Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Enders v Erbas & Associates Pty Limited [2014] NSWCA 70
• Hearing dates: 17 February 2014
• Decision date: 19 March 2014
• Before: Ward JA at [1]; Leeming JA at [2]; Tobias AJA at [7]

Decision

(1) Leave to appeal granted.

(2) The applicant to file her Notice of Appeal within seven days of the date of these orders.

(3) Appeal dismissed.

(4) The applicant to pay the respondent's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: DEFAMATION - defences - common law qualified privilege - whether primary judge erred in not making a finding of malice - knowledge of falsity of imputations where the defendant does not intend the convey the imputations; DEFAMATION - defences - statutory qualified privilege - application of s 30(3)(h) of Defamation Act 2005 - whether reasonable in the circumstances not to have sought a response from the plaintiff - whether it may be reasonable to seek a response after publication of defamatory matter; DEFAMATION - defences - defence of triviality - whether the primary judge applied the wrong test - whether "any harm" includes hurt feelings
• Legislation Cited: Defamation Act 1974 (NSW); Defamation Act 2005 (NSW)
• Cases Cited: Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30; Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366; Bray v Deutsche Bank AG [2008] EWHC 1263 (QB); Bristow v Adams [2012] NSWCA 166; Enders v Erbas & Associates Pty Limited (No. 2) [2013] NSWDC 44; Fraser v Mirza [1993] S.C. 27; Horrocks v Lowe [1975] A.C. 135; Jones v Sutton [2004] NSWCA 439; (2004) 61 NSWLR 614; Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Loveless v Earl [1999] E.M.L.R 530; LVMH Watch & Jewellery Australia Pty Limited v Lassanah [2011] NSWCA 370; Marshall v Megna [2013] NSWCA 30; Morosi v Mirror Newspapers Limited [1977] 2 NSWLR 749 at 799; Papaconstuntinos v Holmes à Court [2009] NSWSC 903; Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1; Szanto v Melville [2011] VSC 574
• Texts Cited: Gatley on Libel and Slander (12th ed 2013, Sweet & Maxwell); Price, Duodu and Cain, Defamation Law, Procedure and Practice (4th ed 2010, Sweet & Maxwell)
• Category: Principal judgment
• Parties: Sylvia Enders (Applicant); Erbas & Associates Pty Ltd (First Respondent); Ken Gurcan Erbas (Second Respondent)
• Representation: Counsel: C Evatt / R Rasmussen (Applicant); M G McHugh SC / G R Rubagotti (Respondents); Solicitors: Friend & Co Lawyers (Applicant); Neville & Hourn Legal (Respondents)
• File Number(s): 2013/141073

Decision under appeal

• Jurisdiction: 9101
• Citation: Enders v Erbas & Associates Pty Ltd (No. 2) [2013] NSWDC 44
• Date of Decision: 2013-04-19 00:00:00
• Before: Gibson DCJ
• File Number(s): 2011/214416

Judgment

1 WARD JA: I agree with Tobias AJA, for the reasons his Honour has expressed, that leave to appeal should be granted but the appeal dismissed with costs. I also agree with the additional observations of Leeming JA.

2 LEEMING JA: I agree with the reasons of Tobias AJA and the orders he proposes. I wish to address two points, wholly consistently with his Honour's reasons.

3 First, the appellant conceded, properly, that she would fail unless she could overturn the findings of absence of malice made at [147] and [148] which Tobias AJA has reproduced ("if we can't do that we cannot succeed on the appeal"). The essential position was that (a) the primary judge accepted that Mr Erbas honestly believed that his email was (in his words) "genuine"; (b) Mr Erbas disputed that the imputations arose or that he intended to convey them; and (c) Mr Erbas accepted that he knew that the imputations formulated by the plaintiff were in fact untrue. I agree with Tobias AJA that it does not follow that malice should have been found. Notwithstanding that the point was argued at some length, the principles applicable to this appeal are straightforward.

4 The "almost invariable" forensic reality that knowledge of untruth will be conclusive of malice turns on knowledge that the statement, not the imputation, was untrue. That reflects what was said in Roberts v Bass [2002] HCA 57; 212 CLR 1 at [77] and [81], with reference to the analysis by Lord Griffiths in Austin v Mirror Newspapers Ltd (1985) NSWLR 354 at 362. The distinction matters here, particularly in relation to imputations (d) and (e), which turned on "unjustifiably", and which do not jump readily from the page. Lack of belief in a particular imputation, although it is evidence from which malice may be inferred, does not entail malice: Roberts v Bass at [82].

5 The plaintiff was on stronger ground for imputation (c), because the email in terms referred to conduct not being "fair to the company". However, as Tobias AJA has demonstrated, its author repeatedly denied in cross-examination that his sentence was directed to people who were sick (for example, "That wasn't to do with the sick people. It was for the latecomers"). It was open to her Honour to accept that evidence.

6 Secondly, I agree with Tobias AJA that a fair reading of the reasons of the primary judge discloses error in applying s 33. It is clear from Jones v Sutton [2004] NSWCA 439; 61 NSWLR 614 at [34] that s 33 requires the Court to look at the circumstances at the time of publication and consider prospectively the likelihood of harm. On a fair reading of her Honour's reasons, this did not occur. It is not reflected in [182] ("I am satisfied that the plaintiff suffered neither 'harm' to reputation nor hurt to feelings"), [183] ("I am satisfied the plaintiff did not suffer harm to reputation ..." and "In addition, I am satisfied that she did not suffer hurt to feelings as claimed") or [184] ("I am satisfied that the plaintiff did not suffer any upset and hurt to feelings ..."). True it is that in [185] her Honour referred to being satisfied "that this is one of those rare cases where the plaintiff would not suffer any harm at all". That change in mood did not reflect an application of the prospective test required by s 33, but something much simpler. The sentence is conditional, and ordinary English syntax required the use of "would" once the choice was made to commence it with "if this email was seen by the 20 co-workers of the plaintiff". As Tobias AJA observes, nothing turns on that error because upholding her Honour's finding on malice is sufficient to result in the appeal being dismissed.

7 TOBIAS AJA: The applicant instituted defamation proceedings in the District Court against the respondents arising out of an email and an attached extract from an electronic office diary (the matter complained of) circulated to the employees of the first respondent, which included the applicant, on 5 July 2010. The applicant pleaded five imputations which, if conveyed, were conceded to be defamatory of her. The respondents pleaded the defences of common law qualified privilege, statutory qualified privilege pursuant to s 30 of the Defamation Act 2005 (NSW) (the Act) and the defence of triviality pursuant to s 33 of the Act. In reply to the defences of qualified privilege the applicant asserted that the publication by the respondents of the defamatory matter was actuated by malice.

