Brown v Kirkpatrick - [2020] SASC 5

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
BROWN v KIRKPATRICK
[2020] SASC 5
Judgment of The Honourable Justice Nicholson
17 January 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
DEFAMATION - PUBLICATION - GENERALLY - MODES OF PUBLICATION
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATION
Appeal against Magistrate’s decision.
Appellant and respondent are members of separate shooting clubs who share facilities. A dispute between the parties arose and the parties exchanged abusive emails that were copied to other persons. The appellant sued the respondent in the Magistrates Court for defamation. The respondent successfully defended the claim and successfully counterclaimed for defamation. The appellant appeals again both outcomes.
Held (allowing the appeal in part):
1. The Magistrate’s order dismissing the plaintiff’s (appellant’s) claim is set aside.
2. The plaintiff’s claim for defamation is allowed with judgment to be entered for the plaintiff in the amount of $3,500 inclusive of pre-judgment interest.
3. The appeal with respect to the defendant’s (respondent’s) counterclaim for defamation is dismissed.
Defamation Act 2005 (SA) s 23, s 24, s 28, s 31, s 32, s 33, s 34, s 35, s 36; Magistrates Court Act 1991 (SA) s 40; Defamation Act 1974 (NSW) (now repealed) s 22, referred to.
Duffy v Google Inc [2015] SASC 170; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30; Cassell & Co Ltd v Broome & Anor [1972] AC 1027; Channel Seven Sydney Pty Ltd v Mohammed (2010) 278 ALR 232, discussed.
Sim v Stretch [1936] 2 All ER 1237; Machado & Anor v Underwood & Anor [2016] SASCFC 65; Fleming v Advertiser News Weekend Publishing Company Pty Ltd [2016] SASCFC 109; Sands v South Australia (2015) 122 SASR 195; Sands v Channel Seven Adelaide Pty Ltd & Anor [2010] SASC 202; Favell & Anor v Queensland Newspapers Pty Ltd & Anor [2005] HCA 52; Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Howe & McColough v Lees (1910) 11 CLR 361; Jones v Sutton [2004] NSWCA 439; Barrow v Bolt [2015] VSCA 107; Smith v Lucht [2016] QCA 267; Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Greig v WIN Television NSW Pty Ltd [2009] NSWSC 877; Coyne v Citizen Finance (1991) 172 CLR 211; Bristow v Adams [2012] NSWCA 166; Fox v Percy (2003) 214 CLR 118; Andrews & Anor v John Fairfax & Sons Ltd & Ors [1980] 2 NSWLR 235, considered.

BROWN v KIRKPATRICK
[2020] SASC 5
Magistrates Appeal: Civil
NICHOLSON J.
Introduction

At all material times, the appellant, Steven Brown (plaintiff and cross-defendant below) was the president of the Southern Vales Practical Shooting League (Practical Shooting League). At all material times, the respondent, Paul Kirkpatrick (defendant and cross-claimant below) was the vice-president of the Southern Ranges Black Powder Club (Black Powder Club). The members of each club engaged in a different style of the recreational shooting of guns.[1] They occupied different shooting ranges but on land and with facilities that they shared. This necessitated a level of cooperation and the provision of mutual assistance from time to time throughout the history of their interactions.
[1] Their respective styles are irrelevant to the dispute. The Practical Shooting League engaged in “practical shooting” involving moving and swinging targets presenting different challenges, whereas the Black Powder Club engaged in “down the line” shooting with different weapons and with more fixed targets.
In 2006, the clubs entered into a deed which recorded their agreement “regarding the ownership, maintenance and use of the land and the facilities”. At some time in the past, rules and regulations “for the safety and management of the Facilities and the best interests of the Clubs” were made in accordance with the power to do so provided by clause 9 of the deed.
Over time, a number of disputes and persistent irritations emerged. In the first half of 2016, tensions escalated relating to the Black Powder Club’s intention to place a “container” and renew the shade area at the rear of the rifle shed (“the container proposal”) and, as a consequence, there arose a need to gain access to a safety deposit box in which the deed and an aerial map, necessary to a proper understanding of the deed, were contained.
It is unnecessary to provide further detail of the history of the clubs’ interactions or of this particular dispute. The Magistrate summarised these matters at some length in his judgment[2] (the Magistrate’s Reasons). Suffice to say that the appellant and the respondent participated, somewhat testily, in the discussions concerning the container proposal and became frustrated and argued. Ultimately, they exchanged abusive emails with each other that were copied to other persons; an email by the appellant at 9.51 am on 18 May 2016 (to be referred to as either the appellant’s 9.51 am email or the appellant’s email) and an email in reply by the respondent sent at 7.59 pm that same day (to be referred to as either the respondent’s 7.59 pm email or the respondent’s email). The appellant took offence at the respondent’s 7.59 pm email and sued for defamation. The respondent defended this claim (successfully before the Magistrate) and counterclaimed (successfully before the Magistrate) for defamation with reference to the appellant’s 9.51 am email. The appellant has appealed against both outcomes.
[2] Brown v Kirkpatrick, 31 January 2019, CHBCI-17-40.
The email exchange
The full email exchange is set out in the Magistrate’s Reasons. However, I will commence the story with the appellant’s email to the respondent sent at 9.07 am on 18 May 2016 and which was copied to other persons, before setting out the terms of the two emails the subject of the two defamation claims.[3] I will interpolate after each given name referred to (where the evidence permits) the full name of the person and their club association.
[3] The spelling errors and grammatical infelicities are in the originals.
