SUPREME COURT OF QUEENSLAND CITATION: PARTIES: Jackson-Knaggs v Queensland Newspapers P/L [2005] QCA 145 MARK ANDREW JACKSON-KNAGGS (applicant/respondent) v QUEENSLAND BUILDING SERVICES AUTHORITY (first respondent) QUEENSLAND NEWSPAPERS PTY LTD ACN 009 661 778 (second respondent/appellant) FILE NO/S: Appeal No 8758 of 2004 SC No 10119 of 2003 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal General Civil Appeal DELIVERED ON: 6 May 2005 DELIVERED AT: Supreme Court at Brisbane Brisbane HEARING DATE: 26 April 2005 JUDGES: ORDER: CATCHWORDS: Williams and Keane JJA and Muir J Separate reasons for judgment of each member of the Court, each concurring as to the orders made 1. The appeal is dismissed 2. The appellant pay the respondent's costs to be assessed DEFAMATION QUALIFIED PRIVILEGE REPORTS, EXTRACTS FROM REGISTERS AND OTHER PUBLIC DOCUMENTS OTHER REPORTS AND EXTRACTS, ETC where appellant published article reporting aspects of public examination before statutory tribunal where article imputed certain improprieties to respondent where respondent commenced action for defamation against appellant where appellant pleaded defence of qualified privilege for report of proceedings of a 'court of justice' under s 13 of Defamation Act 1889 (Qld) where trial judge struck out defence on grounds tribunal was not a 'court of justice' whether tribunal could be defined as a 'court of justice' Defamation Act 1889 (Qld), s 11, s 13 Queensland Building Tribunal Act 2000 (Qld), s 96, s 99,
2 s 112, s 117 COUNSEL: SOLICITORS: Mann v O'Neill (1997) 191 CLR 204, considered O'Connor v Waldron [1935] AC 76, cited D C Spence for the appellant The respondent appeared on his own behalf Thynne & Macartney for the appellant The respondent appeared on his own behalf [1] WILLIAMS JA: The critical question for determination in this appeal is whether or not the Queensland Building Tribunal ("the Tribunal") established by s 9 of the Queensland Building Tribunal Act 2000 ("the QBT Act") is a "court of justice" for the purposes of s 13(1)(c) of the Defamation Act 1889 ("the Act") either generally or more specifically when the Tribunal is conducting a public examination pursuant to s 112 of the QBT Act. The answer to that question is essentially dependent upon the proper construction of the Act. The answer has relevance only for the purposes of the Act; the answer will not be necessarily determinative of whether the Tribunal is a court of justice in some other context. Given all that, decisions at common law on whether or not a particular tribunal was or was not a court of justice for some purpose are of little, or no, assistance. [2] The Act in s 11 and s 13 makes a clear distinction between a proceeding in a "court of justice" and an "inquiry made under the authority of a statute"; that distinction is of critical importance in determining the issue raised by this appeal. [3] What is significant is that by s 11 of the Act absolute protection from liability for defamation is conferred on anyone who publishes the matter in question in the course of a proceeding held either before any "court of justice", or "in the course of an inquiry made under the authority of a statute." The same protection is conferred whether the hearing be in a "court of justice" or "in the course of an inquiry made under the authority of a statute." [4] Then critically for present purposes one comes to s 13(1) of the Act which makes it lawful to "publish in good faith for the information of the public a fair report" of (a) "public proceedings of any court of justice", or (b) "proceedings of any inquiry held under the authority of a statute." Protection in the former case is conferred by s 13(1)(c) and in the latter by s 13(1)(d). Again it is significant that a distinction is made between a "court of justice" and "any inquiry held under the authority of a statute" but in each case the same protection is afforded. The language of the statute establishing a tribunal will essentially determine into which category the tribunal so created falls. [5] In the present case the respondent is suing the appellant and another for damages for defamation. The publication in question was of a proceeding before the Tribunal held pursuant to s 112 of the QBT Act. In its defence the appellant has pleaded the protection afforded by both s 13(1)(c) and s 13(1)(d) of the Act. At first instance the respondent succeeded in having the defence based on s 13(1)(c) struck out because the Tribunal was not a "court of justice". The appellant is still left with its pleaded defence based on s 13(1)(d). Given the distinction which the Act draws between a "court of justice" and an "inquiry held under the authority of a statute" I am of the view that the Tribunal, particularly given the provisions of the QBT Act,
