Qualified Privilege: Understanding the Limits and Role of Malice

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]).

Establishing Publication of Online Material in Defamation Cases

Introduction

The decision of Poland v Fairfax Digital Australia & New Zealand Pty Ltd [2023] WASC 383 provides useful guidance on the principles applicable to establishing publication in defamation cases involving online content.

Facts

In Poland v Fairfax, the plaintiff Mr Poland sued the defendant Fairfax over comments posted by third parties on the defendant's Facebook page under links to two articles about the plaintiff.

The comments were posted in February 2019 but Mr Poland only commenced proceedings in September 2021. Due to the 1 year limitation period, Mr Poland was confined to suing for publication of the comments between 10 September 2020 and 10 September 2021.

The defendant applied to strike out the publication pleas on the basis that the facts pleaded could not establish publication in that period.

Tottle J dismissed the strike out application but raised the possibility of determining publication as a preliminary issue.

What is 'publication' in defamation?

The High Court has held that for online material, publication occurs at the place where the material is downloaded onto a person's computer in comprehensible form:

"In the case of material on the world wide web it is not available in comprehensible form until downloaded onto the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then that will be the place where the tort of defamation is committed." (Dow Jones & Co Inc v Gutnick [2002] HCA 56 at [44] per Gleeson CJ, McHugh, Gummow and Hayne JJ)

Therefore, it is not sufficient merely to show that material was posted online and was available to be viewed.

There must be actual downloading and comprehension of the material.

No inference from mere availability online

An inference of publication will not be drawn solely from the fact that material was posted online and could have been viewed:

"Because of the vast number of internet sites, and the vast number of web pages accessible through those internet sites, in the absence of evidence it cannot be inferred that one or more persons has undertaken the steps required to identify and access any particular web page available through the internet merely from the fact that material has been posted on an internet site." (Sims v Jooste [No 2] [2016] WASCA 83 at [18] per Martin CJ).

Platform of facts can support inference

However, publication may be established by pleading and proving a platform of facts from which an inference of downloading and comprehension can properly be drawn:

"Although publication will not be inferred from the mere fact that material complained of has been posted on a website, an inference that the material has been downloaded by someone might be drawn from a combination of facts such as the number of 'hits' on the relevant website and the period of time over which the material was posted on the internet." (Lorbek v King [2022] VSC 218 at [46] per McDonald J)

"This has been recognised in the cases to which I will now refer. In England, it has been consistently held that a plaintiff claiming to have been defamed in material posted on the internet cannot rely upon an inference of publication analogous to that customarily drawn in cases involving publication via the mass media of print or broadcast in order to establish that there has been substantial publication within the jurisdiction. Rather, the plaintiff must plead and prove that the material of which complaint is made has been accessed and downloaded. The English cases recognise however that publication, in the legal sense, may be established by pleading and proving a platform of facts from which an inference of download can properly be drawn." (Sims v Jooste [No 2] [2016] WASCA 83 at [18] per Martin CJ).

Examples of platform of facts

In Stoltenberg v Bolton [2020] NSWCA 45, the platform of facts comprised:

• Evidence of number of views/hits on website and Facebook page where material posted

• Period of time material remained available

• Facebook posts by defendant about wide readership

• Witnesses speaking of reading material

This is as per:

"The 'platform of facts' from which his Honour drew an inference that the five matters complained of were downloaded by somebody have been referred to above at [33]. Taken together, the admissions by Mr Stoltenberg as to the number of 'hits' on the Narri Leaks site - 9,800 in the first week and 21,000 in the first 10 days, that the estimated number of readers in the period June 2015 to January 2016 depending on the story varied between 5,000 and up to 35,000, that Narri Leaks was being watched all over the State, that $400 was spent 'boosting' posts all over the State for all of the second week of publication in June 2015, that on 2 July 2015 719 'locals' out of a 'total reach' of 2,414 hit the 'Like' button; the inferences drawn from the Facebook records as to 'reach' of the posts; and the evidence of Mrs Bolton and Mr Webb of readership of the Narri Leaks website by persons outside the Narribri Shire, amply support his Honour's findings that the matters complained of were published by Mr Stoltenberg." (Stoltenberg v Bolton at [113] per Gleeson JA)

In Lorbek v King [2022] VSC 218 at [46], McDonald J gave the example of screenshots demonstrating 'likes' or responses to material as potentially supporting an inference of publication.

