Erglis v Buckley & Ors [2005] QSC 25

SUPREME COURT OF QUEENSLAND CITATION: Erglis v. Buckley & Ors [2005] QSC 025 PARTIES: WENDY ERGLIS (plaintiff) v MELISSA BUCKLEY (first defendant) and RACHAEL CRAWLEY (second defendant) and LISA SHEARMAN (third defendant) and ALLISON LOVELL (fourth defendant) and JUDY CUMMINGS (fifth defendant) and REBECCA MANNING (sixth defendant) and JANINE GIBSON (seventh defendant) and KYLIE ASH (eighth defendant) and JACQUI BOE (ninth defendant) and RON MIDDLETON (tenth defendant) and MADONNA FUERY (eleventh defendant) and STATE OF QUEENSLAND (twelfth defendant) FILE NO: S 2867 of 2002 DIVISION: Trial PROCEEDING: Claim -- 1 of 19 -- 2 ORIGINATING COURT: Supreme Court, Brisbane DELIVERED ON: 24 February 2005 DELIVERED AT: Brisbane HEARING DATES: 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 22, 23, 24, 25, 26, 29 and 30 November; 1, 2, 3 and 15 December 2004; and 2 February 2005 JUDGE: Helman J. CATCHWORDS: DEFAMATION – PRIVILEGE – QUALIFIED PROTECTION – REBUTTAL OF PRIVILEGE BY MALICE – Where defamatory letter written by nurses in hospital ward was tabled and read in parliament and published within the ward – Where jury finds that only one defendant acted in bad faith – Where defence of qualified protection fails with respect to that defendant – Where jury assess compensatory damages for publication within the ward at $15,000 DEFAMATION – PRIVILEGE – ABSOLUTE PRIVILEGE – STATEMENTS MADE IN PARLIAMENT – Where defamatory letter read in parliament by a member – Whether defendant can rely on defence of parliamentary privilege – Whether the absolute protection conferred on a member of parliament extends to publication by an informer to a member of defamatory matter which is then repeated in Parliament by the member – Whether the acts of the defendants in composing, typing, printing, and sending the letter were acts of or incidental to transacting parliamentary business – Whether the defendants entitled to the absolute protection of parliamentary privilege – Where the defendants’ entitlement to rely on parliamentary privilege ends after letter submitted to Parliament DEFAMATION – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF ACTION – Whether plaintiff entitled to judgment against defendant for $15,000 with interest and costs – Where plaintiff ‘substantially failed’ in claim DEFAMATION – ISSUE ESTOPPEL – GENERAL PRINCIPLES - Where plaintiff contends that issues raised by defendants have been determined against defendants in Court of Appeal – Whether defendants estopped from contending the claim is not maintainable Parliamentary Privileges Act 1987 (Cth) s. 16 Criminal Justice Act 1989 (Qld) s. 101(2), 16, 16(1) Parliament of Queensland Act 2001 (Qld) ss. 8, 9 Uniform Civil Procedure Rules 1999 (Qld) r 293 -- 2 of 19 -- 3 Belbin v McLean & Anor [2004] Q.C.A. 181 Bellino v Australian Broadcasting Corporation (1996) 185 C.L.R. 183 Buchanan v. Jennings [2004] 3 W.L.R. 1163 Gibbons v. Duffell (1932) 47 C.L.R. 520 R v. Grassby (1991) 55 A. Crim. R. 419 Rivlin v. Bilainkin [1953] 1 Q.B. 485 Rowley v Armstrong [2000] Q.S.C. 88 Rowley v. O’Chee [2000] 1 Qd. R. 207 Sankey v. Whitlam (1978) 142 C.L.R. 1 Thiess v. TCN Channel 9 Pty Ltd [1994] 1 Qd. R. 156 Watson v. McEwan [1905] A.C. 480 COUNSEL: Messrs P.J. Favell and R.J. Anderson for the plaintiff Messrs R.V. Hanson Q.C., P.A. Freeburn S.C., and I.R. Perkins for the defendants SOLICITORS: Messrs Drakopoulos Black for the plaintiff Mr C.W. Lohe, Crown Solicitor, for the defendants [1] This proceeding, a claim for damages for defamation, began on 27 March 2002 with the filing of the plaintiff’s claim against twelve defendants. Pleadings were exchanged in 2002, but on 11 February 2003 a notice of discontinuance of the plaintiff’s claim against the second, fourth, sixth, seventh, ninth, and eleventh defendants was filed, thus bringing to an end the claim against them. The pleadings in their final form are: a second further amended statement of claim filed on 22 September 2004, a defence to that statement of claim filed on 7 October 2004, and a fourth further reply filed on 29 October 2004. [2] The plaintiff is a registered nurse formerly employed in Ward 9D, the bone marrow transplant unit, at the Royal Brisbane Hospital, which was owned and operated at all material times by the twelfth defendant. At all material times the other defendants were nurses in Ward 9D. The plaintiff claimed she was defamed in a letter dated 5 December 2001 signed by each of the nurse defendants and addressed to the Honourable Wendy Edmond, the member for Mount Coot-tha in the Queensland Legislative Assembly, Minister for Health, and Minister Assisting the Premier on Women’s Policy. The letter was written at a time when there was some public controversy in the Queensland Parliament and in the public information media about Ward 9D. [3] The plaintiff alleged that there were in the letter twenty-six imputations defamatory of her, of which sixteen were admitted by the defendants. The remaining ten were disputed and made the subject of questions answered by the jury. The jury gave its answers to all questions asked of it on 3 December 2004, after a trial lasting four weeks beginning on 8 November. Of the disputed imputations only three were found to have been made: see answers to question 1. It was not in issue that those three imputations were of and concerning the plaintiff and were defamatory of her. [4] The defendants relied upon defences in two categories: in the first were defences of qualified protection provided for in s. 16 of the Defamation Act 1889, and in particular those occasions referred to in s. 16(1)(c), (d), (e), (g), and (h); in the -- 3 of 19 -- 4 second was the absolute protection provided for in s. 10(1) of the Defamation Act and ss. 8 and 9 of the Parliament of Queensland Act 2001. By agreement of the parties no questions were asked of the jury in relation to the twelfth defendant, its role being confined to that of indemnifying the other defendants. [5] Disputed questions of fact concerning the occasions of qualified protection alleged were submitted to the jury: see Bellino v Australian Broadcasting Corporation (1996) 185 C.L.R. 183 at p. 197 per Brennan C.J., and at p. 214 per Dawson, McHugh, and Gummow JJ. All of those questions were answered favourably to the five nurse defendants: see answers to questions 2 to 7. There is no need, for the purposes of the resolution of the issues now before me, to rehearse the details of all of the questions asked and answers given as to the alleged occasions of qualified privilege, but three questions and the answers