Proving Extent of Publication in Defamation Proceedings

1. Introduction

The extent of publication is a fundamental element in defamation proceedings that influences both liability and the assessment of damages. A precise understanding of how to evaluate and prove publication extent is essential, particularly given the evolving media landscape and recent legislative reforms. This section provides guidance on the principles and evidentiary considerations relevant to determining the extent of publication in defamation matters, with particular attention to Western Australian jurisprudence where applicable.

2. Publication: Fundamental Principles

2.1 The Bilateral Nature of Publication

Publication in defamation law is a bilateral process requiring both the communication of defamatory matter by a publisher and its comprehension by at least one third party. As the High Court observed in Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [26]:

"Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act—in which the publisher makes it available and a third party has it available for his or her comprehension."

This bilateral conception has implications for proving both the fact and extent of publication. It means that publication is not complete until the defamatory matter has been both communicated and comprehended. This requires plaintiff’s to adduce evidence not merely of dissemination but also of reception and understanding by third parties.

2.2 Single Publication Rule

It is important to note that the single publication rule does not currently (as at March 2025) apply in Western Australia. Consequently, in Western Australia, the multiple publication rule established in Dow Jones & Company Inc v Gutnick continues to apply. This means that each download of defamatory material constitutes a separate publication, with its own cause of action.

3. Proving Fact of Publication

Before addressing extent, it is necessary to establish the fact of publication. The plaintiff bears the legal burden of proving that:

1. The defamatory matter was communicated to at least one person other than the plaintiff;

2. That person comprehended the communication; and

3. The publication was the intended, or the natural and probable, consequence of the defendant's actions.

In Lazarus v Deutsche Lufthansa AG (1985) A Def R 36-401, Hunt J emphasised that the plaintiff bears the onus of proving publication and must establish not only that the defamatory matter was accessible to third parties but that it was in fact accessed and comprehended by them.

As stated in Sims v Jooste (No 2) [2016] WASCA 83, a plaintiff must demonstrate, by pleading, that the material was downloaded and viewed by at least one person. This Western Australian authority underscores the necessity of establishing actual communication to and comprehension by a third party.

3.1 Direct Evidence of Publication

The most straightforward way to prove publication is through direct evidence, which may include:

• Testimony from recipients who read, heard, or viewed the defamatory material

• Admission by the defendant of publishing the material to specific individuals or groups

• Documentary evidence of distribution (email logs showing recipients, distribution lists, etc.)

• Server logs or analytics data showing specific access to the particular content

Worked Example: A sends a defamatory email about B to C. C testifies in court that they received and read the email, understanding its defamatory meaning. This is direct evidence of publication to C.

3.2 Inferential Evidence of Publication

Direct evidence of publication is not always available, particularly with online publications. In such cases, the plaintiff may rely on inferential evidence to establish a "platform of facts" from which publication can be reasonably inferred. The Court of Appeal in Sims v Jooste (No 2) [2016] WASCA 83 confirmed that this approach is available in Western Australia.

However, mere speculation is insufficient. The plaintiff must present a compelling factual foundation from which the court can infer publication.

Worked Example (Insufficient Evidence): A posts a defamatory comment about B on a website hosted overseas. B provides evidence that the website has 10,000 visitors per month globally. This, alone, is likely insufficient to prove publication in Western Australia. There is no evidence that any of those visitors were in Western Australia or that they saw the specific comment.

Worked Example (Sufficient Evidence): A posts a defamatory comment about B, a Perth-based businessman, on a website hosted overseas. B provides evidence that: (a) the website has 10,000 visitors per month, and 2,000 of those visitors are from Australian IP addresses; (b) the comment was visible on the website for three months; (c) the comment received 50 "replies" from other users, some of whom appear to be based in Perth (based on their usernames and profile information); and (d) several of the replies specifically discuss the defamatory imputation and its impact on B's business in Perth. This combination of factors creates a strong inference that the comment was downloaded and comprehended by at least one person in Western Australia.

4. Proving Extent of Publication

Once the fact of publication is established, attention turns to its extent. This is relevant to the quantum of damages. The following considerations apply in different publication contexts:

4.1 Print Publications

For print publications, evidence of the following may be adduced:

• Circulation figures (official audited figures are preferable)

• Distribution area (with particular attention to the plaintiff's community of interest)

• Readership estimates (which may exceed circulation)

• Whether the publication was prominently placed (e.g., front page versus buried on page 20)

• Whether the publication appeared in a specialist publication with a particularly influential readership among peers of the plaintiff

As held in Attrill v Christie [2007] NSWSC 1386, the extent of publication may be proved by inference from circulation figures, and the court may infer that a substantial proportion of readers actually read the material in question.

Worked Example: In a defamation action concerning an article in a major metropolitan newspaper, evidence might include the newspaper's audited circulation figures (approximately 100,000 copies), readership multiplier (estimated 2.5 readers per copy), distribution throughout metropolitan and regional areas of the state, and particulars about the prominence of the article (front page above the fold versus an inside page). The court may infer that a substantial proportion of the readership comprehended the defamatory matter, particularly if it was prominently placed.

4.2 Online Publications

For online publications, relevant evidence may include:

• Number of unique visitors to the specific webpage containing the defamatory material

• Average time spent on the page (as a proxy for comprehension)

• Geographical location of visitors (particularly important for establishing jurisdiction in Western Australia)

• Prominence in search engine results when searching for the plaintiff's name

• Social media engagement metrics (shares, comments, likes)

• Expert evidence on typical reading patterns for the type of content

It is important to note that analytical data showing mere page impressions or views may not, without more, be sufficient to establish comprehension by third parties. As established in Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350, more detailed evidence about engagement with the content may be necessary to satisfy the bilateral nature of publication.

Worked Example: In a case concerning a defamatory article on a news website, analytics data might show 5,000 page views, with 3,750 visitors from Western Australia, an average time on page of 2.5 minutes (suggesting the content was read rather than merely glimpsed), and 127 social media shares. A court might accept this evidence as establishing substantial publication within Western Australia, particularly if supported by expert evidence that the average time spent on the page exceeds the minimum time necessary for a typical reader to comprehend the defamatory content.

4.3 Social Media Publications

For social media publications, relevant considerations include:

• Number of followers/friends/connections of the publisher

• Number of views, likes, comments, or shares

• Whether the post was public or restricted to a defined audience

• Duration of availability before removal (if applicable)

• Evidence of republication through sharing, screenshots, or archiving

• Expert evidence on algorithmic amplification within the platform

In Wilson v Ferguson [2015] WASC 15, Mitchell J considered the extent of publication in relation to intimate images shared on Facebook, taking into account not only the direct recipients but also the potential for further dissemination. His Honour noted at [79] that the "grapevine effect" was particularly potent in the context of social media publications.

Worked Example: In a matter involving a defamatory Facebook post, evidence might include the defendant's friend count (2,500), engagement metrics (45 likes, 23 comments, 12 shares), public accessibility settings, and duration of availability (3 months before removal). Expert evidence might also establish the likely amplification through the Facebook algorithm, which may have shown the content to users beyond the defendant's immediate connections based on engagement levels.

5. Evidentiary Challenges

5.1 Inferential Reasoning

Courts may draw inferences about the extent of publication based on circumstantial evidence. As Hunt J observed in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127 at 69,193:

"Where the plaintiff has established that the defendant published the statement to a limited class of persons only, the court will infer, in the absence of evidence to the contrary, that all persons within that class both received and read the statement."

This principle is useful for assessing publication in traditional media contexts. However, in Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, the NSW Court of Appeal emphasised that while inferential reasoning is permissible, it must have a proper evidentiary foundation and not amount to speculation.

It is important for Western Australian practitioners to note that inferential reasoning may be particularly appropriate in regional or remote communities, where media consumption patterns may differ from metropolitan areas.

5.2 Online Publication Challenges

Proving the extent of online publication presents unique challenges. While analytics data can provide quantitative evidence, it may not definitively establish comprehension. Judges should critically evaluate:

• The reliability and authentication of analytics evidence

• Whether metrics demonstrate actual reading versus mere impressions

• The methodology employed by expert witnesses in interpreting online data

• The relationship between technical data and actual comprehension

• The relevance of the data to the specific defamatory content (as opposed to the webpage generally)

In Al Muderis v Duncan (No 3) [2017] NSWSC 726, McCallum J accepted expert evidence regarding internet analytics to determine the extent of publication of defamatory material online. Importantly, her Honour scrutinised the methodology behind the analytics and required evidence that went beyond mere page views to establish that the defamatory content had been comprehended.

5.3 Grapevine Effect

The "grapevine effect" recognises that defamatory material may spread beyond its initial publication through informal channels. In Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at [88], the High Court acknowledged that a plaintiff may recover damages for the spread of defamatory imputations through the "grapevine," even without strict proof of each instance of republication.

For Western Australian practitioners, it is worth noting that evidence of the potential for grapevine dissemination is particularly relevant in regional communities, where information may spread rapidly through informal networks. This phenomenon was recognised in West Australian Newspapers Ltd v Elliott [2008] WASCA 172, where the Court of Appeal acknowledged the amplified impact of defamatory publications in smaller, close-knit communities.

Importantly, in Zimmerman v Perkiss [2022] NSWDC 448, the court considered that the lack of the "grapevine effect"—the absence of evidence that others discussed the defamatory material with each other—was a factor in assessing the extent of harm to the plaintiff's reputation.

However, care should be taken to distinguish between the grapevine effect (which concerns damages for foreseeable further dissemination) and direct liability for republication by third parties. As clarified in Sims v Wran [1984] 1 NSWLR 317, a defendant is generally not liable for republication unless it was specifically authorised or was the natural and probable consequence of the original publication.

6. Publication by Omission

Courts distinguish between publication occurring by way of a positive act and publication occurring through omission. For publication by omission, the test is whether the defendant consented to, approved of, adopted, promoted, or in some way ratified the continued presence of defamatory material.

This principle was articulated in Byrne v Deane [1937] 1 KB 818 and developed in the Australian context in Thompson v Australian Capital Television (1996) 186 CLR 574. More recently, in Trkulja v Google LLC (2018) 263 CLR 149, the High Court considered the potential liability of search engines for failing to remove defamatory search results after being notified of their existence.

The question of publication by omission becomes particularly important in the context of user-generated content on websites, forums, and social media platforms. The defence of innocent dissemination under s 32 of the Defamation Act 2005 (WA) may be negated if the defendant fails to take reasonable steps to remove defamatory material after being notified of its existence.

Worked Example: A Western Australian website owner receives notification that user-generated content on their site contains defamatory material about a Perth businessperson. If they fail to remove it within a reasonable time after being notified (what constitutes "reasonable" will depend on the circumstances, including the technical complexity of removal and the resources of the website owner), they may be liable as a publisher by omission, having effectively adopted responsibility for the continued publication.

7. Jurisdictional Considerations

For Western Australian judges and practitioners, it is important to note that under the multiple publication rule established in Dow Jones & Company Inc v Gutnick, defamation occurs wherever the material is downloaded and read. This means that Western Australian courts have jurisdiction over defamation actions where the material was accessed in Western Australia, regardless of where it was uploaded.

As confirmed in Crosby v Kelly [2012] FCAFC 96, Australian courts retain jurisdiction over defamation actions where publication occurs within Australia, regardless of the original location of the publisher.

Western Australian practitioners should be particularly attentive to:

• Establishing evidence of access within Western Australia

• The continuing application of the multiple publication rule in Western Australia

• Potential conflict of laws issues for interstate and international publications

• The practical difficulties of enforcing judgments against interstate or international defendants

8. Particulars of Publication

While the plaintiff does not necessarily need to identify the specific individuals who accessed the defamatory material, providing particulars of downloading is now general practice in Western Australia. As noted in Sims v Jooste (No 2) [2016] WASCA 83, the court may require the plaintiff to provide further and better particulars if the initial pleading is vague or insufficient.

These particulars should address:

• When and where the material was published

• The identity or class of the recipients (if known)

• Evidence supporting the inference of publication (for inferential cases)

• The extent of publication claimed

• The jurisdictional nexus with Western Australia

9. Procedural issues for Evidentiary Management

When seeking to use the forensic tools available in a court case, in relation to evidence regarding publication extent, parties should consider:

1. Orders (such as leave to issue interrogatories) seeking specific disclosure of analytics data for online publications, including raw data to allow for expert analysis

2. Requiring expert evidence on digital distribution mechanisms where necessary, with attention to the expert's methodology and assumptions

3. Considering whether sampling methods might be appropriate for establishing patterns of publication in cases involving voluminous material

4. Setting parameters for inferential reasoning about publication extent

5. Requiring particulars of the grapevine effect where it is pleaded

6. Directing that evidence address not merely dissemination but also comprehension by recipients

In complex matters involving multiple publication platforms, it may be appropriate to direct the preparation of a publication schedule that clearly identifies each publication, its extent, and the evidence supporting those contentions.

10. Conclusion

Proving the extent of publication involves both factual and inferential reasoning, underpinned by an understanding of the bilateral nature of publication. The emergence of digital media has complicated this assessment but has also provided new evidentiary tools. Western Australian judges and practitioners should approach these questions with careful attention to both traditional principles and emerging digital realities.

The extent of publication remains a critical factor in assessing damages in defamation proceedings. As the media landscape continues to evolve, so too will the evidentiary approaches to establishing publication extent. Judges and practitioners should remain attuned to developments in this area, particularly as courts grapple with the implications of social media algorithms, ephemeral content, encrypted messaging platforms, and artificial intelligence-generated content.

For Western Australian practitioners, particular attention should be paid to regional and remote publication contexts, the continuing application of the multiple publication rule, and the developing jurisprudence as it relates to publication extent.

Publication in Defamation Law

Introduction

Correct identification of what constitutes 'publication' is fundamental to establishing the tort of defamation and determining liability.

Fundamental Principles of Publication

Definition of 'Publication' in Defamation Law

Publication constitutes an essential element of the tort of defamation. In legal terms, "publication" means the communication of defamatory material to at least one person other than the plaintiff.

