Erglis v Buckley (No 2) [2005] QCA 404 [2006] 2 Qd R 407

SUPREME COURT OF QUEENSLAND CITATION: Erglis v Buckley & Ors [2005] QCA 404 PARTIES: WENDY ERGLIS (plaintiff/appellant/cross-respondent) v MELISSA BUCKLEY (first defendant/first respondent/first cross-appellant) RACHAEL CRAWLEY (second defendant) LISA SHEARMAN (third defendant/second respondent/second cross-appellant) ALLISON LOVELL (fourth defendant) JUDY CUMMINGS (fifth defendant/third respondent/third cross-appellant) REBECCA MANNING (sixth defendant) JANINE GIBSON (seventh defendant) KYLIE ASH (eighth defendant/fourth respondent/fourth cross-appellant) JACQUI BOE (ninth defendant) RON MIDDLETON (tenth defendant/fifth respondent/fifth cross-appellant) MADONNA FUERY (eleventh defendant) STATE OF QUEENSLAND (twelfth defendant/sixth respondent/sixth cross-appellant) FILE NO/S: Appeal No 2451 of 2005 SC No 2867 of 2002 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 4 November 2005 DELIVERED AT: Brisbane HEARING DATE: 5 August 2005 JUDGES: McPherson and Jerrard JJA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made -- 1 of 39 -- 2 ORDERS: 1. Plaintiff’s appeal dismissed with costs 2. Cross-appeal by tenth and twelfth defendants dismissed with costs 3. Plaintiff’s appeal against the order for the costs of the trial dismissed with costs CATCHWORDS: APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – INCONSISTENCY BETWEEN FINDINGS OF JURY – INCONSISTENCY BETWEEN DIFFERENT FINDINGS – PARTICULAR CASES – plaintiff nurse brought defamation claim against colleagues in the Royal Brisbane Hospital Bone Marrow Transplant Unit Ward 9D regarding a letter that was read in Parliament by the then Health Minister – the letter was composed by certain Ward 9D staff members as a response to Parliamentary criticism of the ward based on information supplied by the plaintiff – favourable judgment given to all defendants except the tenth defendant and the State of Qld in its role as indemnifier of the defendants – jury found the tenth defendant to have acted in bad faith – jury also decided that the defamatory matter was irrelevant to any excuse relied upon by the tenth defendant, but was relevant for the other defendants – whether jury adopted an incorrectly subjective approach in answering this question – whether if the jury got one answer wrong it would cast such doubt on all other answers so as to require a new trial APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – OBJECTIONS AND POINTS NOT TAKEN AT TRIAL – WHEN NOT ALLOWED TO BE RAISED – FAILURE TO TAKE OBJECTION – NON-DIRECTION – PARTICULAR CASES – trial judge directed the jury to use the ‘reasonable person’ standard when deciding the relevance of the defamatory matter to any excuses relied upon by the defendants – no objection taken at trial to this direction – whether the judge inadequately directed the jury on this point or inadequately summed up the case as a whole – whether a re-trial can be ordered if no objection was taken at trial to the directions DEFAMATION – PRIVILEGE – ABSOLUTE PRIVILEGE – STATEMENTS MADE IN PARLIAMENT – s 8 and s 9 of the Parliament of Queensland Act 2001 (Qld) confer protection from judicial interference on Parliamentary proceedings – judge held that the composition and sending of the letter by the nurses was entitled to the protection of parliamentary privilege – judge held that the tenth defendant’s subsequent publication of the letter to other members of Ward 9D was not protected by privilege – whether the judge erred in his construction of the -- 2 of 39 -- 3 parliamentary privilege protection provisions PROCEDURE – COSTS – APPEALS AS TO COSTS – WRONG EXERCISE OF DISCRETION – plaintiff took five defendants to trial – twelfth defendant (State of Qld) indemnified all defendants – plaintiff only successful against one defendant – judge ordered the plaintiff to pay the State of Qld 65 per cent of its costs – whether the judge erred in principle in exercising this discretion Parliament of Queensland Act 2001 (Qld), s 8, s 9 Supreme Court Act 1995 (Qld), s 230, s 253, s 259 Uniform Civil Procedure Rules 1999 (Qld), r 770 Australian Coal & Shale Employees Federation v The Commonwealth (1953) 94 CLR 621, cited Beaumont v Senior [1903] 1 KB 282, distinguished Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183, cited Bjelke-Petersen v Warburton & Burns [1987] 2 Qd R 465, cited Bugg v Day (1949) 79 CLR 442, cited General Motors-Holden’s Pty Ltd v Moularas (1964) 111 CLR 234, cited Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254, cited John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657, cited Nevill v Fine Art & General Insurance Co Ltd [1897] AC 68, cited Rowley v O’Chee [1997] QCA 401; [2000] 1 Qd R 207, considered Thiess v TCN Channel Nine [1994] 1 Qd R 156, cited COUNSEL: P J Favell, with R J Anderson, for the appellant/cross- respondent P A Freeburn SC, with I R Perkins, for the respondents/cross- appellants SOLICITORS: Drakopoulos Black for the appellant/cross-respondent C W Lohe, Crown Solicitor, for the respondents/cross- appellants [1] McPHERSON JA: The plaintiff Mrs Wendy Erglis is a registered nurse. She sued a number of her fellow nurses for damages for defamation arising out of a letter (ex 9) concerning her which on 5 December 2001 they published to the Minister for Health, who was then Hon Mrs Wendy Edmond. By the time the matter came to trial the plaintiff had limited her claim to five of the defendant individuals (who are respondents to this appeal), namely Melissa Buckley, Lisa Shearman, Judy Cummings, Kylie Ash and Ron Middleton, together with the State of Queensland. The State, which is the twelfth defendant and sixth respondent to the appeal, operated the hospital at which the other parties all worked in what was designated Ward 9D and it has undertaken to indemnify the other defendants. It was a -- 3 of 39 -- 4 specialist ward or unit dedicated to carrying out bone marrow transplants and chemotherapy for patients being cared for there many of whom were terminally ill. [2] On 4 December 2001, Hon Mr Michael Horan, who was then the Leader of the Opposition in and a member of the Legislative Assembly, made a lengthy statement in the Queensland Parliament in which he criticised the conduct and management of Ward 9D. It is accepted that the source of the information published by Mr Horan on that occasion was the plaintiff Mrs Erglis. The other nurses, or many of them, who worked in Ward 9D were upset about the allegations in the statement made by Mr Horan, and sought an opportunity of refuting what had been said. To that end, on the afternoon of 5 December 2001 they had a conference with the Minister, who, after hearing what they had to say, promised to read out in Parliament a letter containing their side of the matter. The letter was then composed, written and signed by the individual defendants and transmitted to the Minister. Later in that day, she read it to the members in Parliament, which was sitting at the time. It is on this letter (ex 9), or its publication to the Minister on 5 December 2001 and subsequently again to other persons in Ward 9D, that the plaintiff’s claim for damages for defamation is founded. [3] The proceedings came to trial before Helman J and a civil jury of four in the Supreme Court on 8 November 2004. The jury returned their verdict, or, more accurately, their answers to questions put to them by his Honour, on 3 December 2004. The jury’s answers were universally favourable to all defendants, for whom judgment was given in the action, except the tenth defendant Ron Middleton and the twelfth defendant State of Queensland. Against Mr Middleton, the jury assessed compensatory damages of $15,000.00. By their answers, however, the jury also found that the acts of composing the letter ex 9, typing, printing and sending it to the Minister, as well as bringing it to the attention of other Ward 9D staff at the hospital, were acts done in the course of, or for the purposes of, or incidental to, presenting or submitting the letter to Parliament. If accepted as a matter of law, this meant, or so it was argued by the defendants, that the letter or its publication to other Ward 9D staff was entitled to the benefit of parliamentary privilege or protection under ss 8 and 9 of the Parliament of Queensland Act 2001. [4] After hearing submissions on the law his Honour concluded for reasons he gave that the acts of the defendants in composing, typing, printing and sending the letter to the Minister were entitled to the protection conferred by s 9(2) of the Parliament of Queensland Act 2001. On the other hand, his Honour held that the act of subsequently publishing the letter to other persons in Ward 9D was not so protected. He accordingly gave judgment against Mr Middleton and the State for the amount of $15,000 damages assessed by the jury. To use the language of the old practice in this regard, his Honour entered judgment against the tenth and twelfth defendants notwithstanding the verdict of the jury (non obstante veredicto). Those defendants Mr Middleton and the State of Queensland have cross-appealed against his Honour’s decision to that effect. [5] The principal matter now before us is the plaintiff’s appeal against the verdicts or answers of the jury to a series of the questions put to them in respect of the defendants at the trial. The first question was whether the words of the letter ex 9 dated 5 December 2001 from the nurses to the Minister meant and were understood to mean that the plaintiff had done specified acts that were, or showed that she was, discreditable in various particulars alleged. The defamatory imputations alleged to -- 4 of 39 -- 5 be contained in or to arise from the publication depend on the words in the context of the letter (ex 9) itself, which is set out in para 4 of the statement of claim and in the paragraph next following in these reasons. For present purposes it is enough to say that the jury answered in the negative all but three out of a total of ten questions put to them asking if the defamatory imputations alleged to arise from the letter were made out. In addition, however, the defendants in their defence admitted that 16 of the other pleaded imputations arose from ex 9 and were published as alleged. [6] The letter, which is addressed to the Minister Mrs Edmond, is in the following terms: “We, as the nurses of 9D, are extremely appalled in the actions of the former staff member, Wendy Erglis, who claims she is acting as a representative of the ward. The staff of 9D wishes to clearly state that Ms Erglis does not represent the views or opinions of staff working on the unit. She is a lone voice in the opinions that she expresses. We find the comments made in parliament yesterday and subsequently reported in the media to be offensive, frustrating and untrue and as a result feel violated and demoralised. Our working environment is a very difficult one and the continual erosion of our confidence and that of our patients through trial by media is highly destructive. The media has displayed no consideration for our patients or their families at this most vulnerable time of their lives. Ms Erglis has not been working in the unit since the 16th April 2001 (was first on maternity leave and recently voluntarily resigned). It should be clarified that Ms Erglis was only ever employed as a level 1 registered nurse and in this role was never required to undertake the role of a senior nurse on a shift to shift basis. During the time that she was working in the unit we felt she was unhelpful, at times obstructive, and had a negative impact on staff moral. Her clinical practice has been questioned by senior staff on the unit on a number of occasions. Ms Erglis claims that 27 nurses left the Bone Marrow Transplant Unit directly related to the actions of the CNC. In fact, the staff movement was a result of a combination of both natural attrition due to travel opportunities and career changes and directly as a result of the campaign being waged by Ms Erglis and others to undermine the CNC and the Ward 9D. Ms Erglis has stated a clear agenda to damage the career of the CNC and the BMTU, Ward 9D, irretrievably. It appears remarkable that Mr Horan is being manipulated by Ms Erglis to achieve her own malicious agenda.” [7] Whether any matter is or is not defamatory is a question of fact: Defamation Act 1889 s 18(1). Whether the jury are reasonably entitled to find it is not defamatory is one of law. I do not think it possible to say that it was wrong in law of the jury to find as a matter of fact that the remaining seven imputations did not arise from the published material, or to say that they were not reasonably entitled to -- 5 of 39 -- 6 find as they did. The particular utility of having juries as representatives of the community to decide such questions has often been stressed, and is no doubt why trial by jury was chosen by the plaintiff in this case. Instances in which appellate courts have set aside negative findings of a jury in relation to defamatory imputations are not unknown, but they are certainly rare. The decision of the High Court in John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 is such an instance; but one has only to compare and contrast the terms of the published material and the defamatory imputations alleged there with those in this case to appreciate the difference between the two. [8] Paragraph 5 of the statement of claim alleges that the statements in the letter naturally meant that the plaintiff was “dishonest”, “a person of bad character”, “lacked ethical standards”, “was unethical”, or “was a liar”. None of these matters is stated or expressed anywhere in the letter, which does not use any of those words or phrases. For the jury to find these imputations, or any of them, present, it would therefore have been necessary for them to find that they were implicit in what was said in the letter. This they declined to do. It is not possible to hold that in these respects their answers were wrong, or that they were obliged to find that the words or matter in the letter meant or were understood to mean what is imputed to them in para 5. [9] The plaintiff was on somewhat stronger ground in claiming it was imputed to her that she was “a nurse with questionable clinical ability”. The letter did say that “her clinical practice has been questioned by senior staff on the unit on a number of occasions”. The defendants were perhaps fortunate not to have had this imputation found against them. But to say that her nursing ability had been “questioned”, even if “on a number of occasions”, is not necessarily to assert as a conclusion that her general ability as a nurse was “questionable” or open to question. There is a discernible tendency in the imputations alleged in the pleading to identify a single occasion of deficiency on her part, and then to enlarge it to the level of an inherent characteristic. The jury were in my opinion not obliged to adopt that course on the findings which they made. In my view they were entitled to reject, as they did in seven out of ten instances, those defamatory imputations that were ascribed to the words published in the letter ex 9. [10] With respect to the defamatory imputations that were found as a fact by the jury or were admitted by the defendants in their defence, the defendants relied on various provisions of the Defamation Act 1889, but principally on s 16(1)(e) which