DISTRICT COURT OF QUEENSLAND

CITATION:	Hudson v Mellis [2015] QDC 284	
PARTIES:	PAUL HUDSON
(plaintiff)
v
SUSAN KAYE MELLIS
(defendant)	
FILE NO:	871 of 2015	
DIVISION:	Civil 	
PROCEEDING:	Trial	
ORIGINATING COURT:	District Court 	
DELIVERED ON:	16 October 2015	
DELIVERED AT:	Brisbane	
HEARING DATE:	16 October 2015	
JUDGE:	Reid DCJ	
ORDER:	1.	Judgment for the defendant.
2.	The plaintiff pay the defendant’s costs of and incidental to the action. 
3.	Reserved costs to be determined on a date to be fixed.	
CATCHWORDS:

	DEFAMATION – JUSTIFICATION – TRUTH – where defendant relied on the defence of truth – where defendant made statement that plaintiff assaulted her – where plaintiff claims statement alleging assault is defamatory   	
LEGISLATION:	Defamation Act 2005 (Qld) s 25	
CASES:	Howden Pty Ltd v Truth and Sportsman Ltd (1937) 58 CLR 416 
Sutherland v Stopes [1925] AC 47 
Potts v Moran (1976) SASR 284 at 306 
Mann v Mackay Television Ltd [1992] 2 Qd.R. 136 	
COUNSEL:	Plaintiff appeared on his own behalf
Y. Chekirova for the defendant	
SOLICITORS:	Hudson Leighton Solicitors for the plaintiff
DCL & Associates Lawyers for the defendant 
	
[1]	The plaintiff seeks damages for defamation arising from events which occurred at Rubyvale on 8 October 2013.
[2]	In his amended statement of claim the plaintiff alleges, and it is not disputed, that on that date he was part of an Angel Flight Outback Trailblazers tour of central Queensland.  He went with about 20 other persons, including a fellow member of the Rotary Club of Brisbane Airport Inc. (“the club”), Graham Blackman, and Mr Blackman’s wife.  On 8 October the tour arrived in Rubyvale.  
[3]	The defendant is one of the part-owners of the Rubyvale Caravan Park, which the plaintiff visited on that day.  A dispute arose between the plaintiff and the defendant about the plaintiff’s request to use the park facilities, in particular the swimming pool and toilet block at the caravan park.  While I will analyse exactly what went on later in these reasons, it is not disputed the defendant refused the plaintiff the use of those facilities.  She says that, in anger, the plaintiff attempted to gain entry to the pool area and when she stopped him doing so, he then pushed her with both hands causing her to injure her right arm and her shoulder.  Subsequently she made a complaint to the police. 
[4]	She also later prepared a handwritten statement which she gave to Mr Blackman at his request.  The plaintiff alleges that the written statement is false and defamatory and that it was given to Blackman with the intention that Blackman would publish it to others, including members of the club.  In her defence, the defendant admits that she made a written statement and provided it to Mr Blackman, at his request. She says she also provided her consent for him to provide a copy of it to the club. Somewhat curiously, she also alleges in her defence that she “did not provide the written statement to Blackman with the intention or desire that Blackman would publish it to others, including the members of the Rotary Club of Brisbane Airport Inc.”.   I say this is curious because it seems to me inconsistent with her consenting to Mr Blackman providing a copy of the statement to the club.  In any case, the real issue concerns whether the imputations that arise from the defendant’s statement to Mr Blackman, and the consistent statement to police were substantially truthfully in all material respects. The defendant in that regard relies on the provisions of s 25 of the Defamation Act 2005 (Qld).
[5]	In the statement of claim the plaintiff asserts that the published statement contained the following defamatory allegations: 
“(a)		That the plaintiff obtain a code for the toilet block from caravan park residents and attempted to use it to gain entry to the toilets;
(b) 	That the defendant attempted to stop the plaintiff from entering the toilet block by saying the following words to him: “You are not using our amenities, please leave now you are trespassing”.
(c)	That the plaintiff said the following words to her: “You’re not going to stop me doing what I want”.