The appellant’s email sent at 9.07 am to the respondent
Hi Paul [Paul Kirkpatrick, respondent, Black Powder Club] as you will see the email I sent to your Secretary had Bills [Bill Power, Practical Shooting League] email attached in the cc line???
The reason I asked about the shelter shed construction is to have a record written down for both clubs to refer to in the future should it be needed and so that both clubs will be on the same page when the shelter is constructed
Both Scot [Scott Morey, Black Powder Club] and yourself have reminded me that the Range Management meeting talked about the shelter shed
I full agree but what was not discussed was the material that it was to be built out of that why I asked the question steel wood SH or NEW
The container wasn’t mentioned at the range management meeting that is why I asked about positioning of same
Bill has asked that you contact him via email
This will be about the fifth possibly the sixth time SVPSL [Practical Shooting League] has been through the same conversation with SRBPC [Black Powder Club] regarding the Deed of Agreement which is frustrating
Bills Phone number is a silent number and I respect that I have brief him of what you require
If you want to contact him via email he will respond promptly and if he chooses to he will give you his contact number
Regards Steve [Steven Brown, appellant, Practical Shooting League]
Following receipt of this email and at some time between 9.07 am and 9.51 am, the respondent telephoned the appellant.[4] It was this phone call which prompted, and to which the appellant referred in, the appellant’s 9.51 am email.
[4] This is a finding made by the Magistrate for the reasons he gave at Magistrate’s Reasons paras [21]-[24]. The timing of the phone call was contentious at trial. However, I do not understand his Honour’s findings to be challenged on appeal.
The appellant’s 9.51 am email sent to the respondent
Paul [Paul Kirkpatrick, respondent, Black Powder Club]
After your latest abusive phone call any conversation between clubs on my behalf will be by email and or written letter or in a minuted Range Management meeting
For the information of the other members of the range management committees who are not privileged to your phone call
SVPSL [Practical Shooting League] has never AS YOU STATED FUCKED YOU AROUND
SVPSL DID NOT as you say fuck up the deed
SVSPL has NOT stopped you from accessing the deed
SVPSL nor myself have any interest I stopping you from opening the safety deposit box
The only people that are to blame for THE INABILITY FOR SRBPC [Black Powder Club] TO ACCESS THE SECURITY BOX is [scil: in] the past and present is the Executive of SRBPC
Your phone call was not only rude but full of untruths and shows that you truly do not understand what the deed stands for
I ask that a range management meeting be called as soon as possible
I have also informed you on more than one occasion that Bill [Bill Power, Practical Shooting League] will contact you via email [email protected]
SVPSL HAS IN THE PAST BENT OVER BACKWARDS TO HELP WHAT WE SEE AS OUR SISTER CLUB SRBPC
I DO NOT SEE THAT THE BOMBASTIC ATTITUDE DISSPLAYED BY YOUR SELF TO BE HELP FULL OR PRODUVCTIVE TO EITHER ORGANIZATION
Steve Brown [appellant]
The appellant’s 9.51 am email was copied to the following persons: “Bill Power” (Practical Shooting League); “Steves Body Shop” (the appellant’s own panel beating business); “Secretary” and “[email protected]”.[5] The appellant in evidence said that “Secretary” was the secretary of the Practical Shooting League. Whilst it is unclear on the evidence, it appears to be common ground that “[email protected]” is a Peter Williams of the Black Powder Club. It was submitted by the appellant that the only recipient of this email who is not in the appellant’s camp was Peter Williams. It would appear that the reason the email went to Peter Williams was that the appellant was demanding a (joint) “range management meeting”.
[5] Magistrate’s Reasons at [25]-[26].
The respondent’s 7.59 pm email sent to the appellant
The respondent sent an email in response.
Steve you are a complete utter liar you were the one that was abusive I never said anything below you were the one that stated our past and present executive were the ones that fucked up Srbpc that is when I retaliated to your unprovoked tirade, but obviously you do not have the integrity to tell the truth when you are 100 percent in the wrong. You say you don’t suffer fools then don’t look in the mirror for I have lost all respect for you.
Paul Kirkpatrick
The respondent’s 7.59 pm email was copied to the following persons: “Steves body shop” (effectively, the appellant); “Allan Vaisham” (Black Powder Club member); “Danny Davis” (unknown affiliation); “[email protected]” (editor of the Black Powder Club newsletter); “Harry – E” (Harry Erdmann, Black Powder Club member); “Jamie” (James Kirkpatrick, the son of the respondent); “Jason Tank” (a member of both clubs at various times); “Mike Harvey” (Practical Shooting League member)[6]; “Nicolas Grguric” (unknown affiliation); “Peter Stewart” (Black Powder Club member); “SSAA” (Sporting Shooters Association Australia); “SRBPC Secretary” (Scott Morey, the Black Powder Club secretary); “Steve Nicholas” (member of the Combined Shooters and Firearms Council); and “vk5tsx” (Jean Kopp, a previous now retired member of Practical Shooting League).[7]
[6] However, in his evidence, Mr Harvey said that after the email exchange he still socialized with both protagonists and “I still shoot in both clubs” (TT134-134).
[7] Magistrate’s Reasons at [27]. The Magistrate in this paragraph has only identified the email “addresses”. I have included in brackets their respective affiliations, where known, which I understand to be unchallenged.