The act of publication is a bilateral process between the publisher and the recipient. It is only when a defamatory publication is comprehended by at least one third party reader that harm to reputation can occur. As Isaacs J explained in the seminal case of Webb v Bloch (1928) 41 CLR 331 at 363-364: "to publish a libel is to convey by some means to the mind of another the defamatory sense embodied in the vehicle."

This bilateral conception was reinforced by the High Court in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, which confirmed that the tort occurs where and when the material is made available in comprehensible form to a third party. Critically, no communication to a third party means no publication in the legal sense.

Intention and Knowledge Requirements

The traditional test for establishing publication in Australian defamation law was formulated in Webb v Bloch (1928) 41 CLR 331. In that case, Isaacs J held that defamation requires an intention to assist in publication, stating that "if he has intentionally lent his assistance to its existence for the purposes of being published, his instrumentality is evidence to show a publication by him."

The High Court in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 affirmed and clarified that defamation operates as a tort of strict liability. The majority emphasised that there is no requirement of intention to publish defamatory material; mere participation in the act of publication is sufficient for an individual to be held to be a publisher. The intention of the author of the defamatory matter is not relevant to the question of publication because the actionable wrong is the publication itself. This reinforces the strict liability nature of the tort, which has significant implications for potential publishers.

Publication as an Element of the Cause of Action

For defamation actions in Western Australia, there are five elements to a cause of action:

1. Publication – broadly defined to include verbal statements and all statements that can be read.

2. Of defamatory content – content that would tend to lower the plaintiff in the estimation of ordinary reasonable members of society.

3. To another – the publication must be made to someone other than the plaintiff.

4. Identifying a person – the plaintiff must be identifiable from the content.

5. Without lawful excuse – if there is a legal reason for the publication, any defamation may be excusable.

Significantly, as at March 2025 Western Australia has not adopted the 2021 amendments to the Uniform Defamation Laws implemented in most other Australian jurisdictions. Consequently, Western Australia still applies the "multiple publication rule" rather than the "single publication rule" introduced elsewhere, and does not have the "serious harm" threshold requirement for defamation actions. These distinctions create important jurisdictional differences that practitioners must be mindful of when advising clients or determining proper forum.

Tests for Establishing Publication

The Webb v Bloch Test

The Webb v Bloch test remains the fundamental starting point for determining whether publication has occurred in Australian defamation law. Under this test, anyone who participates in the dissemination of defamatory content is a publisher. This includes all persons who intentionally lend assistance to the existence of a publication, regardless of whether they authored the defamatory content or had knowledge of its defamatory nature.

The mental element of the wrong is satisfied by an intention to assist in publication, rather than an intention to publish defamatory material or knowledge of a publication's defamatory content. This establishes a relatively low threshold for participation in publication that casts a wide net of potential liability.

Proof of Publication

The burden of proving publication rests with the plaintiff on the balance of probabilities. In Western Australia, as established in Sims v Jooste (No 2) [2016] WASCA 83, a plaintiff must plead and prove that the material complained of had been downloaded and viewed by somebody, though they need not provide particulars of the identity of the person or persons who downloaded the material.

The Western Australia Court of Appeal in Sims v Jooste (No 2) emphasised that an inference that material has been downloaded and viewed might be drawn from a combination of facts, such as the number of 'hits' on the site where the allegedly defamatory material was posted and the period of time over which the material was posted on the internet. This approach of relying on a "platform of facts" recognises the practical difficulties in identifying specific recipients of online publications, whilst maintaining the fundamental requirement that publication must have occurred.

Publication by Omission

Publication may also occur through omission in certain circumstances. In Byrne v Deane [1937] 1 KB 818, the English Court of Appeal established that publication by way of omission may give rise to defamation liability. This means that a person can be responsible for publication of defamatory material by failing to remove it from where it was published, in circumstances where they had both knowledge of the material and the power to remove it.

This principle was applied in the Australian context in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Rep ¶81-127. In that case, unknown persons had glued up defamatory posters (falsely depicting the plaintiff as a Nazi sympathiser) on bus shelters under the Council's control. The Council, once notified, did not remove the posters for about a month. Hunt J held that the Council could be found liable as a publisher by omission, provided the evidence showed it had accepted responsibility for the continued publication of the material.

His Honour noted that a plaintiff must prove "more than mere knowledge" of the defamatory material and an opportunity to remove it. In addition, the plaintiff must show the defendant in some way adopted or ratified the continued presence of the material – for example, by consenting to it, approving it, or at least turning a blind eye such that their inaction amounts to acceptance. This nuanced approach to publication by omission has particular relevance in digital contexts, where platforms and website operators may become publishers by failing to remove defamatory content after being notified of its existence.

Co-publishers and Joint Publishers

Legal Definition of Co-Publishers

Co-publishers (or joint publishers) are two or more persons who each participate in the act of publishing the defamatory material. Following Webb v Bloch (1928) 41 CLR 331, a person is considered a publisher if they have been "instrumental in, or contributed to any extent to, the publication of defamatory matter."

This broad definition captures various participants in the publication chain, including:

• Authors of the defamatory content

• Editors who review and approve the content

• Publishers who disseminate the content

• Individuals who assist in drafting or revising the content

• Those who facilitate the publication platform

It is well established that every person who joins in publishing a defamatory statement can be sued in defamation. Thus, liability extends beyond the original author to all who participate in making the defamatory content available to others. The High Court has confirmed that a publisher's liability does not depend on them intending to defame the plaintiff; it is sufficient that they intentionally participated in communicating the content.

Tests for Establishing Joint Publication

Joint publication liability arises when multiple parties have participated in the publication process with some common purpose or design. In examining whether a person is a joint publisher, courts will consider:

1. Whether the person had control over or assented to the publication

2. Whether there was a common intention in publishing

3. The extent of the person's participation in the publication process

4. Whether the person provided more than merely incidental assistance

Justice Edelman in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 noted that a defendant who does not perform an act of publication personally can still be liable for defamation on the basis that they assisted another individual who performed the act of publication, provided that the defendant's assistance occurred with a common intention to publish the communication.

Liability for Assisting with Drafting

Those who assist in drafting defamatory content can be held liable as co-publishers. As with other torts, assistance can be established by a minor act, provided there is a common intention to publish. This means that individuals who contribute to content that is later published may be liable alongside the primary publisher.

The critical factor is whether the individual intentionally participated in the creation process with the knowledge that the material would be published, not whether they intended the content to be defamatory. This principle applies to those who:

• Contribute substantively to the content

• Review and edit the material

• Provide factual information that forms the basis of defamatory statements

• Authorise or approve the final content for publication

In York v Jones [1981] 2 NSWLR 639, a person who supplied defamatory information that was later broadcast was joined as a defendant on the basis that he procured and aided the publication. This illustrates the court's willingness to hold accountable those who participate in the chain of publication, even where their role might appear secondary.

Common Intention in Publishing

The concept of common intention in publishing is central to establishing joint publication liability. While each case turns on its specific facts, courts will generally look for evidence of:

• Collaboration in creating the content

• Shared purpose in disseminating the material

• Awareness that the content would be published

• Approval or authorisation of the final publication

Justice Steward in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 considered that what constitutes participation in an action of publication is a question of fact, and agreed with Justice Edelman that the test of common intention is applicable to defamation.

Digital and Online Publication

Multiple and Single Publication Rules

Under the traditional "multiple publication rule" which still applies in Western Australia, each communication of defamatory matter gives rise to a separate cause of action. For publications made online, this means that each time the material is accessed, a new publication occurs, potentially extending the limitation period for bringing an action. This was confirmed in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, where the High Court emphasised that making material available online is not a mere one-time act with legal effect everywhere; rather, the act of publication is complete at the place and time a third party downloads and reads the material.

This differs from jurisdictions that have implemented the 2021 amendments introducing a "single publication rule," which provides that the cause of action in defamation is taken to accrue at the date of first publication. The practical effect of Western Australia's continued adherence to the multiple publication rule is significant for online publishers, as it creates ongoing exposure to defamation claims for historical content that remains accessible online.

Social Media and Website Publications

The landmark case of Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 established that owners of social media pages can be liable as publishers for third-party comments posted on their pages. The High Court held that by creating a public Facebook page and posting content, the media outlets were "facilitating, encouraging and thereby assisting the posting of comments by third-party Facebook users" and were therefore publishers of those comments.

This decision adopts a strict approach – effectively, the act of providing an online forum (with the capacity to moderate content) was enough involvement to render the host liable as a publisher of whatever defamatory material appeared. Voller therefore stands as authority that Facebook page owners, moderators of online groups, and similar operators can be primary publishers of third-party content posted on pages under their control.

Worked Example: Media Organisation Facebook Page

Facts: A Western Australian media organisation operates a public Facebook page where it posts news articles. The organisation allows followers to comment on its posts. A Facebook user posts a comment on one of the organisation's articles containing defamatory allegations about a local politician. The politician sues both the Facebook user and the media organisation.

Analysis:

• Following Voller [2021] HCA 27, the media organisation could be considered a publisher of the third-party comment by facilitating and encouraging comments on its Facebook page.

• The media organisation's liability arises from its voluntary act of establishing and maintaining a Facebook page that invites and facilitates third-party comments.

• The organisation's lack of knowledge of the specific defamatory comment does not prevent it being considered a publisher, as defamation is a tort of strict liability.

• The media organisation might attempt to rely on the innocent dissemination defence, though this would require showing they neither knew nor ought reasonably to have known that the comment was defamatory, and that this lack of knowledge was not due to negligence.

Practical Guidance: Courts should consider:

1. Whether the defendant facilitated or encouraged third-party comments

2. The extent of control the defendant had over the platform

3. Whether the defendant took reasonable steps to monitor or moderate comments

4. The defendant's response upon becoming aware of the defamatory content

Hyperlinks and Search Engine Liability

The liability of search engines and providers of hyperlinks has been the subject of significant judicial consideration. In Google LLC v Defteros (2022) 96 ALJR 707, the High Court drew an important distinction regarding hyperlinks. The majority ruled that Google was not liable for simply providing a hyperlink in search results to a defamatory newspaper article. The Court reasoned that supplying a hyperlink (with a snippet) was merely a tool enabling users to access content, and did not itself amount to participating in the bilateral act of publication of that content.

The hyperlink was seen as a reference or pointer, not a communication of the defamatory matter. In other words, Google did not "lend assistance" to the publication of the article in any substantive sense by virtue of an automated search result. It had not created, endorsed, or republished the defamatory content – it simply provided the location.

However, this should be distinguished from cases where a person posts a hyperlink with commentary that adopts or endorses the defamatory content. In Bailey v Bottrill (No 2) [2019] NSWSC 1300, a defendant posted a link on her Facebook page to a YouTube video containing defamatory allegations, together with a comment implying agreement with the video. The court found that by doing so, the defendant took part in publishing the defamatory content – her post was an invitation to view the video and conveyed the defamatory message to anyone who followed the link.

The distinction is subtle but crucial: a neutral link might escape liability (per Defteros), but a link combined with an inducement or endorsement is actionable publication by the linker.

Primary and Subordinate Publishers

Distinguishing Between Categories of Publishers

Defamation law distinguishes between primary and subordinate publishers:

Primary publishers are those who know or can be expected to know the content of the material being published, including:

• Authors of the defamatory content

• Editors and publishers with editorial control

• Media organisations responsible for content

• Those who authorise or approve publication

Subordinate publishers are those who disseminate content created by others without editorial control, such as:

• Newsagents and booksellers

• Libraries and distributors

• Internet service providers (in some circumstances)

• Social media platforms (subject to notification and response)

This distinction is crucial for the availability of defences, particularly innocent dissemination, which is only available to subordinate publishers. In Emmens v Pottle (1885) 16 QBD 354, for example, a newspaper vendor who sold a paper containing a libel was found to have published it, even though he was unaware of the libel (his lack of knowledge went to a possible defence, not to the fact of publication).

Innocent Dissemination Defence

The defence of innocent dissemination is available the Defamation Act 2005 (WA). This defence is not available to the author and primary publisher of the material who have "primary liability" for what is written and published.

It is available to subordinate publishers who can demonstrate that:

• They neither knew, nor ought reasonably to have known, that the matter was defamatory

• This ignorance was not due to their own negligence

Indicators of whether someone is a primary publisher or a subordinate publisher include the opportunity to prevent publication and the editorial control over the publication process. Australian courts have established that if you have innocently published defamatory material, you must take reasonable steps to remove the defamatory material as soon as you are aware of it, otherwise you will be deemed to have published the material from that point onwards.

Proving Publication in Western Australian Courts

Requirements for Pleading Publication

In pleading publication, a plaintiff must establish that the defamatory material was published to at least one person other than the plaintiff. The statement of claim should include:

1. Particulars of the publication, including the date, mode, and medium of publication

2. Where the matter complained of is not defamatory on its face, the extrinsic facts said to give rise to the defamatory imputation

3. How persons knowing these facts would have understood the publication to refer to the plaintiff

In Western Australia, following Sims v Jooste (No 2) [2016] WASCA 83, courts have acknowledged that an inference that the material complained of has been downloaded by somebody might be drawn from a combination of facts, such as website metrics and duration of availability online.

Worked Examples

Worked Example: Republication of Defamatory Content

Facts: A Perth resident reads a defamatory article about a local business owner on an obscure blog. The resident copies the article and posts it on their personal social media account, adding comments that further distribute the defamatory claims. The business owner discovers the post and sues both the original blogger and the resident who shared the post.

Analysis:

• The original blogger is clearly a primary publisher with full liability for the defamatory content.

• The resident who shared the post is also a publisher, having voluntarily participated in disseminating the defamatory content.

• By adding their own comments, the resident has adopted the defamatory content and become a primary publisher in their own right.

• Repetition of defamatory content constitutes a separate act of publication. As established in common law, anyone who repeats defamatory publications is considered to have carried out a defamatory act in their own right.

