The Intricacies of the "Reply to Attack" Defence in Defamation Law

Defamation law is a complex area that seeks to balance the freedom of expression with the protection of an individual's reputation.

One defence often invoked in defamation cases is the "reply to attack" defence, which arises from the common law principle of qualified privilege.

This blog post explores the "reply to attack" defence and its key aspects, with reference to the recent Australian Federal Court decision of Palmer v McGowan (No 5) [2022] FCA 893.

1. The Essence of the Defence:

The "reply to attack" defence is a species of common law qualified privilege that applies when a defendant responds to a public attack on their reputation or conduct by the plaintiff (or an interest the defendant is entitled to protect).

The essence of the defence lies in the presence of a sufficient connection between the defamatory matter and the privileged occasion (Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366).

The public's interest in hearing the response of the target to public criticisms is the basis for this privilege (Gould v Jordan (No 2) [2021] FCA 1289).

2. The Attack and the Response:

For the defence to operate, there must have first been an attack on the defendant (Gould v Jordan).

The response must be commensurate with the attack, but the law gives the defendant some latitude. As Dixon J explained in Penton v Calwell (1945) 70 CLR 219, the purpose of the privilege is to allow the defendant to freely submit their answer or counter-attack to the public to whom the plaintiff has appealed or attacked the defendant.

3. Proportionality and Malice:

Any question of proportionality arises not on the issue of whether an occasion of privilege exists, but rather at a later stage of the enquiry, namely whether the defendant was actuated by malice (Penton v Caldwell; Loveday v Sun Newspapers Ltd (1938) 59 CLR 503).

4. Ripostes and Qualified Privilege:

In some instances, a defendant's reply may be considered a riposte, which is a response to an allegedly defamatory retort that was made in response to an earlier alleged defamatory attack.

The law generally does not extend qualified privilege to ripostes (Kennett v Farmer [1988] VR 991), as granting an initial defamer a right of reply would defeat the policy upon which the privilege is founded.

5. Palmer v McGowan (No 5) [2022] FCA 893

In the case of Palmer v McGowan (No 5) [2022] FCA 893, the judge thoroughly analyzed the "reply to attack" defense that was invoked by Mr. Palmer.

The judge first considered the legal principles surrounding the defense and then applied these principles to the facts of the case to determine whether the defense was available to Mr. Palmer.

The judge began by examining the relevant principles that underpin the "reply to attack" defence.

In applying these principles to the case, the judge closely scrutinsed the various "attacks" made by Mr. McGowan that Mr. Palmer claimed entitled him to the defence.

After assessing the evidence and arguments presented by both parties, the judge identified three main reasons for the ultimate unavailability of the defence to Mr. Palmer.

First, the judge noted that almost all of the alleged attacks by Mr. McGowan had already been responded to by Mr. Palmer before the relevant Cross-Claim Matters occurred. This led the judge to conclude that the Cross-Claim Matters were not sufficiently connected to any attack by Mr. McGowan, which is a crucial element of the "reply to attack" defense.

Secondly, as a result of this lack of connection, the judge determined that the Cross-Claim Matters were, in essence, separate attacks that did not qualify for the protection of the "reply to attack" defense.

Lastly, the judge also discussed the concept of "ripostes" in the context of the "reply to attack" defense. A riposte refers to a response to an allegedly defamatory retort that itself was made in response to an earlier alleged defamatory attack. The judge clarified that the law does not grant protection to such ripostes under the "reply to attack" defense.

Key take-aways

• The "reply to attack" defence in defamation cases is an intricate area of law that requires a careful analysis of the relationship between the initial attack, the defendant's response, and the presence of any ripostes.

• The case of Palmer v McGowan (No 5) [2022] FCA 893 provides valuable insight into the application of this defence and the factors that courts may consider when determining whether the defence is available to a defendant in a defamation claim.

Striking the Balance: Defamation and Multiple Meanings in Court

Defamation law exists to protect individuals from false statements that harm their reputation, while also respecting freedom of expression.

A key challenge for courts when handling defamation cases is determining the meaning of allegedly defamatory statements. This is particularly difficult when a statement is capable of conveying multiple meanings.

In this blog post, I explore the approach courts take in such situations, drawing on the case of Duma v Fairfax Media Publications Pty Limited (No 3) [2023] FCA 47 and other relevant case law.