8 The proceedings were heard by her Honour Judge Gibson who, on 19 April 2013, found that three out of the five pleaded imputations were conveyed by the matter complained of but upheld the defences of common law and statutory qualified privilege as well as the s 33 defence of triviality. Her Honour declined to find malice which would otherwise have destroyed the defences of qualified privilege. Accordingly, having found against the applicant on liability, the primary judge entered judgment for the respondents: Enders v Erbas & Associates Pty Limited (No. 2) [2013] NSWDC 44.

9 In accordance with the practice referred to in Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1 at [12], her Honour then considered the damages which she would have awarded the applicant in the event that she was found to be in error on the issue of liability. On the assumption that on appeal it was found that all five pleaded imputations were conveyed, her Honour would have awarded the applicant $10,000.00. On the basis of the three imputations which her Honour found to have been conveyed, she would have awarded damages in the sum of $5,000.00.

10 The applicant now seeks leave to appeal from the primary judge's decision. The summons for leave and the appeal were heard concurrently.

Some background facts

11 The first respondent was, at the relevant time, a consultant engineering company with approximately 20 employees. The second respondent was the managing director of the first respondent. The applicant was employed by the first respondent as a mechanical design draftsperson. Until 2008 the first respondent provided mechanical engineering services only and subcontracted hydraulic and electrical engineering work. Following the global financial crisis, it changed direction and became a multi-disciplinary engineering company.

12 Twelve mechanical engineers were employed in 2008, but by the end of 2009 the number of those engineers as well as mechanical design draftspersons had decreased to six due to redundancies and resignations. The applicant's position as a mechanical design draftsperson was affected by these changes although she did not know it at the time. A decision was made by the first respondent's management, which included the second respondent, to make the applicant redundant but before she could be informed of this, she advised the second respondent (and his wife, Mrs Erbas) that she had been diagnosed with breast cancer. Accordingly, the second respondent decided not to tell her about the decision to make her redundant and to delay implementing that decision.

13 As a consequence of her breast cancer diagnosis, the applicant underwent surgery after which she was required to undergo chemotherapy and radiation therapy. After her first session of chemotherapy she shaved her head and wore a bandana. She was absent from work for one full week in three prior to the matter complained of being sent. Her Honour found (at [70]) that everyone in the office of the first respondent knew that she had had cancer, was having ongoing treatment and that she had been absent from work at least one week in three for some months. This was also known to the second respondent who naturally accepted that her absences were necessary given the treatment to which she was being subjected.

The matter complained of

14 The primary judge (at [4]-[5]) described the matter complained of as an email to all staff members of the first respondent on an electronic mailing list. It included an extract from the first respondent's electronic office diary access to which, like the email, was limited to its employees. Staff consulted it to add in, or check, their own and/or other staff absences on sick leave and holiday leave, as well as late arrivals to (or early departures from) the office. Meetings outside the office and use of office cars or other valuable equipment such as cameras were similarly recorded either by the staff themselves or by the office receptionist.

15 On Monday, 5 July 2010 the second respondent, according to the diary, was to attend a meeting outside the office. He did not do so. Instead he sent the matter complained of, being an email and an extract from the office diary that covered the period 31 May to 11 July 2010.

16 Relevantly, the email was in the following terms:

To All,

In one month, I quickly counted 24 sick days, 21 late comers and 26 days of holiday as attached. This is equivalent of 3 people not here continuously throughout the month. This also means that the rest of the people here will be doing their jobs so that we can produce adequate [sic] to pay everyone's salary.

This is not fair to the company and the ones who come on time every time. We will be looking at this very seriously in the next [sic] days. It costs us big dollars per day of productivity. This is not acceptable.

Today only, 5 people sick and 1 on holidays. It hurts management to run the projects.

We will talk about this at our first [sic] staff meeting.

17 The attached extract from the electronic office diary contained entries setting out which staff members came to work late, were off sick, or were on holidays for each day. The first respondent circled these entries with a yellow highlighter. Seventeen of the twenty-four sick days were taken by the applicant. She had no absences from work on holiday leave out of twenty-six holiday leave entries. She was only one of the twenty-one latecomer entries identified in the diary extract.

18 The diary extract indicated that the applicant was "SICK - off the whole week" being the week commencing Monday, 31 May 2010. She was not shown to be absent in respect of the week commencing Monday, 7 June. The diary indicated "Sylvia off" on each day of the week commencing Monday, 14 June. The entries Monday and Tuesday, 21 and 22 June indicate "Sylvia - called sick". She was apparently present for the balance of that week although there is an entry on 23 June that she was "running late". The applicant was at work during the week commencing Monday, 28 June. The diary indicates "Sylvia off" for the whole week commencing Monday, 5 July.

19 The "staff meeting" referred to in the matter complained of was, according to her Honour (at [8]), a regular part of office management. The parties agreed that the reference to "first staff meeting" in the email should be read as "first available" or "next" staff meeting. These meetings were occasions for management and staff to highlight problems the first respondent was having. The second respondent was largely responsible for the agenda. Issues regularly discussed included productivity and lateness.

The pleaded imputations

20 The imputations pleaded by the applicant were as follows:

(a) The plaintiff is a malingerer.

(b) The plaintiff unjustifiably took time off work by falsely pretending she was sick.

(c) The plaintiff does not act fairly to her employer.

(d) By unjustifiably taking time off work the plaintiff does not act fairly to other staff.

(e) The plaintiff hurts management in the running of projects by unjustifiably absenting herself from work.

21 The primary judge rejected imputations (a) and (b) but found that imputations (c), (d) and (e) were conveyed by the matter complained of. With respect to imputation (c) her Honour held (at [55]) that the conduct that was "not fair" was that the applicant's absences were contributing to the equivalent of three people not being in the office continuously throughout the month. Accordingly, those who "come on time every time" suffered, as did the first respondent, as those absences "cost us big dollars per day of productivity". Her Honour was of the view that as her absence on leave "hurts management", such conduct was clearly identifiable.

22 As to imputation (d) her Honour noted (at [58]) that the key word in this imputation was "unjustifiably". In holding that the imputation was conveyed her Honour observed (at [59]) that the generalised impression of the sheer number of times that the applicant's name was circled was such as to give rise to the imputation that her absences from work, whether the reasons for the absences were fair or not, were unjustifiable. Importantly, at [60], her Honour remarked that the unjustifiable nature of the absences was that they were taken at a time when others were also absent, not that the absence itself was unjustified. She continued:

Reading the matter complained of as a whole, the general objection is that the level of absenteeism, however good the reasons may be, is unjustified as a whole, and that this is not fair to the staff who are at work on time, every time.

That finding as to the meaning of "unjustifiably" in the imputation was not challenged and is relevant to the issue of malice.

