Understanding the Grapevine Effect in Defamation Cases

Defamation cases can be complex, as the extent of the damage to the plaintiff's reputation is not always easily quantifiable.

One concept that often arises in these cases is the 'grapevine effect', which acknowledges the potential for defamatory material to spread beyond its original publication through various channels, leading to potentially far-reaching consequences.

In this blog post, I explore the grapevine effect in defamation cases, with a focus on how it can impact damage assessments and the role of social media in its proliferation.

The Grapevine Effect in Defamation

In the case of Brose v Baluskas & Ors (No 6) [2020] QDC 15, the court explained the grapevine effect as "the realistic recognition by the law that, by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published" (Wagner, 269).

This effect can have a significant impact on the plaintiff's reputation, even if the original publication reached a relatively small audience.

The Grapevine Effect and Social Media

The proliferation of social media has made it even easier for defamatory material to spread through the grapevine effect. With just a few clicks or taps on a mobile device, users can share posts that contain defamatory content, potentially reaching a much wider audience than the original publication.

However, it is important to note that the grapevine effect does not automatically arise in all cases involving social media. As noted in Mickle v Farley [2013] NSWDC 295, there must be some evidentiary basis pointing to the grapevine effect's existence before it can be taken into account for the assessment of damages.

Determining the Grapevine Effect's Impact

Assessing the grapevine effect's impact on damages can be challenging, as it is often difficult to determine the true extent of the defamatory material's dissemination. Courts must consider both the initial publication and any subsequent republications or media coverage to gauge the extent of the plaintiff's reputation damage.

In some cases, as seen in Brose v Baluskas & Ors (No 6), the media coverage of defamation proceedings can contribute to the grapevine effect, potentially exacerbating the plaintiff's reputational harm.

In assessing damages, courts also need to consider the need for vindication of the plaintiff's reputation. The sum awarded for vindication must be "at least the minimum necessary to signal to the public the vindication of the [plaintiff’s] reputation and sufficient to convince a person to whom the publication was made or to whom it has spread along the grapevine of 'the baselessness of the charge'" (Brose v Baluskas & Ors (No 6), [457]).

Key Take-Aways

• The grapevine effect is an important factor to consider in defamation cases, as it can significantly impact the extent of damage to the plaintiff's reputation.

• With the rise of social media, the grapevine effect has become even more potent, making it crucial for courts to carefully assess its role in each case.

Understanding Imputations in Defamation Law

Imputations play a crucial role in defamation cases, as they help identify the defamatory meaning or meanings conveyed by the published material.

This blog post discusses the significance of pleading imputations in defamation cases, the role of context in determining their meaning, and the importance of ensuring that imputations are sufficiently precise and unambiguous.

Imputations under the Uniform Defamation Legislation

The significance of pleading imputations has evolved under the uniform defamation legislation. Previously, under the Defamation Act 1974 (NSW), each imputation constituted a separate cause of action, as seen in Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174. However, under the current legislation, there is a single cause of action for the publication of defamatory material, even if multiple imputations are conveyed.

Pleading imputations serves several purposes, including identifying the scope of inquiry for trial and allowing defendants to raise defences, including statutory defences under sections 25 and 26 of the Defamation Act, which are responsive to imputations (Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125).

The Role of Context in Determining Imputations

The context of the published material is crucial in determining the meaning of a pleaded imputation.

According to Mason P in Greek Herald Pty Ltd v Nikopoulos (2002) 54 NSWLR 165, imputations should not be considered in isolation, but rather, in relation to the subject matter of the publication.

Context may clarify or intensify the "sting" of an imputation, or conversely, it may weaken it (Greek Herald Pty Ltd v Nikopoulos at [20]–[22]).

However, it is important to note that context cannot be used to change the meaning of an imputation that has been clearly chosen by the pleader (Charan v Nationwide News Pty Ltd [2019] VSCA 36 at [140]).

The Importance of Precision and Unambiguity

Imputations should be sufficiently precise and unambiguous to enable a fair trial.

Ambiguity in imputations may need to be resolved as an interlocutory issue before or during the trial (Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125 at [171]).

The trier of fact, whether a judge or a jury, should not have to resolve any ambiguity in the pleaded imputations, as their task is to determine the meaning of the published material rather than the meaning of the parties' pleadings (Singleton v Ffrench; Greek Herald Pty Ltd v Nikopoulos at [24]; Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362 at [68]; Fenn v Australian Broadcasting Corporation at [47]).

Key Take-Aways

• Imputations are central to defamation cases, as they help define the defamatory meaning or meanings conveyed by the published material.

• When pleading imputations, it is important to consider the context in which they appear and to ensure that they are sufficiently precise and unambiguous.

• By doing so, parties can streamline the litigation process and enable a fair and efficient trial.

Understanding the Hore-Lacey Defence in Defamation Law

Defamation law plays a critical role in protecting reputations and providing recourse for individuals who have been wronged through false statements.

One of the key defences in defamation law is the Hore-Lacey defence, which has its origins in the case of David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667.

In this blog post, I explore the Hore-Lacey defence and how it has evolved over time, by examining its application in various cases.

The Hore-Lacey Defence Explained

The Hore-Lacey defence is based on the principle that a defendant can assert a differently nuanced meaning or imputation from that asserted by the plaintiff, as long as it does not differ in substance (whether more or less injurious or serious in its defamatory character) (Hore‐Lacy 1 VR at 689 [63], Charles JA).]

