The "Interests of Justice" Exception in Defamation Costs Awards

Introduction: McIntosh v Peterson

The recent Western Australian Supreme Court decision in McIntosh v Peterson [No 3] [2024] WASC 446 provides valuable insights into how courts apply the "interests of justice" exception when awarding costs in defamation matters. In this case, veterinary clinic owners Andrew and Kay McIntosh, along with their business For Paws and Feathers Pty Ltd, sued animal rights activist Natasha Peterson, Jack Higgs, and V-Gan Booty Pty Ltd over a defamatory Facebook post. While the McIntoshes succeeded against Peterson and Higgs (receiving damages totalling $280,000), the claim against V-Gan Booty was dismissed, as were claims for injurious falsehood and civil conspiracy. When it came to costs, Chief Justice Quinlan had to navigate the complex interplay between statutory provisions, litigation conduct, and competing interests to determine the appropriate costs order.

The Statutory Costs Regime in Defamation Law

Defamation law in Australia provides a specific costs regime that differs from the usual "costs follow the event" principle. Section 40 of the Defamation Act 2005 (WA) creates a presumption in favour of indemnity costs in certain circumstances but subjects this to the overriding "interests of justice" exception.

Under s 40(2)(a), if defamation proceedings are successfully brought and the court is satisfied that the defendant "unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff," the court must order costs to be assessed on an indemnity basis - "unless the interests of justice require otherwise."

This "interests of justice" exception gives courts significant discretion to consider broader factors when determining costs, even where the statutory trigger for indemnity costs has been activated.

When Do the "Interests of Justice" Override the Presumption?

In McIntosh v Peterson [No 3], Chief Justice Quinlan found that the defendants had unreasonably failed to make a reasonable settlement offer. The defendants' offers of just $2,000 were found to be unreasonable in the circumstances, given that the plaintiffs had already suffered adverse effects and incurred costs. This triggered the presumption in favour of indemnity costs under s 40(2)(a).

However, His Honour went on to find that "the interests of justice require otherwise" for several important reasons:

1. The way parties conducted their cases: Section 40(1)(a) expressly allows the court to consider "the way in which the parties to the proceedings conducted their cases." In this case, the plaintiffs' counsel conducted cross-examination of Ms. Peterson in a particularly problematic manner by making unfounded allegations about her tax affairs. The cross-examination suggested she had declared only $70,000 in receipts from OnlyFans when her actual receipt was $385,000, implying tax fraud. In reality, Ms. Peterson had properly declared all income across her personal and company tax returns. This unfair attack on Ms. Peterson's character was reported in the media, causing reputational harm beyond the proceedings themselves.

2. Mixed success: The plaintiffs were wholly unsuccessful against V-Gan Booty Pty Ltd and failed in two entire causes of action (injurious falsehood and civil conspiracy).

3. Focus of the litigation: The plaintiffs' case had significant focus on Ms. Peterson's financial affairs and V-Gan Booty Pty Ltd's OnlyFans business, which the court found "permeated the plaintiffs' case" but was ultimately unnecessary to establish their defamation claims.

Understanding "Conducting a Case" in Context

The concept of how a party "conducts their case" is particularly important in defamation proceedings, where litigation tactics can significantly affect both the course of the proceedings and reputational impacts beyond the courtroom.

In McIntosh, the plaintiffs' conduct of their case extended beyond merely presenting their claims. Their litigation approach included:

1. Pursuing multiple defendants and causes of action, including against a company not incorporated at the time of the original Facebook post

2. Making an "elaborate case" suggesting Ms. Peterson's animal rights activism was "a ploy for making money"

3. Conducting cross-examination in a way that made serious allegations about tax impropriety that were unfounded and misleading

4. Focusing significantly on Ms. Peterson's financial affairs, which Chief Justice Quinlan found unnecessary for vindicating the plaintiffs' reputations

Quinlan CJ stated that "a party that conducts proceedings in that way should expect that it has costs consequences." This demonstrates that how parties choose to litigate defamation claims—particularly their focus, tactics, and treatment of opposing parties—can directly impact costs outcomes despite the statutory presumption.

Practical Implications for Litigants

The McIntosh decision offers several practical lessons for litigants:

1. Early resolution is crucial: The court described the settlement offers as revealing "the anatomy of a lost opportunity at resolution and... the metastatic effect that legal costs have on the prospect that proceedings can sensibly be resolved." Chief Justice Quinlan observed that much of the harm suffered by the plaintiffs could have been avoided if the matter had been resolved early.