Finding the Meaning

In Duma, the respondents argued that the court should find "an approximate centre-point in the range of possible meanings" or the single meaning that is "the (or a) dominant one" when determining the meaning of a potentially defamatory statement.

This approach, they argued, would protect the balance between freedom of expression and protection of reputation by shifting "the preferred meaning to the middle ground" (Duma, [51]).

However, the court rejected this argument, stating that it confuses the characteristics of the reasonable reader with the approach to determining meaning.

Instead, the court emphasized that its task is to determine "the single meaning" of the allegedly defamatory material (Duma, [52]).

The Reasonable Reader and Determining Meaning

The court in Duma highlighted the distinction between the characteristics of the hypothetical reasonable reader and the meaning of the words in question. While the reasonable reader is described as a person "who does not, and should not, select one bad meaning where other non-defamatory meanings are available" (Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at [14]), this does not equate to a prescription for how the court should attribute meanings to potentially defamatory words (Duma, [53]).

In Rufus v Elliott [2015] EWCA Civ 121, Sharp LJ clarified that the court is not required to select a non-defamatory meaning simply because it is available. Instead, the touchstone remains what the ordinary reasonable reader would consider the words to mean (Duma, [54]).

This approach was endorsed by the Supreme Court of the United Kingdom in Stocker v Stocker [2020] AC 593. Lord Kerr stated that the court is not obliged to select a non-defamatory meaning among a range of meanings simply because it is possible to do so. The ordinary reasonable reader's understanding remains the central consideration (Duma, [54]).

The Australian Approach

The law in Australia is consistent with the reasoning in Rufus and Stocker. In cases such as Armstrong v McIntosh (No 4) [2020] WASC 31, Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68, and Bazzi v Dutton [2022] FCAFC 84, Australian courts have similarly rejected the idea that they must select a non-defamatory meaning where one is available.

The focus remains on the ordinary reasonable person's understanding (Duma, [55]).

Key take-aways

• In defamation cases where multiple meanings are possible, courts must determine the single meaning of the allegedly defamatory material.

• The ordinary reasonable reader's understanding serves as the touchstone for this determination. Courts are not required to select a non-defamatory meaning simply because it is available.

• By focusing on the ordinary reasonable reader, courts can strike a balance between freedom of expression and protection of reputation in defamation cases.

Default Judgments in Defamation Cases: Insights from the Federal Court of Australia

A recent case, Musicki v De Tonnerre [2023] FCA 222, provides insight on the topic of how the Federal Court of Australia deals with defamation cases that are not defended.

This blog post discusses the key points from the case and the principles that guide the court's decision-making process in defamation cases involving default judgments.

Background

In Musicki v De Tonnerre, the applicant sought judgment in her favour due to the respondent's failure to appear or file a defence as ordered by the court.

The case involved a defamatory Google review about the applicant's surgical practice, which was later revealed to be posted by a former medical student of the applicant.

The respondent was found to be in default and the court decided to give judgment in favour of the applicant, limited to the defamation action.

Relevant Principles

The Federal Court Rules 2011 (Cth) outline the circumstances in which a party is considered to be in default and the potential orders that the court can make in such situations.

The court's power to give summary judgment against a defaulting party is discretionary and should be exercised cautiously.

In Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606, the court outlined the principles to be followed when considering default judgments. The court must be satisfied that the applicant is entitled to the relief claimed in the statement of claim. This requirement means that the court must be satisfied that "on the face of the statement of claim" the applicant is entitled to the relief sought.

Applying the Principles

In Musicki v De Tonnerre, the court found the respondent to be in default due to their failure to file a notice of address for service, a defence in accordance with the Federal Court Rules, and a defence in compliance with the court's orders.

The court determined that there was no basis to assume the respondent's non-compliance was accidental or justifiable.

The court then considered whether the applicant had proven her defamation claim.

It was satisfied that the respondent had published the defamatory Google review and that it contained the imputations pleaded by the applicant.

The court also found that the applicant had suffered damage to her reputation.

Key take-aways

• Musicki v De Tonnerre demonstrates the Federal Court of Australia's approach to default judgments in defamation cases.

• The court exercises its discretion cautiously and carefully considers whether the applicant has proven their claim.

• In cases where a respondent is found to be in default, the court may grant judgment in favour of the applicant, as demonstrated in this case.