given to them are, I think, relevant to those issues. Those questions are 3(a), 3(b), and 6: 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? … 3(b). If the answer to (a) is YES, did the Minister have an interest in knowing the truth? … 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? The answers to those questions were in the affirmative in the case of each nurse defendant, including the tenth defendant. The Mr Horan referred to was Mr Michael Horan, the member for Toowoomba South and leader of the Opposition in the Legislative Assembly. [6] Questions put to the jury on the issue of absence of bad faith on the occasions of qualified protection (questions 8(a) to (d)) were answered favourably to each of the nurse defendants with the exception of the tenth defendant. In his case the answers of the jury were that he had been actuated by ill will to the plaintiff or by some other improper motive, that the defamatory matter published had been irrelevant to any occasion of excuse relied on by him, and that he believed the defamatory matter to be untrue. The only answer favourable to him on the issue of absence of good faith was an answer in the negative to question 8(c): ‘Did the manner and extent of publication exceed what was reasonably sufficient for the occasion?’ [7] The questions and answers given on the issue of parliamentary privilege were: -- 4 of 19 -- 5 9. Were any of the following acts of the nurses acts done in the course of, or for the purposes of, or incidental to transacting business of Parliament: (a) composing the letter to the Minister Answer: Yes (b) typing and printing the letter Answer: Yes (c) sending the letter to the Minister Answer: Yes (d) bringing the letter to the attention of the other Ward 9D staff Answer: Yes 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? Answer: Yes (b) Were those acts done in preparing the letter for the purposes of, or incidental to presenting or submitting the letter to Parliament? Answer: Yes. [8] The only question asked of the jury concerning publication was 12. It, the answer given to it, and its preamble in para. 11 were: 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. 12. Did other people see the letter in the ward? Answer: Yes (Dr Simon Durrant was the Medical Director of the Haematology and Bone Marrow Transplant Unit: see para. 9 of the second further amended statement of claim, and para. 7 of the defence.) [9] The plaintiff claimed $300,000 as compensatory damages, $100,000 as aggravated damages, and $100,000 as exemplary damages. The $300,000 was to be ‘for each -- 5 of 19 -- 6 defamation calculated as a global amount’, particulars of which were given, and each award of $100,000 was to be for ‘each defamation’, particulars of which were given. Against the tenth defendant the jury assessed compensatory damages for publication within the ward at $15,000, compensatory damages for publication to the Minister at nil, compensatory damages for republication in Parliament at nil, aggravated damages at nil, and exemplary damages at nil: answers to question 13. In view of the answers given on the issue of qualified protection in respect of the claims against the other nurse defendants, the jury was not asked for its assessment of damages against those defendants. [10] On 15 December 2004, when the parties made submissions on all but one of the issues left for me to decide, I determined that each of the defences of qualified protection relied on by the first, third, fifth, and eighth defendants had been made out and ordered that judgment should be entered for those defendants. That left for consideration the orders that should be made in relation to the plaintiff’s claims against the tenth and twelfth defendants, and costs. The latter defendants claim to be entitled to judgment notwithstanding the failure of the tenth defendant’s defence of qualified protection because, it was argued, he is entitled to rely on parliamentary privilege to defeat the plaintiff’s claim. I should add that I received the last of the written submissions on the issue not dealt with on 15 December 2004 last week. [11] In para. 14(i)(i) of their defence the defendants plead that the acts referred to in question 9 were acts done in the course of, or for the purposes of or incidental to, transacting business of the Queensland Legislative Assembly within the meaning of s. 9 of the Parliament of Queensland Act; in para. 14(i)(ii) that ‘the presenting and reading of the letter to Parliament by the Minister was in exercise of the freedom of speech and debates and part of the proceedings of the said Assembly, within the meaning of s. 8 of the said Act and part of the freedom of speech and debates or proceedings in Parliament within the meaning of Article 9 of the Bill of Rights 1688’; and in para. 14(i)(iii) that ‘the presentation and reading of the letter to Parliament by the Minister was a proceeding in the Assembly pursuant to s. 9 of the said Act’ - whereby, the defendants plead, the plaintiff’s action is not maintainable. [12] In para. 16(b) of their defence the defendants plead that as a matter of law they ‘are entitled to the absolute privilege available to the Minister and attaching to the tabling and reading of the document [the letter] in the Queensland Legislative Assembly on 5 December 2001’; and in para. 16(c) that they ‘have no liability to the plaintiff in respect to, and arising out of, the tabling and reading of the document in the Queensland Legislative Assembly on 5 December 2001’. As para. 16 was framed, both s. 10(1) of the Defamation Act and s. 8 of the Parliament of Queensland Act were invoked in para. 16(a), the preamble to para. 16(b) and (c), but at the hearing on 15 December 2004 reliance on s. 8 of the Parliament of Queensland Act was abandoned in this part of the case for the defendants. [13] In para. 8B of her fourth further reply the plaintiff denies the allegations in para. 14(i)(i) of the defence ‘on the basis the matters referred to were not related to “transacting business of the Legislative Assembly” either as required by the true meaning of section 9 of the Parliament of Queensland Act 2001 … or at all’ (8B(a)); denies the allegations in para. 14(i)(ii) ‘on the basis the matters referred to were not in the exercise of the freedom of either the speech or debates of the Assembly, nor part of the proceedings of the Assembly within the meaning of -- 6 of 19 -- 7 section 8 of the Act and Article 9 of the Bill of Rights 1688, where the presentation and reading were at the request of strangers to the Assembly and for their own purposes’ (8B(b)); and