Smith v Lucht

[2016] QCA 267

Queensland Court of Appeal

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Interrogate

Catchwords

1. Defamation
2. › Defences
3. › Defence of triviality
4. › Whether circumstances of publication such that plaintiff unlikely to sustain any harm
5. › Whether 'any harm' in s 33 limited to reputational harm or extends to harm to feelings
6. › Application of defence to confined publication within family
7. › Defamation Act 2005 (Qld), s 33
1. Statutes
2. › Interpretation
3. › Particular words or phrases
4. › 'Any harm'
5. › Whether word 'harm' has uniform meaning throughout Act
6. › Whether addition of word 'any' expands scope beyond reputational harm
7. › Contextual construction by reference to objects and other provisions of Act
8. › Defamation Act 2005 (Qld), ss 3(c), 11, 15(1)(g), 26, 33, 34, 36

Quick Take

The word 'harm' in s 33 of the Defamation Act 2005 (Qld) (defence of triviality) is confined to reputational harm and does not extend to harm to feelings. The word 'any' in s 33 refers to the degree of harm (requiring the defendant to show unlikely to be any harm at all, not merely unlikely to be great or substantial harm) rather than expanding the nature of harm to include hurt feelings. However, the President expressed doubt about this construction without reaching a concluded view, leaving the issue potentially open for reconsideration in a case where the outcome depends on it.