QLD Who has to prove content is false or true

[Jarob]

Hi Everyone,

Got a question relating to how judgement is determined regarding defamation in Queensland.

Is the onus on the Plaintiff to prove defamatory content is false or is the onus on the defendant to prove the defamatory content is true? For example can a Plaintiff simply state the defamatory content is false without proving evidence to support it and its up to the defendant to prove the defamatory content is true but have to provide supporting evidence?

Thanks in advance ...

 

[Rod]

Defendant has to prove it is true.

Otherwise plaintiffs have an impossible task trying to prove a negative (eg how to prove you are not a child molester)

 

[Tim W]

Defamation Law... In Crayon....

Person D published a statement about Person P.
As a result, P's reputation is damaged, to the extent that they (say, for example) lose customers.
P and D disagree about the truth of the statement.

P decides to sue D.
This action is to recover a lump of money ("damages") that will make good the loss to P
caused by D's statement.

P becomes the Plaintiff, and D the Defendant.

P would need to show that the statement published by the D was not true,
and as a result, caused them actual loss (beyond mere embarrassment),
and was therefore defamatory.
Although there are many ifs, and buts, and exceptions, and unlesses involved,
mere denial (that is, just saying something like "But that's not true!")
is not in itself enough.

Truth is a defence to defamation
(there are also other defences, but they are not relevant here).
For truth to operate as a defence, D would need to prove
that what they said about P is mostly, (objectively and demonstrably) true.

 

[Rod]

Tim may have just gotten out of bed and forgotten this is a defamation question

As Deanne J said succinctly in Theophanous v Herald & Weekly Times Ltd [1994] HCA 46 at [16]:

a person who publishes an assertion of fact or a comment which injures (or is "likely" to injure) the reputation of another person is guilty of a tort and liable in damages unless he or she can positively justify or excuse the publication in the particular circumstances of the case.

Reverse onus of proof applies in defamation and IMHO so it should.

The plaintiff only needs to show damages or there is a likelihood of damages.

 

[Tim W]

Reverse onus of proof applies in defamation and IMHO so it should.

Reverse onus?
Ummmm, maybe not.
(people sometimes confuse that with the notion presumption of truth,
which of course, does not exist either...)

On the assumption that we are discussing civil, not criminal, defamation...

Defences arising out of sections 25 and 26 are routine.
So routine that any well prepared plaintiff will not only expect them,
but will have reliable evidence - more than the plaintiff's mere denial - available to rebut them.
-> Mere unsupported denial, no matter how emphatically delivered,
is insufficient.
(note that this is not the same thing as "proving a negative",
in respect of which I agree with @Rod... it is all but impossible)

When talking to an aspiring defamation plaintiff,
one of the very first things I say to them is in the vein of

"Make sure none of what they say is true.
Not even a little bit true."

I'm not sure of the relevance of Theophanous, given that it was largely overruled in Lange.
And Lange itself being largely irrelevent to the defamation of somebody who is not public official...?

 

[Jarob]

Hi All,

A big thanks for the replies and apologies for my late reply, I thought the reply email notification was on.

I believe that I have more than enough evidence to prove the report done on me not only holds any substance but it was done with a calculating and mischievous mindset to intentionally cause harm to me and my chances in the Family Law Court, seen as it was written 5 weeks after the event.

The person who wrote the report cannot prove any of the defamatory material as correct because it simply didn't happen. In fact what I have been accused of to a degree is what the author did and is merely trying to reverse it as if I conducted myself in that manner.

Maybe you guys can help me on my next questions.

The author was a supervisor for a Children's Contact Centre in Brisbane. I'm using them for reunification purposes. The observational report in question is a legal document that the courts can use as evidence.

The contact centre is a private business with no association with the court system. However I need to know if there is any protection they have that prevents them from getting due for defamation through the civil courts?

One more thing, can circumstantial evidence come into play in civil defamation proceedings. The person who wrote the report was not the usual supervisor and was filling in for that particular visit. My usual supervisor upon speaking to an eye witness the next day to ascertain what actually happened made commentary that the supervisor that replaced her the day before has been acting erratically and aggressively recently.

The author of the defamatory material was also the dual owner and manager of the centre(the other manager being my supervisor) and she sent me an abusive, erratic and long winded email 5 months prior to the incident that even my lawyer couldn't make any sense of. There was a friendly and inviting legal clarification situation going on between my lawyer and the usual supervisor and the author I guess in a sense hijacked the situation by sending that crazy email.

I ignored the email. Didn’t play into it and it is speculative as to whether 5 months down the track she brought resentment into the visit in question but it does prove how unprofessional, immature and erratic she can be.

Can those last 2 points be used to help my case against her?

Thanks Again,

 

[Rod]

You have two hurdles to overcome:

1. The material you complain about seems like it was produced as part of another court matter. You would need leave of the original court to use it.
2. The other party has a some defences related to qualified privilege and honest opinion.

 

[Jarob]

The defaming material wasn't written as opinion. It was written as blatant fact.

For example it was her yelling and making threats, complete flip-out and she has documented in the report I did that when witnesses version of events is it was her that conducted herself in that manner and it was me trying to softly calm her down to no avail.

The other example is safety around the pool with a young child. She has stated I left my son unsupervised. Completely untrue and again I have witnesses that can attest that is also false. I was with and around him 100% of the time.

She has also stated I denigrated my sons mother to him. I cannot prove this is not true and can only rely on that the evidence supports she is being untruthful and likely fabricated that as well.

All that was written with the intent to communicate I'm angry and aggressive, I'm irresponsible parent regarding safety and I violated the court orders by denigrating my sons mother to him.

When I walked into that visit she looked extremely unwell and very angry. She was extremely rude and snappy. I made the decision to let it go but what I couldn't let go was when she started on my son with anger and aggression. I asked my son to walk away for a little and I calmly asked her if anything was wrong with the intention of leading into asking her not to speak to my son in the manner she was. The volcano that was sitting in front of me for 30 minutes finally erupted.

There are 9 other reports written by the usual supervisor and they are all completely opposite of that one report. I asked my usual supervisor if she has ever seen me put my son in a unsafe situation, has she seen him afraid of me, has she ever felt unsafe around me and it was categorically no, on the contrary actually.

Another thing in all the affidavits and interviews I've always stated his mother as an outstanding mother because that is what she is. I haven't put his mother down at all in any material.

As for qualified privilege. If 2 people can setup a child contact centre with the only qualifications needed is a child safety certificate and no other training or regulation, can freely write material that has the very real possibility of debasing a parties case and are protected by qualified privilege, well then the legal system really is moronic.

I never thought anyone could conduct themselves so unprofessionally and inappropriately, then go onto and lie with the full intent to sabotage. Completely disbelieving and never thought something like that would ever happen to me.

The background story with this women is she left her husband 4 weeks previous due to him deciding to be a full time alcoholic and while packing she fell down the stairs and hurt herself. She walked into that visit injured and steaming about her personal circumstances and there was a number of other flip outs recently according to the usual supervisor.

The commission into the family law system has highlighted the children's contact centre industry needs to be regulated due to too many cowboy outfits rising up.

If she isn't protected from civil action I'm going to take this all the way.