2. Make reasonable settlement offers: Defendants should make genuine attempts to resolve matters with reasonable offers. The sum of $2,000 was deemed "simply unreasonable" even at an early stage.

3. Consider proportionality: In McIntosh, the court noted that some claims (particularly the clinic's claim) were relatively minor in monetary terms and even fell within the monetary jurisdiction of the Magistrates Court jurisdiction.

4. Focus on reputation restoration: Defamation proceedings should focus primarily on vindicating reputation rather than attacking the defendant's character beyond what is necessary for the claim.

5. The "interests of justice" exception has meaningful application: Even when the statutory preconditions for indemnity costs are met, courts retain a genuine discretion to make different orders where the interests of justice require.

Distinguishing Indemnity Costs from Special Costs Orders

It's important to note that the judgment in McIntosh also addressed a separate costs issue: whether to make a "special costs order" under s 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA) to remove limits imposed by the relevant costs determinations. This is distinct from the question of indemnity costs under the Defamation Act.

While the court declined to award indemnity costs under s 40(2) of the Defamation Act, it did make a limited special costs order allowing:

• Removal of time limits for preparation of the case

• An increased hourly rate for counsel (to match senior counsel rates)

This highlights that courts have multiple tools for addressing costs and will apply them proportionately based on the specific circumstances of each case.

Conclusion

The "interests of justice" exception in s 40(2) of the Defamation Act provides courts with important flexibility to ensure costs orders reflect the overall conduct of proceedings and achieve fairness between parties. As demonstrated in McIntosh v Peterson [No 3] [2024] WASC 446, even where a party has technically triggered the presumption in favour of indemnity costs, the court will look holistically at all relevant circumstances.

For defamation practitioners, this case serves as an important reminder that how you conduct litigation—from the framing of claims to cross-examination tactics—can significantly impact costs outcomes. The interests of justice require not just consideration of who won, but how they won, and whether their conduct throughout the proceedings merits the significant benefit of indemnity costs.

Individual Sensitivities in Defamation Damages: Taking Plaintiffs As You Find Them

Introduction: The Michelmore Case

In a recent Western Australian defamation case, Michelmore v Brown [No 3] [2025] WASC 9, the Supreme Court of Western Australia awarded damages to a legal practitioner who had been defamed by former clients. The case involved two defamatory emails – one sent by a single defendant and another sent by multiple defendants – containing statements that seriously impugned the lawyer's integrity and professional competence. Justice Tottle found the statements were "grossly defamatory," had "no foundation in fact," and were "wholly indefensible." The court awarded $70,000 for the first email and $90,000 for the second email, with both amounts including aggravated damages.

The Egg-Shell Skull Rule in Defamation

One of the key considerations in assessing damages for defamation is the principle that defendants must "take their plaintiffs as they find them." This concept, similar to the "egg-shell skull" rule in personal injury law, recognizes that individuals may react differently to defamatory publications based on their personal sensitivities and circumstances.

As Justice Tottle noted in Michelmore, citing Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027, "damages for injured feelings, however innocent the publication by the defendant may have been, form a large element in the assessment." This principle acknowledges that the harm caused to plaintiffs by defamatory material often lies more in their own feelings about what others might be thinking about them than in any actual change in the attitudes of others toward them.

Individual Sensitivity and Damage Assessment

When assessing damages in defamation cases, courts consider several factors related to a plaintiff's individual sensitivity:

1. Personal and professional reputation: In Crampton v Nugawela (1996) 41 NSWLR 176, applied in John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291, the court emphasized that damage awards should "reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment."

2. Subjective impact of the defamation: Courts recognize that the same defamatory statement might affect different plaintiffs in vastly different ways, depending on their personal circumstances, position in society, and psychological makeup.

3. The plaintiff's actual distress: While damage to reputation is presumed and need not be proved, evidence of actual distress can influence the quantum of damages. In Michelmore, the court accepted evidence of the significant distress experienced by the plaintiff, including her testimony that she felt "her stomach had dropped out of [her] body" upon reading one of the defamatory emails.