denies the allegations in para. 14(i)(iii) ‘on the basis the matters referred to were not made pursuant to section 9 of the Act’ (8B(c)). In para. 8B(d) and (e) the plaintiff pleads further matters which were not, however, pursued at the trial. In para. 8B(f) the plaintiff pleads, with respect to para. 14(i) of the defence, that the issues raised by the defendants, so far as they seek to contend that the plaintiff’s claim is not maintainable, have been determined against the defendants in the Court of Appeal and the defendants ‘are thereby estopped from further raising the matters pleaded therein’. [14] In para. 14 of her fourth further reply the plaintiff denies the allegations in para. 16(b) and (c) on a number of bases: the defendants ‘are not entitled to the benefit provided by s. 10 of the Defamation Act which is available only to a member of the Legislative Assembly’ (14(b)); denies that the defendants ‘are otherwise entitled to the benefit of absolute privilege attachable either to the Minister or the tabling and reading of the document on the basis that as a matter of law that is not correct’ (14(c)); and denies that the plaintiff’s case ‘contravenes the absolute privilege in any event’ (14(d)). In para. 14(a) the plaintiff pleads another matter which was not pursued at the trial. [15] On behalf of the plaintiff it was argued that, notwithstanding the jury’s answers to questions 9 and 10, she is entitled to judgment against the tenth and twelfth defendants for $15,000 with interest and costs. On behalf of those defendants reliance was placed on the absolute privilege provided for in s. 10 of the Defamation Act and ss. 8 and 9 of the Parliament of Queensland Act. Those provisions so far as they are relevant are as follows: Defamation Act: 10. Absolute protection – privilege of Parliament (1) A member of the Legislative Assembly does not incur any liability as for defamation by the publication of any defamatory matter in the course of a speech made by the member in Parliament. (2) A person who presents a petition to the Legislative Assembly does not incur any liability as for defamation by the publication to the Assembly of any defamatory matter contained in the petition. Parliament of Queensland Act: 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 -- 7 of 19 -- 8 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. (2) Without limiting subsection (1), “proceedings in the Assembly” include – (a) giving evidence before the Assembly, a committee or an inquiry; and (b) evidence given before the Assembly, a committee or an inquiry; and (c) presenting or submitting a document to the Assembly, a committee or an inquiry; and (d) a document tabled in, or presented or submitted to, the Assembly, a committee or an inquiry; and (e) preparing a document for the purposes of, or incidental to, transacting business mentioned in paragraph (a) or (c); and (f) preparing, making or publishing a document (including a report) under the authority of the Assembly or a committee; and (g) a document (including a report) prepared, made or published under the authority of the Assembly or a committee. (The Assembly referred to is of course the Queensland Legislative Assembly: see the definition in the dictionary in the schedule to the Act.) [16] It is not in dispute on the pleadings: that an identical image of the signed original copy of the letter that gave rise to the plaintiff’s claim was sent by facsimile transmission to Mrs Edmond’s office on the afternoon of 5 December 2001 with the authority of the nurse defendants (second further amended statement of claim para. 8 and defence para. 7(a)); that the letter was read and tabled in the Legislative Assembly by Mrs Edmond shortly after 4.44 p.m. on 5 December 2001 (second further amended statement of claim para. 13(a), and defence para. 14(h)); that before the letter was composed there was an ‘on-going’ debate in the Queensland Parliament about Ward 9D in which it alleged inter alia that there had been mismanagement, lack of staff and resources, deaths of patients waiting for transplants, staff bullying, sexual harassment, professional misconduct, physical -- 8 of 19 -- 9 abuse of and theft from patients, tampering with reports, and drug-taking or abuse by a staff member (defence para. 14(a) and fourth further reply para. 3); and that a meeting involving some of the staff from Ward 9D took place at the hospital on the afternoon of 5 December 2001 (defence para. 14(d) and fourth further reply para. 6). [17] It was not in dispute at the trial that the meeting and the letter followed a widely reported speech made on 4 December 2001 in the Queensland Legislative Assembly by Mr Horan, and that the meeting at the hospital, attended by Mrs Edmond, preceded the composition of the letter. [18] On behalf of the defendants it was argued that the absolute protection conferred on a member of the Legislative Assembly by s. 10(1) of the Defamation Act extended to the publication by an informer to a member of defamatory matter repeated in the Parliament by the member. Otherwise, the argument continued, an informer would be left to the qualified protection provided for in the Defamation Act ‘with all the risks inherent in that, as this present action demonstrates’. [19] Support for the defendants’ argument may be found in obiter dicta in Belbin v McLean & Anor [2004] Q.C.A. 181: paras 37-40 per Muir J., with whom Williams J.A. and Mullins J. agreed. In that case the Court of Appeal considered an appeal from an order made at first instance refusing the appellant-plaintiff’s application to strike out parts of the respondent-defendants’ defence to a claim for damages for defamation. The claim arose from the publication by the respondents to a director of the Bureau of Emergency Services of allegedly defamatory matter and the republication of that matter to officers in the employ of the Criminal Justice Commission. In the parts of the defence in question the respondents sought to rely on s. 101(2) of the Criminal Justice Act 1989 (now repealed) which conferred, in proceedings for defamation, ‘a defence of absolute privilege in respect of a publication to or by the [Criminal Justice] commission or an officer of the commission made for the purpose of the discharge of the functions and responsibilities of the commission or of any of the functions of an organisational unit of the commission’. It was held that the subsection might, in appropriate circumstances, afford a defence of absolute privilege to original publishers such as the respondents in the event of a republication even in a case - as the appellant’s