DISTRICT COURT OF QUEENSLAND
CITATION:
H v State of Queensland [2017] QDC 75
PARTIES:
H
(applicant)v
THE STATE OF QUEENSLAND
(respondent)FILE NO/S:
4605 of 2015
DIVISION:
Civil
PROCEEDING:
Application
DELIVERED ON:
9 March 2017
DELIVERED AT:
Brisbane
HEARING DATE:
9 March 2017
JUDGE:
Rackemann DCJ
ORDER:
The application is dismissed
CATCHWORDS:
PRACTICE AND PROCEDURE – DISCLOSURE – defamation proceeding – where documents sought were not directly relevant
COUNSEL:
The applicant appeared on his own behalf
D D Keane for the respondent
SOLICITORS:
The applicant appeared on his own behalf
Crown Solicitor for the respondent
This is an application for disclosure of certain documents. The plaintiff’s application seeks the following:
(1) that the State of Queensland discloses the things requested by the appellant on 24 February 2017 and relate directly to the pleadings about the disregard for my son’s safety. Already disclosed material will directly evidence the relevance of that part of the pleading and the State of Queensland is disregarding my little boy’s safety, even as you read this, by enabling a falsely obtained DVO to coercively stop my little boy seeing his daddy and his daddy’s family. The disclosed documents requested will prove this and contextualise the comments made by me which L changed to defame me, and the State of Queensland is trying to defend as justified – documents to be un-redacted.
The letter of the 24th of February 2017 is a fax of that date to Crown Law, which was in the following terms:
I know you’ll try and stop me getting. But by fucking Christ, I will somehow.
I will prove my little boy always and still is under HL’s DV use. It will prove my comment to sue L because she disregarded C’s safety in the pleadings was true and valid, and that she tried to stitch me up by making her defamatory statements about me. And it will also show that C’s mother lied to obtain a DVO for her and her parents to stop me protecting C.
When you read it, do your fucking job and deliver my little man from HL’s coercive DV to his daddy.
C’s daddy, H.
It would appear from that letter that the motivation for the application for disclosure is, at least in part, to obtain documents which the plaintiff thinks will be of use to him in relation to issues which he has with a domestic violence order and with access to his son and with the behaviour of his mother, none of which are directly the matters of the subject proceedings. It is difficult to know, on the face of the application and the letter, exactly what is being sought. But the plaintiff explained in the course of the hearing of the application that he seeks the disclosure of an investigation by the Department of Environment and Heritage of a complaint that he made in the past. That complaint apparently related to weapons being at a property where his son was residing and weapons being used to shoot snakes. He believes that that showed a disregard for his son’s safety.
The subject proceedings are for defamation. The issues in dispute are presently identified and defined by reference to the further amended claim, the Defence to that document and a reply to the Defence. In order to demonstrate that the documents requested should be disclosed, the plaintiff needs to show that they are directly relevant to an allegation in issue. That question, in turn, depends on whether the documents, disclosure of which is sought, would tender, prove or disprove the truth of a particular allegation which is in issue.
The defamation proceeding relates to conversations on the 16th of November 2015. The plaintiff’s statement of claim pleads as follows:
(1) On 16 November 2015, I had a conversation in an appearance in the Sandgate Magistrates Court via video link, and in which L was not involved with L about my perception of her disregard for my little boy C’s safety.
(2) I asked L her name.
(3) L told me her name.
(4) I then said, “Thank you. I now have your name for my form 2 and form 16 to take everything you have for disregarding my little boy’s safety”.
(5) L then maliciously and with ill intent changed those words to claim I said, “I am going to fucking come after her”, as evidence in the QPRIME reports and as stated to me by Officer Fry of CSIU.
(6) The changing of the words spoken in her notification to police is not substantially the truth, as it changes the character of the statement completely from advising I intended to take legal action to advising that I intended to do her and her family physical harm, and imputes sinister intent to stalk her and physically harm her and impugns and damages my reputation.
(7) That is inferred by the fact that a police investigation was launched into me and that the investigation has uncovered no such threat as notified by L.
(8) The investigation by CSIU changed my legal status and put me under a criminal investigation that has no foundation and has impugned by reputation on the public record, and the defamatory comments are still published and capable of republication.
(9) The defamatory conduct of L has caused a negative impact on me emotionally.
(10) The state of Queensland are vicariously liable for the defamatory conduct of L.
By its Defence, the State admits that on 16th of November 2015, the plaintiff appeared in the Sandgate Magistrates Court by video link. It further admits that L, a police prosecutor, was present in the Court. It also admits that there was a conversation between the two in which L told the plaintiff her name. It then alleges that the plaintiff said to L words to the following effect:
You have refused to help my son in the past. I have your name now. That is all I need. I am fucking coming after you. I am going to fucking take everything from you. There will be nothing left for your children or grandchildren.
The Defence goes on to plead what was then said by L in an email to an employee of the Queensland Police Service and the QP report. The Defence pleads defences of truth/justification, statutory qualified privileged and qualified privileged.
It will be seen from the pleadings that there is no issue that a discussion took place on the 16th of November 2015 between the plaintiff and L. There is no issue that there was a reference in that conversation to the plaintiff’s son. There is some discrepancy between the competing versions of what was said between the two. The essence of the dispute, however, is as to:
(1) what precisely the plaintiff said to L;
(2) what L related about that conversation;
(3) whether, in relating that conversation to others, L made a material change to the words which had been spoken to her;
(4) whether, if so, the change gave rise to the imputations pleaded,
(5) whether the plaintiff was thereby defamed and suffered loss and damage, and
(6) whether there was an available defence.
It is difficult to see how the documents which are now being sought could assist in proving or disproving any of those things. It was said by the plaintiff that they are directly relevant because parts of his pleading referred to his son’s safety. In particular, in paragraph 1, he says that he was involved with a conversation with L about his perception of her disregard for his son’s safety, and, further, he – he says that in that discussion, he said that he would take everything she had “[f]or disregarding my little boy’s safety.”
Whilst the contents of the discussion are, of course, matters of relevance, what is relevant is whether there was such a discussion, and, most particularly, whether the reporting of that discussion was changed in a way which defamed the defendant.
What the plaintiff hopes to obtain from the documents he seeks is some evidence that, in fact, his son was exposed to some safety risk whilst at the property with his mother. Whether, in fact, his son was exposed to some safety risk or otherwise, however, is not a matter which is in issue in these proceedings. Although Mr H may have been motivated to speak to L because of some concern about his son’s safety, and whilst that may have figured in the conversation, the proceeding is about what was said to L and how she recounted that, and whether, in her recounting, she defamed the plaintiff in a way alleged. On the pleadings, as they stand, this is not a proceeding in which it is relevant to either prove or disprove whether the plaintiff’s son was, in fact, exposed to some safety risk.
The plaintiff suggested that these documents, which he seeks to obtain, would set some context to the discussion. Even if that were true, in my view, the applicant has failed to demonstrate that they would pass the direct relevance test so as to be subject to a duty of disclosure. Accordingly, the application is dismissed.