Policy behind requiring evidence of actual downloading

The requirement to prove downloading, as opposed to mere availability online, reflects the policy behind the law of defamation - that damage to reputation occurs at the place where material is read in comprehensible form:

“In defamation, the same considerations that require rejection of locating the tort by reference only to the publisher’s conduct, lead to the conclusion that, ordinarily, defamation is to be located at the place where the damage to reputation occurs. Ordinarily that will be where the material which is alleged to be defamatory is available in comprehensible form assuming, of course, that the person defamed has in that place a reputation which is thereby damaged." (Dow Jones & Co Inc v Gutnick [2002] HCA 56 at [44] per Gleeson CJ, McHugh, Gummow and Hayne JJ)

Need to plead where publication occurred

A plaintiff must plead sufficient facts to establish not only that publication occurred, but also where it occurred. This is because choice of law rules require the substantive law to be applied based on where publication took place:

"At the moment it is clear that the plaintiff is simply unable to indicate who, if anyone, downloaded those publications and if they have there is then no specificity as to which jurisdiction they have been downloaded in. That level of detail is vital both in terms of determining the elements of the cause of action, but also in fairness to the defendant by way of indicating what, if any, defences might be available depending upon the jurisdiction in which it can ultimately be proved such publication took place." (Newman v Whittington [2022] NSWSC 249 at [19] per Sackar J)

Application to Poland v Fairfax

In Poland v Fairfax, Tottle J considered that while the plaintiff's pleading may have been sufficient to avoid strike out, pleading publication in 'Australia' was too wide and should be confined to Western Australia.

Some doubts were expressed about the strength of the plaintiff's plea:

"In my view there is force in the defendant's contentions, however, the issue of publication is a factual one. The defendant's contentions about the way in which elements of its online presence work together and the manner in which members of the public engage with its Facebook page rely, to a certain extent at least, on assertion." (Poland v Fairfax at [25] per Tottle J)

However, Tottle J was reluctant to strike out the pleading entirely as being reasonably arguable.

Conclusion

The case law establishes that to prove publication of online material, a plaintiff must show the material was downloaded and comprehended by a third party. Mere availability online is not enough. However, a platform of facts may allow the court to infer downloading and comprehension occurred. Care must be taken to confine the place of publication appropriately. The facts in each case will determine whether an inference of publication is available.

One Star Review: Damages for Defamatory Google and Facebook Reviews

Introduction

In Lyell Steven Allen t/as AVL Electrical Services v Godley [2023] WADC 54, the District Court of Western Australia considered the assessment of damages in a defamation claim brought by an electrician against six defendants, including Nathan James Simpson, for one-star business reviews posted on Google and Facebook. The court found the reviews conveyed imputations that the plaintiff provided poor quality services and awarded $35,000 general and aggravated damages against Simpson.

Facts

The plaintiff operated an electrical services business and marketed it on Google and Facebook. Prior to December 2018, he had a five-star rating on both platforms (at [40]-[46]). In November 2018, a dispute arose between the plaintiff and his neighbour, the first defendant, regarding a Christmas lights display. On 14 December 2018, the first defendant changed his positive Google review of the plaintiff’s business to a one-star review without explanation (at [50]-[56]). That day, the second defendant, who was the first defendant’s sister, also posted an unexplained one-star Google review of the plaintiff’s business (at [57]). Over the following days, the third, fifth and sixth defendants, who were connected to the first defendant, posted similar one-star Google reviews (at [58]-[59]).

On 19 December 2018, the fourth defendant, Simpson, posted a one-star Google review and a one-star Facebook review stating the plaintiff was a “grinch” he would not recommend (at [59]). The plaintiff had never provided services to Simpson or the other defendants except the first defendant (at [59]). Following the reviews, the plaintiff’s Google rating dropped to 4.4 out of 5 stars (at [62]). The plaintiff claimed the reviews conveyed imputations including that he provided poor quality services that should be avoided (at [69]).

