Aktas v Westpac Banking Corporation Ltd

This case concerned appeals by Mr Aktas and Homewise Pty Limited (Homewise) against decisions of the trial judge. The dispute arose from Westpac Banking Corporation Ltd's (Westpac) conduct in dishonouring cheques issued by Homewise, which Mr Aktas was associated with. The jury found that Westpac's actions conveyed several defamatory imputations concerning Mr Aktas and Homewise's financial standing and ability to meet its obligations. Mr Aktas and Homewise claimed damages for defamation and Homewise also claimed damages for breach of contract.

The primary legal issues before the Court of Appeal were whether the publication of the defamatory imputations by Westpac was protected by qualified privilege, and if not, the assessment of damages for defamation and breach of contract. Specifically, the court had to determine if there was a reciprocity of duty and interest between Westpac and the payees of the dishonoured cheques, and whether the defamatory imputations were sufficiently connected to that privileged occasion. The court also considered the assessment of damages, including the principles of reparation, consolation, and vindication, and the impact of time on the damage suffered, as well as the issue of mitigation of loss.

The Court of Appeal found that the occasion of publication was privileged. It reasoned that Westpac, having decided to refuse payment of the cheques, had a duty to communicate this decision to the payees or their banks, who had a corresponding interest in receiving such communication. The endorsement "Refer to Drawer" was considered conventional and relevant to this privileged occasion, thus extending privilege to the imputations conveyed. Consequently, the court determined it was unnecessary to fully re-examine the damages for defamation. However, the court did uphold Homewise's appeal in part regarding contractual damages, quashing the original award and substituting a new sum.