Practical Guidance: Courts should consider:

1. The extent to which the republisher exercised independent judgment or editorial control

2. Whether the republisher added their own content or commentary

3. The republisher's knowledge of the potential defamatory nature of the content

4. Whether the republisher had reasonable grounds to believe the content was true or protected by a defence

Worked Example: Joint Drafting of Defamatory Letter

Facts: A Perth resident has a dispute with a neighbour. The resident drafts a letter containing allegations about the neighbour's conduct, including claims that would harm the neighbour's professional reputation. The resident shows the draft to a friend, who suggests additional allegations, edits the existing content, and helps refine the wording. The resident then sends the letter to the strata council and several other neighbours. The neighbour sues both the resident and the friend.

Analysis:

• The resident is clearly a publisher as the primary author and distributor of the letter.

• The friend may be liable as a co-publisher for substantially contributing to the content with knowledge that it would be published.

• Their common intention to create and distribute the letter establishes joint publication liability.

• The extent of the friend's contribution to the defamatory content and their awareness of its intended distribution are key factors in determining liability.

Practical Guidance: Courts should consider:

1. The nature and extent of the contribution to the defamatory content

2. Whether there was knowledge that the material would be published

3. Whether there was a common design or intention to publish

4. Whether the contribution was more than merely incidental

Conclusion

The act of publication remains a fundamental element in establishing defamation, and Western Australian courts apply principles drawn from foundational cases such as Webb v Bloch (1928) 41 CLR 331 while acknowledging the evolving landscape of communication, particularly in digital contexts. The broad test for publication means that liability can extend beyond original authors to encompass a wide range of participants in the publication process.

Co-publisher and joint publisher liability arises when multiple parties participate in the communication of defamatory matter, with courts focusing on the common intention to publish rather than intention to defame. This has significant implications for those who assist in drafting content, operate online platforms, or facilitate third-party comments.

In the digital age, the principles established in cases like Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 have extended publisher liability to previously untested contexts. This creates particular challenges for Western Australia, which continues to apply the multiple publication rule, potentially extending the limitation period for defamation actions involving online content.

Common Law Qualified Privilege in Defamation: An explanation

1. Introduction and Legal Foundation

Common law qualified privilege stands as a conditional defence in defamation, rooted in the recognition that certain communications, though potentially defamatory, warrant protection for societal benefit. This defence traces its origins to Toogood v Spyring (1834) 149 ER 1044, where Baron Parke articulated that "communications which would otherwise be slanderous are protected for the common convenience and welfare of society." This principle has been consistently affirmed in Australian jurisprudence, most authoritatively by the High Court in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366.

The defence operates by providing a rebuttable presumption that a defamatory communication made on a properly privileged occasion was without malice. Unlike absolute privilege (which provides unqualified immunity regardless of motive or circumstances), qualified privilege is contingent upon two critical elements:

1. The existence of a privileged occasion for the communication; and

2. The absence of malice in making that communication.

The theoretical justification for this defence lies in balancing competing public interests: protecting individual reputation against the social utility of uninhibited communication in certain contexts. As the High Court observed in Papaconstuntinos v Holmes à Court (2012) 249 CLR 534 at [30], the law recognizes that "on certain occasions, it is for the common convenience and welfare of society to protect communications made in a particular manner, even though they would otherwise be actionable." This defence thus acknowledges that public policy sometimes necessitates free and frank communication, even at the potential expense of individual reputation, provided such communications remain within the boundaries of the privileged occasion and are not made maliciously.

2. Elements of the Defence

2.1 Privileged Occasion: The Reciprocity of Duty/Interest

The threshold requirement for common law qualified privilege is establishing that the publication occurred on a privileged occasion. This necessitates demonstrating a reciprocity of duty and interest between publisher and recipient—often termed the "duty/interest test."

The High Court in Papaconstuntinos v Holmes à Court (2012) 249 CLR 534 reaffirmed this fundamental principle, stating at [20]:

"For an occasion to be held to be privileged, there must exist between the publisher and the publishee some relationship or circumstance that gives rise to a duty or interest to communicate or receive information."

The requisite duty may be legal, social, or moral in nature, while the corresponding interest must be legitimate and relevant to the recipient's position. Importantly, both elements must coexist for the occasion to be privileged.

The concept of "duty" in this context extends beyond formal legal obligations. As explained in Adam v Ward [1917] AC 309 at 334 (and adopted in Australian law), it encompasses "a duty recognized by law, a duty of a moral or social character of imperfect obligation." However, not every moral impulse or sense of obligation will suffice; the duty must be one that the law recognizes as proper and deserving of protection.

Example 1:
A school principal reviews complaints about a teacher's conduct with the school board. This communication occurs on a privileged occasion because:

• The principal has a duty (both professional and moral) to inform the board about issues affecting student welfare and educational standards

• The board members have a corresponding interest in receiving this information given their governance responsibilities

• Both share a common interest in the proper functioning of the school and fulfillment of their educational obligations

The High Court in Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79 emphasized that the duty/interest test must be applied with precision to the specific circumstances of each case, rather than through mechanical application of categories. The inquiry is always contextual and evaluative.

2.2 Absence of Malice

Even when a publication occurs on a privileged occasion, the defence can be defeated if the plaintiff proves the defendant was actuated by malice. The concept of malice in this context has a specific legal meaning distinct from its colloquial usage.

As articulated by the High Court in Roberts v Bass (2002) 212 CLR 1 at [75]-[76]:

"A privileged occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement... Qualified privilege is lost if the defendant uses the occasion for some purpose other than that for which the occasion was privileged."

Malice thus refers to the defendant's improper purpose or motive—one foreign to the occasion that would otherwise attract privilege. The critical inquiry is not merely whether the defendant bore ill-will toward the plaintiff, but whether an improper purpose was a substantial actuating factor in making the communication.

This distinction is crucial: a defendant may harbor animosity toward the plaintiff yet still be protected if their dominant purpose was to fulfill the duty/interest that created the privileged occasion. Conversely, a defendant without personal animus may nevertheless act maliciously if motivated by a purpose extraneous to the privilege.

2.3 Onus and Pleading Requirements

The distribution of the burden of proof reflects the structure of the defence:

1. The defendant bears the legal and evidentiary onus of establishing that the publication occurred on a privileged occasion.

2. Once a privileged occasion is established, the onus shifts to the plaintiff to prove that the defendant was actuated by malice.

Procedurally, this requires precise pleading from both parties:

• A defendant pleading qualified privilege must particularize the facts giving rise to the privileged occasion, including the specific duty/interest relationship and the circumstances establishing reciprocity between publisher and recipient.

• A plaintiff seeking to defeat the defence must specifically plead malice in the Reply, with particulars of the facts, matters, and circumstances said to evidence improper purpose.

The requirement for particulars is not merely procedural; it defines the scope of the issues at trial. As held in David Syme & Co v Hore-Lacy (2000) 1 VR 667, the plaintiff must provide sufficient particulars to give the defendant fair notice of the case to be met regarding malice. Failure to properly particularize malice may result in that issue being excluded from consideration at trial.

3. Categories of Privileged Occasions

While each case must be evaluated on its specific circumstances, courts have recognized several recurring situations that typically satisfy the duty/interest test. These categories provide useful guidance but are not exhaustive or determinative; the underlying principle of reciprocity remains paramount.

3.1 Communications Made Pursuant to Legal, Moral, or Social Duty

When a person has a legal, moral, or social duty to communicate information, and the recipient has a corresponding interest in receiving it, the occasion is privileged.

Example 2:
In Cush v Dillon (2011) 243 CLR 298, the High Court considered communications made by a senior staff member to a minister about allegations concerning a departmental head. The Court recognized this as a potentially privileged occasion because the staff member had a duty to inform the minister about matters affecting departmental governance, and the minister had a corresponding interest in receiving such information.

The scope of "duty" is context-dependent and reflects contemporary social values. As noted in Papaconstuntinos v Holmes à Court (2012) 249 CLR 534 at [32], the duty/interest test "accommodates changing social conditions and accords with the requirements of free speech, the freedom of the press and the freedom of communication."

However, courts remain vigilant that the concept of "duty" does not become so expansive as to undermine the underlying purpose of defamation law. A mere belief that others "should know" defamatory information is insufficient without a recognized duty to communicate it.

3.2 Common Interest Communications

Communications between persons who share a common interest in the subject matter are protected, provided the communication is relevant to that shared interest.

The High Court in Papaconstuntinos v Holmes à Court (2012) 249 CLR 534 confirmed that privilege attaches to communications "made on an occasion where the interest is common to both" the publisher and recipient (at [36]).

The "common interest" must be sufficiently substantial and identifiable. As elaborated in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366, the interest cannot be trivial or merely coincidental; it must be particular to the relationship between the parties and relevant to their shared activities or concerns.

Example 3:
In Jones v Sutton (2004) 61 NSWLR 614, a strata committee chairperson sent a letter to unit owners regarding another owner's alleged breaches of by-laws. The Court of Appeal found this was a communication on a privileged occasion because all unit owners shared a common interest in the enforcement of by-laws and proper governance of the strata scheme. However, the Court emphasized that this privilege would not extend to circulation beyond unit owners or to extraneous defamatory content not relevant to the shared interest.

The boundaries of the common interest delineate the scope of the privileged occasion. Publication beyond those who share the interest, or inclusion of matter not relevant to that interest, exceeds the privilege.

3.3 Publications to a Limited Audience with a Special Interest

The privilege can extend to communications to a defined group, even if relatively large, provided all recipients share a relevant interest in the subject matter.

In Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366, the High Court considered a safety bulletin concerning a workplace safety inspector that was distributed to occupational health and safety subscribers. The Court held this was an occasion of qualified privilege because:

1. The publication was confined to a limited class of recipients (subscribers with responsibility for workplace safety)

2. All recipients shared a genuine interest in the subject matter

3. The information was relevant to that shared interest

This category is distinct from general publication to the public at large. As Gleeson CJ explained in Bashford at [22]:

"The difference between limited publication, on a privileged occasion, to a class of persons with a special interest in receiving the information... and general publication to the world at large... is a difference of fundamental importance."

The critical distinction lies in the defined nature of the audience and their specific relationship to the subject matter. The more diffuse and indeterminate the audience, the less likely courts are to find a privileged occasion.

3.4 Replies to Attacks (Self-defence)

The law recognizes that a person whose reputation or conduct is publicly attacked has a right to respond in self-defence. This "right of reply" constitutes a privileged occasion.

In Harbour Radio Pty Ltd v Trad (2012) 245 CLR 257, the High Court confirmed this category of privilege, holding at [32] that:

"[W]here the plaintiff has made a public attack on the defendant, the defendant has a privileged occasion to respond by way of self-defence to rebut or refute the attack and may include in the response defamatory matter concerning the plaintiff."

Several important limitations circumscribe this privilege:

1. The response must be genuinely made to defend one's reputation

2. It must be proportionate to the initial attack

3. It must be relevant to answering the allegations made

4. It must be published to an appropriate audience (typically the same audience that received the original attack)

As the High Court cautioned in Harbour Radio v Trad at [36], the privilege "does not provide a privilege for retaliatory defamation published by way of abuse." A disproportionate or gratuitous counterattack may exceed the privileged occasion and suggest malice.

Example 4:
A public official is accused at a town council meeting of misappropriating funds. At the subsequent meeting, the official responds by addressing the allegations with evidence of proper financial management. This response would likely be privileged, even if it suggested the accuser had deliberately misrepresented facts. However, if the official were to digress into unrelated allegations about the accuser's personal life or character, this would likely exceed the scope of the privileged occasion.

3.5 Government and Political Communications (The Lange Extension)

In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, the High Court recognized a constitutionally derived extension of qualified privilege for communications on governmental and political matters to the general public.

This extension, often termed the "Lange defence," arises from the implied freedom of political communication in the Australian Constitution. It represents a significant departure from traditional common law qualified privilege by potentially protecting communications to the public at large, rather than requiring a narrower reciprocity of duty/interest.

The Lange defence has several distinctive elements:

1. The communication must concern government or political matters affecting the Australian polity

2. The recipients must include electors with an interest in such information

3. The publisher's conduct must be reasonable in the circumstances

4. The publication must not be actuated by malice

The reasonableness requirement is particularly significant, as it imposes a higher standard than traditional common law qualified privilege. As clarified in subsequent cases like Roberts v Bass (2002) 212 CLR 1, this reasonableness inquiry examines whether the publisher believed the imputations were true, had reasonable grounds for that belief, and took proper steps to verify the information.

While Lange represents an important constitutional overlay on defamation law, its practical application has been largely superseded by statutory defences introduced in the uniform Defamation Acts. Nevertheless, it remains significant as a constitutional backstop and for understanding the broader evolution of qualified privilege in Australian law.

4. Defeating the Defence: Malice

4.1 The Concept of Malice

Malice in qualified privilege has a technical legal meaning beyond ordinary notions of ill-will or spite. As articulated by the High Court in Roberts v Bass (2002) 212 CLR 1 at [75]:

"In this context, malice means that the defendant used the occasion of privilege to publish the defamatory matter for some purpose or motive foreign to the duty or interest that protected the making of the statement."

This formulation distinguishes between "express malice" (the improper purpose that defeats privilege) and "presumed malice" (the inference of wrongful intention that arises from publishing defamatory matter but is negated by the privileged occasion).

The test focuses on the defendant's dominant purpose in making the communication. If an improper purpose was a substantial or actuating cause of the publication—even if not the sole purpose—the privilege may be lost.

4.2 Forms of Malice

Malice may manifest in various forms, including:

1. Knowledge of falsity or reckless disregard for truth: Where the defendant knows the defamatory imputation is false or is recklessly indifferent to its truth, this may indicate the communication was not made for the proper purpose of the privileged occasion. As the High Court noted in Roberts v Bass at [104], "knowledge of falsity is ordinarily compelling evidence that the defendant acted for a purpose foreign to the privileged occasion."

2. Ill-will, spite, or animosity: Personal hostility toward the plaintiff may indicate an improper purpose. However, as clarified in Roberts v Bass at [76], "mere ill-will" is insufficient; the improper motive must be a substantial actuating cause of the publication.

3. Extraneous defamatory material: Including gratuitous defamatory content not relevant to the privileged purpose may suggest the defendant was using the occasion as a pretext to defame the plaintiff.