23 With respect to imputation (e) her Honour (at [63]) considered that like the other two imputations that she found to have been conveyed, (e) was also a case of "group libel" where the objection was to the conduct of more than one member of staff.

The primary judge's evidentiary findings

24 The primary judge set out the evidence of the second respondent relating to the circumstances in which he came to send the email containing the matter complained of at [73]-[78] of her reasons. It is implicit from her findings that she accepted his evidence as genuine and truthful. The applicant did not suggest otherwise. On the other hand, she did not accept the applicant as a witness of credit (at [96]).

25 The second respondent said that he wanted to talk about the absenteeism problem because employees who were in the office on a day when another employee was not had to take on more of the load and some of them had to stay back late, so it was a genuine cry from the employer "help, we have to make sure we finalise these jobs". He said that this was discussed at the staff meeting on 16 July "so that we can change the deadlines for all those projects so that we can still give what the client asks". He then referred to the problems for productivity caused by staff being off sick as well as being on holiday leave and other unplanned absences such as late arrival at work. It was the cumulative effect of these absences that caused problems for the first respondent in completing its work to the client's satisfaction which, inferentially, was the reason he sent the email.

26 At [80] the primary judge referred to the second respondent's knowledge that the applicant had been diagnosed with breast cancer and that surgery and chemotherapy were scheduled following that diagnosis. The second respondent acknowledged that this required the applicant to take substantial absences from work which was noted in the office electronic diary as "off sick". He said that he had been supportive of the applicant's ill health from the time she first told him about it. He denied that the email was directed at her in particular (at [78]).

27 An issue arose as to when the applicant first read the email of 5 July. She denied that she saw it on the day that it was sent. However, her Honour rejected that evidence and found (at [87]) that she saw the matter complained of on the same day that it was published as a copy was forwarded to her private email address including the attached diary extract.

28 The staff meeting foreshadowed in the email took place on 16 July. It was attended by the applicant. She agreed that she said nothing at the meeting about the content of the matter complained of and did not take up any opportunity to complain or raise the matter at the meeting despite the fact that the email stated that it would be discussed. Accordingly, at [89] her Honour found that the applicant did nothing about the email for ten days even though she claimed to be distressed by it. Her Honour therefore rejected her evidence that she spoke to the second respondent about it. She accepted the second respondent's evidence that if the applicant had spoken to him about it he would have done something about it. These findings are not challenged.

29 After referring (at [111]) to the minutes of the meeting which indicated that the second respondent was concerned about latecomers (which did not relevantly include the applicant) and to the evidence of a Mr Parissis who attended the meeting, her Honour found (at [112]) that that evidence was indicative of the second respondent's state of mind. She concluded that he did not misuse the occasion but genuinely believed that there was a serious latecomer problem and that he was concerned with absenteeism generally as it impacted on productivity.

30 After referring to evidence given by other employees of the first respondent as to what occurred at the 16 July staff meeting, her Honour concluded (at [116]) that:

All of the evidence paints a picture of a closely-knit office of about 20 employees, working in teams on engineering projects to deadlines, in a company severely hit by the global financial crisis, and changing its work practices in order to cope. Absences from the office were monitored by the use of the office diary, sick leave forms and regular staff meetings. They affected productivity.

The defence of common law qualified privilege

31 After referring to the well accepted principles as to when a publication is made on a protected occasion, her Honour noted (at [130]) that the duties within a company or business included the discussion of activities detrimental to the company and the canvassing of conduct relevant to business efficiency. At [132] she found that:

The facts of the present case provided a very clear example of the duty which was not only moral, but social and legal, in that the publication related the satisfactory performance of the company's work by its employees.

This finding was not challenged.

32 At [135] her Honour noted that the present case was unusual in that the subject diary entries were either personally entered by the employees or otherwise authorised by the recipients of the matter complained of. There was a complete overlap between the persons who received the matter complained of and those responsible for the contents of the diary. Her Honour concluded that this was a particularly strong set of factual circumstances in which to find that the matter complained of was published on an occasion protected by common law qualified privilege. The applicant did not challenge her Honour's finding that the matter complained of was published on privileged occasion.

The primary judge's finding on the issue of malice

33 The applicant did challenge the primary judge's finding with respect to the issue of malice. At [144] the primary judge set out the principles applicable to the determination of malice as explained by Beazley JA, with whom, relevantly, Allsop P and Hoeben JA agreed, in Marshall v Megna [2013] NSWCA 30 at [280]-[301]. I will refer to some of these principles in a little detail when dealing with the applicant's submissions on this issue.

34 The applicant's Amended Reply alleged that the publication of the matter complained of was actuated by the express malice of the respondents and, in particular, the second respondent. Two particulars were then pleaded. Particular (ii) alleged improper motive of the respondents in the publication of the matter complained of being an intent to injure the applicant and her reputation as evidenced by ten identified factors. The primary judge referred to each of these factors at [146] of her reasons and found that each was not made out. There was no challenge to these findings.

35 However, particular (i) of the Amended Reply asserted, relevantly, the following:

[The first respondent's] servants and agents...and the [second respondent] himself knew the imputations and those parts of the material complained of which conveyed the imputations were false because the [applicant] had a genuine medical disability being breast cancer and was unable to work because of the disability and its treatment which included chemotherapy and radiation and on the days on which the [applicant] was able to work the servants and agents and [the second respondent] refused to let the [applicant] work.

36 This knowledge of the second respondent as to the falsity of the imputations found to be conveyed and of those parts within the material complained of that conveyed those imputations formed the basis of the applicant's appeal against her Honour's finding rejecting the allegation of malice.

37 Although it was submitted that her Honour did not deal with this particular, in fact she did as appears at [147] of her reasons:

In the course of the hearing and in submissions, Mr Evatt relied upon the knowledge of falsity of the defamatory material (Roberts v Bass at [79]-[83]). In Cush v Dillon; Boland v Dillon, supra, and LVMH, supra, the defendants did not intend to convey, or believe in the truth, of the imputations, and publication was denied. In the present case, Mr Erbas denied imputing that the plaintiff was a malingerer, but stood by the statement in the matter complained of. Mr Erbas honestly believed in the truth of what he wrote and described the contents of his email as "genuine" (T 236, 264). He disputed that the imputations arose (T 264) but stood by what he said. In addition, Mr Erbas denied that he was angry, upset or annoyed with the plaintiff, or otherwise motivated by hostility or ill will.

38 Importantly, the primary judge then concluded her findings on this issue (at [148]) in the following terms:

Mr Erbas honestly believed that the company was "hurt" and that employees like himself and his wife, who came to work "on time every time" were "hurt" by other employees' clashing absences from work. He did not send the email for any collateral purpose, but for the purpose stated, namely to try to resolve the situation at the next staff meeting, which is exactly what he did.

Her Honour was thus satisfied that the applicant had failed to establish malice.

