THE FAMILY SQUABBLE
Smith v Lucht - Brisbane District Court, 2013-2015
A defamation claim for $250,000? Tell him he’s dreaming…
Background: Sally and Kenneth used to be married. They had two children together. After their divorce, Sally married Jarrad. Sally and Kenneth kept up civil relations until 20 December 2012, when Sally and Jarrad had an argument regarding Sally’s ongoing contact with Kenneth. Sally’s daughter witnessed the argument and sent an email to Kenneth expressing her concern. Kenneth forwarded the email to Sally and asked, “Hi Sal what’s this about?” In response, Sally made clear she and Kenneth were “not friends”, and set out the limited nature of any future contact between them.
On 15 January 2013, Sally’s new father-in-law (Jarrad’s father), Brett, a lawyer who had agreed to act for Sally, sent an email to Kenneth. Brett demanded that Kenneth pay $525 of outstanding day-care fees within 48 hours, or else proceedings would be issued against him to recover that amount, with costs sought. Brett also alleged Kenneth had harassed, intimidated and abused Sally, though he did not provide any details.
The following day, Kenneth sent a reply to Brett, in which he instructed all correspondence to be sent to his solicitor because he felt harassed and intimidated by Brett’s personal contact with him. Despite that instruction and the fact Kenneth paid the outstanding day-care fees, the following day Brett sent Kenneth another email.
You obviously didn’t understand my last email. Fuck off and contact my lawyer. Pretty simple buddy. Contact me again and I will make a complaint to the Legal Services Commission.
In late January 2013, in response to an email from Sally concerning arrangements for access to one of the children, Kenneth sent her the following email:
That’s fine. In regard to your other comment everything was fine until your pathetic email of 21 December and the barrage I received from Dennis Denuto from Ipswich about stupid things. I have no problem seeing you and it will occur going forward so unfortunately you will need to come to terms with it. I have no problems with your request not to come to your home. You make me out to be the bad guy but I preferred the way things were prior to the night of 20 December. This wasnt [sic] my fault. Thanks for doing the spreadsheet.
Sally gave this email to Brett. Brett then sent an email to Kenneth in which he demanded a retraction and apology by close of business the following day. He said if “that apology and retraction is not received then you can expect to be sued”. Brett also threatened to refer to Kenneth’s employer an earlier email Kenneth had sent on his employer’s letterhead and from their email account.
Kenneth did not apologise and instead referred Brett’s contact with him to the Legal Services Commission. When Brett learnt of the complaint, he raised the matters with Kenneth’s employer.
In May 2013, Sally and Jarrad were parked in their car outside Kenneth’s house waiting to collect the children. Kenneth called out and referred to Jarrad as “Dennis Junior”. He asked them to “Say hello to Dennis Denuto”.
Later that day, when Sally and Jarrad returned the children to Kenneth, Jarrad and Kenneth had a confrontation, during which Kenneth said to Jarrad words to the effect, “Just get Dennis Denuto to sort it out, Dennis Junior”.
Sally informed Brett that Kenneth had again referred to him as Dennis Denuto. In June 2013, Brett filed a defamation claim against Kenneth in respect of his email to Sally, and his remarks to Sally and Jarrad. Brett sought $250,000 in damages.
Interlocutory judgment –  QDC 302 [17 November 2014]
Kenneth applied to the Court for an order permanently staying – essentially, striking out – the proceeding. Kenneth argued the proceeding was an abuse of process because any damages Brett might hope to receive would be wholly disproportionate to the amount the parties would incur litigating the issues, as well as the waste of court resources.
In his judgment, Judge Douglas McGill SC noted that, although the English-borne concept of abuse of process based on disproportionality of litigation had been applied in New South Wales, in Queensland litigation proportionality was not an overriding consideration. His Honour further perceived that, in view of recent Queensland Court of Appeal decisions that supported the proposition that successful defamation plaintiffs should receive significant damages to provide sufficient vindication, Brett potentially had a claim for more than nominal damages. As a result, the Judge held it would be inappropriate for the Court to terminate the proceeding. Kenneth’s application was thus dismissed and he was ordered to pay costs to Brett.
Trial Judgment –  QDC 289 [20 November 2015]
In August 2015, a 4-day trial was held at the Brisbane District Court before newly appointed Judge Moynihan QC.
The main issues for determination were:
· Did the imputations Brett attributed to Kenneth’s statements arise?
· If they did, then should Kenneth’s defence of triviality prevail, in terms of s 33 of the Defamation Act (QLD) 2005?
Brett’s case rested on the submission that it was defamatory for Kenneth to describe him as “Dennis Denuto”. The Judge explained the reference:
Dennis Denuto is a central character in the popular Australian film The Castle, which relates the fictional story of Dale Kerrigan and his family’s fight against the compulsory acquisition of their home. Dennis Denuto is the Kerrigan’s [sic] solicitor.