4. Excessive publication: Publishing beyond the audience contemplated by the privileged occasion may indicate the defendant's purpose extended beyond the proper scope of the privilege.

Example 5:
A senior employee writes to company management about suspected financial irregularities by another employee. The communication would ordinarily be privileged. However, if the evidence shows the senior employee knew the allegations were false and made them to eliminate a workplace rival, this would constitute malice and defeat the privilege. Similarly, if the email included unnecessary derogatory comments about the subject's personal life unrelated to the financial concerns, this might indicate an improper purpose beyond the privileged occasion.

4.3 Proving Malice

The plaintiff bears the evidentiary and legal onus of proving malice. This is often challenging because it requires insight into the defendant's subjective state of mind.

As explained in Roberts v Bass at [75]-[76], the plaintiff must establish that:

1. The defendant used the occasion for a purpose other than that for which it was privileged, and

2. This improper purpose was a substantial or actuating cause of the publication.

Given the difficulty of direct evidence, malice is typically inferred from surrounding circumstances. Factors that may support an inference of malice include:

• The defendant's knowledge of falsity or reckless disregard for truth

• A pre-existing history of antagonism between the parties

• The inflammatory or excessive language used in the publication

• The gratuitous inclusion of defamatory material unrelated to the privileged purpose

• The absence of reasonable grounds for belief in the truth of the defamatory imputations

• Failure to make appropriate inquiries before publishing serious allegations

Importantly, mere negligence, carelessness, or impulsiveness in making the communication is generally insufficient to establish malice. As the High Court emphasized in Roberts v Bass at [104], "honest or reasonable mistake is the antithesis of malice."

The standard of proof is the civil standard of balance of probabilities. However, given the serious nature of an allegation of malice, courts often require clear and persuasive evidence before drawing such an inference.

4.4 Effect of Proving Malice

If malice is established, the qualified privilege defence fails entirely, regardless of how clearly the occasion would otherwise have been privileged. As stated in Roberts v Bass at [76]:

"If the defendant uses the occasion for some purpose other than that for which the occasion is privileged, he or she loses the privilege."

A finding of malice may also influence other aspects of the proceedings, including:

1. Supporting an award of aggravated damages, as it demonstrates the defendant's improper conduct and may exacerbate the harm to the plaintiff's reputation

2. Potentially influencing the assessment of general damages, as it speaks to the seriousness of the defamation

3. Sometimes bearing on costs determinations, particularly if the defendant persisted with a privilege defence despite evidence of malice

5. Practical Application at Trial

The application of common law qualified privilege at trial involves distinct roles for the judge and jury (where applicable), with careful delineation of questions of law and fact.

5.1 Judicial Determination of Privileged Occasion

Whether an occasion is capable of being privileged is a question of law for the judge. As explained in Adam v Ward [1917] AC 309 (and consistently applied in Australian law), the judge must determine whether the circumstances of publication give rise to a privileged occasion.

This determination requires the judge to:

1. Identify the alleged privileged occasion based on the evidence

2. Assess whether the circumstances satisfy the duty/interest test

3. Determine the proper scope of the privileged occasion (including its audience limits)

4. Rule on whether publication exceeded that scope

If the judge concludes the occasion is not capable of being privileged as a matter of law, the defence is withdrawn from consideration. If the judge finds the occasion is capable of being privileged, the defence proceeds to consideration of malice.

Example 6:
A company director sends an email to shareholders alleging financial impropriety by the CEO. The judge would determine whether this communication falls within a recognized category of privilege (likely as a common interest communication). If instead the director had posted these allegations on social media accessible to the general public, the judge would likely rule no privileged occasion exists and withdraw the defence.

5.2 Factual Determinations

Where facts underpinning the privileged occasion are disputed, these must be resolved by the trier of fact (jury or judge in non-jury trials).

For example, if a defendant claims privilege based on having received a request for information about the plaintiff, but the plaintiff denies any request was made, this factual dispute must be resolved before determining whether the occasion was privileged.

The judge may provide conditional instructions to guide this determination: "If you find request X was made, then the occasion is privileged; if you find no such request was made, the defence fails."

5.3 Malice as a Question of Fact

Once a privileged occasion is established, the question of whether the defendant was actuated by malice is a question of fact for the jury (or judge in non-jury trials).

However, the judge plays a crucial gatekeeping role in determining whether there is sufficient evidence to leave the issue of malice to the jury. As explained in Horrocks v Lowe [1975] AC 135 at 151 (and adopted in Australian law):

"[T]he judge at the trial should not allow the issue of express malice to go to the jury unless there is evidence from which a reasonable jury, properly directed, could infer that the defendant did not use the occasion for the purpose for which the law conferred the privilege."

If the judge concludes there is no evidence capable of supporting an inference of improper motive, the issue of malice should be withdrawn from the jury, and the defence succeeds. If there is such evidence, the jury must determine whether the plaintiff has proven malice on the balance of probabilities.

5.4 Jury Instructions

When instructing a jury on common law qualified privilege, the judge should:

1. Clearly explain the concept of privileged occasion and identify which publications are alleged to be privileged and why

2. Specify the scope of the privileged occasion (including audience limitations)

3. Define malice as the defendant using the privileged occasion for an improper purpose, foreign to the duty or interest that justified the communication

4. Explain that if the jury finds the defendant was actuated by malice, the defence fails; if not, the defence succeeds

5. Summarize the evidence relevant to malice without expressing an opinion on its weight

An appropriate instruction on malice might be:

"Even if you find the occasion was privileged, the plaintiff can defeat the defence by proving the defendant was actuated by malice. In this context, malice means the defendant used the privileged occasion to publish the defamatory matter for some purpose foreign to the duty or interest that protected the communication. This improper purpose must have been a substantial or actuating cause of the publication, not merely incidental. Consider all the evidence, including [summarize relevant evidence], to determine whether the plaintiff has proven on the balance of probabilities that the defendant was substantially motivated by an improper purpose."

6. Relationship with Other Defences

Common law qualified privilege exists alongside other defences, particularly statutory qualified privilege under the Defamation Act 2005 and the statutory public interest defence introduced in 2021 amendments.

While common law qualified privilege has been partially superseded by these statutory defences, it remains available and relevant in certain contexts. It may be particularly valuable where:

1. The publication clearly falls within a traditional duty/interest category but might not satisfy the reasonableness requirement of statutory defences

2. The publication occurred before the commencement of the statutory defences

3. The circumstances align closely with established categories of privilege but might not meet the more structured criteria of statutory provisions

Defendants often plead both common law and statutory qualified privilege in the alternative, allowing flexibility depending on how the evidence unfolds at trial.

7. Conclusion

Common law qualified privilege remains a significant defence in Australian defamation law, despite the development of statutory alternatives. Its underlying principle—protecting communications made in good faith on occasions where public policy demands freedom of expression—continues to serve an important function in balancing competing interests.

The defence succeeds when two essential conditions are met: the communication must occur on a privileged occasion (established through the duty/interest test) and must not be actuated by malice. While the categories of privileged occasions have evolved over time, the fundamental requirement of reciprocity between publisher and recipient remains constant.

Proper application of common law qualified privilege requires precision in identifying the scope of the privileged occasion, clarity regarding the allocation of functions between judge and jury, and careful analysis of evidence relating to malice. When correctly applied, the defence provides appropriate protection for legitimate communications while ensuring those who abuse privileged occasions for improper purposes remain accountable.

When Will Courts Grant Permanent Injunctions in Defamation Cases?

The recent Federal Court of Australia decision in Greenwich v Latham (No 2) [2025] FCA 131 provides valuable insights into when courts will (and won't) grant permanent injunctions to prevent republication of defamatory content. The case involved Alexander Greenwich, a politician, who had previously succeeded in a defamation action against Mark William Latham regarding what the court called the "Primary Tweet."

In the earlier judgment (Greenwich v Latham [2024] FCA 1050), the court found that Latham had defamed Greenwich through a tweet that carried the imputation that Greenwich "engages in disgusting sexual activities." Latham removed the tweet after public outcry but subsequently made various comments on social media and in a radio interview expressing his views on the matter.

After being awarded damages, Greenwich sought permanent injunctive relief to prevent Latham from republishing the defamatory content or similar imputations. In a considered judgment, Justice O'Callaghan dismissed this application, providing useful guidance on the principles governing permanent injunctions in defamation cases.

The Exceptional Nature of Permanent Injunctions in Defamation

Contrary to common belief, permanent injunctions restraining republication of defamatory content are not granted as a matter of course in Australia. As Justice O'Callaghan noted, "until recently such orders were rarely sought" (Greenwich v Latham (No 2) [2025] FCA 131 at [4]).

The position appears somewhat different in England, where permanent injunctions are described as "the natural remedy that flows from the Court's decision" (citing Lachaux v Independent Print Ltd [2021] EWHC 1797 (QB) at [239] and Blake v Fox [2024] EWHC 956 (KB) at [11]).

When Will Permanent Injunctions Be Granted?

The primary condition for granting a permanent injunction is the existence of a real risk of republication. Justice O'Callaghan cited the longstanding principle from Proctor v Bayley (1889) 42 Ch D 390 at 401: "an injunction is granted for prevention, and where there is no ground for apprehending the repetition of a wrongful act there is no ground for an injunction."

In Australian defamation law, injunctions are typically issued only when "some additional factor is evident – usually, an apprehension that the respondent may, by reason of irrationality, defiance, disrespect of the court's judgment or otherwise, publish allegations similar to those found to be defamatory unless restrained from doing so" (Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127 at 130 [15]).

Risk Assessment Is Multi-Faceted

As explained in Rush v Nationwide News Pty Ltd (No 9) [2019] FCA 1383 at [29], courts must consider:

1. The extent of the risk of republication

2. The seriousness of the defamation

3. The hardship the plaintiff would suffer if the defamation was repeated

4. The burden on the plaintiff if required to commence further proceedings

The court must also consider whether granting a permanent injunction would avoid a multiplicity of proceedings.

The Greenwich v Latham Decision

In Greenwich v Latham (No 2), Justice O'Callaghan was not satisfied that there was a real or appreciable risk that Latham would republish the defamatory imputation. Despite Latham's defiant public statements after the initial publication, the court noted that "the applicant has not pointed to any occurrence after May 2023, or after judgment was handed down on 11 September 2024, which might suggest a threat of republication of the defamatory material" (at [19]).

The court rejected the argument that Latham's constitutional right to freedom of communication about political matters was relevant, finding that the content of the Primary Tweet was "personal and not germane to any matter of politics" (at [22]).

Damages as a Remedy in Defamation

An interesting aspect of the judgment is Justice O'Callaghan's discussion of whether damages would be an "adequate remedy" if republication occurred. The court found this question somewhat inapposite in defamation cases, citing the observations of Windeyer J in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150 that "money and reputation are not commensurables" and damages in defamation serve as "a solatium rather than a monetary recompense for harm measurable in money."

As Hayne J noted in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 349 [66], "damage to reputation is not a commodity having a market value. Reputation and money are in that sense incommensurable."

However, the adequacy of damages may be relevant in some circumstances. In Tavakoli v Imisides (No 4) [2019] NSWSC 717, permanent injunctions were granted partly because the defendant had "no money or assets which the plaintiff [could] obtain in any remedy in damages" (at [57]).

Examples Where Permanent Injunctions Were Granted

By contrast to Greenwich v Latham (No 2), permanent injunctions have been granted in cases where there was clear evidence of intention to republish. In Chau v Australian Broadcasting Corp (No 3) [2021] FCA 44; (2021) 386 ALR 36 at 82 [184], Justice Rares granted a final injunction because "the publishers have made clear, they intend to continue publishing it and so making those imputations that I have found to be false, seriously defamatory and otherwise indefensible."

Similarly, in Lachaux at [238], the court found that "the claimant had successfully established that, unless an injunction were granted, the defendants would continue to publish the defamatory articles."

Practical Implications

The Greenwich v Latham (No 2) decision highlights several practical considerations for defamation litigants:

1. Permanent injunctions are not automatically granted following a successful defamation claim

2. Evidence of a genuine risk of republication is essential

3. Courts will carefully balance free speech considerations against protection of reputation

4. Even without a permanent injunction, defamation plaintiffs retain the right to commence new proceedings if republication occurs

5. Section 23 of the Defamation Act 2005 (NSW) (and equivalent provisions in other jurisdictions) requires leave of the court to commence further proceedings against the same defendant for the same or like matter, but courts are unlikely to refuse leave if republication causes new or additional damage

This decision serves as a reminder that permanent injunctions in defamation cases remain exceptional remedies that will only be granted when specific circumstances warrant such intervention.

Legal Capacity and Guardianship: Understanding the Fundamentals Through Recent Case Law

Introduction: The BIF23 Case

In a significant ruling on legal capacity in December 2024, the High Court of Australia delivered a judgment that sheds light on how mental capacity intersects with legal processes.

In BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 44, the Court considered whether a notice given to a person lacking mental capacity was legally effective.

The case involved a Cambodian citizen (BIF23) who had lived in Australia since the age of 12. In 2021, BIF23 was convicted of various offences including theft and affray, and was sentenced to 18 months imprisonment. Due to these convictions, his visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth).

On December 1, 2021, while receiving psychiatric care in prison, BIF23 was given notice of the visa cancellation and invited to make representations about revocation within 28 days. Critically, evidence showed that BIF23 suffered from schizoaffective disorder with "grandiose delusions, disorganisation, visual hallucinations and absent insight." On January 11, 2022 (after the 28-day period had expired), the Victorian Civil and Administrative Tribunal appointed the Public Advocate as BIF23's guardian.

The High Court found that BIF23's mental incapacity at the time of notification vitiated the Minister's notice, rendering it legally ineffective.

Understanding Legal Capacity

Legal capacity is a foundational concept in our legal system and refers to a person's ability to make legally effective decisions or take legally effective actions. As the High Court noted in BIF23, it is "a fundamental principle that, in order for a person to do a legally effective act, they must have the necessary legal capacity to do so" (citing Masterman-Lister v Brutton & Co [Nos 1 and 2] [2003] 1 WLR 1511).