The Magistrate’s conclusions concerning the appellant’s claim
The appellant claimed that the respondent’s 7.59 pm email was defamatory of the appellant in that the natural and ordinary meaning of the words “Steve you are a complete and utter liar” understood in their context is that the appellant is “a habitual liar, dishonest, untrustworthy and behaves improperly”. The Magistrate rejected this meaning.[8] His Honour found that the words complained of meant only that:
[T]he [appellant] in his communication to the [respondent] has deliberately misstated the entire substance of what the [respondent] said in the phone call referred to.[9]
“Taken in that sense” the Magistrate found the words to be defamatory because of their tendency to lower the appellant in the estimation of right thinking members of society generally, citing Sim v Stretch.[10]
[8] Magistrate’s Reasons at [29]-[49].
[9] Magistrate’s Reasons at [49].
[10] [1936] 2 All ER 1237 at 1240.
The Magistrate rejected the statutory defences of justification pursuant to section 23 of the Defamation Act 2005 (SA) (the Act)[11] and contextual truth pursuant to section 24 of the Act.[12] However, his Honour found the statutory defences of qualified privilege pursuant to section 28 of the Act and triviality pursuant to section 31 of the Act to have been established.[13]
[11] Magistrate’s Reasons at [51]-[64].
[12] Magistrate’s Reasons at [65].
[13] Magistrate’s Reasons at [66]-[80] and [81]-[87] respectively.
The Magistrate further found that, if he was in error in finding the defamatory publication to have been defensible, the appellant had not suffered damage[14] but, nevertheless, would have allowed nominal damages in the sum of $500.[15]
[14] Magistrate’s Reasons at [88]-[101].
[15] Magistrate’s Reasons at [101].
The Magistrate’s conclusions concerning the respondent’s counterclaim
As far as the appellant’s 9.51 am email is concerned, the Magistrate found that three of the four defamatory meanings, alleged by the respondent to have been conveyed, were made out. The Magistrate found:
(i)that the words “your latest abusive phone call” taken in context convey the defamatory meaning (in the Sim sense) that the appellant has been repeatedly abusive to the respondent over the phone and that the abuse is so extreme that the appellant refuses to orally communicate with the respondent;[16]
(ii)that the words “your phone call was not only rude but full of untruths” taken in context convey the defamatory meaning (in the Sim sense) that the respondent had been rude and had made inaccurate statements concerning the deed and based on his ignorance of the deed and its background;[17] and
(iii)that the words “the bombastic attitude displayed by yourself” taken in context convey the defamatory meaning (in the Sim sense) that the respondent was high-handedly arrogant.[18]
[16] Magistrate’s Reasons at [105]-[106].
[17] Magistrate’s Reasons at [107]-[109].
[18] Magistrate’s Reasons at [113].
No defence to the counterclaim was filed. Nevertheless, for reasons given by the Magistrate,[19] he gave consideration to but rejected the defences of qualified privilege at common law and under section 28 of the Act.[20]
[19] Magistrate’s Reasons at [115]-[119].
[20] Magistrate’s Reasons at [119]-[125].
The Magistrate ordered that the appellant pay the respondent damages on the counterclaim in the amount of $1,736.
The grounds of appeal
The respondent has not pursued a notice of contention with respect to either the counterclaim or the appellant’s claim. The only matter before this Court on appeal is the appellant’s amended notice of appeal with respect to both his unsuccessful claim for defamation and unsuccessful defence of the respondent’s counterclaim for defamation. The appellant has raised the following grounds in his amended notice of appeal.
3.1Having correctly found that the publication complained of and the words that the Plaintiff was a complete and utter liar were not justified and that the defence of truth was not made out [24] and that the defence of contextual truth must be dismissed [25] and that the words meant that the plaintiff in his communication to the defendant had deliberately misstated the entire substance of what the defendant said in a phone call referred to and that in this sense the words were defamatory of the plaintiff [49]the learned Magistrate erred in finding that the defamation was trivial pursuant to section 32 of the Defamation Act [87] and that if damages were to be assessed they should be assessed at $500 [101].
3.2The learned Magistrate erred in finding that the publication complained of meant no more than that the Defendant was disagreeing with the Plaintiff’s account of a relevant telephone conversation [46].
3.3In considering the context of the words complained of the learned Magistrate failed to consider the other words of the publication and in particular the words “obviously you do not have the integrity to tell the truth when you are 100 percent in the wrong. You say that you don’t suffer fools then don’t look in the mirror for I have lost all respect for you.”
3.3The learned Magistrate erred in taking into account the intentions of the defendant as relevant to determining the imputations conveyed by the publication.
3.4The learned Magistrate ought to have found that the words complained of in their context conveyed the imputations pleaded that the Plaintiff was a habitual liar, dishonest, untrustworthy and behaved improperly.
3.4AThe learned Magistrate erred in finding that the plaintiff’s evidence as to a phone call from the Defendant was inaccurate and recklessly deficient and that the Defendant had presented a misleading account of such telephone conversation in a subsequent email and that he had significantly distorted the conversation and edited his summary in evidence of the conversation when the plaintiff had not been cross-examined on his evidence as to what was said in the telephone conversation and the Magistrate had given him no opportunity to answer any such criticism.
3.5The learned Magistrate erred in finding that the defence of qualified privilege was made out [80].
3.6In considering the defence of qualified privilege the learned Magistrate failed to consider that the Defendant published to a wider audience than the email which preceded the publication including to the national sporting authority.
3.7In considering the defence of qualified privilege the learned Magistrate failed to consider the evidence of the Defendant that he selected a wider distribution so as to “get it out there”.
3.8 In considering the defence of qualified privilege the learned Magistrate failed to consider the evidence of Mr Erdmann that contrary to the evidence of the Defendant he as one of the recipients of the publication was not aware of the email it purported to respond to.