Law

To establish defamation, the plaintiff must prove the defendant published defamatory matter to a third party which identified the plaintiff and lowered his reputation (Armstrong v McIntosh [2020] WASC 31 at [224]). Once established, damage to reputation is presumed (Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 247, 250). Damages serve to compensate hurt feelings, repair harm to reputation and vindicate the plaintiff (Armstrong at [225]). Aggravated damages may be awarded where the defendant’s conduct increased injury to the plaintiff (Armstrong at [236]).

Analysis

Justice Gillan found Simpson’s non-appearance meant he admitted publishing the reviews and they carried the imputations pleaded (at [25]). Her Honour was prepared to infer from the circumstantial evidence that third parties searched for electricians online, saw the reviews and the plaintiff’s Google hits increased after they were posted (at [79]-[80]). This established publication to third parties. The imputations concerning poor quality services seriously damaged the plaintiff’s professional reputation and lowered his standing, making them defamatory (Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [36]; Armstrong at [224]).

Justice Gillan accepted the reviews caused the plaintiff serious hurt and distress (at [88]). She awarded $35,000 general and aggravated damages, taking into account the plaintiff had settled with other defendants but Simpson’s refusal to apologise or remove the “grinch” review justified additional damages (at [96]). Her Honour also granted an injunction requiring Simpson to remove the reviews (at [97]). The defendant’s failure to make a settlement offer or respond to proceedings meant indemnity costs were appropriate (at [101]).

Conclusion

The decision illustrates that publishing false negative online business reviews can have serious ramifications in defamation. Where reviews damage a plaintiff’s professional reputation and cause distress, substantial damages may follow. Refusing reasonable settlement offers or a retraction may lead to aggravated damages and indemnity costs. Plaintiffs should act promptly to request removal of unjust reviews.

Joinder & Scandalous Affidavits in Defamation Cases: Insights from Souraki Azad -v- Jose [2023] WASC 160

In defamation, issues about the: (a) joinder of parties and (b) scandalous affidavits, commonly arise. Both arose in the recent case of Souraki Azad -v- Jose [2023] WASC 160.

Joinder

The joinder process allows for additional parties to be included in an ongoing lawsuit.

Souraki Azad -v- Jose

In Souraki Azad -v- Jose, the plaintiff and defendant were medical doctors.

The plaintiff sought to join the Australian Health Practitioner Regulation Agency (AHPRA) to his defamation case.

The plaintiff accused AHPRA of conspiring against him, thus playing a role in the defamation.

The Court, following the principles established in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 [58] and the Rules of the Supreme Court 1971 (WA) Order 18 rule 3(2), scrutinized the plaintiff's application. What was required was a solid basis in the pleadings for the joinder of AHPRA.

Legal Principles

One of the key factors the court considered was whether the plaintiff had a 'colour of right' to the final relief - a principle established by Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 [18].

The 'colour of right' implies that the plaintiff must demonstrate a reasonable likelihood of entitlement to the relief they seek.

In this case, the court found no evidence that the plaintiff had a recognised basis in law to sustain final relief against AHPRA.

The court also scrutinized the balance of convenience, as well as the public interest, in this case.

The joinder application did not succeed.

Precision in Joinder Applications

Another noteworthy aspect of this case was the court’s attention to the precision and clarity in joinder applications. This vagueness in the application served as one of the justifications for dismissing the joinder application.

Scandalous Affidavits

When an affidavit crosses the line into scandalous territory, it can complicate proceedings and impact the fairness of the trial.

In Souraki Azad -v- Jose [2023] WASC 160, the plaintiff, Dr. Azad, filed a series of affidavits that were contested by both the defendant and AHPRA.

The affidavits contained serious, unsupported allegations of criminal wrongdoing by various persons, including representatives of the Medical Board and AHPRA, and included inappropriate images of children. Their counsel argued that these were scandalous, irrelevant, and oppressive, necessitating their removal from the court file.

Legal Framework: Order 37 Rule 7 RSC

The objections to the scandalous affidavits were grounded on Order 37 rule 7 of the Rules of the Supreme Court (RSC), which allows the court to strike out scandalous, irrelevant, or otherwise oppressive matter from an affidavit.

Court's Approach in Souraki Azad -v- Jose

In evaluating the scandalous nature of the affidavits, the court recognized the gravity of ordering the removal of affidavit material from the court file, stating it was an 'extreme step' that should be taken with great caution.

Despite the scandalous nature of the affidavits, the court decided to restrict access to these affidavits to the court and parties involved, rather than removing them entirely from the file.