makes it a lawful excuse for the publication of defamatory matter. “(e) if the publication is made in good faith for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has, or is believed, on reasonable grounds, by the person making the publication to have, such an interest in knowing the truth as to make the person’s conduct in making the publication reasonable under the circumstances.” Each of the separate paragraphs of s 16(1) providing an excuse for publishing defamatory matter is introduced by the expression “if the publication is made in good faith …”. Section 16(2) then goes on to define good faith by providing that: “(2) For the purposes of this section, a publication is said to be made in good faith: -- 6 of 39 -- 7 • if the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; • if the manner and extent of the publication does not exceed what is reasonably sufficient for the occasion; and • if the person by whom it is made is not actuated by ill will to the person defamed, or by any other improper motive, and does not believe the defamatory matter to be untrue.” [11] The foregoing division into “dot points” does not appear in the text of s 16(2) of the Act, but has been adopted here for ease of reading and comprehension. Section 17 of the Act adds that, when any question arises whether a publication of defamatory matter was or was not made in good faith in circumstances apparently affording a lawful excuse for publication if made in good faith, “the burden of proof of the absence of good faith” lies upon the party alleging such absence. That burden was assumed here by the plaintiff, who in her pleaded reply challenged the defendants’ good faith in respect of each of the “dot point” matters relied on in their defence. Having done so, the result was under s 17 to require from her proof of the absence of good faith on the part of the defendants in making the publication. Having regard to the final conjunctive “and” in s 16(2), it was enough for the plaintiff to negative any one or more of the “dot point” matters in s 16(2). This she failed to do except in the case of Middleton. [12] As there were five individual defendants, each of whom gave evidence, and as to whom these matters might have been decided differently in each instance, the formulation of these and other questions for the jury called for close attention. His Honour heard submissions on the subject extending over the space of some two sitting days, after which counsel addressed the jury and his Honour summed up. The parties in the end agreed on the questions that it was proposed to leave and were left to the jury. They were helpfully divided into six parts. Part A dealt with The Meaning of the Words, which I have already touched upon in these reasons. Part B was concerned with Defences, which included questions relative to s 16(1)(e). Part C was directed to Bad Faith; Part D to Parliamentary Privilege; Part E to Publication, and Part F to Damages, which, as it transpired, was where the award of $15,000 was made against the defendant Middleton. I propose to pass over most of the questions and the answers given by the jury, and to move directly to those concerning the principal point at issue in this appeal. The ultimate question here involved a conclusion as to the defendants’ states of mind or good faith in publishing the material admitted or found by the jury to bear imputations defamatory of the plaintiff. [13] The questions in Part C concerning Bad faith and the answers given by the jury were in the following form: “8. (a) Was the defendant actuated by ill-will to the plaintiff or by some other improper motive. Answer No Yes for Ron Middleton (b) Was the defamatory matter published irrelevant to any occasion of excuse relied on by the defendant Answer No Yes for Ron Middleton -- 7 of 39 -- 8 (c) Did the manner and extent of publication exceed what was reasonably sufficient for the occasion Answer No No for Ron Middleton (d) Did the defendant believe the defamatory matter to be untrue Answer No Yes for Ron Middleton If the answer to any of the above is “yes”, proceed to Parts D, E and F. If the answer to all of the questions is “no” proceed to Parts D and E, but not F.” [14] What is submitted by the plaintiff is that the jury were plainly wrong in the answer that they gave to question 8(b) in the case of the defendant Ron Middleton. They answered Yes, when they should have answered No to the question whether the published defamatory matter was irrelevant to any occasion of excuse relied on by that defendant. This was said to cast doubt on the correctness of all of the 92 or so other questions that were left to them in this and other Parts of those questions. From this it is said to follow that their answers generally and in particular those concerning bad faith should be set aside both as regards the defendant Middleton and the other individual defendants, and that a complete retrial of the action should be ordered. On any view of it, the answer to question 8(b) could not, it was said, be allowed to remain on the record of the trial. [15] I am, however, far from persuaded to accept these submissions or the conclusions that are said to follow from them. There are several reasons for this. In the first place there is no apparent justification for saying that, because the jury got the answer to question 8(b) wrong, if they did, all of their answers to other questions must now be set aside and a retrial ordered of the whole action against all defendants. Unless compelled to adopt that course, it would be an act of judicial vandalism to do so. Each of the subsidiary inquiries in question 8 concerning bad faith was put to the jury and answered separately in respect of each of the five individual defendants. For Part C (Bad faith) of the case alone, there were thus a total of 20 questions altogether. If the jury answered only one of them wrongly in the case of Middleton, it is by itself no reason for setting aside any or all of the answers in respect of each of the other defendants unless there is something much more obviously and fundamentally amiss with the answers to those questions. [16] As to this, it is submitted that the jury must have approached question 8(b) in the wrong manner. They must have supposed that the question was one to be answered “subjectively”, whereas it is, as is shown by Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183, one that, relating as it does to the first “dot point” in s 16(2), is to be answered objectively. The doubt thus created is said to flow through to all the other answers in question 8. I confess I find the dichotomy between subjective and objective approaches of little help in evaluating what, if anything, might have gone wrong with the jury’s answer to question 8(b). There is on the face of it nothing at all to suggest that the jury adopted a subjective approach in answering question 8(b) for Middleton. It was said that the fault lay with the judge for failing to direct the jury specifically with reference to this part of question 8 that they were to be satisfied that objectively the matter published was, in -- 8 of 39 -- 9 the terms of s 16(2), “relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter”. [17] There are, however, at least two fatal flaws in this submission. The first is that, as Jerrard JA pointed out in argument, the judge in fact directed on this question in a way that left no doubt that the question was to be answered objectively. After first stating (and repeating) that a publication is not made in good faith if the defamatory matter published is irrelevant to the matter the existence of which may excuse the publication, his Honour returned to the point later in his directions, telling the jury that: “When you are considering the questions of the alleged irrelevance of the contents of the letter … you should apply the standard of the reasonable person …”. In view of this, it seems to me to be impossible to suggest that the learned judge did not direct the jury to determine the question of relevance or irrelevance in an objective sense. He did not specifically use the expression “objective”, which it must be said is not as readily understood by ordinary members of the public as it is by lawyers trained in such concepts; but he told the jury to apply the standard of the reasonable person, which is the same thing stated in simpler terms. [18] The matter does not end there. What the plaintiff is complaining of here is not any positive misdirection by the judge, but of a failure to direct, or of an inadequate direction. As to that, there was no application at the trial and, as it happens, no specific complaint in the notice of appeal, of failure to direct on this matter or in this way. No redirection on the issues was asked for by the plaintiff. Now, on an appeal in a civil case from a jury’s verdict, the rule on this subject is clear. It is, as Lord Halsbury said in Nevill v Fine Art and General Insurance Company [1897] AC 68, 76, that: “… where you are complaining of non-direction of the judge, or that he did not leave a question to the jury, if you had an opportunity of asking him to do it and you abstained from asking for it, no Court would ever have granted you a new trial …” The rule has often been applied in Queensland and in Australia generally. See, for example, Benjamin v Stewart [1905] St R Qd 35, 48; Mutual Life Insurance Co of New York v Moss (1906) 4 CLR 311, 322; Brown v Citizens Life Assurance Co (1902) 2 SR (NSW) 202, 216; Barker v Smith (1907) 7 SR (NSW) 716, 717; Council of the City of Rockhampton v Russell (1931) 46 CLR 462, 468-469; General Motors-Holden’s Pty Ltd v Moularas (1964) 111 CLR 234, 242-243. At the trial here, counsel were specifically asked whether they required any redirections to be given. They had none, or none that are relevant to this matter. [19] Even if the jury went wrong in answering Yes to question 8(b) in the case of Middleton, it would not signify more than that particular answer should be set aside. At common law, a jury could not be required to answer particular questions or to give a special verdict rather than a general verdict: see Russell v Victorian Railways Commissioners [1948] VLR 118, 130. Because, in consequence, a material misdirection at the trial led to the setting aside of the entire general verdict and a new trial of the whole action, whereas the misdirection might have affected only a minor part of the case, s 15 of the Judicature Act 1876 in Queensland, unlike those enacted elsewhere, specifically authorised the trial judge to put questions to the jury -- 9 of 39 -- 10 which they were required to answer. See the quotation from R v Cockerell (1879), which is set out in the History of the Supreme Court of Queensland (1989), at 171- 172, where the change effected by this reform is discussed. Further, Queensland had by then already adopted from England the provision in Rule 48 of the rules of court scheduled to the Supreme Court Judicature Act 1873 (Eng) providing that a new trial should not be granted in a common law action “unless … some substantial wrong or miscarriage has been thereby occasioned”. See s 13 of The Supreme Court Act of 1874, which has since been transposed to s 230 of the Supreme Court Act 1995. There is an identical provision in the current Queensland rules of court in UCPR 770(2)(b)(i). [20] Here there was, as I have already said, no misdirection, or even non-direction, capable of attracting relief by way of an order for the retrial of this action to which s 230 could even begin to apply. Assuming, however, that there was, Isaacs J in Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254, 269, said of similar legislation that the section introduced nothing new, because it was always a matter of discretion for the court whether a new trial should be granted, which was to be exercised “in such a manner as will best answer the ends of justice”. See also Hoyt’s Pty Ltd v O’Connor (1928) 40 CLR 566, 576. In the present instance the jury’s error, if it is one, is confined to only one of four answers with respect to the defendant Middleton in a series of four separate questions each of which was designed to elicit in various ways whether the jury considered he had acted in bad faith in publishing the defamatory material. They found affirmatively in answer to 8(a) that in publishing the material he had been actuated by ill-will to the plaintiff; negatively to question 8(c), in favour of Middleton that the manner and extent of the publication exceeded what was reasonably sufficient; and in 8(d) affirmatively, that he did not believe the defamatory matter to be true. In short, the jury made a positive finding, or two such findings, of absence of good faith on his part in publishing the defamatory material. There is no reason to suppose that the answer to question 8(b), if inconsistent with other answers to question 8 in his case, was founded on anything more than, at worst, a possible misreading of the word “irrelevant”, or a mistake about its significance or effect in the context of that particular question. Relevance or otherwise to some other matter is by s 19 of the Act a question of fact; but, involving as it did a double negative (“not … irrelevant”), question 8(b) may perhaps have confused the jury. [21] What is submitted, however, is that the answer Yes to question 8(b) in the case of the defendant Middleton is patently inconsistent with the answer No given to the same question 8(b) for each of the other individual defendants. Since in each case the defamatory matter contained in the letter ex 9 was the same, the answers given to question 8(b) should have been the same in each case. From this, it is argued that answering that question Yes for Middleton and No for the other defendants demonstrated the inconsistency between those answers for which the plaintiff contends. To my mind, however, this overlooks other evidence adduced against Middleton and other findings made by the jury at the trial that did not arise in the case of the other four individual defendants. [22] As we have seen, not only was the letter ex 9 published to the Minister on 5 December 2001, but it was also published to other persons in Ward 9D after it had been sent to the Minister. A copy of the letter (or it may have been the original) to the Minister was taped to the counter at the nurses’ station in Ward 9D for all to see. They included nurses, two of whom signed it while on night shift on 5/6 December -- 10 of 39 -- 11 2001, and others including doctors, catering staff, wardsmen, patients and visitors to the Ward. Some nurses gave evidence that they saw it there. There was another copy of the letter in the communications book, where it remained until January 2002. Mr Middleton admitted in cross-examination that he placed the letter on that counter “so the staff were aware of what we had written … to make them aware”. It was not suggested that any of the other individual defendants were responsible for this action, which was, of course, a publication by Middleton of the defamatory matter on a further or second occasion and to persons other than the Minister herself. When the jury reached Part E (Publication) of the questions they answered Yes to the question “Did other people see the letter in the ward?”