3.9 The learned Magistrate should have found that the publication was for a purpose other than any purpose covered by qualified privilege and that the publication was malicious.
3.10The learned Magistrate erred in considering the damage suffered by the Plaintiff and in particular totally failed to make any appropriate assessment for the personal hurt and distress caused to the Plaintiff and the apprehension of the Plaintiff as to the effect on his international reputation as a trusted and respected official to judge and assess international and local shooting competitions.
3.11The learned Magistrate erred in considering the damage suffered by the Plaintiff in failing to consider the extent of the distribution of the publication.
Counterclaim
3.12The learned Magistrate erred in giving judgement for the Defendant on the counterclaim for general damages when there was no claim for general damages.
3.13The learned Magistrate ought to have dismissed the counterclaim as not claiming any damages which were recoverable.
3.14The learned Magistrate ought to have found that given the history of difficulty between the respective clubs which he had detailed it was an occasion of qualified privilege for the Plaintiff to communicate with the recipients of the publication complained of in the counterclaim so as to keep them informed of an approach he had received from the Defendant.
3.15The learned Magistrate erred in proceeding upon the basis that if the publication was the subject of qualified privilege then a more accurate account of the phone call was required and in particular fails to consider what alternative communication would have been required [120].
3.16The learned Magistrate erred in finding that the publication was malicious because it was recklessly deficient [121].
3.17The learned Magistrate erred in finding that being wilfully blind to his own poor behaviour in a way which did not impact upon any defamatory imputation could defeat the defence of qualified privilege.
3.18The learned Magistrate erred in finding that the publication of the email complained of in the counterclaim was not reasonable [125].

The issues arising on the appeal with respect to the appellant’s claim can be distilled to the following:
(i)The Magistrate should have found that the imputation that the appellant was “a habitual liar, dishonest, untrustworthy and behaved improperly” had been conveyed by the respondent’s 7.59 pm email (grounds 3.2, 3.3, 3.3 (second) and 3.4).
(ii)The Magistrate erred in finding the defence of qualified privilege to have been made out and made a number of errors in so finding (grounds 3.5, 3.6, 3.7, 3.8 and 3.9).
(iii)The Magistrate erred in finding the defence of triviality to have been established with respect to the defamatory meaning found – “a complete and utter liar” (ground 3.1).
(iv)The Magistrate failed to accord the appellant procedural fairness as outlined in ground 3.4A.
(v)The Magistrate erred in his assessment of damages (grounds 3.1, 3.10 and 3.11).
The issues arising on the appeal with respect to the respondent’s counterclaim can be distilled to the following:
(vi)The Magistrate erred in not allowing the defence of qualified privilege (grounds 3.14, 3.15, 3.16, 3.17 and 3.18).
(vii)The Magistrate erred in awarding any general damages at all (grounds 3.12 and 3.13).
(i) The defamatory imputation conveyed by the respondent’s 7.59 pm email (grounds 3.2, 3.3, 3.3 (second) and 3.4)
The appellant complains that the Magistrate erred in a number of respects in failing to find that the more serious imputation, the appellant is “a habitual liar, dishonest, untrustworthy and behaves improperly,” had been conveyed.
The appeal to this Court arises pursuant to section 40 of the Magistrates Court Act 1991 (SA). It is one by way of rehearing. As was pointed out by Kourakis CJ and Nicholson J in Machado & Anor v Underwood & Anor[21] and by the Full Court (Vanstone, Nicholson and Bampton JJ) in Fleming v Advertiser‑News Weekend Publishing Company Pty Ltd,[22] the trial Judge has no special advantage when ascertaining the nature of any defamatory imputations conveyed by a particular publication.
[21] [2016] SASCFC 65 at [90].
[22] [2016] SASCFC 109 at [32].
Whilst a question of fact, any imputation or imputations conveyed will be a matter of the construction of the published words. An appeal court is to reach its own conclusion “unrestrained by any need to defer to the forensic advantage of the [trial Judge]”.[23] As such, I can move directly to the question of whether the natural and ordinary meaning contended for by the appellant (and rejected by the Magistrate) was conveyed “without straying to consider whether the [Magistrate’s] reasons, on a fair reading, manifest [any] error”.[24]
[23] [2016] SASCFC 65 at [90].
[24] [2016] SASCFC 65 at [90].
The question before the Court, ultimately, is what is the meaning of the words used in the publication, as conveyed to an ordinary reasonable person? It should be emphasised that any meanings to be discerned are those which the relevant words bear in fact. It is not a search for the most damaging meaning capable of being put on the words in question. This approach may be of assistance when the question before a trial Judge, being one of law, is whether identified words are capable of bearing a particular pleaded defamatory meaning such that a particular pleaded defamatory meaning might be left to the jury for its consideration. However, it is not apposite to the task of a jury, or a judge sitting alone, when endeavouring to determine what, as a matter of fact, is the single meaning to be ascribed to pleaded words.[25]
[25] See, generally, the discussion of this distinction in Sands v South Australia (2015) 122 SASR 195 at [176]-[177], Sands v Channel Seven Adelaide Pty Ltd & Anor [2010] SASC 202 at [99]-[106] and Fleming v Advertiser-News Weekend Publishing Company Pty Ltd & Anor [2016] SASCFC 109 at [41]-[43].
The general approach to the task at hand has been summarised with reference to the standard authorities in the following terms.[26]
The meaning of the words is to be determined by the sense in which fair-minded ordinary reasonable persons in the general community would understand the published words.