This was an interim solution, with the option to revisit the removal application as the action progressed.

Reasonableness in Statutory Qualified Privilege: Insights from "Lorbek v King [2023] VSCA 111

Defamation law is an area of legal practice that seeks to protect individuals from harmful statements. In some instances, a defence known as statutory qualified privilege can be invoked to shield a defendant from liability, provided certain conditions are met.

A key element in this defence is the notion of "reasonableness."

In this blog post, I examine the concept of reasonableness in the context of statutory qualified privilege, with a focus on the case of Lorbek v King [2023] VSCA 111 to provide a deeper understanding of its practical application.

Understanding Reasonableness in Statutory Qualified Privilege

The defence of statutory qualified privilege, as set out in section 30 of the Defamation Act 2005, requires the defendant to establish that their conduct was reasonable in the circumstances.

This includes demonstrating that their conclusion followed logically, fairly, and reasonably from the information obtained and that the manner and extent of the publication did not exceed what was reasonably required in the circumstances.

The Case

In Lorbek v King [2023] VSCA 111, the plaintiffs were associated with Lorbek Luxury Cars (LLC). They lodged a case against the defendant, PK, for defamation based on four posts PK made on various platforms.

The plaintiffs lost initially.

The plaintiffs appealed the initial judgment to the Victorian Court of Appeal on several grounds, asserting that the initial judge had erred in their conclusion regarding the qualified privilege defence, the issue of malice, and the assessment of damages.

The backstory to the lawsuit involved the sale of a vehicle, which had been owned by Porsche Centre Brighton (PCB), to LLC.

At various points, the vehicle was deemed unroadworthy due to issues with its front and rear rotors.

However, the judge found that LLC was not aware of these issues at the time they sold the vehicle to PK.

The posts by PK that were the subject of the lawsuit had been made on Law Answers and Google Reviews.

The court found that PK's Law Answers post had been published to the site's moderator, and the Google Reviews had been published to LLC's marketing manager and a small number of LLC's customers and potential customers. The judge inferred that these posts were read by individuals who had an interest in reading reviews from people who were dissatisfied with their experiences with LLC. However, the court did not find evidence to support a wider publication of these posts, leading to the conclusion that only a small number of people had read the reviews.

The Appeal

The Court of Appeal provided a comprehensive analysis of reasonableness in the context of statutory qualified privilege.

The Court of Appeal ultimately found that PK's conduct in publishing the impugned statements was reasonable in the circumstances.

Key Factors in Assessing Reasonableness

Lorbek v King [2023] VSCA 111 provides several valuable insights into the factors that are considered when assessing reasonableness in the context of statutory qualified privilege.

Some of these factors include:

1. The defendant's inquiries and investigations: The Court detailed PK's extensive investigations and the information he had received by the time of publication, which supported the reasonableness of PK's conduct.

2. Reliability of information sources: It was deemed reasonable for PK to rely on the information provided to him by reliable sources, including employees of relevant businesses and organizations.

3. Genuine and reasonably held beliefs: The Court accepted that PK held a genuine and reasonably held belief that LLC knew the vehicle was unroadworthy when it was sold, supporting the reasonableness of his conduct.

4. Assessment of credibility and reliability of witnesses: The judge's evaluation of the credibility and reliability of witnesses, such as Mr. Homann, played a significant role in determining the reasonableness of PK's conduct.

Instagram Defamation: A Closer Look at Issac Martin vs Fouad Najem

In a recent judgment involving social media defamation, Martin v Najem [2023] NSWDC, the District Court of New South Wales ruled in favour of the plaintiff, Issac Martin, in a case against Fouad Najem. The court ordered Najem to pay Martin $300,000 in damages for defamatory posts made on Instagram.

The Facts

Issac Martin, an individual better known by his Instagram handle @issac_eatsalot, brought a defamation case against Fouad Najem following a series of Instagram posts. The posts, as the court found, were part of a larger campaign by Najem to "attack and discredit the reputation of the plaintiff." The key allegations involved in this case were that Najem had falsely accused Martin of being a "paedophile" in his social media posts.