and this plaintiff’s was - where the republication was relied on, not as a cause of action separate from that arising from the original publication, but as a circumstance going to damages only. The determination of the issue could not be made on an interlocutory application, the court concluded, and the appeal was dismissed: paras 26 and 36. [20] The decision in Belbin v. McLean & Anor turned then on the construction of s. 101(2) of the Criminal Justice Act, in which, it may be noted, the defence of absolute privilege was expressed, so far as it related to publications to the Criminal Justice Commission, without reference to whether such publications might be directly to the Commission, or, as the Court of Appeal’s decision allows as a possibility, through an intermediary. As Muir J. noted, the subsection ‘does not confine the defence to a specified person or persons. It is expressed to apply “in respect of” a prescribed publication’ (para. 22). His Honour recorded that in view of the conclusions to which I have referred it was unnecessary to determine a point of general principle raised on appeal: whether the original publisher of defamatory matter which is republished by another can rely on a defence open to the republisher if the plaintiff does not allege the republication as a separate cause of action but -- 9 of 19 -- 10 relies on it as a matter going only to the damages suffered as a result of the original publication: para. 37. His Honour proceeded, however, to observe: In the case of a defence of absolute privilege … the denial to the original publisher of the benefit of a defence open to the republisher could seriously undermine the protection of the defence. For example, if the quantum of damages able to be recovered from a publisher of defamatory information to a parliamentarian could be greatly increased by virtue of republication in parliament, there would be an obvious practical restraint on the parliamentarian’s freedom to use the information. Similar concerns could arise in relation to legal proceedings. (para. 39) [21] While considerations of the kind referred to by Muir J. must of course be borne in mind in construing a provision like s. 10(1) of the Defamation Act, also to be remembered are that the presumption is against indefeasible immunity for defamation, and that its extension beyond what is indispensable to the effective performance of judicial, legislative, and official functions is not favoured: Gibbons v. Duffell (1932) 47 C.L.R. 520 at p. 528 per Gavan Duffy C.J., Rich, and Dixon JJ., at p. 529 per Starke J., and pp. 534-5 per Evatt J. [22] The issue that arises in this case from s. 10(1) of the Defamation Act is also one of construction. The absolute protection provided for in s. 10(1) is quite explicitly confined to members of the Legislative Assembly and then only when they speak in Parliament. It is not possible in my view to read in that subsection an intention to extend absolute protection to any other activity of a member or to the activities of strangers to Parliament. I was referred to no authority in which the construction contended for on behalf of the defendants had been put upon that provision. Watson v. McEwan [1905] A.C. 480, concerning the ambit of the absolute privilege attaching to a witness in a court of justice and to which I was referred on behalf of the defendants, does not in my view assist in construing the clear words of s. 10(1), which of course must be read in the context of the whole Act. The scheme of the Defamation Act is to provide protection to informants of members of Parliament, but not the absolute protection enjoyed by members in speaking. [23] The construction that must be put upon s. 10(1) of the Defamation Act does not support the defendants’ contention, but what of the construction to be put upon ss. 8 and 9 of the Parliament of Queensland Act? [24] The interlocutory history of this claim discloses how it was that questions of fact concerning the defence based on the Parliament of Queensland Act came to be submitted to a jury. On 5 and 6 November 2003 an application for summary judgment by the defendants came before Philippides J., who dismissed it on 11 November 2003: [2003] Q.S.C. 394. The application, pursuant to rule 293 of the Uniform Civil Procedure Rules 1999, was made on the ground that litigation of the plaintiff’s claim would ‘impeach or question the freedom of speech, debates and/or proceedings in the Legislative Assembly of Queensland, contrary to sections 8 and 9 of the Parliament of Queensland Act 2001’. It failed because her Honour considered that issues of fact on which further evidence was required arose on the question whether the defendants could rely on parliamentary privilege. At the trial argument on the availability to the defendants of a defence based on their reliance -- 10 of 19 -- 11 on parliamentary privilege was deferred until after the jury had answered the questions put to it. [25] Another part of the interlocutory history of this claim is relevant to the plaintiff’s plea in para. 8B(f) of her fourth further reply. On 24 December 2003 an application made by the defendants that paras 12(a) and 13(a) of the further amended statement of claim be struck out, was granted: [2003] Q.S.C. 440. In para. 12(a) it was alleged that at the time imputations set out in the pleading were published the defendants knew that the original document or a facsimile copy would be republished by Mrs Edmond in a ‘public forum’ and that ‘as a consequence the words and thereby the imputations would become known to the public at large’. The ‘public forum’ referred to was, it was agreed, the Legislative Assembly. In para. 13(a) it was alleged that the facsimile copy of the letter that gave rise to the plaintiff’s claim was tabled and read in the Queensland Legislative Assembly by Mrs Edmond on the afternoon of 5 December 2001 ‘and as a consequence the words and thereby the imputations then became known to the public at large’. Those paragraphs have remained unaltered in substance in the current version, the second further amended statement of claim. Concluding that by those paragraphs of the plaintiff’s pleading and her claim for damages the plaintiff would, within the meaning of the Parliament of Queensland Act, be impeaching or questioning the freedom of speech and debates in the Assembly, the judge ordered that they be struck out. That order was, however, set aside by the Court of Appeal: [2004] 2 Qd. R. 599. McPherson J.A. concluded that the course taken by the plaintiff in paras 12(a) and 13(a) 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 