QLD Concerns Notice for Defamation - What to Do?

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Rod

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Yes, any practising lawyer can initiate legal action.

Lawyers practise law. Some specialise but that in no way limits what they can do if they so choose.

Keep in mind licensed conveyancers are not lawyers. Any lawyer can do conveyancing however there are risks for lawyers if they give advice that is not legal.
 

Iamthelaw

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13 September 2016
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Another quick question... Is it possible for a lawyer, that's say a conveyancing lawyer, to initiate litigation?

It would depend on whether the 'lawyer' holds a current practicing certificate - Given that you've said they're just doing conveyancing, it wouldn't be, on the face of it, entirely clear whether they hold one or not - They might, they might not.

I was under the impression that a lawyer had to strictly stay within their field and are only permitted to practice law in that field. Is this correct? Or doesn't it really matter?
Not really, although sort of, some what.. What I mean by that is aside from the obvious prohibition in the Solicitor's conduct rules for advertising their services in relation to specialist skills, at common law the standard has been held that a solicitor must carry out the retainer in a particular branch of law as would a reasonably competent solicitor who is an expert in that particular area of law.

Whilst this may not automatically exclude a practitioner who say, mainly only does conveyancing work, one would obviously question whether they could fulfil the aforementioned duty and/or be able to provide competent representation.

However, strictly from a client's perspective, wouldn't you rather want some one who litigates daily, as opposed to someone who only does conveyancing every day?
 

Rob Legat - SBPL

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For the sake of education, Queensland does not allow licensed conveyancers. Conveyancing must be done by a law firm, or a business attached to a law firm. While most firms get paralegals to do the work, they are (at least notionally) overseen by a lawyer.
 

Maree Dee

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7 February 2017
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There's a bit more information now and I'd like to know if there's anywhere out there on the interwebs, a template that exists for my friend to write a response back to the concerns notice?

Just a quick recap - this is a situation going on in a small school P&C committee. One member wrote a complaint about the Treasurer, sent it to the Secretary, who disseminated to the rest of the Executive committee (President & Vice President). The (ex) Treasurer is now suing the member that wrote the complaint.

She's able to call on several defences to his claim of defamation:

- Defence of Honest Opinion (1): she said that he caused trouble. It was her opinion based on sitting in many meetings where he was oppositional, negative, critical and wouldn't agree to any progress within the committee. Several other people held the same opinion.

- Defence of Justification: she said that he didn't follow procedures for example when supplying items from his personal business to the committee for fundraising events. (At the meeting after the event, he would spring on the committee that he had supplied items, and his invoice was submitted for payment.

There's a very clear procedure to follow in this instance whereby he was to propose the supply of stock, leave the room, the rest of the committee vote on it, invite him back in and tell him of the decision, before the event.). This is true and is reflected in three consecutive meeting minutes.

- Defence of Honest Opinion (5): Opinion based on proper material that attracts the protection under section 28 or 29.

- Section 28: Defence for publication of public material. P&C minutes and agendas are public material and the evidence of her statement is clearly shown in all minutes.

- Section 29: Defence of fair reporting of proceedings of public concern. Yes, I know it's just a small school P&C, but the proceedings are of public concern to the school community, committee members, school staff, P&C QLD, and Dept of Ed.

- Section 30: Defence of qualified privilege. That is the Secretary has an interest in the feedback from committee members about the conduct of it's members, particularly the executive members.

- Section 33: Defence of Triviality: My friend sent her complaint with the assumption that the information would not be shared with the wider school community or the Treasurers business contacts. To this date, her complain isn't a part of the public documentation available to the new committee.

Also in the defamation act, is the statement that the act is to "ensure that the law does not place unreasonable limits on freedom of expression, and in particular, on the publication and discussion of matters of public interest and importance.”

So basically, I interpret the act in this instance as such - he has no grounds to sue for defamation because my friends comments are protected under sections 28 & 29, but are also indicative of her opinion, were not "published" with the intention of ruining his personal or professional reputation and she has evidence of facts that support her statements.

Have I got the interpretation correct-ish?
 

Rod

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No.

Wrong on s 28. The original material is in the letter to the secretary, who is a 3rd party and s 28(4) doesn't define a P&C committee record as a public document.

s 29 only helps if there was subsequent reporting by the defendant of any proceedings of public concern.

Defendant's intention is not relevant.

Honest opinion and truth is left as a defence.

This is a technical area of law and a lawyer would help if it goes to court.
 

Maree Dee

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7 February 2017
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Even if under s28, the school is defined as a learned society, and the committee or governing body documents are considered a public concern within that definition?
 

Rod

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Hmm, you are persistent :)

s27 doesn't help. Applies to Parliament, Court, Gov't enacted tribunal.

s28 mirrors s27 except this time it protects a person publishing material that attracts absolute privilege. I don't know if a P&C committee can be considered a learned society. Even if it is, you still have the problem of the original letter being sent to the secretary.
 

Maree Dee

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7 February 2017
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LOL! Yes, I am being persistent! And for two reasons, the first is to help out my friend who is totally freaked out by this happening.

The other reason is that the committee is now paranoid and running scared about discussing any issues that need to be addressed. How much are we allowed to discuss? And is talking about the non-compliance of a person that holds a position going to get us all sued?

I really need to understand what we can and can't say/email/talk about so that the current committee is comfortable with what protection is available to us so that we can continue to operate as usual.
 

Rod

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Don't defame anyone and you'll be OK, keeping in mind truth and honest opinion are defences, albeit with some qualification for honest opinion.

You can discuss problems and issues without attacking someone. It may require a shift in mindset but it really is not difficult.