Interpretation of Social Media Posts

The judgment reflected the unique nature of social media as a medium for communication. The court concluded that the ordinary reasonable reader of social media is distinct from readers of traditional media, such as newspapers or biographies. The judge reasoned that the reader of social media must be considered in the context of the platform, taking into account the way posts are made and read.

Determination of Defamation

Despite the defendant's use of profanity and aggressive language, the court found that the allegations of paedophilia and racism were so profound that even casual social media users couldn't miss them. These allegations were deemed to have reached a significant audience, not just Najem's followers, but also those who might have seen the posts due to Instagram's algorithms, thus increasing their impact.

Serious Harm and Damages

The court held that the allegations made against Martin constituted serious harm. Citing Dhir v Saddler [2017] EWHC 3155 (QB), the judge ruled that the gravity of the imputations was key in establishing serious harm, rather than the extent of their publication.

The court accepted that allegations of paedophilia are among the most serious of claims, and that the plaintiff had suffered significant emotional harm, including feelings of outrage, humiliation, and helplessness, all of which factored into the damages awarded.

Aggravated Damages

Aggravated damages were awarded due to the specific elements of this case. The court noted that Najem's posts were part of a malicious campaign against Martin's business, and also personally insulting. The court noted Najem's intention to encourage others to abuse Martin and put him out of business. His failure to acknowledge any wrongdoing further contributed to the awarding of aggravated damages.

Imputations of Suspicion and the Role of Denials in Defamation Law

Imputations of suspicion commonly arise in defamation law.

In "Duma v Fairfax Media Publications Pty Limited (No 3) [2023] FCA 47", the articles published by Fairfax claimed that Duma and his lawyer Simon Ketan conspired to create a shell vehicle for bribe payments. They also suggested that Duma conspired with Ketan to defraud tribal landowners and had acted corruptly in trying to move a naval base.

The court found that a news article conveyed defamatory imputations about the claimant, despite the respondents arguing to the contrary.

The respondents' contention was that the imputations were not conveyed, and the references to the claimant’s denials of wrongdoing played a significant role in their argument.

However, the Court disagreed, citing Lord Devlin's remarks in "Lewis v Daily Telegraph Ltd [1964] AC 234 at 277" which suggested that ordinary reasonable readers draw implications from text, particularly when they are derogatory. This shows that an ordinary reasonable reader is more likely to interpret an implication of guilt or wrongdoing, especially when the text suggests a suspicious or scandalous context.

One leading authority that the Court referred to was the High Court's decision in "Favell v Queensland Newspapers Pty Ltd [2005] HCA 52". Here, the High Court held that the mere statement of an investigation or charge may not impute guilt. However, when this is accompanied by an account of suspicious circumstances that point towards a likelihood of guilt, the position may be different. The Court in Duma referenced this decision to highlight that adding derogatory implications to a piece of information could indeed sway it from being a bare report to one that suggests wrongdoing.

Another case that sheds light on this issue is "Mirror Newspapers Limited v Harrison [1982] HCA 50". This case established that the mere report of an arrest or charge does not convey an imputation of guilt due to the presumption of innocence. However, as the Court in Duma pointed out, citing McColl JA's opinion in "John Fairfax Publications Pty Limited v Obeid [2005] NSWCA 60", this presumption may be limited in situations where defamatory statements are made in circumstances unrelated to or remote from the operation of the criminal justice system.

Importantly, the Court in Duma emphasized that even if an article does not assert directly that a person acted corruptly or received a bribe, it does not mean that such an imputation wasn't conveyed. This was supported by "Jones v Skelton [1963] 1 WLR 1362 at 1370; SR (NSW) 644 at 650 (PC)", where Lord Morris stated that the ordinary and natural meaning of words could include any implication or inference drawn by a reasonable reader.

The Court also noted that denials of wrongdoing don't necessarily shield a publisher from conveying defamatory imputations, even if included in the publication. This was established by "Rivkin v Amalgamated Television Services Pty Ltd [2001] HCA 67" where it was held that readers don't have to give equal weight to every part of a publication, and the publisher's emphasis on certain aspects can significantly influence the reader's perception.

Sexual abuse victim successfully defends defamation case: Useful English case

A significant defamation case has recently been decided in England, Hay v Cresswell [2023] EWHC 882 (KB), which was handed down on 26 April 2023.

The case is likely to be persuasive in Australian courts, in many respects, including findings in relation to the credibility of the Defendant.