A Closer Look at Section 40 of the Defamation Act 2005 (WA): Costs in Defamation Cases

In this blog post, I examine Section 40 of the Defamation Act 2005 (WA), which deals with the awarding of costs in defamation cases in Western Australia.

I discuss the specific provisions of Section 40 and illustrate how it interacts with general costs principles, as highlighted in the decision of Rayney v Reynolds [No 4] [2022] WASC 360 (S).

Section 40 of the Defamation Act 2005 (WA)

Section 40 of the Defamation Act 2005 (WA) outlines the considerations for courts when awarding costs in defamation proceedings.

It consists of 3 subsections:

1. Subsection (1) requires the court to consider:

(a) the way in which the parties conducted their cases, including any misuse of a party’s superior financial position to hinder the early resolution of the proceedings; and

(b) any other matters that the court considers relevant.

2. Subsection (2) states that, unless the interests of justice require otherwise:

(a) if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff, the court must order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff.

3. Subsection (3) defines "settlement offer" as any offer to settle the proceedings made before the proceedings are determined, including an offer to make amends (whether made before or after the proceedings are commenced) that was a reasonable offer at the time it was made.

This section is meant to promote a "speedy and non-litigious method of resolving disputes and to avoid protracted litigation wherever possible" as identified by McClellan CJ at CL in Davis, which was later cited in Jensen v Nationwide News Pty Ltd [No 13].

Interaction with General Costs Principles

Section 40 operates alongside general costs principles found in s 37 of the Supreme Court Act 1935 (WA), which provides the court with a wide discretion when making orders for costs in proceedings.

This discretion must be exercised judicially and in accordance with established principles to achieve a fair and just outcome for the parties.

While the general rule is that costs should follow the event (meaning the successful party should recover their costs from the opposing party), s 40 of the Defamation Act provides specific guidance for defamation cases, thereby taking priority over the general rules.

Reasonableness of Settlement Offers

As per Section 40(2)(a) of the Defamation Act, the court must assess whether a defendant unreasonably failed to make or agree to a settlement offer proposed by the plaintiff. To determine the reasonableness of a settlement offer, courts may consider factors such as:

1. Whether the offer was a reasonable one at the time it was made.

2. The reasonable predictions about the plaintiff’s prospects of success and quantum.

3. The avoidance of hindsight bias in relation to liability or quantum.

4. Whether the offer reflected a reasonable and realistic assessment of the plaintiff’s prospects of success on liability and the probable quantum of an award in the event of success (Wagner v Nine Network Australia Pty Ltd (No 2)).

Furthermore, the principles of Calderbank v Calderbank may also apply to the assessment of the reasonableness of an offer.

Factors to consider include the stage of the proceeding at which the offer was received, the time allowed to the offeree to consider the offer, the extent of the compromise offered, the offeree’s prospects of success (assessed as at the date of the offer), the clarity with which the terms of the offer were expressed, and whether the offer foreshadowed an application for indemnity costs in the event that the offeree rejected it.

Rayney v Reynolds [No 4] [2022] WASC 360 (S)

In the case of Rayney v Reynolds [No 4] [2022] WASC 360 (S), the Western Australian Supreme Court considered the issue of costs in a defamation proceeding. The court applied Section 40 of the Defamation Act 2005 (WA) and the general costs principles outlined in s 37 of the Supreme Court Act 1935 (WA) to determine the appropriate costs order to be made.

In this case, the plaintiff, Rayney, was successful in his defamation claim and sought an order for costs to be assessed on an indemnity basis. The court, applying the provisions of Section 40(2) of the Defamation Act, was required to consider whether the defendant, Reynolds, unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff.

In doing so, the court examined the reasonableness of the settlement offer relied upon by the plaintiff, which was dated 14 February 2019, and assessed it in accordance with the principles of Calderbank v Calderbank. The court took into account several factors, such as the stage of the proceeding at which the offer was received, the time allowed to the offeree to consider the offer, the extent of the compromise offered, and the offeree's prospects of success, as assessed at the date of the offer.

Ultimately, the court found that the defendant had unreasonably failed to make a settlement offer or agree to the plaintiff's settlement offer. As a result, the court ordered that the costs of the proceedings be assessed on an indemnity basis, in accordance with Section 40(2)(a) of the Defamation Act 2005 (WA). This decision demonstrates the importance of parties in defamation cases taking a reasonable approach to settlement negotiations, as an unreasonable refusal to engage in settlement discussions can lead to significant financial consequences in the form of indemnity costs orders.