or proceedings in the Assembly within the meaning of s. 8 of the Parliament of Queensland Act: pp. 604-605 and 609. Fryberg J. agreed with that conclusion: p. 634. [26] On behalf of the plaintiff it was argued that because of the way in which the appeal was argued it is clear that the broader question whether the claim generally, and not just that part of it that concerns republication, impeaches the proceedings of the Assembly was also decided against the defendants. In those circumstances, it was argued, this is more than a case in which the defendants are estopped from contending the extended damages claim is not maintainable: they are estopped from contending the claim is not maintainable. [27] The court’s decision was, on my reading of it, strictly confined to the issue before it concerning paras 12(a) and 13(a) of the statement of claim: whether by pleading that the plaintiff suffered damage as a result of the republication of the contents of her facsimile to Mrs Edmond when Mrs Edmond read it out in the Legislative Assembly involved impeaching or questioning proceedings in the Assembly. McPherson J.A. formulated the question in this way: It is, of course, clear that the plaintiff makes no claim for damages or otherwise against the Minister Hon. Wendy Edmond M.L.A. for her action in tabling or reading out the letter in Parliament as she did on 5 December 2001. If the plaintiff had done so, there is no doubt that her claim to that effect would be peremptorily struck out. Her more -- 11 of 19 -- 12 limited object, it is plain, is to increase the amount of damages she hopes to recover for the defamation she is claiming and hopes to be awarded against the defendants arising out of publication of the letter to the Minister, knowing when they did so that (as is admitted) the Minister would be likely to read it to Parliament, with all the consequential publicity in the media that would follow. This aspect of her claim is founded on a series of decisions referred to in Gatley on Libel and Slander (of which Cutler v. McPhail [1962] 2 Q.B. 292, Slipper v. British Broadcasting Corporation [1991] 1 Q.B. 283 and, in Queensland, Timms v. Clift [1998] 2 Qd. R. 100, are examples) holding a defendant legally liable for damages arising out of republication of defamatory material which it was or ought to have been foreseen was likely to ensue. The question is whether, in making that claim in this action, the plaintiff is impeaching or questioning freedom of speech and debates or proceedings in the Assembly. (pp. 604-605) [28] Jerrard J.A., who dissented as to the result of the appeal, defined the issue in this way: I recognise however that only paras 12a. and 13a. are in issue in this appeal. Restricting my comments to those paragraphs, and focusing only on the portion of the parliamentary proceedings referred to in those pleadings, namely the occasion on which the facsimile copy was read to the Parliament, the result is that the plaintiff is seeking damages for the consequences to her of the publication (as intended by the defendant) in the Parliament of a facsimile copy of that letter. That is what she pleads, alleging serious consequences to her from that publication. If she may properly do that then all persons whose reputations are injured in proceedings in Parliament, by the (intended or foreseen) republication verbatim of information given by a third person to a member of the Parliament, could plead in an action against that third person and as a basis for the vast bulk of the damages they would seek, the consequences to those plaintiffs of the publication in the Parliament. (p. 613) [29] Fryberg J., said this in the first paragraph of his reasons: At first instance Philippides J. refused the respondents/defendants’ application for summary judgment. She acceded to their alternative application to strike out a number of paragraphs in the statement of claim and the reply. After hearing submissions on costs, her Honour ordered that the plaintiff’s costs of and incidental to the part of the application seeking an order for summary judgment be paid by the defendants, and that the defendants’ costs of and incidental to the balance of the application to strike out be paid by the plaintiff. The appellant/plaintiff now seeks to set aside part of the second of those orders, namely the order that paras 12(a) and 13(a) of the further amended statement of claim (“the impugned paragraphs”) be struck out. The respondents have not appealed or cross-appealed against the refusal of the other orders sought. Neither side has appealed against the costs order. The point now in issue in the proceedings is -- 12 of 19 -- 13 a narrow but nonetheless important one. Leave was granted to the Speaker of the Legislative Assembly to intervene. (p. 623) [30] The argument before the court, particularly that advanced on behalf of the Speaker of the Legislative Assembly may have been wider than the narrow issue determined, but in the result the questions were confined, as they had to be, to those derived from the narrow pleading point before the court. Accordingly I am not persuaded that the defendants are estopped from contending that the plaintiff’s claim is not maintainable. [31] It is clear from s. 9(2)(e) of the Parliament of Queensland Act that presenting or submitting a document to the Legislative Assembly is business of the Assembly within the meaning of that expression in s. 9(1). The effect of s. 8(1), 9(1), and 9(2)(c) and (e) is that preparing a document for the purposes of, or incidental to, presenting or submitting it to the Assembly can not be impeached or questioned in any court, nor can any act done for the purposes of, or incidental to, presenting or submitting a document to the Assembly be so impeached or questioned. [32] It is not in dispute, as I have related, that before the letter that gave rise to the plaintiff’s claim was composed there was an ‘on-going’ debate in the Queensland Parliament about Ward 9D. As I have also related, the jury found, in the case against each nurse defendant including the tenth defendant, that the defamatory matter was 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, that the Minister had an interest in knowing the truth, and that the defamatory matter was 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. [33] The circumstances giving rise to Mrs Edmond’s reading and tabling of the defendants’ letter in the Legislative Assembly were narrated by her in her sworn - and unchallenged – evidence at the trial. In my directions to the jury I referred to pertinent passages in the evidence she gave in