Balancing Subjective and Objective Elements

Despite the importance of individual sensitivities, courts maintain a balancing approach. As noted in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, there are three purposes served by damages in defamation:

1. Consolation for personal distress and hurt

2. Reparation for harm to reputation

3. Vindication of the plaintiff's reputation

The first two purposes address the subjective harm to the plaintiff, while the third looks more objectively at how others might perceive the plaintiff following the defamation. In Michelmore, Justice Tottle noted that "the sum awarded must be at least the minimum necessary to signal to the public the vindication of the plaintiff's reputation," drawing on principles established in Carson v John Fairfax & Sons Ltd.

Impact of Defendant's Conduct

The court in Michelmore also considered the defendants' conduct in assessing damages. Citing principles from Triggell v Pheeney (1951) 82 CLR 497 and as explored in Cerutti v Crestside Pty Ltd [2014] QCA 33; [2016] 1 Qd R 89, damages may be aggravated by the defendant's conduct before, during, and after publication.

Justice Tottle found that the defendants' failure to apologize and their persistence in maintaining unfounded allegations throughout the proceedings significantly aggravated the plaintiff's injury. This is consistent with the principle articulated in Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 that a respondent's failure to provide any apology is pertinent to the assessment of damages.

Conclusion

The Michelmore case reaffirms that when assessing damages in defamation cases, courts will consider the individual sensitivities of plaintiffs while balancing this against objective factors. As stated in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, the assessment of damages involves "a mixture of inextricable considerations."

For defendants, this means understanding that the law requires them to take plaintiffs as they find them – with all their unique sensitivities and vulnerabilities. For plaintiffs, it means that the law recognizes that defamation can cause significant subjective harm, even when others might not perceive any change in a plaintiff's standing or reputation.

As defamation law continues to evolve in the digital age, this principle – that damages should reflect both the objective harm to reputation and the subjective harm to feelings – remains a cornerstone of how courts approach the complex task of compensating defamation victims.

Defamatory Imputations: How Courts Determine What Words Really Mean

Recent Case Example: JABBIE v GBANGAYE

In a recent Supreme Court of Western Australia decision, JABBIE v GBANGAYE [2025] WASC 73, the Court examined defamation arising from a podcast that was livestreamed on Facebook. The case involved two women who had come to Australia as refugees from Liberia. The defendant, a self-styled "talk-show host," made serious allegations about the plaintiff during a podcast discussing the murder of Janet Dweh. The plaintiff's estranged husband had been arrested and charged with the murder three weeks prior to the podcast. The Court found that the defendant made statements implying the plaintiff was complicit in the murder, that she was a violent person, that she had harassed the victim, and that she practiced witchcraft. These defamatory statements were widely viewed within the Liberian community in Australia and internationally. The plaintiff was awarded $325,000 in general damages and $70,400 in special damages.

Understanding Defamatory Imputations

When determining whether something is defamatory, courts consider two key questions: what meaning do the words convey (the imputation), and is that meaning defamatory? In legal terms, an "imputation" refers to the meaning that ordinary reasonable people would take from the publication.

As noted in Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506, these questions involve "the meaning of the words used (the imputation) and the defamatory character of the imputation." Both are assessed through the lens of the ordinary, reasonable reader or viewer.

The Ordinary Reasonable Person Standard

Courts apply a single standard—that of the "ordinary reasonable person"—which yields a single meaning from potentially competing interpretations. This approach was affirmed in Trkulja v Google [2018] HCA 25; (2017) 263 CLR 144 at [32], where the High Court described the exercise as "one in generosity and not parsimony."

The ordinary reasonable person:

• Is not a lawyer examining the publication with legal scrutiny

• Views the publication casually

• May be prone to "loose thinking"

• Reads between the lines based on general knowledge and experience

• Draws implications much more freely than a lawyer, especially derogatory ones

• Takes into account emphasis given by headlines or captions

This means that courts interpret potentially defamatory content from the perspective of how average people would understand it, not through technical legal analysis.

Different Types of Imputations: Natural Meaning and True Innuendo

Defamation law recognizes two ways imputations can arise:

Natural and Ordinary Meaning

This refers to the meaning that would be understood by an ordinary reasonable person without any special knowledge. In JABBIE v GBANGAYE, statements like "you Charlene will never go free ... your hands are behind the death of Agnes" conveyed a clear imputation that the plaintiff was complicit in murder through their natural and ordinary meaning.

