence to an action for defamation, or a prosecution for publishing defamatory matter, to prove the publication was made on an occasion and under circumstances when the person defamed was not likely to be injured thereby. [29] The provision, the cases show, can apply where the circumstances render it unlikely that the defamed person will suffer harm24 , and may be relatively easy to make out when the publication was to a small number of persons well acquainted with the plaintiff and able, themselves, to make a judgment of their own knowledge as to the likelihood that there was any substance in the imputation conveyed25 . The relevant exchange came late in the heated and exhausting negotiations which had been going on about aspects of the tenancy. At no time, the transcript shows, had the plaintiff and the defendant said anything to or about each other which evinced anything but unfriendly relations and dealings, and hostility. Mr Smith had known Mr Doelle for some years, although the frequency of their dealings is unclear. It is improbable that, had he been paying attention to the conversation when the offending remarks were made, he would have regarded them as anything more than yet another manifestation of the hostility the parties had already shown each other, an accusation made in the course of their often vituperative exchanges and in the same vein, and unlikely to be true. [30] The fact the statutory defence was not pleaded means it would be unfair to hold it against the plaintiff. While some latitude can be given to the interpretation of pleadings filed by unrepresented parties26 , an opposing party remains entitled to know the elements of the case raised up against it27 . It is improbable, of course, that the plaintiff would have conducted his case any differently had the plea been raised – particularly in light of the manner in which he did conduct it – but that cannot be assumed. [31] Nevertheless, the fact that damage to the plaintiff’s reputation did not occur, or was unlikely to happen, is a matter which can be taken into account in measuring damages. Mr Doelle’s evidence about his alleged damages was terse. He is unemployed and in receipt, it appears, of a pension related to physical ailments he has in his back and heart. He presented medical evidence to the effect that in about January 2006 he developed atrial fibrillation associated with stress related neuroses, exacerbated ‘over recent months’ preceding the date of the doctor’s first report, 15 November 2006. No apparent connection with the incidents alleged in the statement of claim was established and Mr Doelle also frankly admitted that his back condition, unrelated to the alleged defamation, would, itself, prevent him from gainful employment. 24 Chappell v Mirror Newspapers (1984) Aust Torts Reports 80-691, per Moffit P at p 68,947; Jones v Sutton [2004] NSWCA 439 per Beazley JA at [16] 25 Jones v Sutton (supra) per Beazley JA at [15], citing Badgery-Parker J in Perkins v NSW Aboriginal Land Council (unreported, NSWSC, 15 August 1997) 26 Stergiou v Citibank Savings Ltd (1998) 148 FLR 244 per Crispin J at [9] 27 Commonwealth Bank of Australia Ltd v Cooper (unreported, Supreme Court (SA), Doyle CJ, 28 February 1997) -- 8 of 9 -- 9 [32] He was unable to point to any other particular instance giving rise to a suggestion of loss or damage, save two things28 : first, he said that the police officer, Mr Simpson, would not deal adequately with his complaints; and, secondly, that he doubted the real estate agent, Mr Smith, would be prepared to rent a property to him. He has not, however, attempted to rent premises via Mr Smith or the real estate agency with which he is associated. There is also no evidence that he has suffered some loss because Senior Constable Simpson (or other police officers) have failed to deal adequately with complaints he has made about legitimate concerns (and it is appropriate to reiterate that Mrs Bedey’s report to the police never resulted in any charge being laid against Mr Doelle). Both these persons gave evidence but neither said (or, regrettably, was asked) about these matters. [33] While, for reasons already explored, his action must fail it is appropriate to measure damages. The critical factors are the nature and gravity of the attack on the plaintiff’s reputation, and the extent to which the defamatory material has been spread by publication. The evidence shows, persuasively, that the attack occurred in circumstances where the words uttered were in the course of lengthy, unfriendly exchanges couched in hostile language from both parties, and within a very confined arena. While the imputation arising from them is serious, their gravity is greatly diluted by that context. [34] There is no evidence of actual hurt feelings on the plaintiff’s part although I accept, from his reaction on the tape, that he suffered some immediate offence – but, as the tape also reveals, he recovered quickly. He did not present, during the trial, as a person still carrying any pain or distress traceable to the incident. His demeanour and remarks did suggest a desire for vengeance but that seemed to have its roots in the turbulence which surrounded the end of his tenancy, a matter which still seems to be vivid and important to him and to colour his behaviour towards the defendant and, indeed, everyone associated with events at that time. In all the circumstances damages would be nominal; I would not estimate them at more than $250. [35] The plaintiff has not established his case; the allegations of defamation are unfounded. If any compensable damages have been suffered by him they are, at most, nominal. In these circumstances and for the reasons explored his claim must be dismissed. 28 T 19 line 7 – T 20 line 48 -- 9 of 9 --