answer to Mr Hanson Q.C.’s questions. The meeting she attended at the Royal Brisbane Hospital was referred to, and this ensued: All right. So was there some decision taken at this meeting or some suggestion floated? --After we talked for some time and I guess they expressed how they felt the – 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. There were some questions asked about why or how Mr Horan could get up and make a statement without checking with any of them whether or not the statement was true. Don’t politicians do that? -- Yes, unfortunately politicians do that and I explained that that does happen and it can happen. I was asked if they made a statement would I be prepare to read it. There had -- 13 of 19 -- 14 been quite a lot of discussion at that time about what was right and not right in the statements that had been made in Parliament. Yes? -- I said to them 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. All right. Was that agreed to at the meeting? -- Yes, I actually asked it several times because I didn’t want anyone feeling that they were bullied or pushed or in any way sort of cajoled into doing it. I asked probably three times whether they all agreed, whether they all felt the same and I was told yes. You know, there was no-one – no-one indicated that they didn’t agree with the statements that had been made in the meeting. Later Mrs Edmond said that she told the nurses at the meeting to send the letter by 4.30 p.m., and that it did arrive about then. She checked the letter, which came to her at her office at Parliament House by facsimile transmission: You saw it in a form such as that with signatures on it? -- Yes, and I checked to see that it was roughly the same as the conversations that had been had in the afternoon at the meeting and it was pretty much in the same context. [34] The jury’s answers to questions 9(a) to (d) and 10(a) and (b) would support the conclusion that the defendants are entitled to rely on the absolute protection provided for in ss. 8 and 9 of the Parliament of Queensland Act, provided those provisions are to be accorded a construction wide enough to confer protection on the acts of strangers to Parliament. If ss. 8 and 9, properly construed, do not have that effect the defendants’ assertion of their entitlement to rely on the absolute protection also enjoyed by Mrs Edmond must fail notwithstanding the jury’s findings - as on behalf of the plaintiff it was contended it should. [35] In approaching this question one must bear in mind the presumption against such absolute privilege and the traditional reluctance to extend it referred to in the passages in Gibbons v. Duffell to which I have alluded. Our laws seek to strike a balance between the competing demands of protection of individual reputation on the one hand and freedom of speech in Parliament and outside it on the other. [36] A decision that provides support for the defendants’ argument is that of the Court of Appeal 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 ss. 8 and 9 of the Parliament of Queensland Act. The effect of s. 16(1) and 16(2) of the former Act is that any acts done for purposes of, or incidental to, the transacting of the business of a House of the Parliament of the Commonwealth (which acts include the preparation of a document for purposes of, or incidental to, the transacting of any such business) ought not to be impeached or questioned in any court. It was held by the majority (McPherson J.A. and Moynihan J.) that the immunity conferred by Article 9 of the Bill of Rights applies not only to documents made or written personally by a senator, and to documents he arranged to be made or written on his behalf, but also to documents in the senator’s possession consisting ‘principally, if -- 14 of 19 -- 15 not exclusively, of letters sent by or documents received from other persons or sources’. An order made at first instance that the senator produce the documents for inspection was set aside. Referring to documents sent to a member of Parliament by a stranger, McPherson J.A. observed: It is not, I think, possible for an outsider to manufacture Parliamentary privilege for a document by the artifice of planting the document upon a Parliamentarian: see Rivlin v. Bilainkin [1953] 1 Q.B. 485; and Grassby (1991) 55 A. Crim. R. 419. The privilege is not attracted to a document by s. 16(2) until at earliest the Parliamentary member or his or her agent does some act with respect to it for purposes of transacting business in the House. Junk mail does not, merely by its being delivered, attract privilege of Parliament. (p. 221) His Honour explained: ‘The privilege under s. 16(2) attaches when, but only when, a member or Parliament does some act with respect to documents for purposes of, or incidental to, the transacting of House business’ (p. 225). In those passages his Honour defined the earliest time at which parliamentary privilege can apply in Queensland in relation to documentary communications from strangers, or outsiders, as the defendants were: the member of Parliament, or his or her agent, must do some act with respect to the document for the purposes of or incidental to transacting business of the Assembly. [37] The test is not simply whether there is a debate in progress. If there is no debate in progress, as there was not in Rivlin v. Bilainkin and R v. Grassby, there may be no business transacted or proceedings in Parliament to which the document is referable: see Rowley v. O’Chee at pp. 225-226 per McPherson J.A. But although it is necessary for there to be some business of the Assembly or a committee to which a document is referable, that is not sufficient. 