True Innuendo and Extrinsic Facts

True innuendo arises when words seem innocuous on their face but become defamatory when combined with extrinsic facts known to the audience. For example, in Lewis v Daily Telegraph Ltd [1964] AC 234, Lord Reid explained that a statement might appear innocent to those without special knowledge but defamatory to those who possess certain background information.

Extrinsic facts are facts not contained in the publication itself but known to some or all of the audience. These facts can transform seemingly innocent statements into defamatory ones. For a true innuendo case to succeed, a plaintiff must:

1. Plead the extrinsic facts

2. Prove these facts were known to at least some recipients of the publication

3. Demonstrate how these facts, combined with the published words, conveyed the defamatory imputation

While not explicitly analysed in the JABBIE v GBANGAYE case, true innuendo represents an important concept in defamation law that deserves exploration. This differs from what happened in JABBIE, where the court found the imputations about witchcraft were conveyed through the ordinary meaning of terms like "juju" and "medicine" within the context of the publication. Justice Tottle simply held that "the ordinary reasonable viewer of the podcast would understand the references to juju and witchcraft to refer to the plaintiff" without requiring any special knowledge outside the publication.

A Step-by-Step Guide to Drafting and Proving True Innuendo Imputations

To illustrate how true innuendo works in practice, consider the following fictional example:

Imagine a local newspaper publishes: "Dr. Thompson was seen leaving the Grand Hotel at midnight after visiting Room 712." On its face, this statement merely describes a doctor leaving a hotel, which is not inherently defamatory.

Step 1: Identify the Extrinsic Facts

The plaintiff (Dr. Thompson) must first identify the extrinsic facts that transform the innocent statement into a defamatory one:

• Dr. Thompson is a respected family physician who serves as an examiner for medical certification tests

• Medical certification examinations were scheduled at the university the following day

• The Grand Hotel is where out-of-town students stay when taking these exams

• Room 712 was occupied by a student who was scheduled to take the exam the next day

• The medical board has strict rules prohibiting examiners from having private meetings with students before examinations

Step 2: Draft the True Innuendo Imputation

The plaintiff must clearly articulate how these extrinsic facts combine with the published words to convey a defamatory meaning: "The words meant and were understood to mean that the plaintiff was compromising the integrity of medical examinations by privately meeting with a student before their test, thereby acting unethically, violating professional standards, and abusing his position of trust as an examiner."

Step 3: Plead the Publication, Words, and Extrinsic Facts

In court documents, the plaintiff must carefully articulate all elements of the case:

• Quote the exact words published: "Dr. Thompson was seen leaving the Grand Hotel at midnight after visiting Room 712."

• Clearly identify the publication details (date, newspaper name, circulation numbers, page number)

• Explicitly plead each extrinsic fact, including:

• Dr. Thompson's role as a medical examiner for upcoming certification tests

• The scheduled examinations at the university the following day

• The Grand Hotel's status as lodging for out-of-town exam candidates

• Evidence that a student scheduled for examination was staying in Room 712

• The medical board's ethical guidelines prohibiting private meetings between examiners and candidates prior to examinations

• Connect these facts to show how readers with knowledge of these circumstances would understand the defamatory meaning implied by the otherwise innocent statement

Step 4: Prove Knowledge of Extrinsic Facts

The plaintiff must demonstrate that at least some recipients of the publication possessed knowledge of the extrinsic facts:

• Testimony from fellow medical professionals who read the article and recognized Dr. Thompson as an examiner for the upcoming tests

• Evidence showing awareness within the medical community about which students were staying at the Grand Hotel for examinations

• Witness statements confirming common knowledge about Room 712's occupant

• Documentation of the medical community's familiarity with ethical guidelines regarding examiner-candidate interactions

• Evidence that readers connected the timing of the hotel visit with the next day's scheduled examinations

Step 5: Demonstrate How Meaning Arises

The plaintiff needs to establish the logical connection between the published words and the extrinsic facts:

• Explain why readers with knowledge of the examination schedule would find significance in a midnight visit to a specific room

• Demonstrate how readers familiar with medical ethics would interpret a late-night visit to a candidate's hotel room as improper

• Show why the combination of Dr. Thompson's examiner status, the timing of the visit, and the identity of the room's occupant would lead reasonable readers to infer unethical conduct

• Present evidence that readers actually drew this conclusion upon reading the article

Step 6: Address Potential Defences

Anticipate and counter potential defences the publisher might raise:

