Facts
The Karageozis v Sherman [2023] QCA 258 case involved an allegation of defamation based on a statement made by Ms Lamb to a police officer about the behavior of Mr Sherman after the end of their sexual relationship. The trial judge found the statement was defamatory but not protected by qualified privilege due to malice by Ms Lamb. The appeal court set aside the finding of defamation.
The statement Ms Lamb made to the police officer, as outlined in paragraph 6 of the judgment, was:
"Sheldon Sherman and I worked together for the same company. Sheldon worked in the Brisbane office and I worked in the Sydney office. We met at a work event in August 2019 and started an on-again-off-again relationship that lasted 7 months. I ended the relationship in February 2020 after Sheldon stopped listening to me and the line between our work life and our relationship became blurred. After I ended the relationship, Sheldon continued to contact me through various means which, on the whole, I ignored.
On Friday 13 February 2020 I was forced into resigning my job by the CEO of the company after he found that I held shares in and was a stakeholder in a rival company. I believe that Sheldon provided this information to the CEO because they are good mates.
On Friday 13 March, Sheldon sent me a text message saying, Can I call you? I wrote back Not comfortable with this at all. Sheldon then replied saying Can I call you?
Over the following days, Sheldon contacted my family and attempted to arrange a time to drop my belongings back to me. Sheldon told me that he would contact the university I attend and advise them that I had applied for my current course fraudulently unless I responded to his calls and texts.
I do not want to have any further contact with Sheldon and I do not want any my personal belongings which are still in his possession."
The appeal court found that the only imputation conveyed by Ms Lamb's statement to the police was that Mr Sherman was a vengeful person.
Qualified Privilege
The defence of qualified privilege applies when a defamatory statement is published on an occasion where the publisher has a legal, social or moral duty or interest to make it and the recipient has a corresponding duty or interest to receive it (Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 at [9] per Gleeson CJ, Hayne and Heydon JJ). The defence is based on public policy grounds, allowing free communication about matters of shared interest, provided there is no malice (Cush v Dillon (2011) 243 CLR 298 at [22] per French CJ, Crennan and Kiefel JJ).
The occasion must give rise to a "reciprocal duty or interest" between the publisher and recipient for the statement to attract qualified privilege (Karageozis case at [20], citing Bashford). Whether such reciprocity exists depends on the circumstances, including the relationship between the parties, the subject matter, timing and purpose of the communication (Bashford at [64] per McHugh J).
In Karageozis, the court held the trial judge took too narrow a view in finding no qualified privilege attached to Ms Lamb's statement to the police officer. Police have a wider role than just investigating crimes, including keeping the peace and warning people away from conduct which could become criminal (Karageozis at [22]). Ms Lamb had a legitimate interest in reporting concerning behavior to police, even if it did not amount to harassment or other crimes. Police had a corresponding duty to receive the information to assess any risks or need for intervention. The court should not unduly restrict the defence by requiring conduct complained of to be criminal or unlawful (Cush v Dillon at [22]).
Prior cases have found qualified privilege applies to complaints to authorities about matters relevant to their statutory role or operational responsibilities, even regarding unofficial rumors rather than facts (Cush v Dillon). By analogy, people also have a social duty to report genuinely concerning behavior to police to enable them to fulfill their role protecting public safety. Police have an interest in receiving such information before conduct escalates into domestic violence or other crimes. Applying too strict a test would discourage reporting of legitimate concerns.
Malice
Where qualified privilege applies, the defence can still be defeated by proof the defendant was motivated by malice in publishing the statement to the recipient (Karageozis at [26], citing Bashford at [9]).
Malice in this context means the defendant used the occasion to publish the statement for an improper purpose, rather than honestly discharging their duty or pursuing a legitimate interest (Roberts v Bass (2002) 212 CLR 1 at [79] per Gaudron, McHugh and Gummow JJ).
As malice defeats an otherwise valid defence of qualified privilege, malice must relate to the defendant's purpose in publishing the specific statement to which the privilege applies (Roberts v Bass at [8] per Gleeson CJ).
Evidence of malice in other contexts may also be relevant to inferring malice for a specific publication (Karageozis at [29]).
The legal burden of proving malice lies on the plaintiff, requiring cogent evidence the defendant had an improper dominant purpose (Karageozis at [26] and [33]-[34], citing Roberts v Bass at [96]-[97] per Gaudron, McHugh and Gummow JJ and Murray v Raynor [2019] NSWCA 274 at [62]).
Where facts are peculiarly within the defendant's knowledge and the defendant does not give evidence, the court may more readily draw inferences against them (Karageozis at [32], citing Jones v Dunkel (1959) 101 CLR 298). However, honest purpose is still presumed absent proof displacing it (Roberts v Bass at [96]-[97]).
In Karageozis, the trial judge incorrectly focused on Ms Lamb's purpose in contacting the respondent's wife's lawyers rather than her specific purpose in making the statement to police. Her statement to police was the only publication pleaded and found to be defamatory.
The trial judge inferred malice toward the respondent was Ms Lamb's dominant purpose in contacting police based on limited circumstantial evidence ((Karageozis at [31]). This included the timing of her statement shortly after the respondent contacted her de facto partner, her complaint to the lawyers that same day, her inability to produce text messages to police showing harassment and her not complaining earlier to authorities about the respondent's behavior towards his children.
However, the appeal court found multiple available explanations for this evidence, including Ms Lamb wishing to keep her relationship secret and acting irrationally after its dramatic ending. Without hearing directly from Ms Lamb about her actual purpose, the appeals court held the inferences of malice drawn against her were not sufficiently cogent to overcome the presumed honesty of purpose when making the statement to police.
Here are some key take-aways about proving malice to defeat the defence of qualified privilege:
The burden is on the plaintiff to prove malice to the high standard of cogent evidence (Karageozis at [33]).
Malice relates to the defendant's purpose in publishing the specific statement to which privilege attaches (Roberts v Bass at [8]).
Where facts are within the defendant's knowledge, an adverse inference may be drawn from their failure to give evidence (Jones v Dunkel). However, honest purpose is still presumed (Roberts v Bass at [96]).
Malice requires proof the defendant used the occasion to publish predominately to injure the plaintiff or for another improper purpose (Karageozis at [33]).
Limited circumstantial evidence may not provide sufficiently cogent proof overriding the presumption of honest purpose (Karageozis at [34]).
The defendant's purpose for other connected publications may help infer malice but separate purposes could exist for different publications (Karageozis at [29]).