Legal capacity is not a one-size-fits-all concept. As Lord Reid stated in Crowther v Crowther [1951] AC 723, "there are many degrees of mental incapacity." A person may have capacity to make some decisions but not others. The assessment of capacity is decision-specific and depends on the nature and complexity of the particular decision at hand.

This was elegantly expressed by Dixon CJ, Kitto and Taylor JJ in Gibbons v Wright (1954) 91 CLR 423, where they stated that "[t]he law does not prescribe any fixed standard of sanity... [but] requires, in relation to each particular matter... that each party shall have such soundness of mind as to be capable of understanding the general nature of what [they are] doing."

The Distinction Between Mental and Legal Capacity

It's important to understand that not every psychiatric or cognitive impairment will amount to a lack of legal capacity. In BIF23, the High Court clarified that whether a "mental incapacity" constitutes a relevant "legal incapacity" must be understood by reference to context.

In the context of the mandatory visa cancellation scheme, the Court found that a relevant mental incapacity is one where the person cannot:

1. Understand the nature of the notice and invitation to make representations

2. Make representations in response to the invitation

3. Understand the substantial effect of the notice and invitation on them

This lack of capacity must also be "insuperable" - that is, not capable of being overcome by assistance from interpreters, lawyers, or other advisers.

Presumption of Capacity and Burden of Proof

Our legal system presumes that adults have the capacity to make their own decisions. The burden of proving otherwise rests with those asserting incapacity, as established in numerous cases including Masterman-Lister v Brutton & Co [Nos 1 and 2] [2003] 1 WLR 1511 and Murphy v Doman (2003) 58 NSWLR 51.

In BIF23, the Court had to assess whether the evidence was sufficient to rebut this presumption. The evidence included psychiatric assessments showing that BIF23's delusions "significantly impact[ed] on [the] weighing of information as part of [his] decision-making process."

The Role of Guardianship

When a person lacks capacity to make certain decisions, guardianship may be necessary. Guardianship has its roots in the parens patriae jurisdiction, where the sovereign (now represented by the courts) has a duty to protect those who cannot protect themselves.

As Justice Edelman noted in Perpetual Trustee Co Ltd v Cheyne (2011) 42 WAR 209, this prerogative "was virtually unlimited" and "based on the care that the King has for those who cannot take care of themselves."

Modern guardianship legislation provides a structured framework for this protection. For example, the Guardianship and Administration Act 2019 (Vic) defines "decision-making capacity" as the ability to:

• Understand relevant information and the effect of a decision

• Retain that information

• Use or weigh the information as part of making the decision

• Communicate the decision

Implications

The BIF23 decision has several important implications:

1. Assessment of capacity: When dealing with clients who may have impaired decision-making capacity, lawyers must carefully assess whether the client can understand the nature and effect of the legal matter at hand.

2. Authority to act: As the Court observed, a "lawyer's authority can only ever occupy that range which is marked out by the client's mental capacity" (Goddard Elliott v Fritsch [2012] VSC 87). If a client lacks capacity to instruct, the lawyer cannot act on their purported instructions.

3. Timing of capacity: In BIF23, the Court emphasized that capacity is assessed at the time a person is required to make a decision. A person's capacity may fluctuate over time, and the validity of legal actions must be assessed in light of their capacity at the relevant moment.

4. Context-specific assessment: The assessment of capacity must be contextualized to the specific decision at hand. As Holland J observed in Crago v McIntyre [1976] 1 NSWLR 729, "for the purposes of considering legal capacity, a person's mind is not one and indivisible."

Judicial vs Administrative Decisions: The Unique Nature of Guardianship Powers

Understanding the Distinction Through Case Law

In July 2019, the Supreme Court of Western Australia delivered an important decision in GS v MS [2019] WASC 255 that dealt with the fundamental nature of guardianship and administration powers.

The case involved MS, who lived in New South Wales, applying to the State Administrative Tribunal (SAT) for guardianship and administration orders over his mother, GS, who lived in Western Australia.

Following the High Court's decision in Burns v Corbett [2018] HCA 15, which ruled that state tribunals cannot exercise jurisdiction in matters "between residents of different States," a constitutional question arose: Did the SAT have jurisdiction to hear these applications?

Chief Justice Quinlan's reasoning provides insights into the distinction between judicial and administrative powers, particularly in the guardianship context.

The Fundamental Distinction: Judicial vs Administrative Decisions

At its core, the distinction between judicial and administrative decisions reflects fundamentally different purposes and processes.

While both involve applying rules to facts, they operate with different objectives and characteristics:

Judicial powers typically:

• Resolve existing disputes about legal rights and obligations

• Determine what rights and obligations currently are

• Apply the law to past events

• Create binding determinations that settle controversies between parties

• Often involve adversarial proceedings

Administrative powers typically:

• Create new rights and obligations for the future

• Determine what rights and obligations should be

• Are protective or regulatory in nature

• Often pursue policy objectives rather than strictly applying existing law

• May be more inquisitorial than adversarial

As Chief Justice Quinlan observed in GS v MS, "judicial power is generally concerned with the ascertainment and enforcement of existing rights and obligations; it involves the determination of what the relevant person's rights or obligations are, not what they should be."

What Makes a Decision "Judicial" in Nature?

Identifying judicial power has challenged courts for generations. In GS v MS, Chief Justice Quinlan cited Justice Kitto's useful formulation from R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8:

"A judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons."

Judicial power generally involves determining existing rights and obligations through the application of law to facts. The closer a power is to this core concept, the more likely it is to be classified as judicial.

In contrast, as the High Court noted in Precision Data Holdings Ltd v Wills [1991] HCA 58: "If the object of the adjudication is not to resolve a dispute about the existing rights and obligations of the parties by determining what those rights and obligations are but to determine what legal rights and obligations should be created, then the function stands outside the realm of judicial power."

The Historical Perspective on Guardianship Powers

Guardianship powers have a unique historical origin that helps explain their administrative nature. As described in GS v MS, the jurisdiction of English courts over both infants and "lunatics" originated not from ordinary judicial power but from the delegation of Royal prerogatives.

In Scott v Scott [1913] AC 417, Viscount Haldane LC observed that in cases of "wards of Court and lunatics," the court's jurisdiction was "parental and administrative." The judge was "administering their affairs, in the exercise of what has been called a paternal jurisdiction delegated to him from the Crown through the Lord Chancellor."

This history reveals that guardianship powers were never conceived as strictly judicial in nature but rather as protective and administrative powers that happened to be exercised by courts.

Why Guardianship and Administration Orders Are Administrative in Nature

Chief Justice Quinlan identified several key reasons why guardianship and administration powers are administrative rather than judicial:

1. Future-oriented: Guardianship orders are not concerned with determining existing rights but with creating new arrangements for future decision-making.

2. Protective function: The proceedings are fundamentally protective in nature, aimed at safeguarding vulnerable individuals rather than resolving disputes.

3. Not inter partes: Although proceedings may be contested, they are not essentially about resolving disputes between parties. As Chief Justice Quinlan noted, "The Tribunal, in hearing a guardianship order or an administration order, does not decide a dispute between the parties; it applies its statutory obligation to act in 'the best interests of [the] person in respect of whom an application is made'."

4. Creation of new rights: The appointment of a guardian creates new legal rights and obligations rather than determining existing ones.

5. Welfare-oriented: The focus is on the person's welfare and best interests, not on competing legal claims.

In PJB v Melbourne Health [2011] VSC 327 (also known as Patrick's Case), Justice Bell similarly concluded that "the functions of the tribunal under the Guardianship and Administration Act to appoint guardians and administrators are administrative in the public law sense."

Implications for Guardianship Practice

The classification of guardianship powers as administrative rather than judicial has significant practical implications:

1. It influences which bodies can exercise these powers. The decision in GS v MS means the SAT can make guardianship and administration orders regardless of where the parties reside, as the constitutional limitation in Burns v Corbett only applies to judicial powers.

2. It shapes the procedures that should be followed. Administrative proceedings can be more flexible, inquisitorial, and welfare-focused than strictly judicial ones.

3. It reinforces the focus on best interests rather than adversarial dispute resolution. Guardianship proceedings should prioritize the welfare of the person rather than treating them as contests between competing parties.

4. It highlights the need for specialized expertise in decision-making bodies beyond strict legal knowledge. Administrative tribunals can incorporate diverse expertise relevant to the welfare of vulnerable persons.

Conclusion

The distinction between judicial and administrative powers may seem technical, but it reflects fundamentally different approaches to decision-making. Guardianship and administration powers, given their protective and future-oriented nature, properly fall within the administrative realm.

As Chief Justice Quinlan concluded in GS v MS [2019] WASC 255, these powers "are not at the core of judicial power." Instead, they represent a unique type of protective jurisdiction with origins in the parens patriae power of the Crown - a power concerned not with settling disputes but with protecting those unable to protect themselves.

Understanding this distinction helps everyone approach guardianship matters with the appropriate focus on welfare and best interests, rather than treating them as conventional legal disputes.

It also ensures these protective mechanisms remain accessible and effective for those who need them most.

Retrospective capacity assessment

Introduction

Retrospective capacity assessment is a process where geriatricians or psychiatrists (often with forensic expertise) evaluate whether an individual had cognitive capacity at a specific point in the past. This is commonly done in legal disputes – for example, to determine if a person with suspected Alzheimer’s disease had the capacity to sign a will or execute a contract years ago. Such assessments are necessary because Alzheimer’s disease is progressive, and capacity may diminish over time. Since the person’s mental state at the past date can no longer be directly examined, experts must reconstruct it using all available evidence (Testamentary capacity | BJPsych Advances | Cambridge Core) (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity). The goal is to provide the court with a professional opinion, grounded in clinical data and observations, about whether the legal criteria for capacity were met at that time.

Methodologies for Retrospective Capacity Assessment

Clinical and Forensic Approach: Retrospective assessments rely on a “neuropsychological autopsy” approach (Neuropsychological autopsy of testamentary capacity) – essentially a posthumous or after-the-fact evaluation of the person’s mental state. The expert (e.g. a forensic psychiatrist or a geriatrician experienced in cognitive disorders) does not have the benefit of interviewing or examining the person at the relevant time, so they act as a detective piecing together information (Testamentary capacity | BJPsych Advances | Cambridge Core). They gather a bundle of evidence from the period in question and often create a detailed timeline of the individual’s health and behavior around the time of the decision in question (Testamentary capacity | BJPsych Advances | Cambridge Core) (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey). This includes identifying any diagnosed conditions (like dementia) or events (e.g. episodes of delirium or strokes) that could affect cognition. The expert then analyzes this evidence in light of clinical knowledge (e.g. the typical course of Alzheimer’s disease) and the legal standards for capacity. Finally, they form an opinion on whether it is more likely than not (“balance of probabilities”) that the person had or lacked capacity at that point (Testamentary capacity | BJPsych Advances | Cambridge Core). Throughout, a forensic methodology is applied – meaning the expert remains objective, uses established guidelines for evaluations, and understands their duty is to assist the court rather than advocate for either side (Testamentary capacity | BJPsych Advances | Cambridge Core) (Testamentary capacity | BJPsych Advances | Cambridge Core).

Sources of Evidence: In a retrospective capacity evaluation, experts draw on many sources to reconstruct past cognitive status (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity) (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey):

• Medical records: General practice (GP) notes, specialist consultations (e.g. neurology, psychiatry, geriatrics), hospital records, and memory clinic files around the time in question (Testamentary capacity | BJPsych Advances | Cambridge Core). These may contain diagnoses (like Alzheimer’s), cognitive test scores, medication history, and physicians’ observations.

• Care records: If the person was in a nursing home or received in-home care, care notes and assessments (for example, any mental capacity assessments done upon care home admission) are reviewed (Testamentary capacity | BJPsych Advances | Cambridge Core) (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey). Social services records or in-home caregiver logs can also provide insight into daily functioning.

• Collateral interviews and testimonies: Statements from family members, friends, neighbors, or caregivers who interacted with the person during that period are considered (Testamentary capacity | BJPsych Advances | Cambridge Core) (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey). These lay witnesses can describe the person’s memory, behavior, and ability to handle tasks at that time. Sometimes even video recordings of the individual (if available) are reviewed to observe their demeanor and cognition (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey).

• Legal and personal documents: The expert will examine documents related to the transaction in question – for example, the will file and the solicitor’s (attorney’s) notes taken when the will was made (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey). Prior wills can be relevant to see any sudden or unusual changes in wishes. Personal correspondence (letters, emails) or notes written by the person around that time might also shed light on their mental clarity.

• Objective tests and data: Any cognitive testing results (e.g. Mini-Mental State Exam scores, neuropsychological testing) performed near that time are invaluable. Laboratory results or brain imaging can be relevant (for instance, ruling out other causes of confusion). Even medications and their dosages are reviewed – an expert will check what drugs the person was taking (e.g. cognitive enhancers or medicines with sedating side effects) to understand their potential impact on cognition (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey). Forensically, details like a sudden change in medication or an acute illness (delirium) at the critical time are carefully noted.

Using these sources, the clinician constructs a narrative of the person’s cognitive state at the time of the transaction. For example, they might note the progression of Alzheimer’s disease by collating reports of memory decline, functional impairment in managing finances, or disorientation in conversations leading up to that date. They then assess this against the legal criteria for capacity (discussed below) to form an opinion. Throughout the process, best practices and any available guidelines are followed to ensure the assessment is systematic and unbiased (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity).

Role of Medical Records in Retrospective Assessment

Contemporaneous medical records are often the cornerstone of a retrospective capacity evaluation. Doctors’ notes made at or around the time in question provide objective, unbiased evidence of the individual’s health and mental status. For instance, a general practitioner’s (GP) records might show that the patient was reporting memory problems, was referred to a memory clinic, or even received a diagnosis of dementia prior to the transaction. Such entries carry significant weight because they were recorded without hindsight and as part of routine care (Testamentary capacity | BJPsych Advances | Cambridge Core).