The meaning of the words cannot be determined by evidence from the plaintiff or the defendant, but only by the interpretation reached through the ordinary reasonable person’s understanding of the words. In determining this issue, it is vital that the tribunal of fact focuses only on the publication complained of and puts out of its mind the evidence relating to other issues at the trial.
The ordinary reasonable person is taken to be a person of average intelligence who approaches the interpretation of the publication in a fair and objective manner. The person is neither perverse not suspicious nor “avid for scandal”. There is a limit of reasonableness, so that the ordinary reasonable person does not interpret the publication in a strained or forced or utterly unreasonable way.
The ordinary reasonable person does not live in an ivory tower, but approaches the interpretation of the publication in the light of the person’s general knowledge and experience of worldly affairs. The interpretation does not extend to the conclusion which the ordinary reasonable person reaches by taking into account his or her own belief which has been excited by what the matter complained of says.
The ordinary reasonable person does not interpret the publication in a precise manner and does not formulate reasons for the meaning which is understood, but rather forms a general impression of the meaning from the words used. As a result, the ordinary reasonable person may imply meanings quite freely and will be prone to do so when the publication is derogatory. The interpretation is not approached in the same way that a lawyer might interpret the words, which would be in a logical, precise or analytical manner, or only draw implications if they are both necessary and reasonable.
(Citations omitted)
I will refer to the fair-minded ordinary reasonable person in the general community with these attributes as “the ordinary reasonable person”.
[26] Patrick George, Defamation Law in Australia (LexisNexis Butterworths, 3^rd ed, 2017) at [9.4].
As the Magistrate observed,[27] in order to determine the meaning of the impugned language, to be apprehended by the ordinary reasonable person, the language must be considered in its context as available to a recipient. Typically, this requires a consideration of the impugned works in the context of the entire article in which they appear.[28] However, in the present case there is a broader context to be considered. The respondent’s 7.59 pm email by its terms, was clearly intended as a direct response to the appellant’s 9.51 am email. However, the meaning to be ascribed to a particular statement in the former may well vary according to whether the persons to whom it had been sent received it in isolation or together with the appellant’s 9.51 am email.
[27] Magistrate’s Reasons at [30].
[28] For example, Favell & Anor v Queensland Newspapers Pty Ltd & Anor [2005] HCA 52 at [17]. In Favell, the High Court referred to the well known dictum of Lord Reid in Lewis v Daily Telegraph Ltd [1964] AC 234 as to the search for “the most damaging meaning [a jury] would put on the words in question”. Both Favell and Lewis concerned pleading disputes and the question of law as to the capacity of words to bear a particular meaning as opposed to the (jury) question of what in fact is the single meaning to be ascribed to the words. Nevertheless, “context” is relevant at both stages of the enquiry.
The Magistrate examined the evidence relevant to and considered this issue in some detail.[29] His Honour reviewed: the evidence of the respondent to the effect that his email was a reply and that the two emails had been “sent together”[30] (that is, as a string); the lack of evidence on this topic by the appellant; the structure and provenance of the exhibited copy emails; evidence relevant to the topic by Harry Erdmann; and the fact that the respondent’s email was worded as a reply. His Honour concluded:[31]
I am completely satisfied that [the respondent’s] email was a response to [the appellant’s] email, sent as such and that all recipients received both emails together.
[29] Magistrate’s Reasons at [31]-[40].
[30] TT170-171.
[31] Magistrate’s Reasons at [40].
Counsel for the appellant contended that this finding was in error and that the respondent’s email had been sent in isolation. In addition to the evidence expressly referred to by the Magistrate, the Court’s attention was drawn to a short passage in the cross-examination of Mike Harvey.[32] However, I find this evidence to have been equivocal.[33]
[32] TT134.
[33] Mike Harvey at first said “I only received one email. I didn’t receive both”. However, Mike Harvey was not an addressee of the appellant’s 9.51 am email. As such, his language here is equivocal – it might mean he only received one email transmission from the respondent (not one from the respondent and one from the appellant), leaving open the possibility that one email transmission still may have included both documents. This ambiguity was not specifically followed up by the cross-examiner. Rather, the witness was shown the exhibit following which further uncertainty emerged when he said “I don’t recall, I remember the first one but I don’t recall the second one”.
I have reviewed the evidence relied on by the Magistrate for this finding together with Mike Harvey’s evidence. I also bear in mind that, later in his reasons, the Magistrate, and notwithstanding having criticised aspects of the respondent’s evidence and his approach to giving evidence, accepted the respondent as a witness of truth.[34]
[34] Magistrate’s Reasons at [59] and, by implication, at [60].
For the reasons the Magistrate expressed, his Honour accepted the respondent’s evidence that the two emails had been sent together. On my review of the evidence, the Magistrate’s findings on this topic were well open to his Honour. There is no evidence that might be seen as contradicting the respondent’s direct evidence on this topic, apart from the equivocal evidence of Mike Harvey. The Magistrate had the well accepted benefit of seeing and hearing the respondent and Mr Harvey give their evidence and this must be given its proper weight. It has not been demonstrated that his Honour’s acceptance of the respondent’s evidence should be seen as glaringly improbable or contrary to incontrovertible facts or uncontested testimony or compelling inferences from other established facts, such as would justify interference.[35] To the contrary, ordinary experience suggests that it was intrinsically likely that when sending his “reply” to a group of other persons, the respondent would also send the appellant’s email so that all recipients could understand the respondent’s reply.
[35] See generally, Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25]-[29], Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551.