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 Mrs Edmond’s invitation which included an undertaking to read out in the Assembly a document setting out the views expressed to her 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 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 itself may initiate the discussion: Bellino v. Australian Broadcasting Corporation. [38] It is also erroneous to suggest that the privilege invoked here was that of strangers to Parliament. The privilege attached on Mrs Edmond’s invitation was not that of those who composed, typed, printed, and sent the letter, nor even solely that of Mrs Edmond, but of the Assembly of which Mrs Edmond was but one member: Sankey v. Whitlam (1978) 142 C.L.R. 1 at pp. 36-37 per Gibbs A.C.J., and Rowley v. O’Chee at pp. 224-225 per McPherson J.A. -- 15 of 19 -- 16 [39] In advancing the argument that the defendants, as strangers to Parliament, are not entitled to rely on the protection of parliamentary privilege, counsel for the plaintiff referred to the decision of Jones J. in Rowley v Armstrong [2000] Q.S.C. 88. His Honour dismissed the defendant’s application to strike out the plaintiff’s claim on the ground that it was an abuse of process, and gave leave to the plaintiff to proceed with his claim. The plaintiff’s claim was for damages for defamation in two alleged oral publications by the defendant concerning the plaintiff, one to a member of the Australian Senate and the other to a member of the Queensland Legislative Assembly. As a result the topic allegedly dealt with in the publications was raised in the Senate and in the Queensland Legislative Assembly. His Honour rejected a contention by the defendant that the communication between the defendant and the parliamentary representatives was protected by parliamentary privilege. After referring to a number of decisions on the subject of parliamentary privilege, including R v. Grassby, his Honour expressed the view that it followed clearly enough from those references that an informant in making a communication to a parliamentary representative ‘is not regarded as participating in “proceedings in Parliament” and therefore the provisions of the Parliamentary Privileges Act do not apply’: para. 34. As I understand his Honour’s reasons, they would lead to the same conclusion in relation to the information supplied to the member of the Queensland Parliament. [40] The reasoning in Rowley v. Armstrong was the subject of detailed criticism in advice by the Clerk of the Senate and Mr Bret Walker S.C. to the Senate Committee of Privileges: see Advices to the Senate Committee of Privileges from the Clerk of the Senate and Senior Counsel, March 1988 to April 2002 (August 2002), advices by the Clerk 18 April 2002 (No. 24), 17 May 2000 (No. 25), and 7 August 2000 (No. 26) pp. 98 - 101 and advice by Mr Walker 28 June 2000, p. 127. The gravamen of the criticism was that his Honour failed to give proper consideration to the construction to be put upon s. 16 of the Parliamentary Privileges Act. It is not necessary for me to discuss the critiques in detail: it suffices to say that clearly enough the resolution of the question of parliamentary privilege that arises in this case rests on the proper construction of the legislation, and of course its application to the facts. So far as his Honour sought to state a rule of general application, I must, respectfully, record my disagreement with him. [41] I conclude then that the acts of the defendants in composing, typing, printing, and sending the letter to Mrs Edmond are entitled to the absolute protection of parliamentary privilege, and that the plaintiff was not entitled to impeach or question them, as she sought to do in bringing her claim. My conclusion can, I suggest, be tested by considering the following. There could be no doubt that had Mrs Edmond herself written out a document at the meeting recording the views of the nurses so that she could present or submit it to the Assembly, her act of preparing the document would have been a proceeding in the Assembly as that expression is used in s. 9(2) of the Parliament of Queensland Act. Similarly, had Mrs Edmond had a member of her staff write out such a document for that purpose the staff member’s preparing the document would also have fallen within the expression ‘proceedings in the Assembly’. There is, I think, no distinction of substance between, on the one hand, Mrs Edmond’s preparing such a document herself or a staff member’s doing it at her behest and, on the other hand, the defendants’ doing it at her invitation when Mrs Edmond had made it clear that provided it was as had been discussed at the meeting she would present or submit it to the Assembly. There lies the distinction between this case and R v. Grassby in -- 16 of 19 -- 17 which the documents were unsolicited. Had the defendants merely sent an unsolicited letter to Mrs Edmond they could not rely on parliamentary privilege, but Mrs Edmond solicited their letter, thereby drawing it and its authors, albeit temporarily, into the proceedings in the Assembly. Of course, had Mrs Edmond merely agreed to consider any letter sent for presentation or submission to the Assembly that would not have been enough, but in this case she went further and expressly undertook to read a letter with specified content. [42] It does not follow from that conclusion, however, that the plaintiff is not entitled to the assessed damages of $15,000. Whether she is entitled to the $15,000 depends upon an examination of the jury’s findings on the publication of the letter and a determination of when the defendants’ entitlement to rely on parliamentary privilege ceased. The jury found that ‘other people’ saw the letter in the ward, i.e., people other than Dr Simon Durrant: answer to question 12. That answer is consistent with the evidence of nurses who were employed in Ward 9D in 2001 and 2002 that, after the letter was sent by facsimile transmission to Mrs Edmond, it, or a copy of it, was put in a place in the ward where it could be viewed by ward staff and others. Mrs Barbara Deans, a registered nurse, said she saw it on the bench at the nurses’ station where, she said, staff, visitors and patients could have seen it, although she said that it would not be expected that visitors would read documents at the nurses’ station. Mrs Christina Phillips, a registered nurse, saw it on the bench at the nurses’ station and in the tea room. Mrs Phillips gave a list of people who would have been able to look at things on the bench: the staff of the ward (nurses, doctors, cleaners, ‘wardies’, catering ladies), patients, relatives, physiotherapists, and speech therapists. Patients, their relatives and visitors generally would not be in the habit of reading things on the bench, ‘but there would be the occasional person that’s fairly nosey and they would read it. They would read stuff’, she said. Mrs Jennifer Sadler, a registered nurse, said she saw the letter on the bench at the nurses’ station and in the communications book – the latter until early January 2002. The public do not look at the communications book, she said, but doctors, dieticians, physiotherapists, and other allied ‘help professionals’ could look at it, she said. Ms Deborah McDermott, a clinical nurse, said she saw it on the bench at the nurses’ station and in the staff room. [43] The jury found that bringing the letter to the attention of ‘other Ward 9D staff’ was an act done in the course of, or for the purposes of, or incidental to transacting business in