3 must fall within the latter category. Whilst not conclusive for present purposes it is of some relevance to note that s 99, s 101 and s 117 of the QBT Act distinguish the Tribunal from a court. [6] For the above reasons, and for the reasons published by Keane JA with which I agree, the appeal must be dismissed with costs to be assessed. [7] KEANE JA: The respondent to this appeal is the plaintiff in an action for damages for defamation against the appellant. The action arises out of the appellant's publication in the "Courier-Mail" newspaper on 25 April 2001 of an article which purported to report aspects of the public examination of the respondent before the Queensland Building Tribunal ("the QBT") carried out pursuant to s 112 of the Queensland Building Tribunal Act 2000 (Qld) ("the QBT Act"). In the course of the examination imputations of impropriety in business were made against the respondent and these imputations were repeated in the appellant's publication. [8] In its defence the appellant pleaded that the publication was made in good faith and as a fair report of the public proceedings of the QBT so as to attract the protection of s 13(1)(c) of the Defamation Act 1889 (Qld) ("the Act"). This provision is in the following terms: "13 Protection reports of matters of public interest (1) It is lawful (c) to publish in good faith for the information of the public a fair report of the public proceedings of any court of justice, whether such proceedings are preliminary or interlocutory or final, or of the result of any such proceedings, unless in the case of proceedings which are not final, the publication has been prohibited by the court, or unless the matter published is blasphemous or obscene;" [9] The respondent applied, inter alia, to strike out this part of the appellant's pleading on the footing that the QBT was not a "court of justice" within the meaning of s 13(1)(c) of the Act. The learned primary judge acceded to the respondent's application in this respect. The contentions of the parties [10] The appellant's attack on the learned primary judge's decision included a contention that his Honour erred in approaching the construction of s 13(1)(c) of the Act on the basis that the expression "court of justice" was to be understood as that expression would have been understood at the time the Act was passed. In my view, it is not necessary to enter into this argument for reasons which will, I hope, become apparent. I should say, however, that I would not accept that the meaning of the expression "court of justice", as used in the Act, was frozen in time in 1889. The application of that expression to any particular statutory tribunal must always be determined as a matter of the proper construction of the statute which creates such a tribunal. [11] The appellant submits that, in s 13(1)(c) of the Act, the phrase "court of justice" is used expansively to include tribunals which would not answer the description of a "court of justice" in the sense of the courts of judicature.
4 [12] In support of this submission, the appellant argues that decisions which concern the absolute privilege accorded at common law to matter published in the course of judicial or quasi-judicial proceedings affords support for an expansive view of the expression "court of justice." The appellant relies on a number of decisions, from Australia and overseas, that have held that absolute privilege at common law can be extended to protect what is said or published during the course of proceedings before a tribunal that is "exercising functions equivalent to those of an established court of justice". 1 The appellant argues that, because the QBT can be seen to conduct its proceedings in a manner similar to the way in which a court conducts its proceedings, these decisions afford authoritative support for the proposition that the QBT should, in effect, be deemed to be a "court of justice". [13] In my respectful opinion, this argument misunderstands the decisions whose support it seeks to invoke. It is true, as Brennan CJ, Dawson, Toohey and Gaudron JJ stated in a passage cited by the appellant in its submissions, that: "It is also settled law that absolute privilege attaches to statements made in the course of quasi-judicial proceedings ie proceedings of tribunals recognised by law and 'which act in a manner similar to that in which a court of justice acts'." 