Thus, the overarching context for the impugned statement in the respondent’s 7.59 pm email is that it was sent by way of reply to the appellant’s 9.51 am email and that the recipients had before them the complete terms of both emails. Given this context, I agree with the conclusion reached by the Magistrate that the defamatory meaning conveyed by the words “Steve you are a complete and utter liar” was that “[the appellant] has deliberately misstated the entire substance of what [the respondent] said in the phone call …”.[36]
[36] Magistrate’s Reasons at [49].
I agree with the Magistrate’s reasons for this conclusion[37] and, in particular, to the effect that the ordinary reasonable person would understand the respondent’s email to be directly asserting a disagreement with the account of the telephone conversation given by the appellant.
[37] Magistrate’s Reasons at [41]-[49].
The appellant in his email:
(i)opened by referring to “[the respondent’s] latest abusive phone call”;
(ii)announced that what was to follow was for the information of the other members of the range management committee who were not aware of the content of the phone call, implying that the appellant was about to set out the content of that phone call;
(iii)thereupon, summarised and purported to correct certain asserted misstatements said to have been made by the respondent in the phone call;
(iv)described the phone call as “rude” and “full of untruths”; and
(v)raised some administrative issues;
The respondent in his reply email:
(vi)described the appellant as “a complete and utter liar”;
(vii)asserted that the appellant was “the one who was abusive”;
(viii)asserted that the respondent did not say “anything below” – which I take to be a direct reference to the appellant’s email and the matters as summarised above;
(ix)asserted that a particular criticism of the Black Powder Club executive had been made by the appellant;
(x)asserted that the respondent only retaliated to the appellant’s “unprovoked tirade”; and
(xi)asserted that the appellant “did not have the integrity to tell the truth when [he] was 100 percent in the wrong”.
The matters in (vi) and (xi) taken in isolation might lend some support to the appellant’s contention that the respondent was describing the appellant as an “habitual” liar who was “dishonest, untrustworthy and behaves improperly”. However, the context does not support such a broad interpretation or meaning.
Clearly, the respondent was complaining about the appellant’s misdescription of the terms of their telephone argument. The respondent did not provide any historical context or examples of their earlier interactions. In using the adjectives “complete” and “utter” the respondent was brooking no qualification of the term “liar”. However, the assertion remained confined to the appellant’s account of the telephone conversation.
An ordinary reasonable person would read the respondent’s email as a product of the respondent’s anger and frustration over the appellant’s misstatement of the contents of the telephone conversation. Such a person would not read the impugned words as suggesting that the appellant is a person who has always lied in the past or who routinely lies and behaves dishonestly. In everyday discourse, an “habitual liar” is a far more serious charge to level at a person than simply challenging them for having lied and completely misstated the terms of a verbal argument on one particular occasion.
In my view, the sting of the respondent’s defamatory statement is limited in the manner as found by the Magistrate. Appeal grounds 3.2, 3.3, 3.3 (second) and 3.4 are not made out.
(ii) The defence of qualified privilege (grounds 3.5, 3.6, 3.7, 3.8 and 3.9)
I first make the following brief observations concerning the grounds of appeal relevant to this topic.
Ground 3.5 is a general contention that the Magistrate erred in upholding the defence of qualified privilege.[38] The respondent’s pleading refers only to the common law defence; there is no reference to the defence under section 28 of the Act. However, it may be, as the appellant contends, that the Magistrate considered only the defence under section 28 and not the common law defence. Alternatively, his Honour may have intended to deal with both forms of the defence as one without any attempt to differentiate between the two. In any event, the appellant has not raised this as a ground of appeal and has not pointed to any prejudice arising from the manner by which the parties conducted their respective cases at trial as a consequence of the respondent’s pleading. I am not persuaded that the appellant has been prejudiced in his ability to meet the respondent’s reliance on qualified privilege, whether at common law or under section 28, and either at trial or on appeal.
[38] This conclusion is in the Magistrate’s Reasons at [80] and his Honour’s reasoning is at [66]-[79].
I understand the other grounds, that is 3.6 to 3.9, to represent particulars of or the manner by which the Magistrate is said to have erred in deciding to uphold the defence.
The appellant contends that the Magistrate should have found malice on the part of the respondent (ground 3.9). The onus to prove malice rested with the plaintiff at trial (the appellant). If established, any defence of qualified privilege otherwise made out would be defeated. This being an appeal by rehearing, I must review the evidence relevant to the question of whether the respondent was motivated by malice and come to my own view, but recognising the Magistrate’s natural advantage in seeing and hearing the witnesses who gave evidence.[39]
[39] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Warren v Coombes [1979] HCA 9, (1979) 142 CLR 531.
The appellant in grounds 3.6 to 3.8 inclusive, contends that the Magistrate erred in failing to consider, respectively: that the respondent published to a wider audience than would be embraced by any privileged occasion (ground 3.6); evidence of the respondent to the effect that he selected a wider distribution so as to “get it out there” (ground 3.7); and, certain evidence of Mr Erdmann, to the effect, contrary to the respondent’s evidence, that he (that is, Mr Erdmann) as a recipient of the respondent’s 7.59 pm email was not aware of the appellant’s 9.51 am email to which the respondent’s email purported to respond (ground 3.8).
On one view of the matter, none of these three grounds is made out. The Magistrate did refer, albeit in brief terms, and thus it can be inferred that he had regard, to each of these matters.[40]
[40] Magistrate’s Reasons at [73] (ground 3.6 and ground 3.7) although his Honour made no direct reference to the words “to get it out there” used by the respondent; and [38] (ground 3.8) although Mr Erdmann’s evidence was referred to only in general terms and in another context.
