Balson v State of Queensland & Anor [2003] QSC 42

SUPREME COURT OF QUEENSLAND CITATION: Balson v State of Queensland & Anor [2003] QSC 042 PARTIES: CHARLES SCOTT BALSON (plaintiff/respondent) v STATE OF QUEENSLAND (first defendant) and QUEENSLAND NEWSPAPERS PTY LTD (second defendant/applicant) FILE NO: SC6325 of 2001 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 6 March 2003 DELIVERED AT: Brisbane HEARING DATE: 17 January 2003 JUDGE: Mackenzie J ORDERS: 1. I order that there be separate trials of the claim against the first defendant for damages for wrongful imprisonment and malicious prosecution and associated orders, and of the claim against the second defendant for defamation and associated orders. 2. I order that the respondent pay the applicant’s costs of and incidental to the application to be assessed, with payment of such costs to be postponed until final determination of the proceedings against the second defendant. 3. I give leave to the respondent to amend his statement of claim insofar as it relates to the second defendant and to file and serve the amended statement of claim within six weeks of this order. CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – JOINDER OF PARTIES - where plaintiff/respondent brought proceedings against 1st defendant and 2nd defendant/applicant based on related fact circumstances – where the respondent sought to have those actions dealt with together in the one proceeding – where applicant sought -- 1 of 6 -- 2 separate trials of the plaintiff’s actions – whether it was inconvenient to try the two causes of action together Criminal Law (Sexual Offences) Act 1978 (Qld), s10(3) Defamation Act 1889 (Qld), s 17 Uniform Civil Procedure Rules, r 68, r 293(2) Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343, cited QIW Retailers Ltd v Felview Pty Ltd (1989) 2 Qd R 245, approved Sharp v Biggs (1932) 48 CLR 81, cited COUNSEL: D C Spence for the 2 nd defendant/applicant C S Balson appearing on his own behalf SOLICITORS: Thynne & McCartney for the 2 nd defendant/applicant C S Balson appearing on his own behalf [1] MACKENZIE J: The respondent plaintiff commenced proceedings against the first defendant (which takes no active part in the present application) and the second defendant which is the applicant for an order pursuant to r 68 of the Uniform Civil Procedure Rules that there be separate trials of the plaintiff’s claims against the first and second defendants. [2] As the statement of claim presently stands the prayer for relief includes the following: Against the first defendant (a) damages for wrongful imprisonment including aggravated punitive and exemplary damages thereon; (b) damages for malicious prosecution including such aggravated punitive and/or exemplary damages as the court may assess. Against the second defendant (a) damages for defamation, exacerbated by their … malicious actions and including aggregated (sic) punitive and/or exemplary damages as the court may assess. The statement of claim also requires the case to be heard by a jury. [3] The plaintiff’s proceedings arise out of circumstances surrounding his being charged with an offence under s 10(3) of the Criminal Law (Sexual Offences) Act 1978 (Qld). The allegation was that the respondent had published, on a website, on or about 27 July 1999 a statement, published otherwise than in a report concerning an examination of witnesses or a trial, revealing the name of a defendant, William Theodore D’Arcy, charged with a prescribed sexual offence, namely rape, to which the statement related, before the defendant was committed for trial or sentence upon those charges. The respondents successfully defended the complaint which was dismissed by a Magistrate on 20 March 2000. -- 2 of 6 -- 3 [4] The statement of claim has gone through various forms but the current statement of claim alleges, in summary, the following facts concerning the various forms of action and other issues. [5] On 27 July 1999 a reporter from the Courier Mail, published by the applicant, wrote to the DPP about the alleged publication on the website and named the respondent as author. At about the same time the applicant provided to Mr D’Arcy’s solicitor a copy of the publication, intending that he would make a complaint to the relevant authorities and also caused a copy of the item on the website to be distributed to “the media”. The distribution to the media was done maliciously with the intent, which proved successful, of drawing the wider media’s attention to the “complaint (the applicant) had procured” against the respondent. On 30 July 1999 the applicant also provided a copy of the publication to the Queensland Police Service. [6] It is further alleged that the applicant published in the Courier Mail a matter of and concerning the respondent on 30 July 1999. The relevant passages for the purposes of this discussion are the following: “Ignorance of the law is no excuse – as publisher Scott Balson may discover if prosecuting authorities decide to charge him for publishing the name of a man currently facing committal proceedings on child sex charges. … The law is relatively simple and it should be well known to anyone who is seriously involved in publishing and broadcasting… So to should Balson. As a publisher, he has a responsibility to obey the law. It may be the case that his publication only attracts a few hundred hits a day and