Key take-aways

• Section 40 of the Defamation Act 2005 (WA) plays a crucial role in guiding the awarding of costs in defamation cases in Western Australia.

• By considering factors such as the conduct of the parties, the reasonableness of settlement offers, and the interests of justice, the court aims to achieve a fair and just outcome for all parties involved.

• This section is specifically tailored to defamation proceedings and takes priority over general costs principles found in the Supreme Court Act 1935 (WA).

Malice and the Defence of Qualified Privilege in Defamation Law

Defamation law is a complex area, and one aspect that is particularly challenging is the concept of malice in the context of the defence of qualified privilege.

In a recent case, Kalil v Eppinga [2023] NSWDC 107, the court considered the principles of malice in relation to qualified privilege.

This blog post provides a general overview of malice in defamation law, drawing on the principles discussed in the case.

Principles of Malice

Malice involves the maker of the imputation being actuated by an improper purpose or motive; that is to say one that is foreign to the duty or interest that protects the making of the statement (Roberts v Bass (2002) 212 CLR 1, per Gaudron, McHugh and Gummow JJ at [75]).

The applicable principles can be summarized as follows:

1. To prove malice, the party alleging it must establish that the publication was actuated by malice, and that the improper motive was the dominant reason for the publication (Roberts v Bass at [75]–[76], [104]).

2. Proof of knowledge of falsity by the publisher is almost invariably conclusive proof of malice, as is proof of sheer recklessness amounting to wilful blindness (Roberts v Bass at [77], [84]).

3. Mere proof of ill-will, prejudice, bias, recklessness, lack of belief in truth, or improper motive is not sufficient to establish malice (Roberts v Bass at [76]). Mere lack of belief is not to be treated as equivalent to knowledge of falsity (Roberts v Bass at [87]).

4. Honesty of purpose is presumed in favour of a defendant, and it is for the plaintiff to prove that the defendant did not use the occasion honestly (Roberts v Bass at [96]). The plaintiff has the onus of proving that the defendant acted dishonestly (Roberts v Bass at [97]).

In KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden 101 NSWLR 729, the court provided further guidance on malice in the context of qualified privilege, emphasizing that a plaintiff has a heavy onus to discharge to establish malice and that malice is a serious matter (KSMC Holdings at [59]–[61]).

Case Analysis: Kalil v Eppinga

In Kalil v Eppinga, the court considered whether the plaintiff, Dr. Kalil, acted with malice when he made allegations against the defendant, Ms. Eppinga. The court found that Dr. Kalil did not give evidence, but his honesty of purpose was presumed, and it was for Ms. Eppinga to establish malice (Kalil v Eppinga at [37], [38]).

The court examined evidence of Dr. Kalil's state of mind, including a witness statement given to the police, where he stated that he saw Ms. Eppinga holding medication and thought she was about to steal it (Kalil v Eppinga at [40]). The court found that Dr. Kalil's allegation of attempted theft was neither knowingly false nor the view of someone who was wilfully blind (Kalil v Eppinga at [41]).

The court also considered the evidence of Ms. Eather, Dr. Kalil's veterinary nurse, who supported the conclusion that Dr. Kalil had a basis to believe that Ms. Eppinga was attempting to steal the medication (Kalil v Eppinga at [43]). The court ultimately concluded that Ms. Eppinga had not discharged her heavy on us to establish malice to the required Briginshaw v Briginshaw standard (Kalil v Eppinga at [47]).

The court also examined the conflict in evidence between Ms. Eppinga and Ms. Eather on the "Central Issue" of whether Ms. Eppinga was holding medication and attempting to steal it. While Ms. Eppinga denied the allegations, Ms. Eather's testimony supported Dr. Kalil's claims (Kalil v Eppinga at [49]-[52]).

Additionally, the court considered "Sub Issues" related to the dispute between the two accounts, including whether Ms. Eppinga yelled racial abuse at Dr. Kalil as she left the Hospital and whether Dr. Kalil touched Ms. Eppinga as she left the Hospital (Kalil v Eppinga at [52]-[53]). The court's evaluation of these conflicting accounts played a role in determining the credibility of the witnesses and the issue of malice.