• If the defendant claims the extrinsic facts were not sufficiently widespread, provide evidence of their community knowledge

• If the defendant argues readers would not draw defamatory meaning even with knowledge of these facts, present testimony from actual readers who did make this connection

• Counter any claim of an "innocent explanation" by showing why readers would more likely infer impropriety given the specific context

• Address potential truth defences by distinguishing between the literal truth of the statement (Dr. Thompson visited the room) and the false defamatory imputation (that he was compromising examination integrity)

• Prepare for arguments that the statement was merely opinion by demonstrating that the imputation presents as a factual assertion

These steps form a comprehensive approach for establishing and proving a true innuendo case, showing how seemingly innocent words become defamatory when interpreted by readers who possess specific background knowledge about the situation.

When Imputations Are Conveyed

In JABBIE v GBANGAYE, the defendant admitted some imputations were conveyed by her words but denied others. The Court found that serious imputations were indeed conveyed, including that the plaintiff was complicit in murder.

It's important to note that the vehemence with which statements are made can overwhelm qualifiers like "allegedly" or "I believe." As Justice Tottle observed, "in the context of a publication on social media the ordinary reasonable viewer would not have attached any significance to the words 'allegedly' or 'I believe'."

No Defence for Repeating Rumours

A critical principle reinforced in this case is that publishing defamatory statements about a person prefaced by qualifying words does not protect the publisher from liability. As Lord Denning colourfully stated in Associated Newspapers Ltd v Dingle [1964] AC 371 at 410:

"Our English law does not love tale-bearers. If the report or rumour was true, let him justify it. If it was not true, he ought not to have repeated it or aided its circulation. He must answer for it just as if he had started it himself."

This principle was similarly expressed in King v Telegraph Group Ltd [2004] EWCA Civ 613 at [22], where the Court held that a person who repeats a defamatory statement about another can only succeed in justifying the statement by proving the truth of the underlying allegation, not merely the fact that the allegation has been made.

The Defamatory Character of Imputations

For an imputation to be defamatory, it typically:

• Lowers a person's standing in the community

• Lowers the estimation in which people hold that person, or

• Causes people to think less of the plaintiff

As established in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460, the test is whether the publication would tend to lead ordinary reasonable members of society to think less of the plaintiff.

In practice, once the meaning of words is determined, whether that meaning is defamatory is often straightforward. In JABBIE v GBANGAYE, the imputations that the plaintiff was complicit in murder, practiced witchcraft, and was violent were plainly defamatory.

Context Matters

The context in which statements are made can significantly influence how imputations are understood. In social media publications, inflammatory and emotive language can amplify the defamatory nature of statements. The Court in JABBIE v GBANGAYE noted that the defendant's comments "were calculated to excite condemnation of the plaintiff" and that she "made no attempt at balance or restraint."

Conclusion

Understanding how courts determine defamatory imputations is crucial for both plaintiffs and defendants in defamation proceedings. The law recognizes that words can carry meanings beyond their literal interpretation and that these meanings are assessed from the perspective of ordinary people, not legal experts.

Whether you're a content creator, social media user, or someone potentially affected by defamatory content, it's important to understand that courts look beyond technical qualifiers like "allegedly" to determine the real message conveyed to audiences. As JABBIE v GBANGAYE demonstrates, the repetition of serious allegations, even when framed as rumours or speculation, can lead to substantial damages when they harm someone's reputation.

The complexities of true innuendo and extrinsic facts further highlight the need for careful consideration of context and audience when assessing potential defamation risks. What might seem harmless to one audience could be deeply defamatory to another who possesses the relevant background knowledge.

Common Law Qualified Privilege in Australian Defamation Law

Introduction

The law of defamation serves to protect personal reputation, but there are situations where the law recognizes that potentially defamatory statements should be protected for the broader public good. One such protection is the defence of qualified privilege, which provides immunity for certain communications made in specific contexts. As a defence, qualified privilege acknowledges that in some circumstances, freedom of communication outweighs the protection of reputation. This blog post explores the principles and application of common law qualified privilege in Australian defamation law, examining key cases that have shaped this important area.

The Conceptual Basis of Common Law Qualified Privilege

The foundation of common law qualified privilege was articulated in the landmark case of Adam v Ward [1917] AC 309. The House of Lords outlined that a privileged occasion arises where:

"the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential."