. [23] One can, I think, be reasonably confident that this is the explanation of why the jury answered question 8(b) as they did. The defamatory matter published in this way by Middleton in the Ward was irrelevant to any occasion of excuse under para (e) or otherwise of s 16(1) of the Defamation Act, or so the jury found in answer to question 8(b). As such, it served to support a finding of lack of good faith on his part in terms of the first “dot point” in s 16(2), as well as the other parts of that provision. [24] It was not the only fact or matter on which the jury were entitled to base their adverse finding in this particular against Middleton. There was in evidence a written report entitled Performance Development Profile Form - Confidential (Addendum) prepared by Middleton, who occupied the position of clinical nurse consultant in the Ward. It contained a reference to an incident in late March or early April 2001, when the plaintiff was about to go on maternity leave (from which she never returned to Ward 9D), on which she was said to have reproved Middleton, pointed her finger at him and told him to “back off” in what was described in the report as a “very verbally aggressive, intimidating manner”. The report was admitted as ex 82 and Middleton was cross-examined about it by counsel for the plaintiff. He had, it appeared, prepared the profile only on the morning of 5 December 2001, after arriving at work early having been unable to sleep after seeing the evening television coverage of Mr Horan’s Parliamentary speech on the previous day. The incident to which it related had, however, occurred some eight months previously on approximately 27 March 2001, as is recorded in the profile itself. The jury may well have been unfavourably impressed with his action in preparing the profile, containing the unfavourable report, so long after the event, and they may well have used it in making their findings of bad faith against him. It was in fact this incident in March 2001 that generated the reference to the plaintiff in the letter ex 9, prepared later on the day of 5 December, as having had her clinical ability “questioned”, for the inclusion of which Middleton admitted responsibility. [25] The jury were in my opinion entitled to use against Middleton the profile report ex 82 prepared by him on 5 December as evidence of absence of good faith, in which the other defendants did not share. Given that evidence, as well as the further publication by him at the nurses’ station in Ward 9D, the answer to question 8(b) was not inconsistent with different answers to the same question for the other defendants. [26] The defendant Middleton did not appeal against or seek to set aside the adverse findings against him on the question of bad faith, or the quantum of the award of $15,000 for compensatory damages against him “for publication within the Ward”. No damages were awarded for publication to the Minister or for republication of the -- 11 of 39 -- 12 letter in Parliament. This now calls for consideration of the matter of parliamentary privilege or protection conferred by ss 8 and 9 of the Parliament of Queensland Act 2001. As to that, it will be recalled that on this matter the jury made findings in favour of the defendant Middleton and the other defendants. They are contained in Part D (Parliamentary Privilege) of the questions put to them. Briefly stated they are, in response to question 9, that the acts of the individual defendants in (a) composing, (b) typing and printing, and (c) sending, the letter ex 9 to the Minister were acts of those defendants in the course of, or for the purposes of, or incidental to transacting business of Parliament. A similar affirmative and favourable answer was returned to question 9(d) in respect of the defendants’ act or acts in “bringing the letter to the attention of other Ward 9D staff”. It was Middleton who performed that act; and it was in respect of it that his Honour gave judgment for the amount of $15,000 damages assessed against him. [27] In their cross-appeals Middleton and the twelfth defendant State rely, as they did below, on ss 8 and 9(1) of the Parliament of Queensland Act 2001, which, so far as material, are as follows: “8 Assembly proceedings can not be impeached or questioned (1) The freedom of speech and debates or proceedings in the Assembly can not be impeached or questioned in any court or place out of the Assembly. (2) To remove doubt, it is declared that subsection (1) is intended to have the same effect as article 9 of the Bill of Rights (1688) had in relation to the Assembly immediately before the commencement of the subsection. 9 Meaning of ‘proceedings in the Assembly’ (1) ‘Proceedings in the Assembly’ include all words spoken and acts done in the course of, or for the purposes of or incidental to, transacting business of the Assembly or a committee.” [28] Having received the letter ex 9 on 5 December 2001 the Minister read it to and tabled it in the Legislative Assembly on the same day. There can to my mind be no doubt that her doing so constituted, at a time when debate was in progress about Ward 9D, “proceedings in the Assembly”, which by s 8 of the Act were incapable of being impeached or questioned in any court. Paragraph (c) and (d) of s 9(2) of the Parliament of Queensland Act specifically include as “proceedings in the Assembly” para (c): presenting or submitting a document to the Assembly; and para (d) a document tabled in, or presented to or submitted to, the Assembly. Paragraph (e) includes in that expression preparing a document for the purposes of, or incidental to, transacting business mentioned in para (c). The first question for decision is whether or not the defendants, in addition to the Minister, were and are entitled to the protection or privilege of Parliament conferred by ss 8 and 9 of the Act. If so, the second question is whether that protection extends to Middleton’s action in publishing the letter ex 9 in Ward 9D after the Minister had read it out and tabled it in the Assembly. [29] The circumstances leading to the Minister’s reading out and tabling ex 9 in the Assembly have already been mentioned. She had a meeting with a number of the nurses including the individual defendants early in the afternoon of 5 December. There was discussion about what Mr Horan had said in Parliament on the previous day. In evidence at the trial the Minister said: -- 12 of 39 -- 13 “I asked them what I could do to help, what would make them feel better. They felt the only thing that would make them feel better was if their names were cleared by having a statement made in Parliament and they asked if I could make a statement like Mr Horan did … I was asked if they made a statement would I be prepared to read it … I said to them that if they wanted to, if they got a letter or statement to me, I was prepared to read it into Parliament along the lines of what we discussed that afternoon.” The letter was sent to her at Parliament and received there about 4.30 pm. After seeing that it was signed and checking it for content to see that it agreed with what had been discussed, the Minister read and tabled the letter ex 9 in Parliament at about 4.44 pm on that day. [30] In considering the scope of the protection afforded by ss 8 and 9, his Honour referred to and relied upon Rowley v O’Chee [2000] 1 Qd R 207, in which Commonwealth legislation materially indistinguishable from the provisions of the Parliament of Queensland Act 2001 was considered. There it was said ([2000] 1 Qd R 207, 225) that the privilege conferred by the corresponding s 16(2) of the Commonwealth Act “attaches when, but only when, a member of Parliament does some act with respect to documents for purposes of, or incidental to, the transacting of House business”. The issue there was whether Senator O’Chee could claim privilege from production on discovery for documents he had received from persons outside Parliament that he intended to use for the purpose of debating their subject matter in the Senate. With the qualification that he was required to make a further affidavit properly claiming the privilege in respect of those documents, or some of them, it was held that he was so entitled. In commenting on that decision his Honour here said: “For the privilege to be attached to a document, a member, or his or her agent, must in some way appropriate the document to proceedings in Parliament by doing some act with respect to the document for purposes of, or incidental to, transacting parliamentary business”. His Honour held that in this case that appropriation took place with the Minister’s invitation which included her undertaking to read out in the Assembly a document setting out the views expressed to her at the meeting. [31] The whole of his Honour’s reasons merits close study, which I have no doubt it will receive from others in the course of time. The effect of what he said was that in doing the acts of composing, typing, printing and sending the letter to the Minister, the defendants were entitled to the absolute protection of parliamentary privilege under the Act, and that the plaintiff was therefore not entitled to impeach or question them as she did in bringing her claim for damages for defamation in respect of the letter ex 9. This, as will be seen, has the consequence of extending the protection to persons who are not themselves members of Parliament; but it seems to me that such an extension is, in the circumstances of this case, necessarily implicit in the statutory provisions themselves. Sections 8 and 9 of the Act do not in terms confine the privilege to members of Parliament themselves. That is consistent with the nature of the privilege as it has been judicially characterised in the past. It is well settled that it belongs not to the individual member but is the privilege of Parliament as a whole: see Rowley v O’Chee [2000] 1 Qd R 207, at -- 13 of 39 -- 14 224-225, and the authorities cited there. Furthermore, as his Honour pointed out or implied, it would be wrong to assume that the protection afforded by, for example, s 9(2)(e), is restricted only to a member of the Assembly who prepares the document himself or herself; the protection must be intended to cover those who prepare and provide the document for him or her to use in transacting the business of the Assembly. Unless therefore the statutory protection is designed to benefit only members who have unusually retentive memories, other persons will inevitably be drawn into and become involved on the member’s behalf in the act of preparing the document for presentation to the Assembly, or in other acts incidental to that business of the Assembly. [32] His Honour therefore concluded, as I think correctly, that the Legislative Assembly in this case through its member Mrs Edmond the Minister, “brought the acts of the defendants into its proceedings when she undertook to read out the proposed letter in the Assembly”; but, his Honour went on, “it was clear from what she told the people at the meeting that their part in the proceedings would be complete once she received the letter by the deadline she gave them”. It followed, he concluded, that acts of the defendants subsequent to the expiration of the deadline were not protected by parliamentary privilege. From this, I do not infer that his Honour meant that in this context time is necessarily and strictly of the essence of every communication to members of Parliament. Due to the projected time constraint foreshadowed by the Minister in the circumstances, it may, however, have been so in this instance. The point his Honour was making, however, directly concerns Middleton’s attempt to invoke parliamentary privilege under the Act for or in respect of his subsequent publication of the defamatory matter in ex 9, or a copy of it, which he placed in Ward 9D after the Minister’s statement in Parliament. [33] The jury, it will be recalled, found in answer to question 9(d) that the act of “bringing the letter to the attention of the other Ward 9D staff” was, in answer to question 10(a), an act done for the purposes of, or incidental to presenting or submitting the letter to Parliament. There is perhaps a slight element of ambiguity about question 9(d) because it is possible to relate it to the act of bringing the letter to the attention of other Ward 9D staff in the process of composing and sending it to the Minister. I think, however, that this is not the true interpretation of question 9(d) and the answer to it. In the event, his Honour gave judgment non obstante veredicto against the tenth and twelfth defendants for the amount assessed by the jury of $15,000. This, those defendants submit on their cross-appeals, his Honour was not justified in doing. [34] The question whether Middleton’s act of publishing ex 9 to the staff of Ward 9D after it had been sent to the Minister brought it within the scope of ss 8 and 9 of the Parliament Act was a matter of law, which his Honour decided against those defendants. It is against this ruling or decision that they now appeal. The resolution of the question depends on whether at the time the publication was made by Middleton by placing a copy of ex 9 on the counter at the nurses’ station in Ward 9D, his act of doing so was an act of “transacting business of the Assembly” within the meaning of s 9(1) of the Act, or an act “done in the course of, or for the purposes of or incidental to”, the transacting of that business. The cross-appellants complain that his Honour wrongly interpreted the Act as imposing a temporal limitation on the operation of these statutory provisions. The contrary view, however, would require reading those provisions, and in particular s 9(1), as if they contained further words such as “or consequent upon” in addition to “in the course -- 14 of 39 -- 15 of”, “for the purposes of” or “incidental to” transacting business of the Assembly. But those words appear to have been chosen with some care and with the deliberate object of confining the privilege conferred to the matters prescribed. Their interpretation may not impose a completely temporal outside limit on the operation of the legislation, because it may be possible to conceive of an act being done after the business has been completed or transacted which is nevertheless in some way done “for the purposes of” transacting that business. [35] Whatever may be said in the abstract about that question, however, it is plain that Middleton did not place ex 9 in Ward 9D afterwards for the purposes of transacting any business of the Assembly. He did it for the purpose of publishing to other persons what had already been said and done whether in or out of Parliament. For that he has to look for his protection, if any, to s 13(1)(a) of the Defamation Act, which authorises publication “for the information of the public” of a fair report of the proceedings of the Legislative Assembly. To do so, he would again have to have run the gauntlet of the requirement of “good faith” in s 13(1), as it is defined in s 13(2) as excluding ill will and other improper motive. The jury by their answer to question 8(a) and to question 8(b) showed pretty well what they thought would have been the answer to that question in his case. We are not, however, concerned with the protection afforded by s 13 because no reliance was placed upon it in this case. In my view, the learned judge was correct in concluding that ss 8 and 9 of the Parliament of Queensland Act had no application to Middleton’s subsequent publication of ex 9 or a copy of it in Ward 9D. His Honour was therefore