Key take-aways

• The case of Kalil v Eppinga provides valuable insights into the principles of malice in the context of qualified privilege in defamation law.

• Establishing malice is a serious matter, and the party alleging malice must prove that an improper motive existed and that it was the dominant reason for the publication.

• Honesty of purpose is presumed in favour of a defendant, and the plaintiff has the burden to prove that the defendant acted dishonestly.

Understanding Common Law Qualified Privilege: An overview from Palmer v McGowan

Defamation lawyers frequently encounter the defence of common law qualified privilege.

This blog post provides an overview of the defence, drawing on the case of Palmer v McGowan (No 5) [2022] FCA 893, and other relevant authorities.

The Starting Point: Toogood v Spyring

The origins of the common law defense of qualified privilege can be traced back to the foundational case of Toogood v Spyring (1834) 1 Cr M & R 181; (1834) 149 ER 1044 (at 1049-1050).

In general, the law assumes that the publication of false and harmful statements is malicious.

However, if an individual makes a statement in good faith while fulfilling a public or private duty, or while managing their affairs in which they have an interest, the circumstances may prevent the assumption of malice and offer a qualified defense.

Reciprocity of Duty and Interest

Reciprocity of duty and interest is the hallmark of the common law defence, as highlighted in Cush v Dillon [2011] HCA 30; (2011) 243 CLR 298 (at 305 [11] per French CJ, Crennan and Kiefel JJ).

To succeed in this defence, a publisher must be under a legal or moral duty to disclose the information, or the disclosure must be necessary in the furtherance or protection of legitimate interests of the publisher.

Reciprocally, the interest of the recipient in having information on the subject matter must be of a tangible nature that it is expedient to protect it for the common convenience and welfare of society.

Applicability of the Defence to Large Audiences

The requirement of reciprocity generally precludes the applicability of the defence to large audiences, such as those reached by mass media publications.

As held in Lange, at common law, a claim of qualified privilege will generally fail where a publication is made to a large audience because the publisher cannot establish that it was using the occasion honestly and without malice for the purpose of publishing the defamatory matter to all of the recipients.

Conditions for a Successful Defence

A successful defence of qualified privilege at common law depends upon satisfaction of three conditions, as stated by Heydon J in Aktas v Westpac Banking Corporation Ltd [2010] HCA 25; (2010) 241 CLR 79 (at 96–97 [55]):

1. The communication was published on a privileged occasion.

2. The communication was related to the occasion.

3. There was no malice in the publication.

Applying these principles, it is often difficult to establish a privileged occasion when the publications are made to a wide audience, such as in the case of Palmer v McGowan.

Key take-aways

• In summary, the defence of common law qualified privilege is a complex and nuanced area of defamation law.

• The requirement of reciprocity of duty and interest, as well as the applicability of the defence to large audiences, are key factors to consider when evaluating the prospects of successfully invoking this defence.

Cases mentioned in this blog post:

• Palmer v McGowan (No 5) [2022] FCA 893

• Aktas v Westpac Banking Corporation Ltd [2010] HCA 25; (2010) 241 CLR 79

• Cush v Dillon [2011] HCA 30; (2011) 243 CLR 298

• Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

• Toogood v Spyring (1834) 1 Cr M & R 181; (1834) 149 ER 1044

Innocent Dissemination: A Defence in Defamation Law

In defamation law, innocent dissemination serves as a defence for parties who unknowingly distribute defamatory material.

This defence is available to subordinate distributors who can prove that they neither knew nor ought reasonably to have known the material was defamatory and that their lack of knowledge was not due to negligence.

In this blog post, I explore the principles of innocent dissemination as a defence, referencing key cases that have shaped the understanding of this concept in defamation law.

Innocent Dissemination at as a confession and avoidance defence

Innocent dissemination is a common law defence in defamation cases.

This defence operates by acknowledging the facts that establish the legal elements of defamation, but then avoids liability by demonstrating a justification or excuse.

The defence of innocent dissemination is well-established and has been discussed in numerous cases, such as Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574.