Medical records can include: diagnoses (e.g. “probable Alzheimer’s disease” noted by a neurologist), cognitive screening scores (perhaps an MMSE or MOCA result with date), and observations of mental state (“patient appeared confused” or “short-term memory poor on exam”). If a memory clinic or specialist saw the person, their assessment letters are crucial – they might detail the level of dementia (mild, moderate, severe) and functional impairments at that time. For example, if a specialist noted in 2015 that the patient had moderate Alzheimer’s with impaired judgment, an expert in 2025 can use that to infer the person’s decision-making capacity in 2015 was likely compromised.

Because of their importance, experts will often comb through years of medical files. As one article notes, GP and secondary care records around the time of the will (or transaction) “can be very helpful” and may amount to thousands of pages (Testamentary capacity | BJPsych Advances | Cambridge Core). Every relevant entry is extracted to build the timeline. In addition to narrative notes, medical data such as lab tests or imaging might be considered – for example, a brain MRI showing significant atrophy (shrinkage) could support the presence of advanced Alzheimer’s at that time. Likewise, medication history is reviewed: if the person had been prescribed cholinesterase inhibitors (like donepezil) or memantine, it indicates a diagnosis of Alzheimer’s disease was made, whereas records of antipsychotic use might hint at behavioral symptoms of dementia or another psychiatric issue.

Medical records are generally given substantial weight in legal proceedings because they are contemporaneous and created by professionals without stake in the legal outcome. A well-documented history of progressive cognitive decline in the charts can strongly support a retrospective diagnosis of Alzheimer’s and resultant lack of capacity. However, the expert must also be cautious: not every note explicitly mentions capacity, and absence of a dementia diagnosis in the records doesn’t always mean the person was cognitively normal (sometimes dementia was present but undocumented). Therefore, experts read “between the lines,” looking for subtle clues (e.g. repeated appointments for forgetfulness, or notes about a family member increasingly managing the patient’s affairs) that suggest cognitive impairment even if Alzheimer’s wasn’t formally diagnosed yet (Testamentary capacity | BJPsych Advances | Cambridge Core). All this medical evidence is synthesized in the expert’s report to conclude, for example, that “on the balance of probabilities, Mr. X was already exhibiting moderate Alzheimer’s disease by mid-2018, which would have impaired his ability to understand and appreciate the transaction in question.”

Weight of Lay Evidence (Family and Caregiver Testimony)

Lay evidence – testimonies and observations from those who knew the person – also plays a role in retrospective assessments. Family members, friends, neighbors, and paid caregivers can often describe the person’s day-to-day functioning around the time in question. For instance, family might recall that “Dad was repeating questions and getting lost driving in 2015” or a caregiver might note that “Mrs. Y needed help managing her finances and often forgot what day it was.” Such firsthand accounts help paint a fuller picture of the individual’s mental capacity in real-world settings, beyond what is written in medical charts.

Experts conducting the retrospective evaluation will typically review witness statements or even conduct interviews to hear these accounts. Consistent reports from multiple sources can corroborate that the person was showing signs of Alzheimer’s (memory loss, confusion, poor judgment) at that time. Lay evidence can be especially useful to fill gaps; for example, if the person had not seen a doctor for a while, the family’s observations might be the only evidence of cognitive decline during that period. Courts do take these narratives into consideration, especially if they are detailed and come from disinterested witnesses (people with no stake in the legal outcome).

That said, lay testimony is generally given less weight than contemporaneous medical evidence (Testamentary capacity | BJPsych Advances | Cambridge Core). There are a few reasons for this. First, memories are fallible – by the time of a court case, relatives might be recalling events years later, and their recollections may be unintentionally distorted. Second, in legal disputes (like will contests), family members often have a vested interest in the outcome, which can consciously or unconsciously bias their testimony. One guide cautions that witness statements “are often less useful and may be subject to bias if prepared on the instructions of one side or the other” (Testamentary capacity | BJPsych Advances | Cambridge Core). In other words, each side in litigation might present a different story of the person’s capacity, colored by their interests.

Due to these concerns, forensic experts treat lay evidence with caution. They will look for consistency: do the caregiver’s notes, the neighbor’s observations, and the daughter’s testimony all align with the medical evidence? If, for example, multiple people describe the individual at the time as having severe memory lapses and inability to recognize relatives, and medical records also show an Alzheimer’s diagnosis, the expert can be more confident in concluding the person lacked capacity. On the other hand, if the only evidence of incapacity is a few family members saying “he seemed off,” but doctors at the time noted intact cognition, the expert (and ultimately the court) may put less stock in the lay statements.

In sum, lay evidence provides context and often vivid examples of the person’s mental functioning, but it is typically weighed alongside and checked against the more objective medical documentation. Strong lay testimony can reinforce a case of lack of capacity (or capacity), but by itself it rarely determines the outcome unless unopposed by other evidence. The court will evaluate the credibility of each witness and how their accounts fit with the clinical picture. Experts will usually comment on the lay observations in their report, noting whether those observations are consistent with the expected effects of Alzheimer’s at that stage. For example, an expert might write that a son’s description of his mother forgetting her own birthday and getting lost in her own home is consistent with moderately advanced Alzheimer’s disease and supports the conclusion that she was not mentally competent to sign legal documents at that time.

Frameworks and Guidelines for Retrospective Evaluation

When conducting a retrospective assessment, experts use established legal criteria for capacity as the framework for their opinion, and they adhere to professional guidelines to ensure a thorough, unbiased approach. The exact criteria for “capacity” depend on the type of decision in question (e.g. making a will, entering a contract, medical consent), but generally these criteria are well-defined in law and guide the evaluation.

For example, the classic legal test for testamentary capacity (capacity to make a will) comes from the case Banks v. Goodfellow (1870). In plain terms, it requires that at the time of making the will, the person: (1) understood the nature and effect of making a will, (2) knew the general extent of their property, (3) could comprehend and appreciate the claims of potential beneficiaries (i.e. who might expect to inherit), and (4) was not suffering from any mental disorder or delusion that distorted their thinking in making the bequests (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey) (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey). An expert assessing a past will-signing will explicitly evaluate whether the person, given their Alzheimer’s disease, likely met these elements. For instance, if due to dementia the person forgot about an entire bank account or a close family member, that would indicate they failed the second or third prong of Banks v Goodfellow. Similarly, other types of capacity (like capacity to enter a contract or to give informed consent) have their own legal tests, often boiling down to the person’s ability to understand, retain, use/weigh information, and communicate a decision (as in the Mental Capacity Act 2005 in England, or similar standards elsewhere).

Professional Guidelines: Forensic and clinical bodies have developed guidance for how to perform these evaluations. In forensic psychiatry, experts are expected to follow the rules of expert evidence in their jurisdiction – for example, in the UK they must follow Civil Procedure Rules for expert witnesses, and in the US an equivalent duty to the court. This means the expert must be impartial, base conclusions on facts and sound reasoning, and disclose any limitations. Courts will only accept retrospective evaluations that are prepared in line with these rules (Testamentary capacity | BJPsych Advances | Cambridge Core). Experts are often encouraged to get specialized training in conducting such assessments because of their complexity (Testamentary capacity | BJPsych Advances | Cambridge Core).

Additionally, over the years clinicians have proposed more specific frameworks to guide retrospective capacity assessments. For instance, researchers have published comprehensive guidelines to improve the validity of retrospective testamentary capacity opinions (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity). One example is the concept of a “neuropsychological autopsy,” which provides a structured method to posthumously evaluate cognition and decision-making capacity (Neuropsychological autopsy of testamentary capacity). This approach, described by Zago and Bolognini (2020), includes systematically reviewing medical and psychosocial history, and even novel techniques like analyzing handwriting samples over time for signs of cognitive decline ( Testamentary capacity assessment in dementia using artificial intelligence: prospects and challenges - PMC ). Another example: Shulman et al. (2021) have outlined best practices gleaned from experience with will contests, emphasizing thorough documentation review, collateral interviews, and use of standardized criteria in forming an opinion (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity) (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity).

In practice, an expert will often structure their report by first stating the legal standard (e.g. the Banks v Goodfellow criteria or the relevant mental capacity statute) and then discussing the evidence in relation to each element. For instance, “Criterion 1: Understanding the nature of a will – Discussion: At the time, Mr. Doe had a diagnosis of Alzheimer’s and doctors noted confusion about his finances; however, the solicitor’s notes indicate he did articulate what a will means. My opinion is that he did understand the nature of making a will.” The expert will go through each capacity component like this. They will also cite any clinical guidelines they followed. For example, they might mention using the American Bar Association/American Psychological Association handbook for assessing older adults’ capacities as a reference, or adhering to the American Academy of Psychiatry and Law’s guideline on forensic evaluation. All of this demonstrates to the court that a systematic, accepted approach was used, lending credibility to the retrospective opinion.

It’s important to note that retrospective assessments are recognized as inherently more challenging and potentially less accurate than contemporaneous evaluations. Guidelines often stress that whenever possible, capacity should be assessed at the time of the decision, because retrospective opinions have to overcome gaps in evidence and fading memories (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity). Indeed, one article observes that while comprehensive retrospective guidelines exist, it is “more reliable and valid” to measure capacity contemporaneously than retrospectively (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity). This is why lawyers sometimes invoke the “Golden Rule” in estate planning (having an older or ill client assessed by a doctor at the time of making a will to create a record of capacity) – such contemporaneous evidence can carry more weight later. Nonetheless, when a retrospective assessment is unavoidable, following a standard framework ensures the expert’s analysis is as rigorous as possible. By using these frameworks and clearly tying their findings to the legal criteria, the expert provides a structured, easy-to-follow opinion for the court.

Case Examples of Retrospective Assessment

Example 1 – Indications of Incapacity: Retrospective evaluations can sometimes clearly reveal that a person lacked capacity due to Alzheimer’s disease. For instance, consider a scenario described in the literature: a testator rewrote his will to exclude his daughter, justifying the disinheritance by claiming he “had not seen her for years.” However, the factual evidence showed that the daughter had frequent contact and was actively supporting him (Testamentary capacity | BJPsych Advances | Cambridge Core). Such a discrepancy between the testator’s stated belief and reality strongly suggested a cognitive impairment. In a retrospective analysis, a psychiatrist noted that the father’s memory and perception were so distorted by dementia that he failed to recognize his daughter’s ongoing presence in his life – a sign that he likely did not comprehend who his natural beneficiaries were. This formed part of the expert’s opinion that the testator lacked testamentary capacity when making that will (Testamentary capacity | BJPsych Advances | Cambridge Core). In court, this kind of retrospective expert evidence, combined with family testimony about the father’s forgetfulness, led to the will being deemed invalid. It shows how an expert can use both medical facts (e.g. diagnosis of Alzheimer’s, known to cause memory delusions) and lay evidence to conclude that the legal criteria for capacity were not met.

Example 2 – Capacity Despite Alzheimer’s: Not every case of Alzheimer’s means incapacity, and retrospective assessments may sometimes support that a person did have capacity at the relevant time. A case example in a psychiatric report involved a 93-year-old woman with a formal diagnosis of mixed Alzheimer’s and vascular dementia (Testamentary capacity | BJPsych Advances | Cambridge Core). She changed her will in 2019 to favor one child who had been caring for her. After her death, her other child challenged the will, alleging she lacked capacity. The retrospective assessment had a lot of evidence to consider: doctors had diagnosed her dementia in 2016 and she was being followed by a memory clinic; a few months after making the new will, her cognitive test score was quite low (Addenbrooke’s Cognitive Examination score of 68/100, indicating moderately severe impairment) (Testamentary capacity | BJPsych Advances | Cambridge Core). On the other hand, the lawyer who drafted the will wrote contemporaneous notes stating he had no concerns about her understanding or decision-making at the time (Testamentary capacity | BJPsych Advances | Cambridge Core). The expert reviewing the case weighed these facts and ultimately opined that, on the balance of probabilities, the woman did have capacity when signing the 2019 will (Testamentary capacity | BJPsych Advances | Cambridge Core). The reasoning was that despite her dementia, she still understood the consequences of making the will, grasped the extent of her estate, and knew she had two children (and consciously decided to benefit the one who lived with her) (Testamentary capacity | BJPsych Advances | Cambridge Core). There was no evidence of delusions influencing her choice. Essentially, the retrospective opinion was that her Alzheimer’s disease had not yet robbed her of the specific understanding and judgment needed for the will. The court, persuaded by this well-substantiated expert report and the solicitor’s testimony, upheld the will. This example illustrates that a nuanced retrospective evaluation can distinguish between having a diagnosis of Alzheimer’s and actually lacking legal capacity – they are not automatically the same, especially in early or moderate stages of the disease (Testamentary capacity | BJPsych Advances | Cambridge Core) (Testamentary capacity | BJPsych Advances | Cambridge Core).

Example 3 – Divergence Between Expert Opinion and Outcome: It’s worth noting that while courts highly value expert retrospective assessments, they are one piece of the puzzle. In some cases, a court may reach a conclusion that differs from the expert’s opinion when other evidence weighs heavily. For example, in Hughes v. Pritchard (2021), an elderly testator’s will was challenged. A contemporaneous medical capacity assessment (following the so-called Golden Rule) had found him capable at the time the will was made, and later on in the lawsuit a jointly-appointed expert psychiatrist also concluded that the testator had testamentary capacity. One might expect these medical opinions to settle the issue. However, the High Court examined all the circumstances – the testator had recently suffered a bereavement and made an abrupt, significant change to his will – and ultimately held the will invalid for lack of capacity despite the medical evidence (How important is an expert’s opinion when seeking to establish testamentary capacity? - Birketts). The judge in that case found that the testator’s grief and cognitive state actually impaired his decision-making more than the experts believed. This demonstrates that retrospective assessments, while critically important, do not guarantee the legal outcome. The court must weigh the expert’s report alongside lay evidence, the credibility of witnesses, and its own application of the legal test. In most instances, a well-founded retrospective evaluation is highly influential, but the final determination of past capacity rests with the judge or jury.