He is portrayed as likeable and well-intentioned, but inexperienced in matters of constitutional law and not qualified to appear in person in litigation of that nature. His appearance in the Federal Court portrayed him as unprepared, lacking in knowledge and judgment, incompetent and unprofessional. His submission concerning ‘the vibe’ is a well-known line from the film.
Brett suggested Kenneth’s description of him was understood to mean that Brett was a lawyer who was:
(a) Unprofessional in the exercise of his said profession;
(b) Inexperienced in the exercise of his said profession;
(c) Unethical in the exercise of his said profession;
(d) Without, or without many or sufficient, clients in the exercise of his profession;
(e) Unable or incapable of discharging, properly, his role as a solicitor;
(f) Unable or incapable of discharging, properly, his role as a solicitor in large or complex litigation;
(g) Incompetent, including in the exercise of his said profession;
(h) Foolish, including in the exercise of his said profession; and
(i) The proper subject of ridicule, humour and/or mirth, including in the exercise of his said profession.
The Judge was satisfied The Castle was a sufficiently well-known film in the general community that the ordinary reader or listener of Kenneth’s remarks would have understood the remarks to imply that Brett was incompetent and unprofessional.
However, the Judge was not satisfied that all the pleaded imputations arose:
There is no evidentiary basis to support many of the imputations relied on by the plaintiff. There is little in the film to indicate how the character Dennis Denuto conducted other cases, his general experience and skills (other than his claim he did “small stuff”), or his client base. He was not characterised as unethical…
Nevertheless, the Judge’s finding that the remarks conveyed certain defamatory imputations thus required a defence from Kenneth.
As noted, Kenneth pleaded the statutory defence of triviality. Section 33 of the Act provides:
It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.
In evidence, Sally said she did not think less of the plaintiff as a result of the statements. Further, the Judge noted that, despite the comments, Sally continued to retain Brett as her solicitor. Jarrad refused to say whether as a result of the statements he thought less of his father other than to say “it affected me”.
In all the circumstances, the Judge was satisfied the defence of triviality was made out:
…the plaintiff was unlikely to sustain any harm to his reputation as the statements were confined to two members of his family with whom the defendant was in dispute, and they were able to make their own assessment of the imputation. The three statements did not convey any breach of duty, illegal acts or dishonesty on behalf of the plaintiff and they were not made in a form that was intended to be or likely to be published by the defendant beyond Sally and Jarrad.
Notwithstanding Kenneth’s ultimate success, the Judge went on to determine the damages to which Brett would have been entitled, had Kenneth’s defence of triviality been unsuccessful.
His Honour noted, first, that in Queensland, the ‘presumption of harm’ – that is, the legal presumption that damage flows from proof of publication of defamatory material – continues to prevail. Secondly, the Judge was evidently impressed by the three experienced lawyers who gave evidence for Brett as to his standing in the profession. Thirdly, the Judge appeared to place reliance on Brett’s evidence that the statements “made him feel absolutely ‘ropable’ and ‘furious’ and exacerbated his insomnia”.
However, the Judge rejected Brett’s submission that Kenneth was to blame for the subsequent media attention the case received. As the Judge put it:
In this case the “grapevine effect” is limited because, as noted earlier, the circumstances of the original publication were such that the natural and probable result was that it would be confined to the plaintiff, Sally and Jarrad. It was the plaintiff who, by making the claim, called in an airstrike on his own position. Once the pleadings were filed in the court they were public documents and liable to be published through various media.
Nevertheless – and, it would seem, somewhat contradicting his other findings – the Judge held:
In all the circumstances, including the nature of the imputation, its affect [sic] on the plaintiff and its subsequent circulation within print and electronic media, I find the plaintiff sustained some harm.
So, had the defence of triviality not succeeded owing to the absence of harm Brett sustained, Brett would have been awarded $10,000 because of the harm he sustained… Make of that what you will.
It is arguable that Kenneth’s remarks taken in their context – arguably simply name-calling during a family dispute – should not have been regarded as ‘defamatory’ at all. In previous cases, it has been held not to be defamatory for someone to be called a “horse’s butt”, a “cow”, a “bitch”, and even an “asshole” in reference to an attorney. In all these cases, what has been of critical importance is whether the circumstances in which the words were used would convey a defamatory imputation to those who heard them.
Plainly Brett was not lowered in Sally or Jarrad’s estimation of him. Really that should have been the end of the matter.
However, this case clearly demonstrates a shortcoming in the efficiency of Australian defamation law: that whilst the law provided for Kenneth to prove at trial that Brett suffered no reputational harm – i.e. that the claim was trivial – his earlier application to strike out the claim – essentially on the basis that the claim was trivial – was unsuccessful.
As a result, a 4-day trial – with all its associated costs and stresses – was required to achieve the same result.
What. A. Waste. Of. Time.