The case involved a sexual abuse victim, Nina Cresswell, who successfully defended a libel claim brought by the perpetrator, William Hay.

This case is noteworthy as it is the first reported case where a sexual abuse survivor naming their perpetrator has successfully relied on the public interest defence under section 4 of the Defamation Act 2013 (England and Wales).

Ms. Cresswell had met Mr. Hay in 2010, after which he sexually assaulted her.

The assault was reported to the police, but they did not treat her complaint as a crime, and so Mr. Hay was never arrested or charged.

A decade later, Ms. Cresswell decided to name him publicly in a blog, an email, and in social media posts, after which Mr. Hay sued her for libel.

The court held that the single meaning of the five publications by Ms. Cresswell was that Mr. Hay had violently sexually assaulted her. While there was limited evidence before the court, it found Ms. Cresswell's evidence more persuasive than Mr. Hay's, thus establishing the substantial truth of the allegations.

The court also noted that the public interest defence was applicable in this case.

The judge considered Ms. Cresswell's publications to be on a matter of public interest, and her belief that her publications were in the public interest was found to be reasonable given the circumstances​​.

However, this ruling does not provide a carte blanche for survivors to name perpetrators.

The primary question considered by the judge was one of truth versus falsity, and Ms. Cresswell still needed to be able to prove the truth of the allegation to the civil standard (balance of probabilities). If her allegation had been found to be deliberately false, her public interest defence would have failed​.

At [20] the Judge stated:

For the avoidance of doubt, I indicate that if I had concluded that the defendant's allegation was a deliberately false one (contrary to my primary finding above), I would not have found that she believed that publishing the statements in question was in the public interest or that such a belief, if it existed, was reasonably held.

The Judge, in this case, expressed some concerns about certain aspects of the Defendant's evidence:

1. The Judge did not accept the Defendant's claim that she had identified Mr. Hay to the Northumbria Police officers as her assailant on the morning of May 28, 2010, or that she had mentioned specific physical characteristics like tattoos or a septum ring. The Judge felt that even though the police investigation was superficial and inadequate, it was unlikely that the officers would have overlooked such details if they had been provided.

2. The Judge also questioned the Defendant's account that the police officers told her they had seen CCTV footage of her leaving the nightclub alone and wearing a leather jacket. The Defendant suggested that this was a further indication of the police investigation's deficiency, as she had left her jacket in the nightclub. However, the Judge found no reference to the police attending the nightclub in the incident log and doubted that the officers would have had the time to do so, isolate the relevant footage, and identify her in it. The Judge concluded that this aspect of the Defendant's account seemed aimed at bolstering her criticism of the police's response.

Despite these concerns, the Judge ultimately did not doubt the honesty of the Defendant's account in its essential aspects, which was supported by other evidence. The Judge recognized that an otherwise honest witness might be tempted to embellish their case, particularly in areas where they feel vulnerable. The Judge concluded that this is what had happened in this case.

The judgment shows that civil courts will not shy away from findings of truth even in the absence of a criminal investigation, caution, or conviction.

When to determine the "Serious Harm Element" in Defamation Cases: A potential issue in the Federal Court of Australia

An increasing number of defamation cases are being prosecuted in the Federal Court of Australia.

In this blog post, I look at a recent decision (9 May 2023) in which the Federal Court considered when, during the course of a case, the serious harm element should be considered and determined. The case of Selkirk v Hocking [2023] FCA 432 gives us an interesting perspective on the matter.

What is the Serious Harm Element?

In Victoria, the serious harm element arose from amendments made to the Defamation Act 2005 (Vic) (Defamation Act) in 2020. It introduced the “serious harm element” as a necessary factor in a defamation cause of action. (note: this factor is yet to apply in Western Australia).

Timing of Serious Harm Element

The fifth and sixth respondents in this case applied for the serious harm element to be determined before the trial commenced, as provided under s 10A(4) of the Defamation Act.

The Defamation Act's sub-sections 10A(1), (5) and (6) provide that a judicial officer should determine the serious harm element as soon as practicable before the trial unless there are special circumstances justifying postponement.

The factors that a judicial officer may consider when deciding on the presence of special circumstances include the:

• cost implications for the parties,

• resources available to the court, and

• extent to which establishing the serious harm element is linked to other issues determined during the trial.