The second respondent's evidence on the issue of malice

39 The second respondent was extensively cross-examined as to his motive for sending the email. He agreed that he was not annoyed when people called in sick but that he wrote the email to make sure that other people knew that "we had to do something about it as a whole team". He denied he wrote the email because he wanted to do something about the people who were running late and calling in sick; rather his concern was to see what could be done as a team to deliver the job during the day when there were absences or lateness. He stated on a number of occasions that if somebody called in sick, their sickness was not questioned and that he certainly did not write the email to protest about people calling in sick or not turning up for work. He accepted that anyone who called in sick was genuine and this was evidenced by the fact that never once was any employee who called in sick required to produce a medical certificate.

40 When it was put to the second respondent that he did not intend to say to anyone or convey that the applicant was not sick, he responded:

I never said to anyone because I knew she was sick.

The cross-examiner then referred the second respondent to the five imputations that had been pleaded and confirmed with him that in his answers to interrogatories he had agreed that none of them were true. The following exchange then occurred:

Q: And when you sent the email you knew that those allegations or imputations were not true, is that right?

A: I agree with you. She is--

Q: Now--

A: -- not a malingerer

41 This line of questioning was repeated in the following pages of transcript when the second respondent agreed that the applicant was not any of the things referred to in the imputations and that he was aware of that at the time he sent the email.

42 It is important to observe that the second respondent was not cross-examined to suggest that, at the time he sent the email, he understood the email to convey the imputations pleaded. However, he was interrogated on this issue (the questions and answers to which were admitted into evidence). The relevant interrogatory and the second respondent's response to it were as follows:

Interrogatory:

i. Did the Defendants intend the material complained of to convey any of the imputations as pleaded?

...

iii. What imputations of and concerning the Plaintiff did the Defendants intend to convey?

Answer:

i. No.

...

iii. None

It was not put to the second respondent that these answers were not true.

43 The cross-examiner returned to the issue as to the second respondent's motive in sending the email. The second respondent denied that he wrote the email because he doubted whether the relevant employees were entitled to run late, call in sick and that he thought they were being unfair to the company. He agreed that when people ran late or were sick that would have an effect on the business so that it was necessary to rearrange deadlines and give the work to other people to finish the job. He also agreed that if staff ran late that could affect deadlines which in turn would affect the first respondent's relations with its customers and, in turn, its profitability.

44 The second respondent repeatedly denied that the fact that people such as the applicant, reported sick was not fair to the company and those that came to work on time; he insisted that it wasn't to do with the sick people, it was the latecomers. The following exchange encapsulated the problem that he was attempting to articulate:

Q. But do you agree that whether they're sick or latecomers, they were reporting sick, that the sickness of those four people caused you to say this is not fair to the company and the ones who come on time?

A. That wasn't to do with the sick people. It was for the latecomers. For the sick people and latecomers, we had to rearrange deadlines.

Q. Are you saying it was everything; is that what you were saying, that it was everything; it wasn't just that people were staying away sick, it was that people were staying away sick and coming in late and taking holidays, whatever, and the cumulative effect; is that what you're saying?

A. That's right.

45 It was again put to him that he sent the email because he wished to say that five people sick on the day he sent it was not being fair to the company. Again, he responded by saying that the email was not directed to the sick people but the latecomers. The following exchange then occurred:

Q. What. Look, leaving Sylvia, the plaintiff, aside, were you not saying, in effect in your email, that those others who took time off work without good reason were not acting fairly to other staff?

A. We don't question their reasons. Somebody says I want to take holidays; somebody says sick and they take holiday and they are sick, we just rearrange our deadlines accordingly. We don't question their reasons. They may have other personal reasons.

Q. No, but were you not saying or attempting to say that those persons who took time off work were not acting fairly to other staff?

A. No. The unfairness is for the people who are left behind to do more work. They have to work harder; they have to do sometimes overtime; we have to pay them overtime to make sure the job is done and we have to call the clients to make sure the deadlines are changed or they accept our apology that we can't meet the deadline.

Q. Therefore, the people who take off sick is unfair to the other staff who work there; do you agree with that?

A. It's not unfair; if they are sick, they are sick. They don't come. We rearrange the rest of the jobs with the others.

46 He was then asked whether he regretted writing the email to which he responded:

I don't because that was a genuine email, it's a genuine cry from an employer that we have to do something about it as a team because we have a problem, and the problems can only be resolved by coming together and discussing with the team how we can overcome the problem. It became a problem for the company to make sure that the deadlines could be met.

47 When pressed once more that employees who called in sick were not being fair to the others in the office, he responded:

It is nothing to do with being fair or not, if they are sick they are sick, we don't question them, we ask for medical certificates, we have to re-arrange the workload for the people who are not there. They could have holidays, they could have sick leave, they could have personal things and they may or may not come at any time but our office is dependent upon the number of people there at that time, every time, and we have to make sure we re-arrange things.

The exchange continued:

Q. What was not fair to the company and the ones that come on time every time?

A. It's not fair for the rest of the people, they have to work extra hours to make sure they cover for all the things that we have to finalise.

Q. But who were the persons [sic] who weren't fair. What wasn't fair to the ones that came on time every time?

A. As I said, they just have to make sure they work extra time to finalise the work. The work has to be done. The work is there, has to be done, there are deadlines. Clients expect. They don't care who is sick or not sick or who is on holidays or who is not there. All they want is the job done and we have responsibilities to make sure the job is done.

...

Q. What was not fair?

A. Making the other people having to work more because of that reason and it would put a lot of stress on the people to deliver the jobs.

The relevant principles applied to the applicant's submissions

Knowledge of falsity of the imputations

48 The applicant's basic submission was that the relevant principle applicable to the present case was that stated in the joint judgment of Gaudron, McHugh and Gummow JJ in Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 at [77] where their Honours said:

If the defendant knew the statement was untrue when he or she made it, it is almost invariably conclusive evidence of malice. That is because a defendant who knowingly publishes false and defamatory material almost certainly has some improper motive for doing so...

49 In the present case it was submitted that the second respondent had said that he knew the imputations to be false at the time the email was sent. Accordingly, so it was contended, a finding of malice was, in effect, inevitable.

50 The respondents submitted that the law of defamation contains no support for the proposition that knowledge of falsity of the defamatory imputations conveyed by the matter complained of inevitably leads to the conclusion that the defendant had an improper motive or was otherwise actuated by malice, and such a proposition runs counter to the statements of the plurality in Roberts v Bass at [78] and [83].

51 For the reasons that follow, in my view, the authorities do no support the applicant's submission.

52 In Roberts v Bass the plurality (at [76]) relevantly stated that:

[P]roof that the defendant knew that a defamatory statement made on an occasion of qualified privilege is untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. [Emphasis added.]