This reciprocity requirement remains the cornerstone of qualified privilege. The defence acknowledges that there are situations where society benefits from the free exchange of information, even if that information might be defamatory. As noted in Toogood v Spyring (1834), the defence protects communications that are made "for the common convenience and welfare of society."

In essence, qualified privilege creates a rebuttable presumption against malice. Where an occasion of qualified privilege exists, the plaintiff must prove "malice in fact" to defeat the defence. Whether an occasion is privileged is a question of law for the judge to decide, assuming the facts are not in dispute.

Categories of Qualified Privilege

Over time, the courts have recognized several categories where qualified privilege may apply. These are not exhaustive but represent common situations where the defence has been successfully invoked.

Statements Made Under a Duty to a Person with an Interest

This category applies when the speaker has a duty to make the statement to someone who has either a duty to receive it or an interest in receiving it. In Beach v Freeson [1972] 1 QB 14, a member of Parliament wrote to the Law Society and the Lord Chancellor complaining about the conduct of two solicitors. The court held that the MP had a social or moral duty to communicate this information, particularly as he had received multiple complaints about the firm.

Interestingly, while the Law Society's interest in receiving such information was clear (as it had disciplinary powers), the court also found that the Lord Chancellor had a sufficient interest despite lacking direct disciplinary authority. This was because solicitors were officers of the court, and the Lord Chancellor was ultimately responsible for the machinery of justice.

Commercial contexts can also give rise to qualified privilege. In Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366, the High Court held that the defence was available to a publisher of an occupational health and safety bulletin containing defamatory allegations. The court emphasized that what distinguished this publication from other paid publications was "the narrow focus of both its subject matter and its readership" which created the necessary reciprocity of duty or interest.

Statements in Public Functions or Election Campaigns

Another category includes statements made in carrying out public functions or participating in election campaigns. Debate within municipal councils on local affairs typically attracts qualified privilege, as does certain election campaign communications.

In Braddock v Bevins [1948] 1 KB 580, the Court of Appeal took a robust approach to qualified privilege regarding election addresses. The court found that statements in a candidate's election address concerning an opposing candidate were privileged, provided they were relevant to matters electors would consider in casting their votes. The court reasoned that:

"The task of the electors under democratic institutions could not be satisfactorily performed if such a source of relevant information bona fide given were to be cut off by the fear of an action for libel."

This approach was somewhat tempered in Australian jurisprudence by Lang v Willis (1934) 52 CLR 637, where Dixon J and Evatt J took the view that participation in an election campaign did not create a general occasion of qualified privilege and that defamatory statements made during a public address in such a campaign would normally not be entitled to that defence.

However, in Roberts v Bass (2002) 194 ALR 161, the High Court revisited this issue. Several judges concluded that qualified privilege should attach to:

"statements by electors, candidates and their helpers published to the electors of a state electorate on matters relevant to the record and suitability of candidates for the election."

Protection of Family and Personal Relationships

The courts have also recognized that family and personal relationships might give rise to qualified privilege, though there is limited recent authority on this. In Watt v Longsdon [1930] 1 KB 130, Scrutton LJ acknowledged the difficulty in this area, noting:

"It is impossible to say he is always under a moral or social duty to do so; it is equally impossible to say he is never under such a duty. It must depend on the circumstances of each case."

This area demonstrates the significant judicial discretion involved in determining qualified privilege, with courts needing to evaluate whether a moral or social duty exists based on the specific relationship and circumstances.

Statements for the Protection of One's Own Interests

A fourth category protects statements made by a person in furtherance of their own interest to someone who has a duty to receive the information or an interest in receiving it. This requires the same reciprocity element as other categories.

An example would be a shareholder in a company bringing alleged wrongdoing by directors to the attention of regulatory bodies or the Stock Exchange. The shareholder has an interest in addressing the misconduct, and the regulatory bodies have an interest or duty in receiving such information.

In Aktas v Westpac Banking Corporation Ltd (2010) 268 ALR 409, the High Court considered whether a bank's endorsement "Refer to Drawer" on dishonored cheques was privileged. A majority of the court found no reciprocity of interest between the bank and payees where the drawer had sufficient funds to meet the cheques, illustrating the nuanced analysis this category requires.

Responding to an Attack

A well-established category of qualified privilege protects statements made in response to an attack by the plaintiff. In Loveday v Sun Newspapers Ltd (1938) 59 CLR 503, the High Court recognized that defamatory statements made in response to an original attack may be entitled to qualified privilege.