correct in giving judgment against the tenth and twelfth defendants for the amount of damages awarded by the jury. [36] The upshot of all this is that in my opinion both the appeal and the cross-appeal should be dismissed. In saying that the appeal should be dismissed I have also considered some further and much more general complaints by the plaintiff on appeal about alleged “inadequacies” in the summing up; and also, more specifically, about his Honour “allowing improper questions to go to the jury”. As to the latter, I have already noticed that the questions that were left to the jury were settled after lengthy submissions by counsel on either side. In answer to a question from the Court on appeal, Mr Favell of counsel for the plaintiff confirmed, if somewhat grudgingly, that the questions in the form in which they were left to the jury were agreed. There can therefore be no cause for complaint on appeal about the propriety of those questions. [37] With respect to the supposed inadequacies in summing up, it is said that the summing up “failed to apprehend and address the true role” that the judge was to discharge. Reference was made to Alford v Magee (1952) 85 CLR 437, 466, and it was submitted that in this instance the learned judge had simply explained the law to the jury in general terms and then left it to them to apply. I am very far from thinking that this is what the judge did in this instance. On the contrary, I consider that he summed up to the jury in a way that was both clear and succinct, as well as complete and adequate. If there was anything on which the jury felt they required further instruction or direction they could have asked for it, and they were invited to do so. They did not. Neither did counsel for the plaintiff except perhaps in respect of one minor matter to which the judge responded. By reason of the authorities to which I have already referred, it does not now lie with the plaintiff to complain about the summing up or to do so for the first time on appeal only after she had largely failed in the action. -- 15 of 39 -- 16 [38] From this I turn to the plaintiff’s appeal against the order with respect to the costs of the action. It will be recalled that of the five individual defendants sued, four were completely exonerated and judgment was given in their favour dismissing the action. The plaintiff was successful only against Middleton, against whom judgment was given for the amount assessed by the jury of $15,000, together with interest of $4,410 at the rate of nine per cent per annum from 5 December 2001. His Honour further ordered that the plaintiff pay to the twelfth defendant 65 per cent of its costs to be assessed on the standard basis. The twelfth defendant, which is the State, had agreed to indemnify the other defendants in respect of the action and their costs. [39] The plaintiff took the precaution, which is necessary because of s 253 of the Supreme Court Act 1995 formerly s 9 of The Judicature Act 1876, of obtaining leave of the trial judge to appeal on the question of costs. That removes the absolute bar afforded by the section, but still leaves the plaintiff in the position of appealing against the exercise of discretion, as to which there exists “a strong presumption in favour of the correctness of the decision appealed from”. See Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621, 627, referred to in Thiess v TCN Channel Nine Pty Limited (No 5) [1994] 1 Qd R 156, 207. That must be even more clearly so in a case like this where the costs are trial costs and their incidence is determined by the judge who presided at the trial. [40] While the matter of costs is “largely one of impression” (Thiess v TCN Channel Nine [1994] 1 Qd R 156, 209), it was plainly appropriate for the judge to have regard to the fact that the plaintiff sued five of the individual publishers of the defamatory matter, and succeeded against only one of them; and, in that instance, only as to a comparatively small amount, falling well within the jurisdictional limits of the District or Magistrates courts. It is true that questions of importance were raised about parliamentary privilege, which it was fitting should be determined in the Supreme Court. Nevertheless, judging by the amount recovered in the action, the proceedings cannot be considered to have been a resounding success for the plaintiff. She was entitled to vindicate her reputation, but so too were the four defendants against whom no finding of ill-will or other improper motive was made by the jury. [41] In arriving at his decision holding the plaintiff responsible for 65 per cent of the defendants’ costs, and that there be no order for costs in favour of the plaintiff, his Honour took into account that the plaintiff was only 20 per cent successful against the five individual defendants. He arrived at the result he did because on that footing, the plaintiff would have been entitled to about 20 per cent of her costs and the defendants to about 80 per cent of theirs. Subtracting 20 per cent from 80 per cent produces 60 per cent, which he adjusted to 65 per cent “to reflect the modesty of her success”. By that, I understood the learned judge to be referring to either or both of the quantum of the damages recovered, or to an earlier analysis which he had undertaken of the “heads of controversy” submitted to the jury. As to that, his Honour concluded that the “balance” of success was against the plaintiff. [42] It was submitted that this represented a wrong approach in principle and one which, moreover, penalised a successful plaintiff especially when she had succeeded against the twelfth defendant State. The trial, it was said, would not have been conducted differently if only that defendant had been sued and the others had simply given evidence. Reference was made to Beaumont v Senior [1903] 1 KB -- 16 of 39 -- 17 282, in which, of two defendants represented by the same solicitor and counsel, one was successful and the other was not. The Divisional Court held that, in the absence of evidence as to agreement between them as to how their costs were to be shared, the proper course was to allow the successful defendant half of the costs of the defence. After stating the principle that a successful defendant is entitled to recover from the plaintiff the costs he incurred in defending the action, Lord Alverstone CJ went on ([1903] 1 KB 282, 284): “The question to be determined in the present case is, What is the amount of those costs? It may be that where two defendants are jointly represented by the same solicitor, and it is agreed between them that one of them shall be liable to the solicitor for all the costs of the defence, then in the event of the other defendant being successful in the action he cannot recover any costs from the plaintiff, not being liable to his solicitor for them; otherwise the successful defendant would be in the position of receiving costs from the plaintiff which he had not incurred in defending the action, and to which, therefore, he was not entitled.” But that is not the state of affairs that prevails here. It is one where the twelfth defendant undertook to indemnify the other five defendants in respect of the whole of their costs of defending the action as well as the damages awarded against them. Having in that way itself incurred the whole of the costs of defending the action, the twelfth defendant is entitled to recover them from the plaintiff, discounted to some extent to allow for the fact that, in the case of one defendant, the plaintiff succeeded and was to that extent entitled to her costs of the action. The analogy with Beaumont v Senior would be valid only if one or all of the individual defendants had sought to recover from the plaintiff costs which they had not but the twelfth defendant had incurred. All things considered, it seems to me that the disposition of costs arrived at by the judge in this instance does reasonable justice to the parties. It is not shown that his Honour made any error of principle in the way in which he exercised his discretion. The plaintiff’s appeal against the order for costs should be dismissed. [43] I would therefore order: 1. The plaintiff’s appeal against judgments against her should be dismissed with costs. 2. The cross-appeal by the tenth and twelfth defendants against the judgment against them should be dismissed with costs. 3. The plaintiff’s appeal against the order for the costs of the trial should be dismissed with costs. [44] JERRARD JA: In this appeal I have read the reasons for judgment and orders proposed by McPherson JA, and agree with them. My own reasons deal more with the other grounds of appeal raised by Ms Erglis, as well as with those considered in depth by McPherson JA. Some further recitation of facts is necessary to put the other grounds of appeal in context. Background matters [45] The events giving rise to this litigation relevantly began on 4 December 2001 when the then Leader of the Opposition, Mr Horan, asked questions of the Minister for Health in the Legislative Assembly, and then made a statement in that Assembly a -- 17 of 39 -- 18 little later about matters of public interest concerning Ward 9D in the Bone Marrow Transplant Unit in the Royal Brisbane Hospital. It was common ground on this appeal that what Mr Horan said that day in the Legislative Assembly was in consequence of allegations Ms Erglis had made to Mr Horan about that ward and about an internal inquiry into its operation conducted by Queensland Health. Ms Erglis’ pleadings admitted that Ms Erglis had told Mr Horan that she had made allegations to management within the Health Department of staff bullying, sexual harassment, professional misconduct and physical abuse of and theft from patients, all allegedly occurring in that unit or ward.1 Mr Horan’s statement to the Parliament included that: “The nurse made allegations of staff bullying, sexual harassment, professional misconduct and physical abuse of and theft from patients. It took an enormous amount of courage for this senior and experienced nurse to do this on behalf of her fellow nurses and the patients.” He also said she had been told that there was no way that she would ever be allowed back to Ward 9D; Ms Erglis’ pleadings admitted having told Mr Horan that she had been “sent to Coventry” for making those allegations (about staff bullying, sexual harassment, and the like). [46] Mr Horan’s speech was reported in the evening’s electronic media, and in The Courier Mail, a newspaper with an extensive readership in Queensland, on 5 December 2001. The then Minister for Health, Mrs Edmond, gave evidence at the trial of having been advised early on 5 December that “staff” (presumably of the ward) had written to the District Manager of the Royal Brisbane Hospital expressing their concerns about the published allegations, and about the fact that a number of those matters related to events which had occurred more than a year earlier. The Minister’s evidence was that she understood that the staff who had written to the District Manager denied that the matters alleged by Mr Horan (which covered a wide range of topics) were continuing, as those staff understood Mr Horan to have stated or inferred. Shortly before 10.00 am on 5 December 2001 the Minister read that letter addressed to the District Manager, and written by the nursing staff in Ward 9D, to the Assembly, informing the Speaker and members that “late last night senior management were trying to counsel and address distraught ward staff in Ward 9D.”2 The meeting at the Royal Brisbane Hospital [47] Mrs Edmond’s evidence at the trial was that when Parliament had adjourned at 1.00 pm on 5 December 2001 she attended the opening of a new pharmacy research centre at the Princess Alexandra Hospital, and was asked questions there by the media. Those informed her of further publications in the media about Ward 9D, and she was also informed, in other conversations during that lunchtime adjournment, that staff at the Royal Brisbane Hospital were by then very distressed. She accordingly obtained approval from the Premier’s office to be absent from 1 The plaintiff admitted in her pleadings having told Mr Horan that and other matters; AR 2247 and 2254. Mr Horan’s speech on matters of public interest is at AR 1940-42 2 (AR 1944) The transcript of the proceedings in the Legislative Assembly were evidenced by a certificate provided pursuant to s 55 of the Parliament of Queensland Act 2001, and put into evidence by agreement and as a record of what had been said; and in accordance with the decision of the majority of this Court in Erglis v Buckley & Ors [2004] QCA 223 -- 18 of 39 -- 19 Parliament when it resumed after lunch at 2.30 pm, and went instead to a hastily arranged meeting at 2.30 pm at the Brisbane hospital. At that meeting there were some 28 to 30 people, being nurses, doctors, and administrative officials. [48] The Minister’s evidence was that the staff members were distraught; some looked as if they had been crying, some looked as if they were very close to tears when talking, and that “they” were angry. “They made it very clear that they felt that their professional integrity was under enormous attack and sustained attack and they felt that nothing they were saying was stopping that. They were very concerned. Some of them spoke about patients and their families being in tears…they talked about patients in a – sort of being at a very vulnerable time.” (Ward 9D treats patients suffering from cancer). [49] The Minister’s evidence was that Ms Erglis had been mentioned quite often by name by the media before the time of that meeting, and at the meeting the Minister was told that it was Ms Erglis who had been providing the information that Mr Horan had repeated to the Parliament. Mrs Edmond said that she asked “them” what she could do to help; and that: “They felt the only thing that would make them feel better was if their names were cleared by having a statement made in Parliament, and they asked if I could make a statement like Mr Horan did.”3 [50] Mrs Edmond also said that she was asked if “They made a statement, would I be prepared to read it?” and that she had said that: “If they wanted me to, if they got a letter or statement to me, I was prepared to read it into Parliament along the lines of what we discussed that afternoon…I asked probably three times whether they all agreed, whether they all felt the same and I was told ‘yes.’”4 She added again that the staff: “Were certainly very angry. They were angry that their professional conduct and integrity had been really challenged – not challenged, it had been demolished. They felt very angry about that and the impact that was having on the ward. They wanted it to stop and they wanted to know what was the best way of making it stop. They believed that by making a statement in Parliament, making it very clear the situation – I think they believed my statement in Parliament before that had not been strong enough.”5 Evidence from the defendants [51] The evidence of the third defendant, Lisa Russell neé Shearman, a nurse working in that ward and at that meeting on 5 December, was that: “We felt that – we felt that we weren’t – we felt that we weren’t getting listened to, that there was no understanding of where the nurses were coming from. So it was discussed to write a letter to address how we were feeling. I can’t recall who suggested it or 3 At AR 947 4 At