53 However, their Honours emphasised at the end of the same paragraph that qualified privilege is, "and can only be", destroyed by the existence of an improper motive that actuates the publication: that is, a motive foreign to the privileged occasion.

54 At [78] their Honours continued:

There is no basis in principle or authority for treating knowledge of falsity...as a separate head of, or equivalent to, malice. In the law of qualified privilege, the common law has always regarded malice as the publishing of defamatory material with an improper motive. Knowledge of falsity is "almost conclusive evidence" that the defendant had some improper motive in publishing the material and that it actuated the publication. That judges have treated knowledge of falsity as almost conclusive evidence of malice is no ground, however, for treating it as a separate head of, or equivalent to malice.

55 Of particular relevance to the present case are the following passages of the plurality (omitting footnote references):

80 The conceptual difficulties with using lack of honest belief as equivalent to malice have increased since Rules of Court have required plaintiffs to plead the meanings on which they rely even when those meanings are the natural and ordinary meanings of the publication. When the author of a written or oral statement gives evidence, that person is invariably asked whether he or she intended to convey each of the pleaded meanings. If the author denies intending any of those meanings and the tribunal of fact finds that the publication had that meaning, the author is then said to have no honest belief in the defamatory meaning and, relying on Barbaro, that the privilege is destroyed. That is exactly what occurred in the present case in respect of Case. Martin J held that, because Case did not claim to believe in the truth of a statement as interpreted by the trial judge and the Full Court, he was guilty of malice.

81 In Austin v Mirror Newspapers Ltd, the Judicial Committee had to consider a similar problem in considering the issue of reasonableness under the statutory defence of qualified privilege given by s 22 of the Defamation Act 1974 (NSW). The Judicial Committee held, correctly in our opinion, that an author may have an honest belief in what he or she writes even though the author does not intend the writing to have one of the defamatory meanings found by the jury. Lord Griffiths, giving the advice of the Committee, said :

"Although the answer to the interrogatory is evidence that can be used in an attempt to defeat a defence of comment it does not follow that it will necessarily defeat the defence of statutory qualified privilege. Words are often capable of more than one meaning, and because the jury may attach to them a defamatory meaning which the writer did not intend, it does not follow that the writer did not honestly believe in the truth of what he wrote and reasonably intended a different meaning to be given to his language. In this case Mr Casey gave evidence and said that he did honestly believe in the truth of what he wrote. The trial judge believed him and the answer to the interrogatory is a wholly insufficient basis to undermine the opinion of the trial judge which the Court of Appeal were free to accept." [Emphasis added by the plurality.]

56 At [82] their Honours observed that the foregoing remarks of Lord Griffiths apply where the issue is the malice of the defendant. Significantly, they remarked:

The defence of qualified privilege would be dramatically curtailed if defendants had to intend and believe in the truth of every meaning that a judge or jury later gave to the publication.

57 Their Honours then concluded (at [83]) that, relevantly, neither lack of honest belief nor knowledge of falsity ipso facto destroys a defence of qualified privilege. However, they repeated that knowledge of falsity is "almost conclusive evidence" of improper motive with an exception not presently relevant to the resolution of the appeal.

58 The applicant submitted that the privilege was destroyed because the second respondent, notwithstanding that he denied (in his answers to interrogatories) that he intended to convey each of the pleaded imputations, nevertheless had no honest belief in the truth of the meanings conveyed and in fact said they were not true. This submission comes very close to the situation to which the plurality in Roberts v Bass drew attention at [80] which I have recorded at [55] above.

59 However, at [77] and [78] their Honours held that what Hunt J said in Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51 was in error. Accordingly, the reliance placed on Barbaro by Martin J in the Full Court of the Supreme Court in Roberts v Bass referred to in the last sentence of [80] of the plurality's reasons led to his Honour's finding of malice on the part of Case being overturned.

60 Although at [80] the plurality were dealing with an allegation of no honest belief in the defamatory meaning conveyed by the imputations as distinct from knowledge of its falsity, in my view that knowledge does not support a finding of malice where the defendant does not intend to convey that meaning. I shall return to this issue below.

The test for malice is subjective

61 At [147] of her reasons which I have recorded at [37] above, the primary judge remarked that the second respondent disputed that any of the imputations pleaded arose. In oral submissions the applicant stated that she did not dispute that finding. Although the second respondent accepted that the imputations were false, his evidence was that he did not intend the email to convey any of those imputations. In this context it was not in dispute that malice involves a subjective test, entirely dependent on the defendant's state of mind and intention: Loveless v Earl [1999] E.M.L.R 530. In that case Hirst L.J., with the agreement of May L.J. and Sir Christopher Slade, observed that, as emphasised by Lord Diplock in Horrocks v Lowe [1975] A.C. 135, if qualified privilege is established, the plaintiff's case will hinge on proof of malice for which a heavy burden rests on him or her. The plaintiff must establish that the defendants had no honest belief, or that they were in some other way actuated by an indirect or improper motive. His Lordship continued:

Here, it is very important to contrast the test for meaning on the one hand and the test for malice on the other. Meaning is an objective test, entirely independent of the defendant's state of mind or intention. Malice is a subjective test, entirely dependent on the defendant's state of mind and intention. Thus, in a case where words are ultimately held objectively to bear meaning A, if the defendant subjectively intended not meaning A but meaning B, and honestly believed meaning B to be true, then the plaintiff's case on malice would be likely to fail.

62 His Lordship then referred to the following comments of Lord Keith of Kinkel, with whom the other members of the Appellate Committee of the House of Lords agreed, in Fraser v Mirza [1993] S.C. 27 at 33:

The motive with which a person made a defamatory communication can only be ascertained from an examination of his state of mind at the time he made it, which, as Lord Diplock said, can only be inferred from what he did or said or knew. ...In the circumstances I am of the opinion that the respondent's intentions in respect of what he was trying to convey by the letter are properly to be taken into account for the purpose of ascertaining what was the dominant motive operating on his mind at the time he wrote it. ...Absence of belief in the truth of a defamatory allegation actually conveyed is, as Lord Diplock said [in Horrocks v. Lowe], usually conclusive evidence of improper motive amounting to express malice. There is no valid reason for not holding that the same inference is necessarily to be drawn where the maker of the communication is proved to have intended by it to convey a defamatory allegation in the truth of which he did not believe, but which on a proper construction of the communication it is found not to bear.

63 The last part of this statement is predicated on the maker of the communication intending to convey the defamatory imputation. The present is not such a case.

64 To a similar effect are the comments of Tugendhat J in Bray v Deutsche Bank AG [2008] EWHC 1263 (QB) where his Lordship observed (at [42]) that:

The most common form of malice is where a publisher publishes what he does not believe to be true. A publisher who says he did not intend to convey the defamatory meaning, is also likely to say that he did not believe the defamatory meaning to be true. It has been held that in such a case the publisher is not to be found malicious unless he is proved to have known that the ordinary reasonable reader would understand the words to be defamatory of the complainant, or that he was reckless. The test for malice is subjective, not objective.