(d) 	That the plaintiff then approached the pool area and the defendant said the following words to him: “Leave my property you are trespassing”.
(e)	That the plaintiff ignored these words of the defendant and attempted to open the pool gate, by pulling at it, but the defendant prevented this by locking the gate.
(f) 	That the plaintiff then pushed the defendant with both his hands.
(g)	That the defendant was pushed so hard by the plaintiff, that she had to grab the metal pool fence to stop falling over.
(h) 	That the defendant in grabbing for the fence hit her right arm and twisted her shoulder.
(i) 	That after the plaintiff pushed the defendant, the defendant yelled out to the plaintiff to “get out and that she was going to call the police”.
(j) 	That the plaintiff ignored a male person at the caravan park, who suggested he leave.
(k) 	That the plaintiff said aggressively and as a threat to the defendant the following words “You think putting a chain on there is going to stop me.  I’ll do what I want and go where I want, I’ll be back.  Your [sic] not going to stop me”.”
[6]	Apart from the allegation in sub-paragraph (b) above, the defendant admits all of those matters are alleged in the statement.  In relation to the allegation in sub-paragraph (b), the defendant pleads in the amended defence that the defendant said words to the effect “excuse me, you are not allowed to use our facilities as you are not a registered guest”.  She also asserts that when the plaintiff continued to attempt to use the security code to enter the toilets the defendant said to the plaintiff words to the effect “you are not using our amenities, please leave now, you are trespassing”.
[7]	Section 25 of the Defamation Act 2005 (Qld) provides:
“It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.”
[8]	The concept of “being substantially true” denotes “not materially different” (see Howden Pty Ltd v Truth and Sportsman Ltd (1937) 58 CLR 416 at 420-1). 
[9]	The investigation is as to the meaning conveyed by the defamatory words.  Whilst every material path of the imputation complained of must be true in order for there to be a defence (see Howden (supra) at 420-1 and 424-5) this requirement does not extend to immaterial or trivial matters contained in an imputation which in no way affects the defamatory sting (see Sutherland v Stopes [1925] AC 47 at 79 and Potts v Moran (1976) SASR 284 at 306).  Mistakes of no real substance do not defeat the defence provided they make no real difference to the quality of the defamation (see Mann v Mackay Television Ltd [1992] 2 Qd.R. 136).  
[10]	It can be seen that the real issue in this case is the determination of what in fact went on at the caravan park at Rubyvale at about lunchtime on 8 October 2013. 
[11]	The plaintiff gave evidence of what occurred.  The defendant too gave evidence. Evidence was given also by two caravan park tenants, who were staying on lot 2, Mr and Mrs Lindsay.  Mr Blackman, to whom the defendant gave the written statement complained of in February 2014, gave evidence if that fact. Another witness, Mr Brand, gave evidence of a conversation he says he had with the plaintiff in which the plaintiff said he “could not recollect the assault”.  
[12]	I can deal with witnesses other than the parties very shortly.  Mr Blackman’s evidence was entirely uncontentious.  It is not disputed that the defendant provided the statement to him.  Other evidence he gave did not assist me in reconciling the issue of what happened between the plaintiff and the defendant.
[13]	Neither did I find Mr Brand’s evidence of any real help.  The evidence he gave in chief was somewhat vague and does not persuade me that the plaintiff in fact was telling him that he could not recall the events which occurred between him and the defendant.  Rather, even if he said he could not recall assaulting the defendant, he may well have meant no more than he was signifying a denial by him of that happening.  That is a manner of speech of some people.  The lack of particularity of Mr Brand’s evidence means I am unable to draw any conclusion about that issue.  
[14]	Mrs Lindsay had no real recollection of the events and her evidence, given as it was two years after the events of what occurred during a holiday in a campervan with her husband, was of no use to me.  Whilst Mr Lindsay had significantly greater recall, his evidence is of only limited help in resolving the principal issue which appears to me to relate to whether or not the plaintiff pushed the defendant as she alleges.  He recalls an exchange between the plaintiff and the defendant and perhaps that it became somewhat heated, but the passage of time and perhaps also the restricted view that he had, limits the worth of some of the evidence he gave.  