Conclusion

Retrospective capacity assessments are complex endeavors at the intersection of medicine and law. Geriatricians and psychiatrists use clinical and forensic methodologies to retrospectively diagnose conditions like Alzheimer’s disease and evaluate decision-making capacity at a specific point in time. They meticulously review medical records for contemporaneous evidence of cognitive decline, consider lay observations from family and caregivers, and apply standard legal criteria and professional guidelines to ensure a structured and impartial analysis (Testamentary capacity | BJPsych Advances | Cambridge Core) (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity). Each element – clinical data, eyewitness accounts, and established frameworks – contributes pieces to the puzzle of whether the person, more likely than not, understood and appreciated their actions back then. These expert retrospective opinions often carry significant weight in legal proceedings, helping the court reach a just determination about past transactions. Ultimately, by integrating medical science (e.g. the effects of Alzheimer’s on the brain) with legal standards of capacity, such assessments enable fact-finders to make informed decisions about the validity of wills, contracts, or other decisions made by individuals who may have been impaired. The process is rigorous and evidence-driven: medical records provide objective benchmarks, lay testimony adds context, and guidelines keep the evaluation consistent and reliable. In the end, while the court has the final say on a person’s past capacity, it is this careful assembly of clinical and collateral evidence – guided by established methods – that forms the backbone of determining whether Alzheimer’s disease had undermined an individual’s capacity at the relevant moment in time.

Sources:

• Hackett M. et al., BJPsych Advances: Discussion on conducting retrospective testamentary capacity assessments and weighing evidence (Testamentary capacity | BJPsych Advances | Cambridge Core) (Testamentary capacity | BJPsych Advances | Cambridge Core).

• Shulman K. et al., 2021: Emphasis on reviewing records, tests, and testimonies for retrospective capacity, noting guidelines for improving validity (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity) (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity).

• Foot Anstey (law firm) – Using medical experts in testamentary claims: Outline of what documents and information a retrospective capacity assessor examines (medical records, witness statements, prior wills, etc.) (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey) (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey).

• Hackett M. et al., BJPsych Advances (case vignette): Example of a retrospective report in moderate dementia, showing analysis that even with Alzheimer’s, capacity might be intact for specific decisions (Testamentary capacity | BJPsych Advances | Cambridge Core) (Testamentary capacity | BJPsych Advances | Cambridge Core).

• Birketts LLP – Expert’s opinion and testamentary capacity: Noted that courts consider expert evidence but will make an independent judgment (e.g. Hughes v Pritchard case) (How important is an expert’s opinion when seeking to establish testamentary capacity? - Birketts).

Understanding Refundable Accommodation Deposits in Aged Care: Centrelink Implications and Protected Person Considerations

As Australia’s population ages, navigating the financial and legal complexities of residential aged care has become increasingly critical.

For families in Western Australia, understanding refundable accommodation deposits (RADs), their interplay with Centrelink assessments, and the role of protected persons is essential for making informed decisions.

This article synthesizes legislative frameworks, financial strategies, and guardianship considerations to provide clarity on these interconnected topics.

Refundable Accommodation Deposits: An Overview

Refundable Accommodation Deposits (RADs) are lump-sum payments made to aged care providers to secure accommodation for residents.

Under the Aged Care Act 1997, these deposits must be refunded in full (minus agreed deductions) within 14 days of a resident’s departure or death[1][11].

Residents may also opt for daily accommodation payments (DAPs), which represent interest on the unpaid RAD, calculated using the Maximum Permissible Interest Rate (MPIR)[7].

The choice between RAD and DAP hinges on factors like liquidity, estate planning, and means-testing outcomes[2][13].

Providers may use RADs for capital expenditures, such as constructing new facilities, but not for operational costs like staff wages[6].

This distinction ensures RADs remain protected assets, though their strategic use can influence aged care fees and pension entitlements.

Centrelink Treatment of RADs: Exemptions and Means Testing

Age Pension Assessments

For Centrelink’s Age Pension purposes, RADs are exempt from the assets test.

This exemption allows pensioners to retain higher Age Pension entitlements despite holding substantial lump sums[4][13].

For example, a resident paying a $500,000 RAD would not have this amount counted toward their asset threshold, potentially preserving their full pension[2].

Aged Care Means-Tested Care Fees

Contrastingly, RADs are included in the aged care means test, directly affecting the daily means-tested care fee (MTCF).

The MTCF calculation blends income and asset assessments, with RADs contributing to the latter[4][9].

A higher RAD increases the assets-tested component, potentially raising MTCF liabilities.

This dual treatment underscores the need for financial advice before committing to a RAD[9][13].

The Role of Protected Persons in Aged Care Planning

A “protected person” is an individual whose continued residence in the family home exempts the property from aged care means testing.

Under the Aged Care Act, protected persons include:

1. Partners - residing in the home.

2. Dependent children - under 18 or full-time students under 25.

3. Carers who have lived in the home for ≥2 years and receive income support.

4. Close relatives eligible for income support who have resided in the home for ≥5 years[5][10].

Impact on Aged Care Fees

If a protected person remains in the home, its value is disregarded in the aged care assets test, reducing MTCF obligations. For instance, a home valued at $800,000 with a protected occupant would not inflate the resident’s assessable assets[5][10]. However, Centrelink treats the home differently: after two years in care, the property is assessed unless a protected person (e.g., a spouse) remains[5][13].

Case Study: Balancing RAD Payments and Protected Person Status

Consider Mary, a single aged pensioner with a $800,000 home and $30,000 savings. Upon entering care, she opts for a $500,000 RAD.

- Centrelink Impact: Her RAD is exempt, preserving her Age Pension.

- Aged Care Impact: The RAD increases her assets-tested MTCF.

- Protected Person Scenario: If Mary’s brother (a carer receiving JobSeeker) remains in the home, the property is exempt from aged care assessments, lowering her MTCF[5][10].

Without a protected person, selling the home after two years would trigger Centrelink’s asset test, disqualifying her pension until the RAD is paid[10][13].

Sources

[1] Aged care home accommodation refunds https://www.myagedcare.gov.au/aged-care-home-accommodation-refunds

[2] Paying a parent's aged care accommodation costs | BT Professional https://www.bt.com.au/professional/knowledge-centre/client-strategies/retirement-strategies/paying-for-a-parents-aged-care.html

[3] Adult Guardianship (WA) - Court Lawyers https://www.gotocourt.com.au/civil-law/wa/adult-guardianship/

[4] Refundable Accommodation Deposit Assets Test Explained https://www.corevalue.com.au/refundable-accommodation-deposit-assets-test/

[5] What Is a Protected Person For Aged Care & Who Qualifies? https://www.corevalue.com.au/protected-person-aged-care/

[6] Permitted use of refundable deposits | Aged Care Quality and Safety ... https://www.agedcarequality.gov.au/providers/financial-prudential-standards/permitted-use-refundable-deposits

[7] RAD and DAP Frequently asked questions - Simply Retirement https://simplyretirement.com.au/aged-care-accommodation-payments-faqs

[8] Enduring Power of Guardianship - Government of Western Australia https://www.wa.gov.au/organisation/department-of-justice/office-of-the-public-advocate/enduring-power-of-guardianship

[9] Means assessment for residential aged care https://www.health.gov.au/our-work/residential-aged-care/charging/means-assessment

[10] Protected Person Status - General - Aged Care 101 https://forum.agedcare101.com.au/t/protected-person-status/773

[11] Refunding lump sums in residential aged care https://www.health.gov.au/our-work/residential-aged-care/charging/refunds

[12] Appoint a guardian or administrator https://www.sat.justice.wa.gov.au/A/appoint_a_guardian_or_administrator.aspx

[13] Aged Care Tips and Strategies - Financial Decisions https://financialdecisions.com.au/aged-care-tips-and-strategies/

[14] [PDF] Guardianship - Legal Aid WA https://www.legalaid.wa.gov.au/sites/default/files/inline-files/Video-Fact-Sheet-Guardianship.pdf

[15] FIS aged care refundable accommodation deposits (RADs) video https://www.servicesaustralia.gov.au/fis-aged-care-refundable-accommodation-deposits-rads-video?context=21836

[16] What is a Refundable Accommodation Deposit (RAD)? https://agedcaredecisions.com.au/what-is-a-rad/

[17] [DOC] video-transcript-refundable-accommodation-deposits.docx http://www.servicesaustralia.gov.au/sites/default/files/video-transcript-refundable-accommodation-deposits.docx

[18] Guardianship and administration | Legal Aid WA https://www.legalaid.wa.gov.au/find-legal-answers/managing-your-affairs/guardianship-and-administration

[19] Refundable accommodation deposits (RADs) - IHACPA https://www.ihacpa.gov.au/aged-care/refundable-accommodation-deposits-rads

[20] [PDF] Guardianship and Administration Act 1990 https://www.legislation.wa.gov.au/legislation/statutes.nsf/RedirectURL?OpenAgent&query=mrdoc_44836.pdf

[21] Refunding refundable deposits | Aged Care Quality and Safety ... https://www.agedcarequality.gov.au/resource-library/refunding-refundable-deposits

[22] Guardianship: OPA information - Government of Western Australia https://www.wa.gov.au/organisation/department-of-justice/office-of-the-public-advocate/guardianship-opa-information

[23] West Perth Accommodation Payments - Rosewood aged care https://rosewoodcare.org.au/aged-care-facilities/west-perth/accommodation-payments/

[24] [PDF] Guardianship and Administration Act 1990 https://www.legislation.wa.gov.au/legislation/prod/filestore.nsf/FileURL/mrdoc_28305.pdf/$FILE/Guardianship%20and%20Administration%20Act%201990%20-%20%5B05-j0-02%5D.pdf?OpenElement

[25] Understanding aged care home accommodation costs https://www.myagedcare.gov.au/understanding-aged-care-home-accommodation-costs

[26] CAP-02 Incapable Persons - Landgate https://www.landgate.wa.gov.au/land-and-property/land-transactions-hub/land-transaction-policy-and-procedure-guides/land-titles/proprietor/cap-02-incapable-persons/

[27] Aged care carer or close relative assessment - Services Australia https://www.servicesaustralia.gov.au/aged-care-carer-or-close-relative-assessment-for-aged-cost-care?context=23296

[28] Understanding Aged Care Costs: Unpacking the RAD & Its Impact ... https://www.laterlifeadvice.com.au/our-blog/refundable-accomodation-deposit

[29] The “protected person rule” – what happens if your spouse remains ... https://attwoodmarshall.com.au/the-protected-person-rule-when-does-it-apply/

[30] Assets test for Age Pension - Services Australia https://www.servicesaustralia.gov.au/assets-test-for-age-pension?context=22526

[31] Income and means assessments | My Aged Care https://www.myagedcare.gov.au/income-and-means-assessments

[32] Aged care: how a protected person protects the family home – CPSA https://cpsa.org.au/article/aged-care-how-a-protected-person-protects-the-family-home/

[33] Western Australian Enduring Power of Guardianship https://legalconsolidated.com.au/wa-medical-poa/

[34] Changes to aged care fees, annual and lifetime caps https://www.myagedcare.gov.au/changes-aged-care-fees-annual-and-lifetime-caps

Understanding the Diagnostic Process for Alzheimer’s Disease: A Comprehensive Guide for Western Australians

Alzheimer’s disease, the most common form of dementia, represents a significant challenge for individuals, families, and healthcare systems worldwide.

In Western Australia, where approximately 40,000 people live with dementia, understanding the diagnostic process is critical for early intervention and legal planning[13][15].

This article synthesizes the latest clinical guidelines, biomarker advancements, and diagnostic tools to explain how Alzheimer’s disease is identified and confirmed.

The Shift to Biological Diagnosis: Core Biomarkers and Revised Criteria

Historically, Alzheimer’s disease could only be definitively diagnosed postmortem through the identification of amyloid plaques and neurofibrillary tangles in brain tissue[8].

However, the 2024 revised criteria from the Alzheimer’s Association Workgroup have revolutionized diagnosis by emphasizing **biological markers** (biomarkers) that detect the disease years before symptoms appear[1]. These biomarkers fall into two categories:

Core 1 Biomarkers: Early Detection and Diagnostic Certainty

Core 1 biomarkers include amyloid PET scans, cerebrospinal fluid (CSF) analysis, and plasma tests for phosphorylated tau 217 (p-tau217).

These tools identify the presence of Alzheimer’s neuropathological change (ADNPC), which encompasses both amyloid plaques and tau tangles[1][12]. For example:

- Amyloid PET scans visualize amyloid-beta deposits in the brain, with abnormal results strongly correlating with AD pathology[3][10].

- CSF tests measure amyloid-beta 42, total tau, and p-tau levels, providing a 90% accuracy rate in predicting amyloid positivity[2][16].

- Blood-based biomarkers like p-tau217 now offer comparable accuracy to CSF testing, enabling accessible screening through services like Western Diagnostic Pathology’s PrecivityAD2™ test in Perth[7][16].

An abnormal Core 1 biomarker result is sufficient for an Alzheimer’s diagnosis, even in asymptomatic individuals, reflecting the disease’s biological onset[1][8].

Core 2 Biomarkers: Tracking Progression and Staging

Core 2 biomarkers, such as tau PET scans and neurofilament light chain (NfL) measurements, become abnormal later in the disease course.

These help clinicians predict symptom onset and monitor neurodegeneration[1][3].

For instance, tau PET scans reveal the spread of neurofibrillary tangles from the medial temporal lobe to cortical regions, which correlates with cognitive decline[10].

Clinical Evaluation: Ruling Out Reversible Causes

Comprehensive Medical History and Physical Examination

The diagnostic journey begins with a detailed medical history, including psychiatric conditions, medication use, and family history of dementia[2][14].

GPs in WA follow the RACGP Silver Book guidelines, which mandate:

- Reviewing cardiovascular risk factors (e.g., hypertension, diabetes) linked to vascular dementia[6].

- Exposing alcohol misuse or vitamin deficiencies (B12, folate) that mimic dementia symptoms[14].

- Assessing for depression, which presents as “pseudodementia” in 15–20% of cases[11][15].