Further, with respect to ground 3.8, Mr Erdmann’s evidence on this topic was not to the effect asserted by the appellant. However, nor was it in the terms asserted by the respondent in paragraph 18 of his written submissions which responds to the appellant’s ground 3.8. Mr Erdmann’s evidence was to the effect that he received an email dated 9.28 pm on 18 May 2016 to which was attached the appellant’s 9.51 am email and the respondent’s 7.59 pm email.[41]
[41] Mr Erdmann referred to this email as one “timed” at 8 pm. However, on a reading of his evidence as a whole, including his reference to the contents of this email, he can only have been referring to the respondent’s 7.59 pm email.
In any event, I have already found that the Magistrate was correct to find that the recipients of the respondent’s 7.59 pm email also received the appellant’s 9.51 am email and that this formed part of the context in which the meaning of the respondent’s statements were to be assessed. As such, the question of whether the defence of qualified privilege has been made out is also to be decided in that context. Appeal ground 3.8, even if made out, would not advance the appellant’s case in this respect and need not be considered further.
Again, given the nature of this appeal and notwithstanding the frailties of the appellant’s specific contentions in the grounds of appeal bearing on qualified privilege, I must form my own view on the issue of qualified privilege based on the evidence as a whole.
Section 28 provides as follows.
28—Defence of qualified privilege for provision of certain information
(1)There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—
(a)     the recipient has an interest or apparent interest in having information on some subject; and
(b)     the matter is published to the recipient in the course of giving to the recipient information on that subject; and
(c)     the conduct of the defendant in publishing that matter is reasonable in the circumstances.
(2)For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.
(3)In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—
(a)     the extent to which the matter published is of public interest; and
(b)     the extent to which the matter published relates to the performance of the public functions or activities of the person; and
(c)     the seriousness of any defamatory imputation carried by the matter published; and
(d)     the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and
(e)     whether it was in the public interest in the circumstances for the matter published to be published expeditiously; and
(f)     the nature of the business environment in which the defendant operates; and
(g)     the sources of the information in the matter published and the integrity of those sources; and
(h)     whether the matter published contained the substance of the person’s 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; and
(i)    any other steps taken to verify the information in the matter published; and
(j)    any other circumstances that the court considers relevant.
(4)For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.
(5)However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.

In Duffy v Google Inc,[42] Blue J helpfully set out the elements of the common law defence together with some further elaboration.
[42] [2015] SASC 170 at [389]-[394].
The common law defence applies when:
1.      the work is published on an occasion of qualified privilege;
2.      the defamatory passage is sufficiently connected to that occasion; and
3.      the occasion is used for the purpose of the privilege.
The onus in relation to the first and second elements lies on the defendant and the onus in relation to the third element (commonly called “malice”) lies on the plaintiff.
The underlying rationale for the existence of the defence is public policy, namely that on the occasions protected by privilege it is in the public interest that freedom of communication be given priority over the right of the individual to protection against loss of reputation.
The categories of occasions of qualified privilege are not closed and are informed by the underlying rationale but are not subsumed by merely considering what might be in the public interest in a particular case.
Two categories traditionally formulated are first, a communication by a person having a legal or moral duty to communicate it to a recipient having a reciprocal duty or interest to receive it and secondly, a communication to a recipient having a legitimate interest in receiving it by a person having a reciprocal interest in communicating it. These two categories of their nature usually apply to communications to a limited class and not to the world at large. ...
In relation to communications to the world at large, there are categories recognised by the common law albeit they vary between common law jurisdictions. In Australia, there is a recognised category of communications in relation to government or political matters (the so-called Lange defence). In England and Wales and some other countries, there is a broader recognised category of communications on matters of public interest (the so-called Reynolds defence). …
(Citations omitted)
As far as the common law defence is concerned, it cannot be contended that the respondent had a legal or moral duty to communicate the information in the respondent’s 7.59 pm email to its various recipients. The question arises whether the respondent and the recipients had a common or reciprocal interest in the published information. As far as the statutory defence is concerned, the question at hand is whether or not the recipients had an interest or apparent interest as prescribed by subsection 28(1)(a) bearing in mind that, in order to establish an apparent interest, subsection 28(2) must be satisfied, that is, the respondent must have believed on reasonable grounds that the recipients had that interest.
The particulars of the “interest” and “apparent interest” relied on by the respondent are contained in paragraph 9.c. of the amended defence.
The recipients of the [respondent’s 7.59 pm email] each had an interest or apparent interest in the matters in the [appellant’s 9.51 am email] and the [respondent’s 7.59 pm email] as they were members of the [Black Powder Club] or [Practical Shooting League]; the [respondent] published the [respondent’s 7.59 pm email] to the recipients to give the recipients the information contained in the [appellant’s 9.51 am email] and the [respondent’s 7.59 pm email]; and the conduct of the [respondent] in publishing the [respondent’s 7.59 pm email] containing the purported defamatory words was reasonable.
In short, and rather unhelpfully, the recipients, as members of one or other club, had “an interest” in the contents of the two emails and the conduct of the respondent in publishing his purported defamatory email was reasonable.
The respondent’s 7.59 pm email conveyed the information summarised in (vi) to (xi) in paragraph [30] above. In essence, the respondent’s 7.59 pm email challenged in strong terms the appellant’s summary set out in his earlier (attached email) of the telephone conversation. This challenge was in the context of and informed by the very matters (of an abusive nature) that were contained in the appellant’s attached email.
It is not simply any interest that will enable the defence of qualified privilege at common law to operate. As Higgins J observed in Howe & McColough v Lees[43] the person must not be “interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news”. In the same case, O’Connor J said that the interest must be “of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it”.[44] The interest must be of such a nature as conforms to the underlying rationale for the defence, that is, that the public interest will be served by giving priority to freedom of communication over an individual’s right to protection against loss of reputation.