[15]	Mr Lindsay does, however, attest to giving the plaintiff the code to enable him to access the toilets at the caravan park and corroborates the evidence of the defendant, that she stopped the plaintiff accessing those toilets and also stopped him from very soon after accessing the swimming pool area.  On both occasions Mr Lindsay observed her moving into the space between the plaintiff and the area he was trying to access, namely, the door of the toilet blocks and the gate to the pool.  Near the pool gate he described the two of them as so close to one another that he thought they must have been touching.  These aspects of his evidence corroborate the evidence of the defendant, and were inconsistent with the plaintiff’s evidence.
[16]	By contrast, the plaintiff said he went to the area of the toilets, but did not recall if he had in fact used them.  He thought he may have been given a code by Mr Lindsay, but was uncertain of this.  He made no mention of the defendant stopping him accessing the toilets by standing between him and the toilet door.  He said when he left the toilet he used a covered walkway for a short distance and was only then joined by the defendant telling him to “get out” repeatedly. He denied pushing the defendant, and denied trying to access the pool area.
[17]	A detailed plan of the caravan park, apparently used by the defendant in conducting the business, showed no such covered walkway. Although the plaintiff spoke of it in his evidence, Mrs Mellis denied its existence. The plaintiff did not suggest otherwise during his cross-examination of her.  He also denied attempting to access the swimming pool, a matter Mrs Mellis spoke of and, as I’ve said, her evidence was corroborated in this regard by Mr Lindsay.  
[18]	These matters are of importance in determining the issue in this case. Nevertheless, the most compelling factor causing me to reject the plaintiff’s evidence entirely was his demeanour in court.  He was aggressive and strident. More particularly, he was grossly offensive and rude to the defendant, resulting in a number of heated exchanges between he and I.  He suggested she was a liar.  He asked if she had a history of mental disorder or a criminal history.  Whilst these might be said to be matters of mere inquiry, there was no evidence of any such factors and no evidence of any such factors tainting her evidence in any way.  I was appalled at the conduct of his case by a solicitor who conducts his own practice.  
[19]	The importance of that ready temper and bombast of the plaintiff so clearly displayed before me, is in my view, that it was those very features of his personality which cause me to conclude he did react as the defendant described when she refused him entry to the toilets and pool.  It is not at all difficult to see him reacting forcefully, aggressively and angrily when his use of those facilities was denied.  Such force, I have no doubt, included his pushing the defendant as she described in her evidence.  I have no doubt whatsoever that all of the defendant’s evidence of what occurred is correct.  I was impressed by her when giving evidence and, as I have said, salient features of her evidence were corroborated by Mr Lindsay. Indeed, I would be so satisfied of her reliability and of proof of relevant matters to the criminal standard if that were an issue.  I accept unreservedly what she said in evidence which is almost entirely consistent with the content of the signed statement and with the matters alleged in her defence.
[20]	She struck me as a determined woman – one who told the plaintiff to leave in no uncertain manner and perhaps loudly or angrily after he had pushed her, but one who was otherwise not unduly argumentative or rude.  I am sure she had her own reasons to deny the plaintiff the use of the park facilities, but told the plaintiff of that decision politely but resolutely.  I accept unreservedly her version of what occurred and utterly reject the plaintiff’s version.  
[21]	Whether his evidence was tainted purely by anger and resentment or by malice, or whether there are other explanations for what appears to be significant gaps in his memory associated perhaps with some health issue, I cannot determine, but I have no doubt whatsoever that his recall of events to the court is quite mistaken.  
[22]	I find that the statement provided to Mr Blackman by the defendant on the 7th of February correctly recounts what occurred at the caravan park on the early afternoon of the 8th of October 2013 and find that the defendant has established her defence under section 25 of the Defamation Act.  
[23]	I give judgment for the defendant.  
[24]	 I also order that the plaintiff pay the defendant’s costs of and incidental to the action, other than in relation to any reserved costs. I will make a determination in respect of the reserved costs on a date to be fixed.