Requirements for the Defence

To rely on the defence of innocent dissemination, a distributor must prove three things:

1. They were a subordinate distributor of the defamatory material.

2. They neither knew nor ought reasonably to have known that the material was defamatory.

3. Their lack of knowledge was not due to any negligence on their part.

Innocent Dissemination and Electronic Material

The defence of innocent dissemination has been extended to electronic material, as acknowledged in Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574. This means that distributors of electronic material may also rely on this defence if the circumstances permit.

Key Cases

In the recent decision of Duffy v Google LLC [2023] SASC 13, the defence of innocent dissemination was discussed in relation to the search engine giant, Google. This case relied on earlier decisions, such as Trkulja v Google LLC (2018) 263 CLR 149 and Google LLC v Defteros (2022) 403 ALR 434, which helped shape the understanding of innocent dissemination in the context of online platforms.

Key take-aways

• Innocent dissemination remains a crucial defence in defamation law, particularly as technology continues to advance and the distribution of electronic material becomes more prevalent.

• The defence allows subordinate distributors to avoid liability if they can prove that they neither knew nor ought reasonably to have known that the material they distributed was defamatory, and that their lack of knowledge was not due to negligence.

Cases mentioned in this blog:

• Duffy v Google LLC [2023] SASC 13

• Google LLC v Defteros (2022) 403 ALR 434

• Trkulja v Google LLC (2018) 263 CLR 149

• Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574

Defamation Law and the Defence of Triviality: An Analysis of Turtur AO v Connor [2021] SADC 127

In the world of defamation law, the defence of triviality has become an increasingly important topic as courts grapple with the question of whether or not certain instances of alleged defamation are too insignificant to warrant damages.

This blog post will provide a brief overview of the defence of triviality, with a focus on the case of Turtur AO v Connor [2021] SADC 127, and the relevant sections and cases that have contributed to the interpretation of this defence.

Section 33 of the Defamation Act 2005 (WA) establishes the defence of triviality, stating that it is a defence to the publication of defamatory matter if the defendant proves that the circumstances of the publication were such that the plaintiff was unlikely to sustain any harm.

This section mirrors similar provisions found in other Defamation Acts in other states and territories.

However, there is conflicting authority on the meaning of the words used in these sections.

The conflict lies in the interpretation of the phrase "any harm."

In Jones v Sutton (2004) 61 NSWLR 614, the court held that "not likely to cause harm" did not mean more probable than not, but required the absence of a real chance or possibility of harm. The debate continues on whether "any harm" refers solely to "harm to reputation" or whether it extends to "injury to feelings."

This issue remains unresolved.

In Turtur AO v Connor [2021] SADC 127, the Applicant argued for the broader interpretation of "any harm," including injury to feelings, citing that damages for defamation were awarded "because of" injury to reputation, not "for" damage to reputation.

The Respondent, on the other hand, submitted that the appropriate interpretation was the narrower one adopted by the majority of the Queensland Court of Appeal in Smith v Lucht [2016] QCA 267, confining "any harm" to reputational harm and not extending it to loss of feelings.

Ultimately, whether the defence of triviality is successful will depend on the circumstances of the publication and the potential harm it may cause.

Factors such as the extent of the publication, the reactions of others to the publication, and any evidence of damage to reputation may all be considered when determining if the defence applies.

Key take-aways

• In conclusion, the defence of triviality remains an important aspect of defamation law, with courts continuing to wrestle with the appropriate interpretation of "any harm."

• The case of Turtur AO v Connor [2021] SADC 127 serves as a prime example of this ongoing debate, and it will be interesting to see how future cases contribute to the development of this defence.

Cases referenced in this blog post:

• Turtur AO v Connor [2021] SADC 127

• Smith v Lucht [2016] QCA 267

• Jones v Sutton (2004) 61 NSWLR 614

When Should a Certificate for Senior Counsel Rates Be Issued in Defamation Cases?

In defamation cases, the issue of whether a certificate should be issued by a judge to render the unsuccessful party liable for the successful party's costs at senior counsel rates is an important topic of discussion.

The case of Turtur Ao v Connor (No 2) [2021] SADC 151 provides valuable insights into the factors considered by the court when deciding whether to issue such a certificate.

The Test for Certifying an Action Fit for Senior Counsel

The test for determining whether an action should be certified fit for senior counsel was laid down by King CJ in Beasley v Marshall (No 3).

The test revolves around the question of whether a reasonable litigant, at the proper time for the delivery of briefs, would consider it necessary or at least prudent to brief Queen's Counsel / Senior Counsel for the adequate presentation of their case.