2 The fundamental point of this statement of principle, however, is that it recognises a clear distinction between the proceedings of tribunals recognised by law, such as the QBT, and the proceedings of a court of justice. These decisions proceed from the clear recognition that a quasi-judicial tribunal is not a court of justice; a member of one category is not a member of the other. As s 13(1)(c) of the Act requires that a body actually be a "court of justice" before qualified privilege applies to reports of its proceedings, the decisions relied on by the appellant deny, rather than provide support for, the appellant's argument. [14] In any event, as the learned primary judge said, "it is... important to bear in mind that the purpose of the task at hand is the interpretation of the Act, not the development of the common law." 3 The terms of s 11 of the Act show that the appellant's argument cannot be accepted. Section 11 of the Act provides: "11 Absolute protection privileges of judges, witnesses and others in courts of justice A person does not incur any liability as for defamation by publishing, in the course of a proceeding held before or under the authority of any court of justice, or in the course of an inquiry made under the authority of a statute, or under the authority of the Government, or of the Governor in Council, or the Legislative Assembly, any defamatory matter." (emphasis added) [15] The express reference in the passage emphasised in s 11 of the Act to "an inquiry made under the authority of a statute" stands in marked contrast to the language of s 13(1)(c) of the Act. The difference in language is indicative of a legislative intention to extend absolute privilege to statements made in the course of 1 2 3 O'Connor v Waldron [1935] AC 76 at 81. See also Keenan v Auckland Harbour Board [1946] NZLR 97; Bretherton v Kaye [1971] VR 111; Oliver v Bryant Strata Management Pty Ltd (1995) 41 NSWLR 514. Mann v O'Neill (1997) 191 CLR 204 at 212 (footnotes omitted). Jackson-Knaggs v Queensland Building Services Authority and Anor [2004] QSC 289; SC No 10119 of 2003, 10 September 2004 at [11].
5 proceedings including inquiries of the kind with which the present action is concerned, but not to make reports of such inquiries the subject of qualified privilege under s 13(1)(c). The language of the Act, in this particular respect, confirms, in my view, that the qualified privilege conferred by s 13(1)(c) is not attracted by reports published about inquiries made under statutory authority. [16] That conclusion is confirmed beyond argument by the terms of s 13(1)(d) of the Act which expressly creates an occasion of qualified privilege in respect of inquiries held under statutory authority. It is difficult to resist the conclusion that the legislature deliberately chose to include the reporting of inquiries conducted under statute as an occasion of qualified privilege under s 13(1)(d) of the Act, which expressly provides that it is lawful "to publish in good faith for the information of the public a fair report of the proceedings of any inquiry held under the authority of a statute....", rather than s 13(1)(c). If that choice was deliberate, as it clearly seems to have been, 4 it is not for the courts to attempt to improve upon the choice which the legislature has made by insisting that a different choice might better reflect the policy of the law underlying the identification in the Act of the occasions of qualified privilege. [17] Acceptance of the view that s 13(1)(c) of the Act does not create an occasion of qualified privilege in the reporting of the proceedings of statutory inquiries does not mean that a mischievous lacuna in the law has been revealed. Some other occasion of privilege, and in particular s 13(1)(d) of the Act, will be available to meet the exigencies of particular cases. 5 [18] Be that as it may, the language which the legislature has chosen to employ makes it clear that a report of proceedings of the QBT conducted under s 112 of the QBT Act is not a report of the proceedings of a court of justice. It will be seen that I reach this conclusion as a matter of statutory construction without needing to address the question whether the meaning of the expression "court of justice" has changed since 1889. That is because the language of the Act, now as then, expressly distinguishes the proceedings of a court of justice from the proceedings of an inquiry conducted under statutory authority. Proceedings of the QBT under s 112 of the QBT Act are in the latter class. Reports of this class of proceedings are not an occasion of qualified privilege under s 13(1)(c) of the Act. [19] Finally, it may be observed that a different conclusion would be distinctly odd having regard to s 96, s 99 and s 117 of the QBT Act which expressly postulate that the QBT is not a court. It would be a strange result if a tribunal which is a creature of statute is not a court for the purposes of that constituting statute but is a court for the purposes of another statute such as the Act. Conclusion [20] I would dismiss the appeal, and order that the appellant pay the respondent's costs to be assessed. [21] MUIR J: I agree with the reasons of Williams and Keane JJA and with the orders they propose. 4 5 The Act was intended to "codify the law as it is, or as it ought to be...": see Queensland, Parliamentary Debates, Legislative Assembly, 19 July 1889, 734 (Sir Samuel Griffith, Leader of the Opposition). See also Defamation Act 1889 (Qld) s 13(1)(d), s 16(1)(e) and s 16(1)(h).