AR 947 5 At AR 948 -- 19 of 39 -- 20 anything, but I do recall that we – it was decided that we would write a letter.”6 That defendant had already said that the media reports saying that patients were being cared for badly was “astounding to us and upsetting,”7 and that the media comments “made me feel vulnerable. It made you feel that you were under attack. It made you feel that the work that you had been doing and were doing was very undervalued.” Later in cross-examination, she said of comments reported in the media before that meeting that: “It felt very personal because it was – it wasn’t just a ward of the Royal Brisbane Hospital, it was ward 9D that was mentioned. It was the nurses of 9D were mentioned throughout different media…So it felt very personal, and because the ward was mentioned. It did feel very personal, but no, I wasn’t defamed personally.”8 [52] Mr Middleton gave evidence that at that meeting with the Minister on 5 December “they” (referring to the nursing staff) “felt that there was an unfair representation by the media and what was being said.”9 The Minister had asked “What can I do to show you my support?”; and “the nurses, and I don’t know which one, said they could write a letter that could be read out in Parliament to show that – what the nurses’ concerns were.”10 A witness at the meeting, Mary Montgomery, who was then the Executive Director of Nursing Services at the Royal Brisbane Hospital at the time, gave somewhat different evidence, that she attended that meeting and that: “Towards the end of the meeting, I can’t recall the exact words, but the Minister offered them that if they could put something in writing she could see what she could do about it.”11 [53] The eighth defendant, Kylie Ash, a nurse in the unit at that time, who attended that meeting, gave evidence that “We wanted to have some response”, that Ms Erglis was discussed at the meeting, and that “We weren’t happy with her involvement definitely”;12 and that: “We decided that we wanted to have some response to the comments that were made by Mr Horan the previous day so that we could basically put forward our side of the story, basically, and so it was decided to write a letter that was to be read out in Parliament.”13 That defendant said of what had been reported in the media that: “It was the inferences that we made from that statement that was talking about the ward and the staff in general, so while I don’t think Mr Horan made any direct comments towards me it was the conclusions…that were made from that and how we perceived that to be used and we perceived the media then portrayed it that the nursing staff and thus myself had our reputations put to question.”14 6 At AR 958 7 That evidence is at AR 958 8 At AR 1015 9 At AR 1067 10 At AR 1067 11 At AR 1241 12 At AR 619 13 At AR 621 14 At AR 692 -- 20 of 39 -- 21 [54] The first defendant, Melissa Buckley, gave evidence about that meeting that the Minister had expressed her support for the staff, and wanted to know what “we felt that she could do for us”, and that: “I’m not sure who, but one of the nursing staff suggested to her that a response could be written to the Minister which she could read out in Parliament in response to what Mike Horan had said in Parliament the previous day.” By that means: “We could respond to the allegations that had been made and to clarify and correct what we felt were false allegations.” She swore that the Minister said: “That if she received it that afternoon that she would be able to read it in Parliament before the end the Parliament that day.”15 That witness said in cross-examination that she considered that it was suggested in the media reports that: “We lacked ethical standards to be working in a unit where there was harassment and theft and abuse present”;16 and that she felt her personal reputation had been attacked: “Because I’m a staff member of that ward and I – like I said yesterday, I have a duty of care to the patients in that unit and also at the time as nurse manager and a duty of care to the staff that worked in that unit and to suggest that I would condone or work in a culture that was suggested in the Hansard document was insulting and I felt that it was personal, yes, towards me.”17 [55] The fifth defendant, Judy Cummings, a nurse in the unit at the relevant time and present at that meeting with the Minister, said of the meeting: “It was virtually we were absolutely just appalled by this on the TV the night before. It – you know, we were worrying about our patients. As I said, these people are vulnerable. They – us – our professional careers, whatever, would be spread across the media, the news and The Courier-Mail and everything, that we abused and robbed people. Our professional lives were on – were being violated here, absolutely violated. We were being defamed. The unit was defamed, the – and violated. It was just dreadful, so Miss Edmond came out and we were talking about this. We – we said to her, you know, can we – can we respond? She’s our boss. At the end of the day she’s our boss. She suggested we could write a response to the allegations and give it – send it to her and she would read it out in Parliament.”18 [56] Ms Cummings had earlier said of the ward that: “We’ve got an excellent unit. We’re the biggest bone marrow transplant unit in Australia. Our success is – is proven higher than 15 This evidence is at AR 742-743 16 At AR 820 17 At AR 821 18 At AR 850 -- 21 of 39 -- 22 anywhere else in Australia. Staff work up and above what they need to. It is a very emotionally hard ward.”19 And that: “I worked in the ward, I’m the transplant coordinator. It was saying that we abuse and rob patients. We don’t abuse and rob patients. That was dreadful….These are good people, work hard. They are absolutely top of the field and how do you think – people – nurses were outside about to go in. They didn’t know how to even – what to do. This was absolutely disgusting and it was insinuating that we basically, well, abuse and rob people. Can you imagine someone out there about to come in for a transplant or maybe coming in for a transplant or whatever? Can you imagine how they must feel? These people – [referring to a patient] had she not died she would have come in to us for a transplant. How can they come in trusting us if the media tells us that we abuse and rob people or sexually abuse them, staff bullying?”20 [57] That evidence given three years after the event conveys the strength of feeling at that meeting. It is consistent with a nurse, and not the Minister, being the source of the suggestion that a letter be provided to the Minister, which the meeting agreed would occur and which was to be read in the Legislative Assembly in answer to what had been said about the unit’s nursing staff. That evidence also established that the matter on which the Minister sought advice at that meeting was how the staff wanted the Minister to respond. It was not the truth or untruth per se of the allegations. That evidence also showed that even though not named, the individual nurses felt defamed and their work degraded. The letter to the Minister [58] Its content was reported in the media, electronic and print, and Ms Erglis’ claim against the defendants complained of the publication by them of the imputations in the letter they signed and faxed to the Minister. The plaintiff proved the reading of its contents in the Legislative Assembly, in accordance of the expectation of its defendant authors, as relevant to the damage she suffered. Her pleading alleged in paragraph 1221 that the defendants knew that the letter would be republished by the Minister in a public forum, and in paragraph 13 that it transpired it was read in the Assembly, and that as a consequence the imputations in the letter became known to the public at large. [59] The plaintiff also pleaded a separate publication of it, by causing the original letter or copy of it to be brought to the attention of other Ward 9D staff. Mr Middleton, on whose computer the letter was typed and which was printed out on the printer in his office, had put either the original or a copy on a work bench for others in the ward to read; his evidence was he removed it from there on 6 December 2001. Other evidence suggested it was there for longer, and until early January 2002. Mr Middleton certainly put it on the bench after a copy had been faxed to the Minister for Health, and left it there for others in the ward to see long after the publication of its contents in the Parliament. 19 At AR 849 20 At AR 848 21 Of the second further amended statement of claim, at AR 2236-2237 -- 22 of 39 -- 23 Interlocutory hearings [60] The plaintiff’s proceedings resulted in several interlocutory skirmishes. On 5 and 6 November 2003 an application for summary judgment by the defendants was heard by Philippides J, who dismissed it on 11 November 2003: [2003] QSC 394. That application was based on the defendants’ plea of parliamentary privilege attaching to the preparation of their letter and their plea that litigation of her case would impeach or question the freedom of speech, debates, and/or proceedings in the Legislative Assembly of Queensland, contrary to s 8 and s 9 of the Parliament of Queensland Act 2001 (Qld). That application failed because the learned judge considered that issues of fact, on which evidence was required, arose on the question whether the defendants could rely on parliamentary privilege. At the trial argument on the availability of that defence based on parliamentary privilege was deferred until after the jury had answered the questions put to it,22 and the appellant challenges the ruling in the defendants’ favour on that issue. [61] There was a further interlocutory claim, heard following several allegations made on 24 December 2003 by the defendants, to have paragraphs 12(a) and 13(a) of the further amended statement of claim struck out, which application succeeded: [2003] QSC 440. That order was set aside by this Court in Erglis v Buckley [2004] 2 Qd R 599, in a judgment in which the majority held that the course taken by the plaintiff in those paragraphs, of relying on the tabling and reading of the letter in the Legislative Assembly for the limited purpose of increasing damages by proving republication of the defamatory matter (which it was, or ought to have been foreseen, was likely to ensue from the original publication to Mrs Edmond), involved no impeachment, questioning or impairment of the freedom of speech or debates in the proceedings in the Assembly within the meaning of s 8 of the Parliament of Queensland Act.23 Were the answers unreasonable? [62] The plaintiff, in paragraph 5 of her statement of claim, pleaded that the faxed letter, in its natural and ordinary meaning, was meant and was understood to mean, 26 separate imputations which were defamatory of her; the defendants admitted that 16 of those imputations were conveyed and were defamatory of her, but denied the words in the letter conveyed the other 10 alleged imputations. The jurors were asked this (about the contested imputations): “Part A: The Meaning of the Words 1. The first question for the jury is whether the words of the letter from the nurses to the Minister dated 5 December 2001, in their ordinary and natural meaning, meant and were understood to mean, that Ms Erglis: (a) was a dishonest person; (d) caused staff of Ward 9D to move because of a campaign waged by the plaintiff to undermine the CNC24 and Ward 9D; (g) was a nurse with questionable clinical ability; 22 This interlocutory history is taken from [24] of the reasons for judgment published on 24 February 2005 23 That summary of the decision is taken from the reasons for judgment published on 24 February 2005 at [25] 24 CNC means Clinical Nurse Consultant -- 23 of 39 -- 24 (h) was a person who was prone to waging or pursuing vexatious campaigns or agendas in the workplace for the purpose of undermining without just cause fellow workers and the workplace in general; (k) was a person of bad character; (l) was a person who lacked ethical standards; (m) was unethical; (n) was a liar; (y) was vexatious; (z) claimed to be a senior nurse when any such claim was untrue and thereby held herself out to be something she was not.” [63] The jurors unanimously answered “no” to questions (a), (g), (h), (k), (l), (m), and (n). They answered yes to the questions (d), (y), and (z). The further questions the jury was asked, and their answers, are reproduced on the table below. No Question Melissa Buckley Lisa Shearman Judy Cummings Kylie Ash Ron Middleton Defences B 2 Was the defamatory matter published for the protection of the defendant's reputation? Yes Yes Yes Yes Yes B 3(a) Was the defamatory matter published for the purpose of giving information to the Minister about allegations concerning Ward 9D that had been made by Mr Horan in Parliament on 4 December 2001? Yes Yes Yes Yes Yes B 3(b) If the answer to (a) is yes, did the Minister have an interest in knowing the truth? Yes Yes Yes Yes Yes B 3(c) If the answer to (b) is yes, was the defendant's conduct in making the publication reasonable in the circumstances? Yes Yes Yes Yes Yes B 4 Was the public discussion of the Government's administration of Ward 9D and the conduct of the staff working there, for the public benefit? Yes Yes Yes Yes Yes B 5(a) Was the publication of the defamatory matter comment? Yes Yes Yes Yes Yes B 5(b) If the answer to (a) is YES, was the comment fair? Yes Yes Yes Yes Yes B 6 Was the defamatory matter published in answer to an inquiry by the Minister relating to a subject (allegations about Ward 9D that had been made by Mr Horan in Parliament on 4 December 2001) as to which the Minister had an interest in knowing the truth? Yes Yes Yes Yes Yes B 7(a) Was the defendant defamed by the plaintiff? Yes Yes Yes Yes Yes B 7(b) If the answer to (a) is YES, was the publication by the defendant of the defamatory matter made in order to answer or refute the plaintiff's defamation? Yes Yes Yes Yes Yes Bad Faith C 8(a) Was the defendant actuated by ill-will to the plaintiff or by some other improper motive? No No No No Yes C 8(b) Was the defamatory matter published irrelevant to any occasion of excuse relied on by the defendant? No No No No Yes C 8(c) Did the manner and extent of publication exceed what was reasonably sufficient for the occasion? No No No No No C 8(d) Did the defendant believe the defamatory matter to be untrue? No No No No Yes -- 24 of 39 -- 25 No Question Melissa Buckley Lisa Shearman Judy Cummings Kylie Ash Ron Middleton Parliamentary Privilege D 9 Were any of the following acts of the nurses done in the course of, or for the purposes of, or incidental to transacting business of Parliament? (a) composing the letter to the Minister Yes Yes Yes Yes Yes (b) typing and printing the letter Yes Yes Yes Yes Yes (c) sending the letter to the Minister Yes Yes Yes Yes Yes (d) bringing the letter to the attention of the other Ward 9D staff Yes Yes Yes Yes Yes D 10(a) Were those acts done in the course of, or for the purposes of, or incidental to presenting or submitting the letter to Parliament? Yes Yes Yes Yes Yes D 10(b) Were those acts done in preparing the letter for the purposes of, or incidental to presenting or submitting the letter to Parliament? Yes Yes Yes Yes Yes Publication E 11 The defendants admit, of course, that those nurses who signed the original of the letter saw the original of the letter. They