Does this section apply to the Federal Court?

In Selkirk v Hocking, the court considered a complex jurisdictional issue.

This was whether ss 10A(5) and (6) of the Defamation Act are picked up by s 79(1) of the Judiciary Act 1903 (Cth).

This question arises because:

• once federal jurisdiction is engaged, as per Rana v Google Inc (2017) 254 FCR 1 at 7, the entire matter falls within the federal jurisdiction, and there's no concurrent federal and State jurisdiction being exercised;

• the court also needed to determine how the Defamation Act, as a state statutory law, applies in the exercise of federal jurisdiction (see Solomons v District Court (NSW) (2002) 211 CLR 119 at 134 [21]);

• section 79(1) of the Judiciary Act states that each State or Territory's laws, including those relating to procedure, evidence, and the competency of witnesses, should be binding on all Courts exercising federal jurisdiction, unless otherwise provided by the Constitution or Commonwealth laws.

A potential roadblock in the application of ss 10A(5) and (6) of the Defamation Act emerged concerning the Federal Court Act's ss 37M, 37N, and 37P, which define overarching purpose of civil practice and procedure provisions, require parties to act consistently with the overarching purpose, and grant the Court power to give directions about practice and procedure in a civil proceeding, respectively.

That is:

• is there an inconsistency between the Defamation Act and the Federal Court Act in relation to the timing of when the serious harm element is determined?

• it might be inconsistent with the “overarching purpose of civil practice” provisions of the Federal Court Act to, in effect, abide by what the Defamation Act says in relation to the timing of when the serious harm element gets dealt with during the course of a case.

The Judge stated at [41]:

The courts have long warned of the potential perils of hearing separate trials of issues. In Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at 55 [168]–[170], for example, Kirby and Callinan JJ said:

… The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.

The second and related comment is this. A party whose whole case is knocked out on a trial of a preliminary or single issue, may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court’s, rather than the parties’, interests.

Thirdly, there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here were this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question.

How the Judge decided to deal with the application

The court decided to treat the application as brought under s 37P of the Federal Court Act and r 30.01 of the Federal Court Rules, and to order that the following questions be heard separately:

1. Whether the article conveyed one or more of the defamatory imputations alleged;

2. The extent of publication of the article; and

3. Whether, in light of the answers to (1) and (2), publication of defamatory matter about the applicant caused, or is likely to cause, serious harm to her reputation.

This approach, as noted by Sweeney J in TVW Enterprises Ltd v Duffy (No 3) (1985) 8 FCR 93 at 95, may determine the outcome of the proceeding and save the parties the expense of a trial on all issues. The advantages of ordering such questions separately are, as Sweeney J notes, "plain".

In the circumstances of Selkirk v Hocking, where the article was allegedly published to no more than three persons, and where the applicant has arguably agreed to having engaged in the same conduct that the article subjects her to, hearing these questions separately could be particularly beneficial.

Do sub-sections 10A(1), (5) and (6) of the Defamation Act apply in the Federal Court?

The Court in Selkirk v Hocking did not conclusively determine whether the application of ss 10A(5) and (6) of the Defamation Act gives rise to any potential statutory inconsistency standing in the way of the operation of s 79 of the Judiciary Act.

This issue was deemed sufficiently unclear that the Court decided not to resolve it at the time, opting instead for a case management hearing to be convened for further directions or orders.

Pre-Action Discovery in Defamation Cases: An Overview

When confronted with a potential defamation action, a critical stage that can significantly shape the trajectory of the case is pre-action discovery.

This process can involve obtaining relevant documents from the potential defendant, before formal proceedings are initiated.

It helps the plaintiff ascertain if there is a viable cause of action to pursue.

However, navigating the legal intricacies surrounding pre-action discovery in defamation cases can be challenging.

The Purpose of Pre-Action Discovery

The primary purpose of pre-action discovery is to assist a potential plaintiff who believes they may have a cause of action, but lacks specific details or evidence to substantiate their claim.

It can be particularly useful in defamation cases, where certain details may only be accessible to the potential defendant.

The Legal Framework

The Rules of the Supreme Court 1971 (WA) (RSC), specifically Order 26A rule 4, governs pre-action discovery in Western Australia for documents in the “custody, power or possession” of a potential defendant.