65 In the present case the second respondent was not asked whether he knew that the ordinary reasonable reader would understand the email and its attachment to be defamatory of the applicant and the allegation that he was reckless in publishing the matter complained of was rejected by her Honour at [146(a)] and was not the subject of challenge.

66 The foregoing authorities are cited in Gatley on Libel and Slander (12th ed 2013, Sweet & Maxwell) at [17.20] where the following is stated:

However, where the defendant intended the words in sense A, which he did believe to be true, his privilege is not defeated because they are found to convey defamatory sense B, for "malice is a subjective test", entirely dependent on the defendant's state of mind and intention.

67 Thus it is not without significance that the learned authors of Price, Duodu and Cain in Defamation Law, Procedure and Practice (4th ed 2010, Sweet & Maxwell) at 206 [18-09] analysed a situation such as the present in the following terms:

It is commonly the case that a defamatory statement is found to carry a more serious meaning than was intended by the defendant. For example, the defendant might only intend to accuse the claimant of negligence, but the statement is, in fact, understood as accusing him of fraud. While meaning is to be judged objectively, malice is subjective and depends on the defendant's intention. Thus the fact that the defendant did not believe the claimant had been guilty of fraud is not evidence of malice, if it was not the defendant's intention to convey such a meaning. The issue of malice is whether the defendant believed in the truth of the meaning that he intended to convey. [Emphasis added.]

68 As the respondent submitted, this analysis accords with the observation of the plurality in Roberts v Bass at [81] and, in particular, [82]. Furthermore, there is no authority that supports the proposition, indirectly advanced by the applicant in oral argument, that there is a rebuttable presumption that a defendant intends to convey the defamatory imputations objectively determined to be conveyed by the matter complained of. Such a proposition also runs counter to Roberts v Bass.

69 Finally, the applicant submitted that where a person writes a letter which is found to convey defamatory imputations which he accepts are false, he cannot escape a finding of liability by asserting that he did not intend to convey those imputations. This submission goes further than that which asserted a presumptive intention to convey the defamatory imputations. It gains no support from any authority and, on the basis of Roberts v Bass, is contrary to established principle.

70 The foregoing discussion enables the following propositions to be stated:

(i) A distinction needs to be drawn between the test for malice on the one hand and the test for meaning on the other;

(ii) The existence of malice involves a subjective test entirely dependent upon the defendant's state of mind and intention;

(iii) In order to constitute malice the defendant's intention must be such that it can be said that he had an improper motive in publishing the defamatory statement, being a motive or purpose that is foreign to the occasion of qualified privilege;

(iv) Although knowledge that a defamatory statement is untrue is almost invariably conclusive evidence of malice, it is still necessary for the plaintiff to establish that the defendant had an improper motive for publishing the false and defamatory material;

(v) The test for determining whether the matter complained of conveys a defamatory imputation is objective and is entirely independent of the defendant's state of mind or intention. As such, the words used may have meaning A but the defendant may have subjectively intended meaning B which is not defamatory;

(vi) Accordingly, for malice to be established the plaintiff must first persuade the finder of fact that the defendant intended the matter complained of to convey the defamatory imputations pleaded. In some cases those imputations will be conveyed directly from the matter complained of; in other cases they will not. There is no presumption that the defendant so intended which he is then required to rebut. This proposition may possibly be subject to the plaintiff establishing that notwithstanding that the defendant did not intend to convey the defamatory imputations pleaded, nevertheless, the defendant was actuated by an improper purpose;

(vii) Where it is accepted that the defendant did not intend the matter complained to convey the defamatory meaning or imputation pleaded, then the fact that the defendant accepts that that meaning or imputation is false does not lead to the conclusion that he had some improper motive which was foreign to the occasion of qualified privilege when he published the matter complained of. This is because the plaintiff must also, but cannot in these circumstances, establish that the defendant's knowledge of falsity actuated the publication.

71 In the present case the applicant submitted that imputation (c) was taken directly from the email, and accepted that imputations (d) and (e) were not. The second respondent denied that any of those imputations arose from what he had written in his email and denied that he intended to convey any of them. He gave evidence, which the primary judge accepted, as to what he intended to convey in the email when he used the words that it was "not fair to the company and the ones who come on time every time" or that the fact that five people were off sick and one on holidays on 5 July "hurts management to run the projects". His evidence made it clear that he did not intend to assert any form of personal blame on those, including the applicant, who were off sick. It was the fact of their absence which reduced the number of personnel able to deal with the first respondent's workload that was causing a problem that needed to be addressed. This was to occur at an upcoming staff meeting.

72 In the present context a critical finding is that of her Honour at [148] of her reasons which I have recorded at [38] above. The findings of her Honour in that paragraph reveal an intentional motive on the part of the second respondent that is consistent with the occasion of qualified privilege which her Honour found. The primary judge's finding, that the "unjustifiable" nature of the absences was that they were taken at a time when others were also absent, not that the absence itself was unjustified (at [60], and referred to at [22] above) is particularly indicative of the second respondent's intention in making the publication. There was no effective challenge to those findings based, as they were, on her Honour's implicit acceptance of the second respondent's evidence.

73 The applicant nevertheless submitted that her Honour's finding at [148] was one which applied only to employees of the first respondent other than the applicant who was ill from breast cancer. In other words, it was submitted that the second respondent may have believed that the first respondent was "hurt" and that employees like himself and his wife who came to work "on time every time" were "hurt by other employees clashing absences from work" in respect of all employees but those beliefs did not extend to the applicant. The reason behind this submission is not self evident and I do not accept it. Nor would I accept the suggestion on behalf of the applicant that the purpose of the email "could" have been to hasten her retirement from work. The only evidence relied on to support this submission was that of the second respondent summarised by the primary judge at [68] and [80] of her reasons. But nothing in those paragraphs supports the improper motive suggested which rises no higher than pure speculation.

74 Importantly, at [140] her Honour expressed her satisfaction that the language of the email was proportionate to the occasion, namely, an informal email from an employer to employees about a work-related problem which the employer wished to discuss at the next staff meeting. There was no challenge to this finding. In accordance with the second respondent's evidence of his intention when he sent the email, it does not reveal an improper motive capable of constituting malice.

75 As the applicant submitted in reply, the defence of qualified privilege is a plea of confession and avoidance and, as such, is predicated upon the existence of a defamatory imputation to which the privilege attaches: Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366 at [58] and [135]. Nevertheless, if the evidence establishes that the maker of the matter complained of did not intend it to convey the defamatory imputation to which the privilege attaches, then in my view, notwithstanding that the defendant accepts that the imputation is false, an improper motive cannot be attributed to the maker for publishing a false defamatory imputation which he never intended.