also admit that Dr Simon Durrant also saw the original of the letter and that a facsimile copy of the letter was transmitted to the Health Minister Yes Yes Yes Yes Yes E 12 Did other people see the letter in the ward? Yes Yes Yes Yes Yes Damages F 13 What sums, if any, for: (a) compensatory damages for publication within the Ward? n/a n/a n/a n/a $15,000 (b) compensatory damages for publication to the Minister? n/a n/a n/a n/a $0 (c) compensatory damages for re-publication in Parliament? n/a n/a n/a n/a $0 (d) aggravated damages? n/a n/a n/a n/a $0 (e) exemplary damages? n/a n/a n/a n/a $0 [64] Question B2 relates to a defence under s 16(1)(c) of the Defamation Act 1889 (Qld) (“the Act”); B3(a)-(c) related to a defence under s 16(1)(e); questions B4 and B5(a)- (b) to a defence under s 16(1)(h); question B6 to a defence under s 16(1)(d); and questions B7(a)-(b) to a defence under s16(1)(g). Questions C8(a)-(d) are relevant to proof of the absence of good faith pursuant to s 16(2) of the Act. Question D9(a)-(d) asks questions relevant to s 9(1) of the Parliament of Queensland Act; question D10(a) is relevant to s (9)(2)(c) of it; and question D(10)(b) to s 9(2)(e) of that latter Act. [65] The appellant’s written outline of argument on the appeal contended that the jury’s rejection of the seven imputations on which it found for all defendants was plainly unreasonable and such that no reasonable jury properly directed could have answered in that way. That wording accords with the tests stated in John Fairfax Publications Pty Ltd v Rivkin.25 The judgment in that case contains reminders of the need for appellate courts to exercise restraint when asked to overturn a jury’s conclusion on matters properly left to the jury,26 resulting in the principle applied in that case, that a finding of a jury may only be overturned if it is one that no 25 (2003) 77 ALJR 1657; 201 ALR 77 at [6] (per Gleeson CJ) [20] per McHugh J, and [185] per Callinan J 26 McHugh J at [17]-[20]; Kirby J at [110], Callinan J at [184] -- 25 of 39 -- 26 reasonable jury could reach.27 Despite the appellant’s careful written submission on the asserted unreasonableness of the answers, I am satisfied that a reasonable jury properly directed could have found that the pleaded imputations which were rejected were not conveyed. The answers given were certainly not so glaringly improbable, when considered with the letter, the imputations that were admitted, and the imputations that were found, as to suggest an error in approach; and the words used did not plainly and obviously convey the imputations rejected. [66] The answers by the jury as to the contested imputations say that that letter said Wendy Erglis waged a campaign to undermine the CNC and Ward 9D, and caused staff of Ward 9D to move because of that campaign; was vexatious; and claimed to be a senior nurse when any such claim was untrue and thereby held herself out to be something she was not. The answers also find that that letter did not say about Wendy Erglis that she: • was dishonest; or • had questionable clinical ability; or • was prone to waging vexatious workplace campaigns, or agendas to unjustifiably undermine others; • was of bad character; or • lacked ethical standards; or • was unethical; or • was a liar. [67] That was a view of the contents of that letter which was open to the jury. In my view the letter says of her that she: 1. is wrong in claiming she represents the ward; 2. does not represent the views of staff working in the unit; 3. has not worked in the unit since 16 April 2001; 4. was only a level 1 nurse, and not a senior nurse on a shift to shift basis; 5. (the letter writers felt she) was unhelpful, at times obstructive, and had a negative impact on staff morale; 6. had her clinical practice questioned by senior staff more than once; 7. waged a campaign with others to undermine the CNC and Ward 9C; 8. had stated a clear agenda to damage the career of the CNC, and BMTU Ward 9D irretrievably; 9. was apparently manipulating Mr Horan to achieve her malicious agenda. [68] Those imputations are not the same as the pleaded imputations which the jury negatived. What the letter said about Ms Erglis was that she was purposefully undermining the CNC and Ward 9D, and apparently manipulating Mr Horan for that reason; it says that that was malicious of her. It does not say she has no justification for undermining the CNC or the ward; it implies that other views are open, and it expressly says her campaign made it very hard for those other Ward 9D staff members. It says her clinical ability has been questioned but does not 27 Gleeson CJ at [6]; McHugh J at [20]; Callinan J at [185]; Heydon J (by implication) at [220]; and Kirby J expressed the same result, perhaps with regret, at [119] -- 26 of 39 -- 27 expressly say that it was questionable. The possibility was left open that her ability was unfairly questioned, or that the questions she was asked (if she was questioned) may have been answered satisfactorily. [69] The 16 imputations the defendants admitted were: • that the plaintiff wrongly claimed that 27 nurses left the bone marrow transplant unit directly related to the actions of the CNC; • that the plaintiff was unhelpful to fellow nurses; • that the plaintiff was an obstructive influence in the workplace; • that the plaintiff was a person who had a negative impact on staff morale in the workplace; • that the plaintiff was a manipulative person; • that the plaintiff was a malicious person; • that the plaintiff wrongly represented that she represented the staff or Ward 9D; • that the plaintiff (was a person) whose actions were such that they warranted the staff of Ward 9D to be extremely appalled at them; • that the plaintiff was unhelpful in the workplace; • that the plaintiff was obstructive; • that the plaintiff had a negative impact on staff morale; • that the plaintiff had a clinical practice such that it was questioned by senior staff on a number of occasions; • that the plaintiff wrongly waged a campaign to undermine the CNC and Ward 9D; • that the plaintiff had and had stated a clear agenda to damage the career of the CNC and BMTU Ward 9D irretrievably; • that the plaintiff had a malicious agenda; • that the plaintiff was malicious. [70] Those pleaded imputations admitted by the defendants could be deduced from the letter; they describe a manipulative person with the declared agenda or purpose of undermining the CNC and the ward, which purpose the letter writers considered malicious. But those admitted imputations do not necessarily convey the contested imputations rejected by the jury. A person can be manipulative without being dishonest, can wage one vexatious campaign without being prone to waging other vexatious campaigns, and can wage a vexatious campaign without being of bad character. A person of good character with ethical standards can be manipulative, and endeavour by considerable manipulation to achieve what that person regards as a very worthwhile and justified result. That manipulation can be based on grounds which are objectively unreasonable, but which are honestly and passionately -- 27 of 39 -- 28 believed in by the person of good character, who relentlessly and vexatiously wages that campaign. That is consistent with what the jury has found about the imputations concerning Ms Erglis. [71] The different answers given can be reconciled (Australian Broadcasting Corporation v Reading [2004] NSWCA 411 at [80], [120], and [146]). The acceptance of the imputation that she claimed to be a senior nurse when that claim was untrue, and thereby held herself out to be something she was not, is consistent with the rejection of the imputation that she was dishonest. A person can innocently or honestly claim a status they do not in truth have, and thereby hold themselves out to be something that they are not. That is different from that person being dishonest. It was not perverse of the jury to find that the article did not convey the imputation she was dishonest. An honest person can manipulatively and vexatiously pursue a clearly declared agenda, which others know of and with which they strongly disagree. [72] The admitted imputations do not necessarily convey that the plaintiff was prone to waging or pursuing other vexatious campaigns or agendas in the workplace, and the letter did not say that. Nor did it say she was of bad character, or a liar, or unethical. Findings negativing those imputations were open. Were the answers perverse or inconsistent? [73] Mr Favell, counsel for Ms Erglis, argued that the answers given in respect of the defendant Ron Middleton to questions C8(a), C8(b), and C8(d), different to those given in respect of the other four defendants against whom Ms Erglis went to trial, produced a perverse result which showed that the jurors did not understand their task, and that accordingly none of their answers could stand.28 Mr Favell’s submission was that of the four indicia of bad faith within s 16(2) of the Act, two could be described as personal to a particular defendant (those being whether that defendant was actuated by ill-will or some other improper motive, and whether that defendant believed the defamatory matter to be untrue), while the other two could be described as impersonal or objective, namely whether the publication of the defamatory matter was irrelevant to the matters giving rise to the defence of good faith, and whether the manner and extent of the publication exceeded what was reasonably sufficient for the occasion. Mr Favell cited the statement by Brennan CJ in Bellino v Australian Broadcasting Corporation29 that in answering the questions whether defamatory matter was not relevant to the discussion of the subject of public interest, or whether the manner and extent of the publication of the defamatory matter exceeded what was reasonably sufficient for the public discussion of the subject of public interest, the test was an objective one. [74] Mr Favell did not suggest that the jurors were not entitled on the evidence to distinguish between Mr Middleton and the other defendants when answering questions C8(a) and (d), the subjective questions. His case was that those answers were justified about Mr Middleton (and that in truth the same answers should have been given about the other defendants). The evidence led about Mr Middleton included that he wrote another document on or about 5 December 2001 critical of Ms Erglis, and he was subjected to a lengthy cross-examination designed to establish lack of good faith. Mr Favell’s argument was that the different conclusion 28 Particularly relying on the “thirteenth chime” simile used by Gleeson CJ in Rivkin at [5] 29 (1996) 185 CLR 183 at 206 -- 28 of 39 -- 29 in C8(b) in his case was necessarily perverse, and that a great deal flowed from that. However, I disagree with Mr Favell that the answer to question C8(b) regarding Mr Middleton is inconsistent with, and cannot stand with, the answers given to that question in respect of the other four defendants, or the other answers given about Mr Middleton. [75] I agree with Mr Favell’s submission that the questions whether the relevant defendant was actuated by ill-will or other improper motive, and whether that defendant believed the defamatory matters to be untrue, are questions which are personal to the particular defendant, and can be answered differently in respect of each defendant. Mr Favell submitted that the question whether the defamatory matter which was published was irrelevant to any occasion of excuse relied on by any defendant can hardly be answered differently in respect of different defendants, when the defamatory matter is published in one and the same document which the defendants jointly published, and when each relies upon the same defences of qualified protection given by s 16(1)(c), (d), (e), (g), and (h) of the Act. But the finding that Mr Middleton, alone of the defendants, believed the defamatory matter to be untrue, and was actuated by ill-will to Ms Erglis or some other improper motive, did make the contents of the letter irrelevant to any excuse which relied on publication in good faith of the defamatory matter in the letter, as do all the s 16 defences of qualified protection. Strictly speaking, the jury were right. If Mr Middleton believed what was published was untrue, and if he was actuated by ill- will or other improper motive in participating in its publications, it did not matter what its contents were. The content was then irrelevant to any of the defences provided by s 16 on which Mr Middleton relied; there was no occasion of qualified protection. Accordingly, I do not accept the submission that the answer “yes” to question 8(b) asked about Mr Middleton was perverse in the circumstances, or that it indicated that the jury did not properly apprehend its task. Good faith and the other respondents [76] Mr Favell’s written argument complained that the jury’s answers dismissing the allegation of an absence of good faith in respect of each of the other individual respondents was contrary to the evidence, and so contrary as to be perverse and to have caused a miscarriage of justice. That submission reflected grounds 1(b) and 1(f) of the grounds of appeal. It was based on submissions about matters of fact assertedly established by the evidence, namely that a number of the respondents knew that the plaintiff was not a lone voice in her opinion, and that the letter was written as a reprisal for her involvement in pursuing a formal grievance process some years earlier against a former CNC; and also in reprisal for her having given evidence at the inquest into the death of a patient, in which she was critical of the nurses in charge on the night that patient died. Those submissions were supported by reference to the evidence given by a number of witnesses, but there was also a considerable body of other evidence on which the other defendants relied, particularly their own. The issue was essentially and very much a matter of fact for the jury to determine, and the jurors rejected the plaintiff’s contentions about bad faith in four defendants. That finding was open to them. -- 29 of 39 -- 30 Section 16(1)(g) defence [77] Mr Favell also submitted in his written argument that the jury’s answers to the questions B7(a) and B7(b), relevant to a defence under s 16(1)(g), were simply wrong. Section 16(1)(g) of the Act provides that it is a lawful excuse for the publication of defamatory matter if the publication is made in good faith in order to answer or refute some other defamatory matter published by the person defamed concerning the person making the publication or some other person. Those submissions reflected the grounds of appeal 1(b) and 1(e). Mr Favell argued that the individual defendants were not defamed by Ms Erglis, because they were not sufficiently or personally identified in the publication by Mr Horan in the Legislative Assembly or thereafter. He also argued that, if so identified, any publication was insufficiently attributable to the plaintiff, and that learned judge’s direction on the topic was so inadequate as to have been a distraction “and causative of the error”. [78] Exhibit 6 reproduces extracts of the transcript of the proceedings of the Legislative Assembly, certified by the clerk of the Parliament. It records that Mr Horan reported that senior nurses in the bone marrow transplant unit within Ward 9D had complained that some nurses had been sleeping on the nightshift; that Ms Erglis had documented complaints that the work loads faced by nursing staff of the ward were excessive due to the high turn over and lack of experienced staff; and he stated that the ward was often staffed with inexperienced nurses and agency staff. He also described how Ms Erglis had previously alleged staff bullying, sexual harassment, professional misconduct, abuse of patients and theft from them, and that it had taken 14 months for her allegations to be investigated and reported upon. None of the defendants were named, and while the complaint about nurses sleeping on the nightshift was attributed by Mr Horan to senior nurses, all the other matters raised were attributed by Mr Horan to Ms Erglis. [79] It was not necessary for any of the particular defendants, who were all members of the limited number of people who worked as nurses in Ward 9D, to be named for each one of them to be cast under suspicion and defamed. The relevant question was whether what Mr Horan said, reported in the media, was such as reasonably in the circumstances would lead people who knew a particular defendant to believe that what Mr Horan said referred to that defendant, amongst others.30 In Bjelke- Petersen v Warburton and Burns31 both Connolly and Vasta JJ approved and applied the decision in Reilly v Curtis (1912) 84 A 199, where the Supreme Court of New Jersey held that a sweeping charge of misconduct, levelled against a public board without exception, necessarily pointed the finger of condemnation at every member thereof, although none were named, and that every member of the board might maintain an action therefor. Likewise in Bjelke-Petersen v Warburton statements attributing corruption and theft of public money to “Ministers” were held capable of defaming each then member of the Ministry for the State of Queensland. 