This rule provides that pre-action discovery can be ordered if the court is satisfied that the applicant may have a right to obtain relief from the court against a person, but can't ascertain certain details to initiate a proceeding.

Threshold for Pre-Action Discovery

The threshold for pre-action discovery is set high to prevent abuse of process.

As established in the case of Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14, the applicant must show they may have a right to relief, not merely a suspicion or speculative claim.

The test is an objective one and requires more than a mere assertion, conjecture, or suspicion.

Case Law Guidance

Several key cases provide further guidance.

In Waller v Waller [2009] WASCA 61, it was held that there must be some tangible backing or objective foundation that takes the existence of the cause of action beyond a mere allegation, suspicion or assertion. The applicant 'must demonstrate more than mere assertion, conjecture or suspicion, but does not have to positively establish the existence of a cause of action. What the applicant must produce is evidence showing that he, she or it may have a cause of action'.

In McCarthy v Dolpag Pty Ltd [2000] WASCA 106, it was emphasised that being wrongly subjected to an order for pre-action discovery can be a serious invasion of privacy.

In Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14 it was held there must be evidence objectively indicating - beyond the mere assertion, conjecture or suspicion of the applicant - that all facts necessary to give rise to a right to curial relief may be able to be established.

Balancing Act

Courts have to perform a delicate balancing act in pre-action discovery applications.

They must weigh the potential invasion of privacy and the oppressive nature of the order against the applicant's need for information to substantiate their claim.

As such, courts exercise caution and restraint in ordering pre-action discovery.

A Closer Look: BWS v ARV (No 2) [2021] WASCA 62

In BWS v ARV (No 2) [2021] WASCA 62, the plaintiff provided several pieces of evidence to substantiate their claim that they might have a substantive case against the defendant. These included details about their relationship with the potential defendant, the nature of alleged defamatory statements, and the reasoning behind their belief that the potential defendant was the source of these statements.

The parties were formerly married and had been involved in acrimonious proceedings in the Family Court of Western Australia (paragraph 5). The plaintiff was also engaged in separate proceedings before the Islamic Religious Council of Singapore (IRCS) involving a trust dispute (paragraph 5).

The plaintiff provided evidence of specific statements made in the IRCS proceedings that they considered to be defamatory and damaging to their personal life and affairs (paragraph 7). These included allegations about the plaintiff's religious practice, responsibilities as a parent, professional conduct, and personal and financial management.

The plaintiff believed that these defamatory statements were based on comments made by the potential defendant to one or more of the other parties in the IRCS proceedings (paragraph 8). The plaintiff's affidavit detailed the reasons for this belief, including their previous marital relationship with the potential defendant and the lack of other potential sources for the information contained in the defamatory statements (paragraph 9).

The court noted that while the plaintiff was able to present a logically consistent argument supporting their belief that the potential defendant had provided the defamatory information to the other parties (paragraph 44), the evidence did not go beyond this belief to directly establish the nature and content of the alleged communications between the potential defendant and these parties (paragraph 51).

This left the court to consider whether the plaintiff's belief that the potential defendant may have published defamatory statements about them was sufficient to satisfy the jurisdictional requirement under Order 26A rule 4(1) of the Rules of the Supreme Court 1971 (WA) that the plaintiff may have a cause of action against the potential defendant (paragraph 52).

The court concluded that the plaintiff’s belief, while logically consistent, did not meet the threshold for pre-action discovery as set out in the Rules of the Supreme Court and interpreted in case law. The plaintiff was not able to provide the necessary evidence of the nature and content of the alleged communications between the defendant and the other parties in the IRCS proceedings. Therefore, the court determined that the plaintiff’s belief alone was not enough to establish that they may have a cause of action against the appellant for defamation.

Key Take-Aways

• Pre-action discovery can be a potent tool for potential plaintiffs in defamation cases. However, the need to protect individuals from unnecessary invasion of privacy means the threshold for obtaining such orders is high.

• Familiarity with the rules and case law governing pre-action discovery can ensure a more strategic approach to potential defamation actions.

Cases mentioned in this blog post:

• BWS v ARV (No 2) [2021] WASCA 62

• Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14

• Waller v Waller [2009] WASCA 61

• McCarthy v Dolpag Pty Ltd [2000] WASCA 106