that therefore he did not do too much damage.” [7] It is alleged that the words were defamatory of the plaintiff and in their natural and ordinary meaning meant and were understood to mean that he: (a) had engaged in illegal activities; (b) was of bad character; (c) had no perception of his duties as a publisher; and (d) had no respect for the law. [8] It is also alleged that on 26 February 2000 the applicant published further defamatory words of and concerning him as follows: “Balson is before the courts for illegally naming a prominent political figure on child sex charges during committal proceedings. His site has also been criticised for anti-Semitic and anti-Asian comments, and several well known people are preparing defamation actions against him.” It is alleged that the words were defamatory of him and that in their natural and ordinary meaning meant and were understood to mean that the plaintiff: (a) had engaged in illegal activities; (b) was corrupt; -- 3 of 6 -- 4 (c) was a racist; (d) was anti-Semitic; (e) was anti-Asian; (f) had defamed various other persons; (g) was dishonest; (h) was of low character. [9] As against the first defendant it is alleged that a named police officer acting in the course of her employment with the first defendant maliciously and without reasonable and probable cause preferred the charge under the Criminal Law (Sexual Offences) Act against the respondent. It was also alleged that the first defendant maliciously fabricated evidence such as a criminal record of “possession of dangerous drugs” against the respondent on a police document created on the day of his arrest, 30 July 1999. [10] It was alleged that on or about 30 July 1999 the plaintiff was arrested by the first defendant and was thereafter imprisoned until released on bail later that day. It was alleged that the arrest and imprisonment were wrongful and without reasonable cause. After that, the first defendant continued to maliciously and without reasonable or probable cause prosecute the charge or cause it to be prosecuted. It was also alleged that the first defendant failed to act on a complaint against The Bulletin Magazine alleging that the publishers had committed a similar offence on 12 January 2000 and that this failure to act demonstrated the fact that the prosecution against the plaintiff was malicious. [11] In relation to the relief referred to in paragraph [2], the respondent had sought relief against the applicant for malicious prosecution. However, Muir J gave summary judgment, under UCPR 293(2) in favour of the applicant on this part of the claim on 12 December 2002. Some aspects of the statement of claim as it exists allege what the respondent foreshadowed would be exposed, in the course of the trial, as a conspiracy. However, it may firstly be observed that the tort of conspiracy is not strictly pleaded and secondly it is not clear whether it is alleged that a tortious conspiracy is relied on or whether the term is used more loosely to indicate some sort of arrangement falling short of that between people who are presently unidentified fully. What does appear is that the conduct complained of is that, before the time of the arrest and shortly after the arrest of the respondent, the first defendant was allegedly making improper communication directly with the second defendant and vice versa and that this conduct was alleged to be outside the accepted line of communication following the applicant’s complaint. It is further alleged that the improper communication happened on more than one occasion and had the primary aim of damaging the reputation of the respondent (which it did) and caused the first defendant to maliciously procure the preferment of the charge against him. [12] It is also alleged that those communications, the communications by the applicant with the DPP, Mr D’Arcy’s solicitor, “the media” and the Queensland Police Service were intended to and did cause or procure the first defendant to prosecute the respondent and in making those communications the applicant acted maliciously. It is also alleged that the applicant itself published information, contrary to s 10(3) of the Criminal Law (Sexual Offences) Act, relating to Mr D’Arcy on 27, 29 and 30 July 1999 and that the first defendant failed to act against the second defendant. Since those dates are not all of the dates upon which -- 4 of 6 -- 5 information was allegedly made known to the person or organisation referred to specifically in the statement of claim, it is not clear from the pleading whether these publications refer to those acts or other publications. [13] With respect to loss and damage, it is alleged that by reason of and in consequence of: 1. the wrongful imprisonment and/or malicious prosecution by the first defendant; 2. the defamatory comments by the applicant; and 3. the malicious actions by the applicant; the respondent has: (a) been much injured in his private and business reputation; (b) been wrongfully imprisoned and deprived of his liberty; (c) endured much mental anguish and distress; (d) lost income; (e) been forced to incur and pay significant legal expenses. [14] The respondent resisted the application on the basis that he had successfully applied to have the applicant joined as a defendant and, from that, the claim for malicious prosecution against the applicant was made. It was submitted that the remaining