30 See the judgment of Isaacs J in David Syme & Co v Canavan (1918) 25 CLR 234 at 238; David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346 at 363, judgment of Priestley JA, approved in the appeal to the Privy Council in Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 734; Bjelke-Petersen v Warburton and Burns [1987] 2 Qd R 465 at 467, per Kneipp J, 470-472 per Connolly J, and 476 per Vasta J 31 [1987] 2 Qd R 465 -- 30 of 39 -- 31 [80] The quotation earlier in these reasons, of the statements made by a number of the defendants about how they felt upon hearing media reports of the statements by Mr Horan in the Assembly, show how strongly those defendants reacted and felt defamed, although one or more acknowledged they had not been personally named; and how each wanted to reply. It was open to the jury to conclude each defendant was defamed; the learned trial judge directed them that: “An objective test is applied when identification of a person who alleges he or she was defamed by a publication in which he or she was not named. Would an ordinary reasonable person, knowing the facts, reasonably understand the publication to refer to the person who alleges he or she was defamed?”32 [81] The learned judge then reminded the jurors of the particulars given in the pleadings by the defendants of the defamatory matter published by Ms Erglis (to Mr Horan), and defamatory of them. Those particulars are not reproduced here,33 since they occupy five full pages. The jury could find that the effect of what was published about the ward necessarily said of each defendant that he or she, at best, provided inadequate care for patients and was oblivious to the fact of more serious deficiencies in care and abuse by other nurses. It was open to the jurors to answer questions B7(a) and (b) as they did. Complaints about the conduct of the trial [82] The written submissions made on this matter reflected grounds 2 and 3 of the grounds of appeal. Ground 2 complained that the learned trial judge allowed questions to be submitted to the jury which should not have been so submitted. The appellant’s written argument in its paragraph 34 identified specific questions, and they can be identified as B3(a); 6; B7(b); and D9(a)-(d). In his oral argument, Mr Favell abandoned his paragraph 34,34 and by necessary inference, ground 2 of the grounds of appeal. Had Mr Favell persisted with that ground, I would have upheld it with respect to question B6. That is because, notwithstanding the jury’s view, the Minister’s inquiry was not about the subject of the allegations, but the very different subject of her response to them. [83] Ground 3 of the grounds of appeal complains that the learned trial judge “erred in directing the jury: a. in not properly directing the jury concerning the question of whether the defendants were defamed by the plaintiff; b. directing the jury in general terms; c. in not properly directing the jury about lack of good faith; d. directing the jury about transacting business of parliament and the relevance of same.” The appellant’s written submission complains that the directions as a whole were entirely inadequate, and that the directions failed to apprehend and address the true role the learned judge was to discharge. The appellant complains that the directions offered the jury little more than general statements of the law, which were not applied to the facts in any way that would have guided the jury to the answers. The appellant submits that the judge was required to explain the law as it applied to the 32 At AR 1692 33 They are at AR 1694-1698 34 Transcript 49 -- 31 of 39 -- 32 facts, and not in general terms, and that this encouraged errors of the kind about which the appellant had complained in the other grounds of appeal. In effect, the complaint was that the learned judge had not complied with the obligation described in s 259(2) of the Supreme Court Act 1995. [84] One of the few parts of the summing up to which specific reference was made in that criticism was where the learned judge explained the point of the plaintiff’s pleading alleging the absence of good faith, and the pleaded grounds on which the plaintiff contended that the defamatory matter was not relevant to the matters raised in the Legislative Assembly. The complaint now made was that the summary of the pleadings was “wholly inadequate,”35 although the written submissions did not suggest what else should or could have been said. Complaint was also made about an asserted misdirection in the directions given earlier about good faith,36 in which it was submitted the judge misdirected the jurors by the following observations: “You may think it not irrelevant, and not going beyond what was reasonably sufficient to the occasion, to bring before the Minister and others the defendants’ honest assessment of the plaintiff as a nursing colleague based on knowledge of her work, her experience, and her attitudes.”37 [85] That observation was made in the course of a direction which had explained that if the published matter was irrelevant to the matters the existence of which might excuse the publication of the defamatory matter, then the publication was not made in good faith. Directions were given at that same time on ill-will and improper motive which extend over a number of pages. The judge had directed the jurors, before the quoted passage now complained of, that when considering questions of alleged irrelevance, that they were to apply the standards of a reasonable person, but also to bear in mind that in matters relevant to an absence of good faith, such as responding to allegations against a person, the person responding was not restricted to bland answers, and that it might be perfectly reasonable for one who was publicly attacked to go beyond what was strictly defensive, and to counter attack.38 The learned judge then reminded the jury that Mr Horan had made it explicit that the plaintiff was his source for the allegations that he had made about Ward 9D, and the judge then made the quoted comment now said to have been misleading. [86] I do not consider it was in any way misleading or a misdirection. The comments left it the jury to decide whether an honest assessment of the plaintiff by those with knowledge of her work, experience, and attitudes had been given to the Minister, had been relevant, and had not gone beyond what was reasonably sufficient for the occasion. It would be a misdirection to suggest that an honest assessment as described was irrelevant to the occasion of qualified protection relied on. [87] The appellant also specifically complained of a misdirection at page 1690, in the sentence “You should note that the plaintiff must prove that a defendant misused any privileged occasioned relied on by him or her, by being actuated by ill-will.” This was said to be a misdirection which focused the jury’s attention on one only of the four incidents of bad faith described in s 16(2); the learned judge had in fact 35 The direction appears at AR 1701 36 These directions appear at AR 1689-1692 37 At AR 1692 38 That direction criticised as a misdirection, but is amply supported by the remarks of Dixon J in Penton v Calwell (1945) 70 CLR 219 at 233 (a judgment at first instance) -- 32 of 39 -- 33 identified each of the matters provided in s 16(2) to the jury, one by one, and had paused, as it were, to spend some time on the provision in the section explaining the existence of good faith if the person “by whom (the publication) is made is not actuated by ill will to the person defamed, or by any other improper motive, and does not believe the defamatory matter to be untrue.” In the course of those directions the judge made the last quoted statement now complained of; it was followed immediately after by the direction that: “The publication must have been ‘actuated’, that is, put into action, moved, and impelled by the dominant motive of ill will to the plaintiff or by some other improper motive.” (Italics mine). The described complaint completely ignored this further, accurate direction, and was unfair to the learned trial judge. [88] The last complaint under this heading is that the learned trial judge failed adequately to direct the jury in relation to aggravated and exemplary damages. The directions on compensatory, aggravated compensatory, and exemplary damages, cover seven pages and not only was no redirection sought, the appellant’s written outline does not identify any deficiency in those careful and accurate directions.39 [89] Mr Favell conceded on the appeal that the failure to seek any further directions or redirections of any nature from the learned trial judge, and the fact that his complaints are essentially of an inadequacy in the directions given rather than of errors in those directions, means that he faces a very difficult task when asking for a re-trial on the basis of asserted deficiencies in the directions given. Uniform Civil Procedure Rule 770(2) only allows this Court to order a new trial because of misdirections to a jury when the Court is satisfied some substantial wrong or miscarriage of justice has happened. That rule accords with the common law. In Bugg v Day (1949) 79 CLR 442 at 462 Dixon J wrote that: “To grant a new trial in a civil case upon the ground that the charge to the jury did not fairly and adequately submit the case of one or other party to them is a course which the court may take where the court is satisfied that it would be a manifest injustice to leave the verdict standing. But it must be a very strong case and that is a description which certainly cannot be applied in the present instance. In General Motors-Holden’s Pty Ltd v Moularas (1964) 111 CLR 234 at 242-243 Barwick CJ wrote: “Without attempting an exhaustive statement, it is established that, generally speaking, a criticism of the summing up which is capable of being cured at the trial must be taken at the trial and the judge asked to correct it. If this is not done in a case where it ought to be done, a new trial on the basis of that criticism of the summing up will, in general, not be ordered. Again, the matter is not the subject of any hard and fast rule, because the court retains a general discretion and is able in a proper case in the interests of justice to relax the requirement.” Windeyer J wrote to the like effect in that same case at CLR 260. 39 They appear at AR 1708-1715 -- 33 of 39 -- 34 [90] In my opinion the appellant has established nothing remotely like the proposition that the interests of justice require relaxation of the rule requiring complaint about the directions to be made at the trial, and has not demonstrated any manifest injustice resulting from the directions that were given. It was a structured summing up in which the jurors were given general directions as to their task, which was specifically explained by reference to the list of questions they were asked to answer, appearing under six headings labelled A through to F. The summing up of course included standard or obvious directions; such as the role of the jury, what constituted evidence, and the like, including the purpose of the law of defamation and the necessity to strike a balance between the protection of reputation and freedom of speech, and directions as to onus of proof on the different issues. The judge then directed the jury on what constituted an imputation, on defamatory matter, on publication, and on what was the meaning conveyed by a publication. The judge then directed the jurors as to the imputations alleged. The directions identified those admitted and those not admitted. The judge then directed the jurors on their role in deciding whether the imputations denied had been established, on the balance of probabilities. [91] The jurors were then directed to consider the defences relied on, identifying those as the defences called qualified protection, and the defence of parliamentary privilege. They were directed on the need to answer the questions relevant to those defences with respect to each of the five nurse defendants individually, and on the issues raised by each defence of qualified privilege. They were directed as to the relevant law, and, as the appellant’s counsel now complains, in textbook terms; and on the onus of proof. They were then directed on the matters relevant to disproof of good faith. [92] The learned judge then directed them as to the pleadings by the defendants about good faith, and the particulars of those, in some detail, and the allegations in the plaintiff’s pleadings in response to the pleading of the defences. They were directed as to the plaintiff’s particulars about that, and the judge concluded by explaining that those were the issues set out in the pleadings in the matter. The learned judge then moved to the defence relying on parliamentary privilege and gave directions on the law, reminding the jurors of the evidence of Mrs Edmond (who had not been cross-examined at all) about the circumstances in which she came to present the letter to the Parliament. The jurors were directed on publication and republication, and on the plaintiff’s allegations in her statement of claim about that. They were then taken to the assessment of damages, and given directions about those, including directions as to the difference between compensatory, aggravated compensatory, and exemplary damages, and the purpose of each and the difference between them. [93] At that stage the judge adjourned over night, inviting any application for further directions or redirections, and there were none. The next day the