A neurological exam evaluates reflexes, coordination, and sensory function to identify stroke, tumors, or Parkinson’s disease[5][8]. Blood tests rule out thyroid dysfunction, infections, and metabolic disorders[2][14].

Cognitive and Functional Assessments: Beyond Memory Testing

Standardized Cognitive Screening Tools

The Montreal Cognitive Assessment (MoCA) and Mini-Mental State Examination (MMSE) are widely used in WA clinics to evaluate:

- Short-term memory (e.g., recalling three words after five minutes).

- Executive function (e.g., trail-making tests).

- Language skills (e.g., naming objects)[2][9].

However, these tests have limitations.

A score of 25/30 on the MMSE may miss early Alzheimer’s, prompting specialists to use more sensitive tools like the CANTAB Mobile® battery, which assesses paired associative learning and spatial working memory[9][10].

Behavioral and Psychological Evaluations

The Neuropsychiatric Inventory Questionnaire (NPI-Q) identifies agitation, apathy, or sleep disturbances that support an Alzheimer’s diagnosis and guide non-pharmacological interventions[2][15].

Neuroimaging: Visualizing Brain Changes

Structural MRI and CT Scans

Structural imaging remains a cornerstone in WA’s diagnostic workflow to exclude subdural hematomas, tumors, or hydrocephalus. MRI findings in Alzheimer’s typically show:

- Hippocampal atrophy: A 20–30% volume loss in early stages[10][12].

- Cortical thinning: Particularly in parietal and temporal lobes[10].

Advanced PET Imaging

Amyloid and tau PET scans are available through tertiary centers like Royal Perth Hospital. Studies show amyloid PET positivity in 85% of clinically diagnosed Alzheimer’s cases, while tau PET correlates with cognitive decline rates[3][8].

Cerebrospinal Fluid and Blood Biomarkers: A Game Changer for WA Patients

Lumbar Puncture and CSF Analysis

CSF testing via lumbar puncture measures amyloid-beta 42 (low levels indicate plaque formation) and p-tau (elevated in tangle pathology).

The FDA-approved Lumipulse® and Elecsys® assays standardized these measurements, reducing inter-lab variability[2][12].

Blood-Based Testing: The PrecivityAD2™ Innovation

Western Diagnostic Pathology’s PrecivityAD2™ test, available at select WA collection centers, measures plasma p-tau217 and amyloid-beta 42/40 ratio.

This non-invasive tool achieves 85–90% concordance with amyloid PET, enabling GPs to initiate referrals without specialist waitlists[7][16].

Putting It All Together: Australia’s Diagnostic Guidelines

The Clinical Practice Guidelines and Principles of Care for People with Dementia (2016, updated 2023) provide a roadmap for WA clinicians[4][15]:

1. Timely diagnosis: Cognitive testing within 4 weeks of symptom report.

2. Biomarker integration: Use CSF/blood tests for atypical cases.

3. Multidisciplinary collaboration: Involve neurologists, geriatricians, and neuropsychologists.

4. Ethical communication: Disclose diagnosis with sensitivity, avoiding terms like “senility”[11][15].

Conclusion: The Future of Diagnosis in WA

With blood biomarkers and AI-driven cognitive tests revolutionizing early detection, WA’s healthcare system is poised to reduce diagnostic delays.

For families, understanding this process demystifies Alzheimer’s and underscores the importance of legal preparedness.

As research advances, the integration of emerging tools like retinal amyloid imaging and digital gait analysis promises even greater precision in the years ahead[12][16].

By synthesizing clinical evaluations, biomarkers, and imaging, clinicians can now diagnose Alzheimer’s with >95% accuracy during life—a paradigm shift empowering patients and families to plan with clarity[1][8][16].

Sources

[1] Revised criteria for diagnosis and staging of Alzheimer's disease ... https://alz-journals.onlinelibrary.wiley.com/doi/10.1002/alz.13859

[2] Medical Tests for Diagnosing Alzheimer's & Dementia | alz.org https://www.alz.org/alzheimers-dementia/diagnosis/medical_tests

[3] Regional variability of imaging biomarkers in autosomal dominant ... https://www.pnas.org/doi/10.1073/pnas.1317918110

[4] Clinical guidelines for dementia https://cdpc.sydney.edu.au/research/clinical-guidelines-for-dementia/

[5] Alzheimer's Disease Fact Sheet | National Institute on Aging https://www.nia.nih.gov/health/alzheimers-and-dementia/alzheimers-disease-fact-sheet

[6] [PDF] RACGP aged care clinical guide (Silver Book) https://www.racgp.org.au/getattachment/af2d2506-9c65-43ab-a442-319a56f12fb7/Dementia.aspx

[7] Western Diagnostic Pathology - Pathology diagnostics & testing ... https://www.wdp.com.au

[8] Alzheimer's disease - Diagnosis and treatment - Mayo Clinic https://www.mayoclinic.org/diseases-conditions/alzheimers-disease/diagnosis-treatment/drc-20350453

[9] 7 tests for assessing cognition in early Alzheimer's disease https://cambridgecognition.com/7-tests-for-assessing-cognition-in-early-alzheimers-disease/

[10] Current understanding of magnetic resonance imaging biomarkers ... https://alz-journals.onlinelibrary.wiley.com/doi/10.1016/j.trci.2018.04.007

[11] Clinical practice guidelines and principles of care for people with ... https://www.racgp.org.au/afp/2016/december/clinical-practice-guidelines-and-principles-of-car

[12] Detection and treatment of Alzheimer's disease https://alzheimerswa.org.au/detection-and-treatment-of-alzheimers-disease/

[13] Dementia in Australia, How is dementia diagnosed? https://www.aihw.gov.au/reports/dementia/dementia-in-aus/contents/understanding-dementia/how-is-dementia-diagnosed

[14] Tests used in diagnosing dementia - Healthdirect https://www.healthdirect.gov.au/tests-used-in-diagnosing-dementia

[15] Clinical practice guidelines for dementia in Australia https://www.mja.com.au/journal/2016/204/5/clinical-practice-guidelines-dementia-australia

[16] Alzheimer's disease and PrecivityAD2™ blood test | WDP https://www.wdp.com.au/tests/precivityad2

[17] Dementia in Australia, National policy response to dementia https://www.aihw.gov.au/reports/dementia/dementia-in-aus/contents/national-policy-response-to-dementia

[18] Alzheimer's disease - Diagnosis - NHS https://www.nhs.uk/conditions/alzheimers-disease/diagnosis/

[19] How Alzheimer's is diagnosed - Mayo Clinic https://www.mayoclinic.org/diseases-conditions/alzheimers-disease/in-depth/alzheimers/art-20048075

[20] Cognitive Screening and Assessment | Alzheimer's Association https://www.alz.org/professionals/health-systems-medical-professionals/cognitive-assessment

[21] Molecular and Imaging Biomarkers in Alzheimer's Disease: A Focus ... https://pmc.ncbi.nlm.nih.gov/articles/PMC7565667/

[22] Alzheimer's Disease: Symptoms & Treatment - Cleveland Clinic https://my.clevelandclinic.org/health/diseases/9164-alzheimers-disease

[23] How Is Alzheimer's Disease Diagnosed? | National Institute on Aging https://www.nia.nih.gov/health/alzheimers-symptoms-and-diagnosis/how-alzheimers-disease-diagnosed

[24] Tests and scans to diagnose dementia - Alzheimer's Society https://www.alzheimers.org.uk/about-dementia/symptoms-and-diagnosis/dementia-diagnosis/how-to-get-dementia-diagnosis/tests-and-scans

[25] How Biomarkers Help Diagnose Dementia | National Institute on Aging https://www.nia.nih.gov/health/alzheimers-symptoms-and-diagnosis/how-biomarkers-help-diagnose-dementia

[26] [PDF] Clinical Practice Guidelines and Principles of Care for People with ... https://cdpc.sydney.edu.au/wp-content/uploads/2019/06/CDPC-Dementia-Guidelines_WEB.pdf

[27] Alzheimer's disease - symptoms, causes, diagnosis and prevention https://www.healthdirect.gov.au/alzheimers-disease

[28] Alzheimer's disease - HealthyWA https://healthywa.wa.gov.au/Articles/A_E/Alzheimers-disease

[29] Assessment and diagnosis of dementia https://www.dementia.org.au/professionals/assessment-and-diagnosis-dementia

[30] The difficulty in getting a diagnosis - Alzheimer's WA https://alzheimerswa.org.au/the-difficulty-in-getting-a-diagnosis/

[31] Testing and diagnosis - Dementia Australia https://www.dementia.org.au/about-dementia/dementia-test-and-diagnosis

[32] Dementia - Alzheimer's disease - Better Health Channel https://www.betterhealth.vic.gov.au/health/conditionsandtreatments/dementia-alzheimers-disease

[33] ADNeT Memory and Cognition Clinic Guidelines https://www.australiandementianetwork.org.au/initiatives/memory-clinics-network/adnet-memory-and-cognition-clinic-guidelines/

When Costs Agreements Become Void: Consequences at Assessment Under the Uniform Law

Introduction

The Legal Profession Uniform Law has significantly changed how costs agreements are treated when disclosure obligations aren't met. Three recent Victorian Supreme Court decisions – Johnston v Dimos Lawyers [2019] VSC 462, Bennett (a pseudonym) v Farrar Gesini Dunn Pty Ltd [2019] VSC 744, and Shi v Mills Oakley [2020] VSC 498 – provide valuable insights into the consequences of non-compliance. Each case involved disputes over legal costs where the law firm had failed to provide adequate costs disclosure. In Johnston, a client disputed the costs of Family Law proceedings totalling approximately $253,000. In Bennett, an applicant challenged costs of approximately $490,000 for Family Law matters. In Shi, a Chinese national disputed costs of around $267,000 for commercial litigation.

The Harsh Reality of Non-Compliance

Under the Legal Profession Uniform Law, the consequences of non-compliance with disclosure obligations are significantly more severe than under previous legislation. Section 178(1)(a) explicitly states that if a law practice contravenes disclosure obligations, "the costs agreement concerned (if any) is void."

As Associate Justice Wood stated in Johnston v Dimos Lawyers: "Any failure to comply with any of the provisions in relation to disclosure in Part 4.3 of the Act renders the costs agreement void. Non-compliance therefore equals void. There is no discretion to be exercised around 'substantial' compliance."

This represents a marked departure from the previous Legal Profession Act 2004 (Vic), where disclosure failures might merely result in a discount of costs at the conclusion of taxation rather than invalidating the agreement entirely.

What Makes a Costs Agreement Void?

Section 174 of the Uniform Law mandates that a law practice must:

• Provide an initial estimate of total legal costs (including disbursements) when instructions are first given

• Update this estimate when there is a significant change to anything previously disclosed

• Provide these disclosures in writing

Common failures that have rendered costs agreements void include:

• Not providing any written estimate of total costs

• Excluding disbursements from cost estimates

• Not updating estimates when matters change significantly

• Using confusing or inconsistent methods to calculate estimates

• Providing estimates that are unreasonably low compared to actual costs

• Not disclosing increases in hourly rates

Consequences at Assessment: Not Always Catastrophic

Interestingly, while non-compliance renders a costs agreement void, this doesn't necessarily mean the law practice must fall back to court scales or minimum rates. As the three cases demonstrate, courts still have considerable discretion in determining the appropriate basis for assessment.

In Johnston v Dimos Lawyers, despite finding the costs agreement void, Associate Justice Wood determined that the costs should still be assessed using the hourly rates specified in that agreement. This approach was described as fair since the client had been given "a surprisingly accurate oral estimate of total legal costs" from the outset.

Similarly, in Bennett v Farrar Gesini Dunn, the Court found that "although both the First Costs Agreement and the Deferred Costs Agreement are void, as a general principle the respondent's costs are to be assessed on the basis of the hourly rates specified in them and counsel fees are to be assessed on the basis that they were rendered."

However, in Shi v Mills Oakley, Judicial Registrar Gourlay took a more nuanced approach. The Court held that for work undertaken in 2016 and 2017, costs should be assessed based on the rates in the void costs agreement. But for work after March 2018 (when County Court proceedings were issued), costs should be assessed using the County Court scale of costs. This reflected the Court's view that a new retainer had effectively commenced, requiring fresh disclosure.

Factors Courts Consider When Determining Assessment Basis

When deciding how to assess costs where a costs agreement is void, courts typically consider:

1. Whether the client was adequately informed about costs, even if technical disclosure requirements weren't met

2. Whether the rates in the void agreement were reasonable for the work performed

3. Whether the client had complained about costs during the retainer

4. The nature and complexity of the legal matter

5. Whether significant changes in circumstances justified fresh disclosure

6. The experience and specialisation of the legal practitioners

As noted in Johnston: "Irrespective of whether there is, or is not, a valid Costs Agreement the Court still has an obligation to determine what is fair, reasonable and proportionate" under section 172(1) of the Uniform Law.

Practical Implications for Practitioners

These cases highlight the critical importance of rigorous compliance with disclosure obligations. Law practices should:

1. Provide comprehensive written cost estimates at the commencement of all matters

2. Include all foreseeable disbursements in total cost estimates

3. Regularly review and update estimates when circumstances change

4. Document all communications about costs

5. Consider issuing new costs agreements when the nature of a matter changes significantly

6. Disclose rate increases promptly and in writing

As stated in Shi v Mills Oakley, there is "a prevalent misconception in the profession" about what constitutes adequate disclosure: "Demands for progress payments or the delivery of regular invoices for work already completed do not satisfy the Act."

Conclusion

While non-compliance with disclosure obligations automatically renders costs agreements void under the Uniform Law, courts retain discretion to assess costs on a fair and reasonable basis. The rates in void agreements may still be applied if appropriate, but practitioners should not rely on judicial discretion to save them from disclosure failures. The strict approach taken by courts underscores the importance of meticulous compliance with all disclosure obligations from the outset of any retainer and throughout the client relationship.

As Justice Wood aptly stated in Johnston v Dimos, "Non-compliance therefore equals void." The best practice is to ensure compliance from the start, rather than hoping for a favourable assessment after the fact.