This defence allows a defendant to plead the truth of an imputation that is less injurious and not substantively different from the one pleaded in the statement of claim, as a complete defence to the plaintiff's claim (Moodie 28 WAR at 320 [19]–[20] per Anderson J, 328 [58] per Stetlyer J at 335–336 [94] and per McLure J at [59]).

Key Cases and Developments

In Wing v The Australian Broadcasting Corporation [2018] FCA 1340, the respondents argued that their defence of justification based on the variant imputations constituted a good Hore-Lacy defence. They cited West Australian Newspapers Ltd v Elliot (2008) 37 WAR 387, Hyams v Peterson [1991] 3 NZLR 648, and Lewis v Daily Telegraph Ltd [1964] AC 234 as authorities that supported their position. The court ultimately held that the Hore-Lacy defence applied in this case.

Another important case is Polly Peck (Holdings) Ltd v Trelford [1986] QB 1000, which Hore-Lacy 1 VR 667 expressly departed from. In Hore-Lacy, the court required the defendant to plead the specific imputation that it alleged the matter complained of conveyed, so that neither party could raise a meaning substantially different from, or more injurious than, the meanings alleged by the plaintiff at trial (1 VR at 689 [63], Charles JA).

Furthermore, the case of Mickelberg v Hay [2006] WASC 285 discussed the way in which the Full Court of the Supreme Court of Western Australia in Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314 had dealt with Polly Peck [1986] QB 1000 and Hore‐Lacy 1 VR 667. The court in Moodie adopted a different test by allowing the defendant to plead the truth of an imputation of a lesser degree of seriousness as a complete defence to the plaintiff's claim.

Extending the Limitation Period for Defamation Actions: Key Considerations

Defamation law exists to protect individuals from false statements that may damage their reputation.

In Australia, there are strict time limits within which defamation actions must be commenced. However, in certain cases, the court may grant an extension of this limitation period.

This blog post discusses the factors that courts consider when deciding whether to extend the limitation period for defamation actions, with reference to the decision in Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385 and other relevant cases.

General Principles

Section 56A of the earlier and relevant version of the NSW Limitation Act outlines the circumstances in which a court may extend the limitation period for defamation actions. The court must be satisfied that it was not reasonable for the plaintiff to have commenced the action within one year from the date of the publication, and may extend the limitation period up to a maximum of three years from the date of publication.

As explained in Landrey v Nine Network Australia Pty Ltd [2023] FCA 27 and Paule v McKay (No 2) [2022] ACTSC 190, the court engages in an evaluative analysis to determine whether it was not reasonable for the plaintiff to have commenced the action within the one-year period. This analysis is based on objective factors and the individual circumstances of each case.

Factors Considered by the Court

In determining whether it was not reasonable for the plaintiff to have commenced the action within the one-year period, the court may consider factors such as:

1. The plaintiff's contemporary, subjective views and reasoning: The court will examine the plaintiff's actual reasons for not commencing the action within the one-year period, as explained in Carey v Australian Broadcasting Corporation [2010] NSWSC 709.

2. Changing circumstances during the limitation period: The court must consider any changes in the plaintiff's situation during the limitation period and how these changes may have impacted the reasonableness of commencing the action.

3. The "ordinary" position when criminal allegations are made: As noted in Joukhador v Network Ten Pty Ltd [2021] FCAFC 37, the court must evaluate the plaintiff's situation in light of any related criminal allegations and the potential impact on the defamation action.

4. The discretion conferred by s 56A(2) of the Limitation Act: The court has the discretion to extend the limitation period if it is satisfied that it was not reasonable for the plaintiff to have commenced the action within the one-year period.

Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385

In Lehrmann, the court identified several key factors that influenced its decision to extend the limitation period for the defamation action. These factors included:

1. The plaintiff receiving express advice to defer any defamation proceedings and relying on that advice.

2. The possibility of prosecution being a real concern for the plaintiff, leading him to prioritize the criminal allegations over the defamation action.

3. The potential prejudice to the plaintiff's defense in the criminal case if he pursued the defamation action simultaneously.

4. The plaintiff's efforts to engage with the Australian Federal Police (AFP) in an attempt to avoid prosecution, which aligned with his broader defense strategy.

5. The unique and compelling circumstances of the case, including the high-profile nature of the criminal allegations and the plaintiff's need to direct his resources and energies towards his defense.

Key Take-Aways

• When determining whether to extend the limitation period for a defamation action, courts consider a range of factors that may render it not reasonable for the plaintiff to have commenced the action within the one-year period.

• Ultimately, the court's decision will depend on the individual circumstances of each case, as well as an objective evaluation of the relevant factors.

• In light of the cases discussed, it is clear that courts will carefully examine factors such as the plaintiff's subjective views and reasoning, changing circumstances during the limitation period, any related criminal allegations, and the potential impact of the defamation action on other legal proceedings. Importantly, the court's evaluation is not based on a set of rigid rules, but rather a holistic assessment of the circumstances surrounding the plaintiff and the defamation claim.

• Individuals considering pursuing a defamation action should be aware of the strict time limits that apply and the factors that courts consider when assessing an application for an extension of the limitation period. It is crucial to consult with a legal professional experienced in defamation law to ensure that any potential claim is pursued in a timely manner and within the appropriate legal framework.

• Moreover, individuals facing both defamation claims and related criminal allegations should carefully weigh the potential consequences of pursuing both legal actions simultaneously. In such cases, prioritising one's defence in criminal proceedings may be a compelling factor in convincing a court to extend the limitation period for a defamation action.

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