judge spent some time reminding the jurors of parts of the evidence which were the subject of disputes between counsel, then reminded the jury where the onus lay on the issues and the jurors retired. The only redirection sought by the appellant’s counsel was one that was given, in which the learned judge reminded the jurors that Mr Horan, in his speech in the Legislative Assembly, had made it explicit that the plaintiff was his source for the allegations that he made about Ward 9D. -- 34 of 39 -- 35 [94] It is true, as Mr Favell submits, that the learned trial judge did not specifically remind the jurors about the evidence when directing them as to the relevant law, the pleadings, and the defences raised upon which they were asked to answer questions. But the jurors had heard that evidence and submissions about it in some detail, and the questions directed the jurors to the specific issues they were to consider. Counsel at the trial and the learned trial judge would have had a first class opportunity to assess whether the jurors needed any more reminding of any of the evidence relevant to any of those issues. The respondents correctly submitted on the appeal that it was relevant that the appellant’s counsel had had the opportunity to emphasize to the jury the evidence Ms Erglis relied on. The complete absence of requests from any party, other than for correction of what was said to be errors of fact in the submissions of counsel, are sufficient to show that at the trial counsel were satisfied the jurors needed no reminding of the evidence relevant to each issue. It would be an unfortunate development in the way trials are conducted if appeal courts encourage, as a cottage industry for counsel, complaints after an adverse verdict when no request for any other directions, and no complaint, was made at the trial. Parliamentary Privilege [95] The appellant complains on a number of grounds about the respondents’ succeeding on a defence of parliamentary privilege. The appellant’s written argument complained that question 9 should have identified as the act, about which inquiry was made, as the act of defaming the plaintiff, but the question as framed both complied with a submission made by Mr Favell at the trial40 and reproduced the respondents’ pleading,41 which focuses on described conduct. In turn those pleadings reflect s 9(1) of the Parliament of Queensland Act, which provides a context for the operation of s 8(1) of that Act. Section 8(1) provides: “The freedom of speech and debates or proceedings in the Assembly can not be impeached or questioned in any court or place out of the Assembly.” Section 9 provides that: “‘Proceedings in the Assembly’ include all words spoken and acts done in the course of, or for the purposes of or incidental to, transacting business of the Assembly or a committee.” [96] The respondents pleaded that composing the letter referred to in the Statement of Claim, typing and printing it, submitting a facsimile copy of it to the Minister, and bringing that document to the attention of other Ward 9D staff, were acts done in the course of, or for the purposes of or incidental to, transacting business of the Legislative Assembly of Queensland within the meaning of s 9. That was pleaded as part of a pleading that the plaintiff’s action was not maintainable. Those pleadings made it appropriate to ask question 9 in the form in which it went to the jury. It would have been inappropriate simply to ask the jury if defaming the plaintiff was an act done in the course of, or for the purposes of or incidental to, transacting the business of the Assembly, because that would examine the Minister’s actions and words, not the defendants’. 40 At AR 1420-21 41 In para 14(j)(i) of the defence, at AR 2249 -- 35 of 39 -- 36 [97] Ground 5 of the grounds of appeal complains that the learned trial judge erred in finding that the Minister solicited the letter, and thereby drew it and its authors into the proceedings in the Assembly. That ground referred to the evidence from the Minister quoted in [49] and [50] herein. The thrust of the evidence of the Minister and the other witnesses was that the proposal to have the Minister read a statement by the nurses at that meeting came from them rather than the Minister, and was seen by them as a way of responding to what had been said in the media and the Parliament about Ward 9D. The Minister agreed to read a statement provided to her, if the nurses all agreed to it. The judgment under appeal distinguished the case before the learned judge from the one considered in R v Grassby (1991) 55 A Crim R 419, where the relevant documents were unsolicited. The learned judge reasoned that had the defendants merely sent an unsolicited letter to the Minister, they could not rely on a defence of parliamentary privilege, but that the Minister had solicited their letter, thereby drawing it and its authors, albeit temporarily, into the proceedings in the Assembly.42 The learned judge held that, had the Minister merely agreed to consider any letter sent for presentation or submission to the Assembly that would not have been enough, but she went further, and expressly undertook to read a letter with specified content. [98] The judge had given careful consideration earlier in the reasons for judgment to the decision in Rowley v O’Chee [2000] 1 Qd R 207, in which consideration was given to s 16 of the Parliamentary Privileges Act 1987 (Cth) which, so far as it is relevant, is in substantially the same terms as s 8 and s 9 of the Parliament of Queensland Act. The majority in that decision held that the immunity conferred by Article 9 of the Bill of Rights applied not only to documents made or written personally by a Senator, and to documents the Senator arranged to be made or written on his behalf, but also to documents in the Senator’s possession consisting principally, if not exclusively, of letters sent by or documents received by other persons or sources. McPherson JA observed in that case that it was not possible for an outsider to manufacture parliamentary privilege for a document by the artifice of planting the document upon a Parliamentarian, and that junk mail did not, merely by its being delivered, attract the privilege of Parliament; the privilege was not attracted to a document until at earliest the Parliamentary member or his or her agent did some acts with respect to it for the purpose of transacting business in the house. [99] The learned trial judge in this matter considered that authority and others, and concluded43 that: “For the privilege to be attached to a document, a member, or his or her agent, must in some way appropriate the document to proceedings in Parliament by doing some act with respect to the document for purposes of, or incidental to, transacting parliamentary business. In this case the appropriation took place with [the Minister’s] invitation which included an undertaking to read out in the Assembly a document setting out the views expressed to [the Minister] at the meeting. Further, the requirement that there be some business of the Assembly or a committee to which the document is referable may be satisfied, in my view, even if there is no debate in progress at the time the document is appropriated to proceedings in Parliament by a member, or his or her agent. A document so 42 At [41] 43 At [37] at AR 2285 -- 36 of 39 -- 37 appropriated may itself initiate the business in question, just as in the case of a defamatory publication in respect of which the qualified protection provided for in s 16(1)(h) of the Defamation Act applies, the defamatory publication may itself initiate the discussion: Bellino v Australian Broadcasting Corporation.” [100] I respectfully agree with those observations of the learned trial judge, and consider that the appellant’s focus on whether the documents were “solicited” by the Minister concentrates too much on one matter of fact and one aspect of the judge’s reasoning. If, as Mr Favell argued, the issue was who first suggested writing a letter to be read to the Assembly, his argument would succeed. But I consider the reasoning last quoted provides a proper and critical description of when and how the parliamentary privilege was attached to the composition and forwarding of the letter, as acts for the purposes of, or incidental to transacting the business of the Parliament. What mattered was that the Minister offered to assist the defendants, who suggested a statement by them be read, and the Minister agreed to and did do that, on conditions. The Minister thereby appropriated44 the document and its preparation to proceedings in the Assembly. The protection given by s 8 and s 9 then extended to the acts described in question 9, even to Mr Middleton, who lacked good faith (and who has not appealed that finding). [101] Mr Favell’s real contention was that parliamentary privilege could not apply to strangers to the Parliament, and was restricted to members of it. But that overlooks both that it has often been said that the privilege is that of a Parliament, not its members;45 and that nothing in s 8 and s 9 suggests the privilege can only be relied on by members. In Erglis v Buckley [2004] 2 Qd R 599 at [30] I expressed my preference for a qualified protection only for those giving information to Parliamentarians. The decision was concerned only with the defendants’ challenge to paragraphs 12 and 13 of the plaintiff’s pleadings; and the interlocutory decision on s 8 and s 9, and their interpretation, was not in issue in that appeal. Accordingly, the appellant’s ground of appeal number 5 fails to the extent that it contends that as a matter of fact the Minister did not solicit the letter, and that as a matter of law that was necessary to attract the privilege. [102] Ground 4 of the grounds of appeal made an associated complaint that the judge erred in finding that the acts of the defendants in composing, typing, printing, and sending the letter to the Minister entitled them to the absolute protection of parliamentary privilege, and that the plaintiff was not entitled to impeach or question those acts, as she sought to do in bringing her claim. I would also dismiss that ground. The learned judge remarked that had the Minister herself written out a document at the meeting recording the views of the nurses, so that she could present or submit that to the Assembly, her act in preparing the document would have been a proceeding in the Assembly as that expression is used in s 9(2); and similarly had she had a member of her staff write out a document for that purpose, the staff member preparing the document would also have fallen within the expression “proceedings in the Assembly”. The learned judge considered that no distinction of any substance could be drawn on between, on the one hand, the Minister’s preparation of such a document herself or a staff member doing that at the Minister’s behest, and on the other hand the defendants doing it at her invitation, 44 To adopt, as I do, the terms used by the trial judge 45 Sankey v Whitlam (1978) 142 CLR 1 at 35, per Gibbs ACJ; Rowley v O’Chee at 224-225 -- 37 of 39 -- 38 when the Minister had made clear that provided it was as it had been discussed at the meeting, the Minister would present or submit it to the Assembly. It was in that sense that the judge distinguished the case under consideration from that in R v Grassby. Costs appeal [103] The learned trial judge ultimately ordered that the plaintiff pay 65 per cent of the defendants’ costs, and that she should have no order for her own costs. She had sued six defendants, of whom one provided the role of giving indemnity to the others. She had sought damages of many hundreds of thousands of dollars and recovered $15,000. She failed completely against four defendants and achieved a modest success against one other, and hence again the indemnifying defendant; on the contested imputations submitted to the jury she succeeded on three and failed on seven; four defendants succeeded on a defence of qualified privilege and one failed; all defendants succeeded on a defence of parliamentary privilege, except in respect to publication by one defendant within the ward after the letter had been sent to the Minister; she succeeded in proving publication, but failed in her quest for two categories for damages and had modest success on one. [104] The plaintiff appealed against the order that she pay 65 per cent of the costs of the State of Queensland, the defendant indemnifying the other five. The appellant submits that she was defamed, and has been vindicated (against the tenth and twelfth defendants), and has received an award of damages. Mr Middleton and the State of Queensland unsuccessfully relied on defences of qualified privilege, and in part unsuccessfully relied on defences of parliamentary privilege. [105] There is merit in those submissions, in that the successful defendants other than the State of Queensland were its witnesses, whom it also represented. But the State of Queensland successfully represented four defendants and Ms Erglis had only limited success against the other one. I would have ordered that Ms Erglis pay four- fifths of the costs of the State of Queensland, that order is more onerous than the one appealed. Accordingly, I would dismiss that appeal. Cross-appeal [106] Mr Middleton and the State of Queensland have appealed against the finding that they were not entitled to rely on parliamentary privilege to defeat the plaintiff’s claim arising from publication by Mr Middleton within Ward 9D subsequent to the sending of the letter to the Minister. I would also dismiss that appeal. I agree with the learned trial judge that once the letter had been sent to the Minister, so that the Minister could present it or submit it to the Assembly, the actions of the defendants ceased to be acts done in the course of or for the purposes of or incidental to transacting its business, which relevantly was public debate on the past and present state of affairs in Ward 9D. Once the Minister had received the letter within the deadline given by the Minister, acts after the expiration of that deadline could not be protected by parliamentary privilege. Thereafter what the tenth defendant did was publish outside the Parliament a defamatory statement repeating one made earlier inside the Parliament, conduct not protected at all by the privilege. [107] I do not accept the submission that the fact that the jurors found that bringing the letter to the attention of other staff of Ward 9D was an act done in the course of, or for the purposes of, or incidental to transacting the business in Parliament, is -- 38 of 39 -- 39 inconsistent with the ruling by the learned judge now cross-appealed. The evidence disclosed that the letter had been circulated for signature before it was sent. Those are the acts which were described in the question to the jury concerning bringing the letter to the attention of other Ward 9D staff. [108] I would dismiss the appeal and cross-appeal, and order the appellant pay the respondent’s costs of the appeal, and the respondents pay the appellant’s costs of the cross-appeal, all costs to be assessed on the standard basis. [109] DUTNEY J: I have had the advantage of reading the judgment of McPherson JA. After considering the matters addressed by him I agree with the orders he proposes and have nothing I wish to add to his reasons for those orders. -- 39 of 39 --