Creek & Creek v O'Malley & Anor [2001] QSC 122

SUPREME COURT OF QUEENSLAND CITATION: Creek & Creek v O’Malley & Queensland Newspapers P/L [2001] QSC 122 PARTIES: THOMAS CREEK (First Plaintiff) JOAN CREEK (Second Plaintiff) BRENDON O’MALLEY (First Defendant) QUEENSLAND NEWSPAPERS PTY LTD (Second Defendant) FILE NO/S: 66 of 1999 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court, Cairns DELIVERED ON: 20 March, 2001 DELIVERED AT: Cairns HEARING DATE: 8 March, 2001 JUDGE: Jones J ORDER: 1. The application is allowed. 2 2. I declare that The Courier Mail article published on 26 July, 1997 referred to in the pleadings does not convey any of the imputations concerning the second plaintiff which are pleaded in paragraph 8 of the Statement of Claim. 3. The costs of and incidental to the application are reserved. 4. I give the parties leave to make written submissions on the question of costs. CATCHWORDS: PROCEDURE – COURTS AND JUDGES GENERALLY – application pursuant to r 483 UCPR – order for decision and statement of case for opinion – whether making of order “just and convenient” taking into account judicial process. DEFAMATION – ACTIONS FOR DEFAMATION – STATEMENTS AMOUNTING TO DEFAMATION – whether newspaper article conveyed imputations pleaded in plaintiffs’Statement of Claim – whether publication capable of conveying the imputation – whether in fact meaning was -- 1 of 5 -- 2 conveyed. Bass v Perpetual Trustee (1999) HCA 9, considered. Landsell Pty Ltd (in liq) v REI Building Society (1993) 113 ALR 643, considered. Reading Australia Pty Ltd v Australian Mutual Providence Society (1991) FCA 718, considered. Cairns City Council v Xontan (1999) QSC 215, considered. Jones v Skelton (1964) NSWR 485, considered. Uniform Civil Procedure Rules 1999 (Qld) Defamation Act 1889 (Qld) COUNSEL: Mr. J. Bradshaw for the Plaintiffs Mr. P. Applegarth for the Defendants SOLICITORS: Miller Harris as town agents for Thynne & Macartney for the defendants [1] This is an application by the defendants pursuant to r 483 of the Uniform Civil Procedure Rules (UCPR) for the determination before trial of the issue whether an article published in The Courier Mail on 26 July, 1997 conveyed any of the imputations pleaded in paragraph 8 of the plaintiffs’Statement of Claim. [2] The first plaintiff died during 1999 but this fact has not yet resulted in any amendment of the title of the action. Though the second plaintiff has indicated an intention to pursue the claim she was not represented on the hearing of this application. I will hereafter refer to her as “the plaintiff”. Mr. Bradshaw of counsel, who was at one time retained and who appears to have given advice to the plaintiff, has sought leave to appear as amicus curiae. His involvement was not opposed by the applicant and he has been allowed to make submissions on behalf of the plaintiff. [3] The published article, other than for a short reference to the plaintiffs, concerned the plaintiffs’ daughter, Patricia Creek, and her foster parenting of a child, Melita. Patricia instituted proceedings in the District Court at Cairns for damages for defamation against the proprietors of The Courier Mail and The Cairns Post. Her claim in respect of the publication in The Cairns Post was struck out and the claim in respect of the publication in The Courier Mail was continued. [4] The part of the publication directly relevant to the plaintiffs does not expressly name them and it reads as follows:- “Ms Creek could not be contacted yesterday. Her home telephone had been disconnected since February and she could not be contacted at the health clinic where she works. Her parents’ telephone has also been disconnected”. (my emphasis) [5] The statement of claim makes a number of allegations which seem more pertinent to the now defunct District Court proceedings. Criticism has rightly been made of -- 2 of 5 -- 3 this pleading, in both its content and form. It contains allegations which are irrelevant and embarrassing. However since the issue being determined here is quite confined, the state of pleading does not require further comment. [6] In paragraph 8, the Statement of Claim lists the following imputations concerning the plaintiffs said to arise from the above words - “8. Further, by way of innuendo, the said words were said and were understood to mean:- (a) That the telephone of Patricia being disconnected created the impression of the stereo-typed, financially irresponsible, drunken, Aboriginal no-hoper; (b) That Patricia was a drunken Aboriginal no-hoper who was violent and unsuitable as a foster parent; (c) That Patricia remained a completely unsuitable caret for Melita when she could not organise her finances, reflected in having the telephone disconnected; (d) Patricia came from a family who were similarly financially irresponsible, reflected in their telephone being disconnected; (e) That the plaintiffs were inadequate and irresponsible grand- parents; (f) That the plaintiffs’ breach and have no respect for Aboriginal law; (g) The plaintiffs, being