allegations of malicious prosecution and defamation were directly related in time and otherwise to one another. Since the elements of malice were interwoven in both claims, the fact that there were different causes of action was of no consequence in deciding whether separate trial should be ordered. He also developed an argument that the proposition that there was an underlying conspiracy between both defendants in the period surrounding the arrest could only be understood if both defendants were involved in the one proceedings. [15] To establish a case of malicious prosecution the plaintiff must prove that the defendant was a person who instituted or continued proceedings against the plaintiff. Secondly, it must be proved that there was no reasonable or probable cause for instituting or continuing the proceedings. Thirdly, it must be proved that in instituting or continuing the proceedings the complainant was actuated by malice. Fourthly, it must be established that the proceedings ended in favour of the plaintiff. Fifthly, loss or damage must be proved. [16] Reasonable and probable cause was said by Macrossan J in QIW Retailers Ltd v Felview Pty Ltd (1989) 2 Qd R 245, 256 to consist of “a belief based upon reasonable grounds of the existence of a state of circumstances which, if true, would reasonably lead an ordinary prudent man, placed in that situation, to the conclusion that the proceedings would probably succeed”. The onus lies on the plaintiff to prove that the instigator of the proceedings did not have such a belief. In a jury trial disputed issues of fact concerning that issue are determined by a jury but there is authority that once those facts have been determined it is for the trial judge to determine whether there was reasonable and probable cause (Sharp v Biggs (1932) 48 CLR 81, 106; Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343, 382). The onus would also lie on the plaintiff to show that the instigator of the proceedings was actuated by an improper purpose, ie, a purpose other than bringing the wrongdoer to justice. The way the action against the first defendant is expressed also involves the notion that the State of Queensland is vicariously liable for the exercise of the police officer’s discretion to institute the proceedings. -- 5 of 6 -- 6 [17] In the action against the State of Queensland, if the last mentioned threshold question is resolved in the respondent’s favour, the primary focus will be on the police officer’s state of belief and motivation at the time the proceedings were instituted. In the defamation action the focus would be on whether the words were defamatory and whether there is a defence available, rendering the publication lawful. The question of good faith is relevant to a number of defences; the onus of proving absence of good faith lies on the plaintiff (Defamation Act 1989 s 17). One of the elements of good faith is that the publication is not actuated by ill-will or other improper motive. The motivation of a defendant in publishing defamatory material may also be relevant to aggravated or exemplary damages. [18] It may also be conveniently mentioned at this point that during the course of submissions the respondent said that in the event that the case against the second defendant was to be heard separately he would wish to amend his statement of claim by including other publications by the applicant. [19] Looking at the statement of claim and the issues which appear to be raised by it, the most that can be said is that in the case against the applicant, if it is established that the words complained of are defamatory, its motivation in making the publications complained of (which are quoted above in paras [6] and [8]) may be an issue. Depending on the defences pursued, lack of good faith may become an issue. As a matter of evidence with respect to this, issues concerning the extent of and the motive for dissemination of the information may arise. The degree of contact with the police will probably be just one facet of this. [20] In the absence of any properly pleaded cause of action in conspiracy, the issues in the cause of action against the first defendant and the cause of action against the second defendant are in my view sufficiently disparate to make it inconvenient to try them together, especially before a jury. It is a case where separate trials should be ordered pursuant to UCPR 68(1) and (2)(a). The respondent, having foreshadowed that he wishes to expand the scope of his pleading against the applicant in the event that this order was made, asked for 6 weeks to amend his claim against it. The applicant did not object to such time being allowed. [21] The orders are as follows: 1. I order that there be separate trials of the claim against the first defendant for damages for wrongful imprisonment and malicious prosecution and associated orders, and of the claim against the second defendant for defamation and associated orders. 2. I order that the respondent pay the applicant’s costs of and incidental to the application to be assessed, with payment of such costs to be postponed until final determination of the proceedings against the second defendant. 3. I give leave to the respondent to amend his statement of claim insofar as it relates to the second defendant and to file and serve the amended statement of claim within six weeks of this order. -- 6 of 6 --