Parliament (answer to question 9(d)), and that it was an act done in the course of, or in preparing the letter, for the purposes of, or incidental to presenting or submitting the letter to Parliament (answers to questions 19(a) and (b)). The letter was of course circulated for signature before it was sent, but once it had been sent to Mrs Edmond so she could present it or submit it to the Assembly the acts of the defendants ceased to be acts done in the course of or for the purposes of or incidental to, transacting business of the Assembly. The Assembly, through its member Mrs Edmond, brought the acts of the defendants into its proceedings when she undertook to read out the proposed letter in the Assembly but 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 follows that their acts subsequent to the expiration of the deadline could not be protected by parliamentary privilege. Those acts in publishing defamatory matter were no more protected than is a defamatory statement by a member of Parliament made outside Parliament repeating a defamatory statement made in Parliament: see the advice of the Privy Council in Buchanan v. Jennings [2004] 3 W.L.R. 1163. -- 17 of 19 -- 18 [44] My conclusion is then that, although the tenth and twelfth defendants can rely on parliamentary privilege to defeat the plaintiff’s claim for acts done from when Mrs Edmond extended her invitation to when the letter was received by her, after that the publication of the letter within the ward was not protected. It is reasonable to conclude that the $15,000 damages may properly be attributed to the unprotected publication since up to the time the letter was sent its publication was limited in time and numbers. After that it was published widely within the ward to staff and others. It was then available for viewing by a far larger number of people: in addition to the staff of the ward, by patients and their relatives, and professional and other visitors to the ward, until early January 2002. Any component of the $15,000 attributable to protected publication is, by comparison with the damages assessed for unprotected publication, likely to be minimal. Accordingly, there will be judgment for the plaintiff against the tenth and twelfth defendants for $15,000. I think it reasonable to allow in addition interest from 5 December 2001. [45] The determination of the question of costs is not without difficulty. On behalf of the defendants it was argued that the major part of the plaintiff’s claim was for damages for publication to Mrs Edmond ‘and beyond’ and that the claim for publication within the ward was a minor aspect of her claim, so that she ‘substantially failed’ and should bear the major portion of the costs. On behalf of the plaintiff it was submitted that she should have her costs without that ‘punishment’ sought by the defendants. [46] The principles upon which costs are awarded in a case of this kind with the results of the kind seen here are discussed at length at Thiess v. T.C.N. Channel Nine Pty Limited (No. 5) [1994] 1 Qd. R. 156 at pp. 206-208. Any attempt to achieve mathematical exactitude in such an award is bound to fail and achieve no more than a spurious precision: in the end the matter is ‘largely one of impression’ (ibid, p. 209) and rightly so, for if it were not the parties would be exposed to an expensive and lengthy debate to no proper end. [47] What then is the overall impression conveyed by what has happened in this case? The plaintiff pursued six defendants, one of whom was reduced, at least by the time of the trial, to the role of providing indemnity to the others. She sought damages of many hundreds of thousands of dollars. She failed completely against four defendants and has achieved only a modest success against one nurse defendant - and hence also the indemnifying defendant. The magnitude of her claim measured against the assessment of her damages shows the balance is against the plaintiff. The width of claim against six defendants and her success against two only also shows the balance is against the plaintiff. If one examines the heads of controversy submitted to the jury the balance is again against her: meaning of words (ten in dispute, failure on seven); qualified protection (five defendants claiming qualified protection, failure against four); parliamentary privilege (failure except for publication within the ward after the letter was sent to Mrs Edmond); publication (success); and damages (five categories of damages, failure on four and only modest success on one). [48] It is relevant that the twelfth defendant provided indemnity to the other defendants and that the Crown solicitor and counsel retained by him acted throughout for all defendants and that the twelfth defendant will indemnify the other defendants. I see no possibility that that indemnity will not be honoured. In those circumstances I think it preferable that I make one order for costs taking into account all of the -- 18 of 19 -- 19 relevant considerations rather than try to fashion an order in respect of the claims against the successful defendants and another in respect of the claim against the unsuccessful defendants. Such separate orders would require a disentangling of costs referable to the plaintiff’s claims against the successful defendants on the one hand and those referable to the claim against the unsuccessful defendants on the other. [49] The plaintiff’s claim was primarily directed at the signatories to the letter. The first to the eleventh defendants were all signatories. Although the twelfth defendant was joined, the chief targets were the five nurse defendants left after the filing of the notice of discontinuance. Viewed in that way the plaintiff’s claim was at most only twenty per cent. successful. But since the claim against the tenth defendant was only modestly successful some allowance must be made for that. Taking all of the plaintiff’s and the defendants’ successes and failures into account, I conclude that the plaintiff should pay to the defendants sixty-five per cent. of their costs and that she should have no order for her own costs. I arrived at that figure in this way: the plaintiff would be entitled to about twenty per cent. of her costs and the defendants to about eighty per cent. of theirs. Subtracting the twenty per cent. from the eighty per cent. gives sixty per cent., which I adjusted by five per cent. against the plaintiff to reflect the modesty of her success. In my view the defendants should be allowed the costs of two counsel. [50] I shall invite further submissions on the final orders to be made. -- 19 of 19 --