The extent of permitted response was addressed in Penton v Calwell (1945) 70 CLR 219, where Dixon J noted that:

"the purpose of the privilege is to enable the defendant on his part freely to submit his answer, whether it be strictly defensive or be by way of counter-attack, to the public to whom the plaintiff has appealed or before whom the plaintiff has attacked the defendant."

However, the defence is not unlimited. The response must be proportionate, and as noted in Kennett v Farmer [1988] VR 991, a riposte to a retort (a response to a response) generally wouldn't be protected. The court reasoned that allowing an initial defamer a privileged right of reply to the victim's defence would "severely inhibit his own rights of self defence" and allow a defamer to benefit from their own tortious act.

Complaints About Public Officials

A person who claims to have been adversely affected by a public official's conduct will normally receive the protection of qualified privilege when bringing a complaint to the appropriate official body, assuming no express malice. Courts have shown considerable latitude in such cases.

In Mowlds v Fergusson (1940) 64 CLR 206, a senior police officer made a report containing defamatory material at his superiors' request. He showed the report to the former Commissioner of Police who had resigned. The High Court considered this publication was made on an occasion of qualified privilege, as the former commissioner might be called upon to confirm or refute the defendant's report and had a real moral concern in receiving information about his past administration.

Irrelevant Statements and Loss of Privilege

The protection of qualified privilege only extends to statements relevant to the occasion in question. As articulated in Adam v Ward [1917] AC 309:

"Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected."

The High Court in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 framed the question as "whether the matter which defamed the appellant was sufficiently connected to the privileged occasion to attract the defence."

When a communication contains both relevant and irrelevant defamatory content, qualified privilege only attaches to the relevant part. Moreover, the inclusion of irrelevant defamatory content may provide evidence of malice and potentially destroy the privilege of the relevant portions as well.

It's important to note that the violence of language used does not affect whether there is an occasion of qualified privilege or whether the communication is relevant to that occasion, though it may be evidence of malice.

Media and Qualified Privilege

The courts have consistently rejected any general duty on mass media publishers to communicate matters of public interest to their audience. In Loveday v Sun Newspapers Ltd (1938) 59 CLR 503, Latham CJ stated:

"There is, however, no principle of law which entitles a newspaper to publish a defamatory statement of fact about an individual merely because a statement is made in the course of dealing with a matter of public interest."

Courts distinguish between matters in which the public might be "interested" in the sense of curiosity, and matters in which specific readers might have an "interest" due to their connection with the subject matter. As Higgins J noted in Howe v Lees (1910) 11 CLR 361, interest is used:

"in the broadest popular sense, as when we say that a man is 'interested' in knowing a fact — not interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news."

The High Court in Lange v Australian Broadcasting Corp (1997) 189 CLR 520 observed that "only in exceptional cases has the common law recognised an interest or duty to publish defamatory matter to the general public." This decision extended qualified privilege to publications on government and political matters, but subject to the requirement that the publisher's conduct be reasonable—a more stringent test than the traditional qualified privilege defence.

Ancillary Privilege

An important extension of qualified privilege is the concept of "ancillary privilege," which protects technical publications to persons who don't have a legitimate interest in receiving the information but are involved in the process of communication. For example, a stenographer who types a letter of complaint that contains defamatory material would be protected by the same privilege that attaches to the sending of the letter to the appropriate body.

As Lord Diplock noted in Bryanston Finance Ltd v de Vries [1975] 1 QB 703, this is "not an original privilege but one ancillary to, and dependent on, the existence of a privilege for the publication of the defamatory contents of the letter to its addressee."

Conclusion

Common law qualified privilege remains a vital defence in Australian defamation law, balancing the need to protect reputation with the importance of free communication in specific contexts. The defence's foundation rests on the reciprocal duties or interests between the publisher and recipient, with various categories developed through case law.

While qualified privilege offers significant protection in certain circumstances, it is not unlimited. The information must be relevant to the occasion, and the defence can be defeated by proof of malice. For media organizations, the traditional defence has limited application, though constitutional considerations have extended the protection for publications on government and political matters.

Understanding the principles and limitations of qualified privilege is essential for both those making potentially defamatory statements and those who believe their reputation has been harmed. As with many areas of defamation law, each case turns on its specific facts and requires careful analysis of the relationship between the parties and the context of the communication.

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.