76 As the privilege only attaches to the defamatory imputation, the onus lay upon the applicant in the present case to establish that the second respondent knew that the email could convey the false imputations. In my view that onus was not discharged.

77 Accordingly, I would reject the applicant's challenge to the primary judge's finding that malice had not been established. It follows that the appeal must fail.

The Section 30 defence

78 Although it is unnecessary to deal with the other issues raised by the applicant's grounds of appeal, I should do so briefly. Section 30 of the Act provides that there is a defence of qualified privilege for publication of defamatory matter to a recipient if the defendant proves, relevantly, that his or her conduct in publishing that matter is reasonable in the circumstances. Section 30(3) provides that in determining whether the conduct of the defendant in publishing matter is reasonable in the circumstances, the court may take into account a number of matters (referred to by her Honour as a "checklist") of which the following is presently relevant:

(h) whether the matter published contained the substance of the persons side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person

79 At [165] the primary judge set out the submissions of the respondents and the applicant's responses thereto with respect to each of the matters referred to in s 30(3) including s 30(3)(h). With respect to the latter, the respondents submitted that there was no need to contact the applicant because the matter complained of was based upon, amongst other things, reports by her as to her attendance at work and otherwise was directed at a group and not the applicant in particular and a group calendar was attached to the email. Moreover, it was known to all employees of the first respondent that the applicant was genuinely sick having been diagnosed with cancer and required to undertake chemotherapy and radiotherapy.

80 The applicant challenged these submissions on the basis that few of her fellow employees knew of her illness and that the diary was to the second respondent's own knowledge inaccurate, as he was in the office on a day he was rostered to be out of the office at a meeting. Her Honour made a further comment in relation to the decision in this Court in LVMH Watch & Jewellery Australia Pty Limited v Lassanah [2011] NSWCA 370 as to the time when the enquiry contemplated by s 30(3)(h) should be made; that is, whether before or after publication. It was submitted that her Honour had misunderstood that decision as there would be no purpose in seeking an explanation from a plaintiff after publication as any response could not be included in the publication. However, this submission misses the point as it involves a misunderstanding of the proper construction of s 30(3)(h).

81 At [169] of her reasons her Honour found that the second respondent prepared the matter complained of without prior consultation with the applicant, or anyone for that matter, but simply relied on the diary extract. She then noted that the respondents submitted that was sufficient. Conformably with the approach taken by this Court in LVMH, her Honour considered that that must be correct. Accordingly, she was satisfied that the respondents had made out each of the items in the s 30(3) "checklist".

82 The applicant relied on the following passage of the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 574:

Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant's conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant's conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practical or it was unnecessary to give the plaintiff an opportunity to respond. [Emphasis added by the applicant.]

83 The passage in Lange which the applicant emphasised must be read subject to the relevant statutory provision in the Act. Each of the matters in the so called "checklist" are matters which, when determining whether the conduct of the defendant to publish the matter complained of is reasonable, "may" be taken into account. The statute does not require that they must be taken into account and in any event they could only be taken into account where it was relevant to do so for the purpose of determining whether the conduct to the defendant was reasonable in the circumstances.

84 In the present case the nature of the matter complained of did not, in my view, require any prior discussion with the applicant, or for that matter any of the first respondent's employees. The email made it clear that the issues raised within it were to be discussed at a staff meeting which was perfectly appropriate. They related to the manner in which the business of the first respondent could be conducted efficiently in circumstances where, given that the first respondent only had a small number of employees, one or more of those employees were absent whether they be sick, on leave or absent for some other reason. The absences in question created management issues which needed to be resolved and it was proposed that that occur at a staff meeting. The nature and purpose of the publication simply did not call for the application of s 30(3)(h) for the purpose of determining whether the conduct of the respondents in publishing the email was reasonable in the circumstances.

85 However, I wish to refer in more detail to the decision of this Court in LVMH and to make some further remarks as to the proper understanding of s 30(3)(h).

86 The primary judge relied on the decision of this Court in LVMH for the proposition that s 30(3)(h) is satisfied where the enquiry of the person defamed is made after, and not before, publication, it being no longer necessary to take that step before publication.

87 In LVMH at [138] the issue canvassed was the trial judge's finding that "no attempt was made to obtain the plaintiff's side of the story". Bergin CJ in Eq, with whom Giles and Campbell AJA agreed, found that the plaintiff in that case was able to put his version of what occurred. Accordingly, the trial judge's finding that there was no attempt to obtain his side of the story was not justified.

88 It would appear that in LVMH the plaintiff provided his side of the story after the publication of the defamatory matter. The applicant submitted that LVMH was not authority for the proposition that the sub-section is satisfied if enquiries are only made after publication of the defamatory matter.

89 However, as a matter of construction s 30(3)(h) contemplates two situations. The first is where the publication of the defamatory matter contains the substance of the plaintiff's side of the story. The second is where, if the first situation does not apply, a reasonable attempt is made by the defendant to obtain and publish a response from the plaintiff, presumably to the publication of the defamatory matter.

90 In other words the second situation, which applied in LVMH, contemplates the publication of the defamatory matter without it containing the substance of the plaintiff's side of the story but where a reasonable attempt has been made by the defendant to obtain and publish a response by the plaintiff thereto. Two publications are thus contemplated. One contains the defamatory matter and the other a response to it.

91 In LVMH the factual finding was that an attempt was made to obtain the plaintiff's response to the publication of the defamatory matter because he had offered his side of the story to the police after the defamatory matter was published.

92 It follows that the primary judge was correct to hold that the attempt to obtain the applicant's "side of the story" or, more accurately, her response to the publication of the defamatory matter need not, in fact cannot, occur before its publication. However, there was no such attempt in the present case and, therefore, the matter complained of was not the subject of a published response by the applicant.

93 It follows that contrary to the primary judge's finding that s 30(3)(h) was made out by the respondents, it was not. However, it does not follow from that that the respondents failed to prove that their conduct in publishing the defamatory matter was reasonable in the circumstances. Her Honour held that it was and I concur with that finding.

94 Accordingly, I would reject the applicant's submission that the primary judge erred in upholding the defence of statutory qualified privilege.

The Section 33 issue

95 Section 33 of the Act provides as follows:

It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of the publication were such that the plaintiff was unlikely to sustain any harm.