the grand-parents referred to in the previous paragraphs, were similarly irresponsible, drunken, gambling, financially wasteful, no-hopers.” [7] The applicants argue these do not impute to the plaintiff any act or condition which could be said to be defamatory of her. They contend that this is an issue which may be determined in a preliminary way and that such a determination will, if not entirely disposing of the action, reduce its scope. [8] There was no opposition to this argument, Mr. Bradshaw being content to make submissions only on the substantial issue raised by the application. [9] The principles which underpin the application of R 483 of UCPR have been discussed in a number of cases 1 and they do not need to be further examined here. Suffice to say the ultimate question is whether the making of the order is “just and convenient” taking into account the nature of judicial process as referred to in Bass v Perpetual Trustee. [10] Considering the nature of the application and the lack of opposition to my dealing with the preliminary issue, I ordered that the question “whether the Courier Mail article referred to in the pleadings conveyed any, and if so, which of the imputations concerning the second plaintiff which are pleaded in para 8 of the Statement of 1 Reading Australia Pty Ltd v Australian Mutual Providence Society (1991) F.C.A. 718; Landsell Pty Ltd (In Liq) v REI Building Society (1993) 113 ALR 643; Bass v Perpetual Trustee (1999) HCA 9; Cairns City Council v Xontan Pty Ltd (1999) QSC 215. -- 3 of 5 -- 4 Claim”, be determined separately from and before the trial of the questions in the proceedings. The preliminary issue [11] The determination of the issue involves a question of law (whether the publication was capable of conveying the imputation) and a question of fact (whether in fact the meaning was conveyed). See s.18 of the Defamation Act 1889. [12] The imputations which the plaintiff seeks to rely on are set out in full in [6] above. The first four of these directly relate to the plaintiffs’ daughter and cannot on any view be imputations concerning the plaintiff. The remaining three imputations – (e) That the plaintiffs were inadequate and irresponsible grand-parents; (f) That the plaintiffs breach or have no respect for Aboriginal law; (g) That the plaintiffs … . were similarly (to Patricia) irresponsible, drunken, gambling, financially wasteful, no-hopers – have to flow from the words that the “telephone has also been disconnected” in the context in which those words appear. [13] The manner in which the capacity question is to be determined was considered in Jones v Skelton 2 where the opinion of the Privy Council contains the following passage (at 492) :- “In deciding whether words are capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the project of some strained, or forced, or utterly unreasonable interpretation.” [14] Counsel for the applicant referred me to passages in other cases but in the circumstances it is unnecessary to refer to these as well. [15] The context in which the words concerning the plaintiff appear in the publication makes quite clear that the words are being used in their natural ordinary sense. The context was an explanation on the part of the publishers of their attempts to contact Patricia Creek. The only meaning which can reasonably emerge from the relevant words is the bare statement that the plaintiffs’ phone had been disconnected. Phones are disconnected for many reasons. At the very highest such words might imply impecuniosity. Mr. Bradshaw argued that upon considering what is the reasonable interpretation regard must be had to the manner in which the words would be construed in an Aboriginal community. I find it unnecessary to deal with this submission in any detail. [16] In my view there is no reasonable basis for any interpretation consistent with the implications intended for in paragraph 8(e), (f) and (g) of the Statement of Claim. To suggest that the relevant words in the context in which they appear could be interpreted as meaning “irresponsible grand-parenting” or “breach of some (unstated) Aboriginal law” or being “financially wasteful” would strain interpretation to the point of being fanciful regardless of the community in which they were published. 2 (1964) NSWR 485 -- 4 of 5 -- 5 [17] In my view the words published concerning the plaintiff are not capable of conveying a defamatory meaning in the context in which they appear and I so decide this preliminary issue. The factual question does not therefore need to be considered. Orders [18] The orders therefore will be – 1. The application is allowed. 2. I declare that The Courier Mail article published on 26 July, 1997 referred to in the pleadings does not convey any of the imputations concerning the second plaintiff which are pleaded in paragraph 8 of the Statement of Claim. 3. The costs of and incidental to the application are reserved. 4. I give the parties leave to make written submissions on the question of costs. -- 5 of 5 --