Factors for Issuing a Certificate

The court, in Turtur Ao v Connor (No 2), discussed several factors that might be relevant when deciding to certify an action fit for senior counsel. These factors include:

1. The difficulty of the case

2. The complexity of the issues of fact or law

3. Any demands which the case makes for the exercise of special professional skills

The court in Turtur Ao v Connor (No 2) ultimately declined to certify the action fit for senior counsel.

The judge found that the case was not of sufficient complexity to justify the briefing of senior counsel, as there were few witnesses called, and the issues were clearly defined.

Furthermore, the judge noted that the applicant's decision to retain senior counsel might have been prompted by his standing within the community and his concern at the publicity the action was likely to receive.

The court also considered that the respondent had not pleaded the defense of justification or contextual truth, which, if they had been pleaded, might have warranted the retention of senior counsel.

The judge acknowledged that the difference in the parties' respective positions before the trial was modest, and the costs incurred to retain senior counsel likely exceeded that difference.

Key take-aways

• In determining whether to issue a certificate for senior counsel rates, the court considers factors such as the difficulty and complexity of the case, as well as the need for special professional skills.

• It is crucial for legal practitioners to keep these factors in mind when deciding whether to engage senior counsel in a defamation case.

Cases mentioned in this blog post:

• Turtur Ao v Connor (No 2) [2021] SADC 151

• Beasley v Marshall (No 3) (1986) 41 SASR 321

The Importance of Identification in Defamation Cases: A Legal Perspective

A key element in a defamation case is the identification of the person being defamed.

In this blog post, I explore the principles surrounding identification in defamation cases, drawing from the Australian decision in Burston v Hanson [2022] FCA 1235 and other relevant cases.

1. The Requirement of Identification

The publication in question must be “of and concerning” the person who sues for defamation (Plymouth Brethren (Exclusive Brethren) Christian Church v the Age Company Ltd [2018] NSWCA 95; 97 NSWLR 739).

However, it is not necessary for the person alleging defamation to be named in the publication.

It is sufficient if the words used would reasonably lead persons acquainted with the person who sues to believe that they are being referred to (David Syme & Co v Canavan [1918] HCA 50; 25 CLR 234).

2. The Perspective of a Layperson

When considering identification in defamation cases, it is crucial to adopt the perspective of a layperson. This approach acknowledges that laypeople may be more prone to implications and loose thinking than legal professionals (Plymouth Brethren at [68], [76]–[77]).

The trial judge, acting as the tribunal of fact, is responsible for determining if a lay reader, familiar with the person claiming defamation, would reasonably understand that the individual in question was the subject of the published material (Plymouth Brethren at [77]).

3. The Substance of Identification

In determining identification in defamation cases, the emphasis should be placed on the substance of the basis that leads to identification, steering clear of unnecessary technicalities and excessive analysis (Plymouth Brethren at [90]).

The publisher's intention, even when it comes to their ability to identify the subject, is not relevant since the assessment is based on an objective approach rather than a subjective one (Plymouth Brethren at [61], [82]–[92]).

4. Mistaken Identification and Subsequently Acquired Information

A reasonable reader may arrive at a mistaken identification, provided that it stems from the content of the published material being complained about (Plymouth Brethren at [93]).

The identification does not necessarily have to take place at the time of publication and can be the product of subsequently acquired extrinsic information (Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237; 91 NSWLR 485 at [76] –[78]).

5. The Onus of Proof

If the person being sued is not explicitly named in the publication, determining identification during the factual determination stage depends on the sufficiency of the basis for identification being asserted in the legal pleadings, as well as the adequacy of the evidence provided to support those pleadings.

The onus is on the person suing (David Syme at 238; Pedavoli at [46]).

Key take-aways

• In defamation cases, the identification of the person being defamed is a crucial element.

• As seen in the cases discussed above, the courts focus on the substance of the basis for identification and the perspective of a layperson when making decisions.

Cases referred to in this blog post:

• Burston v Hanson [2022] FCA 1235

• Plymouth Brethren (Exclusive Brethren) Christian Church v the Age Company Ltd [2018] NSWCA 95; 97 NSWLR 739

• Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845

• Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237; 91 NSWLR 485

• David Syme & Co v Canavan [1918] HCA 50; 25 CLR 234