96 The primary judge (at [178]) adopted the approach of McCallum J in Papaconstuntinos v Holmes à Court [2009] NSWSC 903 at [105] to the effect that the defence under s 33 requires the defendant to show not merely that there is unlikely to be great or substantial harm but that there is unlikely to be any harm at all. The applicant does not challenge that approach. However, it was submitted to the primary judge that the word "any" in s 33 must include upset and hurt feelings. Her Honour observed at [181] that "harm" as used in ss 34 and 36 of the Act appears to encompass both injury to reputation and injury to feelings. Accordingly, unless bound by authority to the contrary, she would have accepted the applicant's submission that the word "harm" includes injury to hurt feelings.

97 However, in Jones v Sutton [2004] NSWCA 439; (2004) 61 NSWLR 614 this Court was dealing with s 13 of the Defamation Act 1974 (NSW) (the 1974 Act), the predecessor of s 33 of the Act. That section provided as follows:

It is a defence that the circumstances of the publication of the matter complained of were such that the person defamed was not likely to suffer harm.

Beazley JA, with whom Santow JA and Stein AJA agreed, held at [38] that hurt feelings was not relevant to s 13 because that was a matter for damages so that the word "harm" was confined to injury to reputation. I pause to note that injury to reputation is also highly relevant to damages.

98 The Second Reading Speech of 13 September 2005 seems to assume that it was not intended that there would be any difference between s 13 of the 1974 Act and s 33 of the Act.

99 The primary judge considered that she was bound by the construction adopted by Beazley JA in Jones notwithstanding that the word "any" had been inserted into s 33 before the word "harm".

100 However, the primary judge did not determine the issue as to whether "any harm" included hurt feelings as on the evidence before her she was satisfied that the applicant "suffered neither harm to reputation nor hurt to feelings" (at [182]).

101 With respect to the applicant's reputation her Honour (at [185]) was satisfied that the present was:

One of those rare cases where the [applicant] would not suffer any harm at all. [Emphasis added.]

Accordingly she was satisfied that the plaintiff suffered neither harm to her reputation nor hurt feelings as a consequence whereof the defence under s 33 was made out.

102 Two issues arose out of her Honour's findings. The first was whether "any harm" in s 33 can include hurt to feelings. It may be that the conclusion of Beazley JA in Jones that "harm" where used in s 13 of the 1974 Act did not include hurt feelings can be distinguished given the addition of the word "any" where used in s 33.

103 The present issue was the subject of debate in Szanto v Melville [2011] VSC 574. At [159]-[163] Kaye J discussed the opposing submissions as to whether the insertion in s 33 of the word "any" mandated a departure from the construction adopted by Beazley JA in Jones when construing s 13 of the 1974 Act. As his Honour noted at [161], the correct construction of s 33 was not without difficulty. Ultimately, his Honour did not find it necessary to express a concluded view on the matter.

104 In the present case the applicant did not appear to claim damages for loss of reputation, only for hurt feelings. If s 33 does not apply to hurt feelings as was held to be the case in Jones, then the defence on any view was not made out: cf Bristow v Adams [2012] NSWCA 166 at [54]-[55].

105 But even if it did, in my view the primary judge applied the wrong tack. That brings me to the second issue. It concerns her Honour's finding not that the applicant was unlikely to sustain any harm but that she did not in fact suffer any harm of the kind referred to in s 33. It was submitted that her Honour was in error in so finding. Reliance was placed upon the statement of Beazley JA in Jones at [34] that the test is in terms of "proneness" to cause harm and that the authorities were clear that the section was not concerned with whether harm was in fact occasioned. Section 13, Beazley JA remarked, required the Court to look at the circumstances at the time of publication and "to consider prospectively...the likelihood of harm ensuing" (citing Morosi v Mirror Newspapers Limited [1977] 2 NSWLR 749 at 799).

106 Furthermore, Beazley JA accepted at [49] of Jones the contention of the applicant in that case (recorded at [45]) that the phrase "not likely to cause harm" refers to "the absence of a real chance" or the "absence of a real possibility of harm".

107 Although reliance was placed by the respondents upon the statement by the primary judge at [185] that the present case was one where the applicant "would not suffer any harm at all", in my view her Honour's findings at [183] and [184] that she was satisfied that the applicant did not suffer either hurt to feelings as claimed, or any harm of any kind, involved the application of the wrong test. I am not prepared to tease out of the statement at [185] that the present was a case where the applicant "would not suffer any harm at all" a finding that the applicant was "unlikely" to sustain any harm. Having applied the wrong test, in my view her Honour's upholding of the defence under s 33 must be set aside. In these circumstances, like Kaye J in Szanto, I do not find it necessary to determine whether Jones applies to s 33.

108 Finally, the applicant submitted that in view of the presumption of harm arising from proof of publication, s 33 is redundant. Although in Bristow v Adams at [17] Basten JA remarked that the relationship of the presumption of harm and s 33 raised an important question, in my view there is no substance in the applicant's submission. In none of the cases where s 33 or its predecessor has been considered has it ever been suggested that the defence had been written out of the statute book as a consequence of the general presumption upon which the applicant relies. I would therefore reject the contention of the applicant to the contrary.

Damages

109 The primary judge dealt with damages at [189]-[195] of her reasons. Although in her draft Notice of Appeal the applicant asserted that the damages awarded by her Honour were "unreasonably low", apart from the basic assertion in the applicant's written summary of argument that $10,000.00 for the five imputations was "unreasonably inadequate", no further reasoned submissions, whether written or oral, were advanced in support of the applicant's case on damages.

110 In my view the primary judge dealt adequately with the issues as to damages which had been raised before her and no error in the findings she made in support of her assessment of damages has been established so as to justify appellate intervention in what was essentially an evaluative task.

111 As it was not contended by the applicant that her Honour failed to take into account any relevant factors, in my view the applicant's challenge to the primary judge's amount of $5,000.00 for the three imputations she held to be conveyed by the matter complained of, fails.

Conclusion

112 In my view the applicant has not established that the primary judge was in error in finding that the defence of common law qualified privilege or statutory qualified privilege was defeated on the basis of malice. Accordingly, both those defences as found by her Honour should be upheld as they provide a complete answer to the applicant's appeal. However, the matters raised by the applicant do involve some issues of principle which justifies the granting of leave to appeal.

113 I would therefore propose the following orders:

(1) Leave to appeal granted.

(2) The applicant to file her Notice of Appeal within seven days of the date of these orders.

(3) Appeal dismissed.

(4) The applicant to pay the respondent's costs of the appeal.

 

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Amendments

20 March 2014 - Change 14/03/2014 to 19/03/2014, the date the decision was handed down
Amended paragraphs: Coversheet - Decision Date

20 March 2014 - Replace Rugubotti with correct spelling Rugabotti
Amended paragraphs: Coversheet - Representation - Counsel

20 March 2014 - Insert stars at end of judgment
Amended paragraphs: 113

20 March 2014 - In final sentence, change "finding of malice" to "finding on malice"
Amended paragraphs: 6

Decision last updated: 20 March 2014