[43] (1910) 11 CLR 361 at 398.
[44] (1910) 11 CLR 361 at 377.
In this case, the question arises whether or not there was a community or reciprocity of interest given the number of persons to whom (and in what capacities) the respondent published as compared with the much smaller number of persons who received the appellant’s email in the first instance. While some of the respondent’s recipients may have had a legitimate interest in receiving the respondent’s information about the appellant; others may not have.
In addition, even if the respondent did publish on a privileged occasion, the question arises whether the defamatory imputation in the publication was sufficiently connected to the privileged occasion.
A more liberal approach to the interest and sufficient connection requirements will be adopted where the defamatory publication comes by way of a response or defence to an attack. McHugh J in Bashford v Information Australia (Newsletters) Pty Ltd explained thus.[45]
[45] [2004] HCA 5; (2004) 218 CLR 366 at [65]-[66].
In determining whether the communication was made to discharge a duty or to protect or further an interest, the common law has drawn a distinction between statements replying to a request for information or responding to an attack and statements that are volunteered by the publisher. Where the defamatory communication responds to an attack on its publisher or some person connected with him or her, the common law has adopted a liberal approach to the question of duty or interest. Not only has it usually held that the publisher had a duty to respond or an interest in responding but, as a consequence, it has taken a very liberal view of what constitutes an “interest” in those who receive the response. In Mowlds v Fergusson, Dixon J said:
Where the defamatory matter is published in self-defence or in defence or protection of an interest or by way of vindication against an imputation or attack, the conception of a corresponding duty or interest in the recipient must be very widely interpreted.
So, in Adam v Ward, the House of Lords held that the publication of a letter in the British and Colonial Press was made on an occasion of qualified privilege when it was sent by the Army Council to protect an army officer who had been falsely attacked in Parliament. Lord Atkinson said that the publication was not too wide because “every subject of the Crown . . . has, and must have, an interest in the British Army”. Similarly, in Loveday v Sun Newspapers Ltd, this Court held that, where the plaintiff had chosen the public press for the purpose of publicising a complaint, he could not complain if the defendant used the public press to reply to the plaintiff ’s criticism. Starke J said:
A man who attacks another in or through a newspaper cannot complain if that other repels or refutes the attack for the purpose of vindicating himself. He has appealed to the public and provoked or invited a reply. A person attacked has both a right and an interest in repelling or refuting the attack, and the appeal to the public gives it a corresponding interest in the reply. Occasions of this kind are privileged and communications made in pursuance of a right or duty incident to them are privileged by the occasion.
(Citations omitted)
I am satisfied, on the basis of: (i) the terms of the respondent’s email, (ii) the fact that it was sent together with the appellant’s email, and (iii) the evidence given by the respondent, that his email was sent as a defensive reply to the appellant’s email attacking the respondent. The appellant has submitted that because the respondent said in evidence that his email was sent in “retaliation” to the appellant’s email, it was a not a reply in the sense discussed by McHugh J. I disagree. This submission places unwarranted weight on the literal meaning of the word “retaliation”. The email of the appellant, if perceived by the respondent as incorrect and containing untruths about what was actually said in the phone conversation between the two protagonists, plainly called for a reply in terms that would correct the record. The correspondence concerned matters of genuine interest to members of the two clubs.
I am satisfied that the occasion was one of qualified privilege. Bearing in mind that the respondent was genuinely defending his own character by way of a reply to an attack on it, certain of the recipients of the respondent’s email had a proper interest, reciprocal to that of the respondent, in receiving the respondent’s email.
On the question of “malice” the Magistrate made this finding.[46]
I am satisfied that [the appellant’s] angry email did significantly distort the conversation by omitting his own abuse and by focusing only on [the respondent’s] culpability in the argument. I am satisfied that [the respondent] positively believed that [the appellant] was deliberately misrepresenting a significant part of the telephone conversation to his own benefit. There is a degree of truth in this. He acted without malice in the relevant sense.
On my review of the evidence this finding was open to the Magistrate and bearing in mind his Honour’s advantage in seeing and hearing the witnesses, I can see no basis to interfere with it. To this point I am in agreement with the Magistrate’s findings on the question of qualified privilege.
[46] Magistrate’s Reasons at [76].
However, in my view the respondent stepped outside the privileged occasion by sending his email (and the appellant’s) to a much larger group of recipients. In this respect, the Magistrate made this finding.[47]
I would not preclude the operation of the defence by reason of the fact that the defendant published his reply to a wider audience than the original email received. [The respondent] was entitled to publish his email to the larger audience he selected for reasons he gave in evidence and which I accept. He said:
The other people who were added on to that email list were people that know what’s been going on and people I feel should know what’s going on. In the sense that these rumours and innuendos that have been spread around are not true and I felt that as the information that the Southern Vales is not being passed on properly to their members…
Whilst this might justify sending information aimed at correcting “rumours and innuendos” to a wider audience, there was no reciprocal interest in the imputation defamatory of the appellant being distributed to a wider audience.
[47] Magistrate’s Reasons at [73].
In addition to the recipients of the appellant’s email, the respondent’s email went to a number of persons with a connection to either or both clubs and also to the Sporting Shooters Association of Australia which has approximately 200,000 members. The respondent sent the email to these additional recipients because he felt they “should know what’s going on”[48] and he “wanted to make sure the truth got out there”.[49] The respondent was aware that these additional recipients had not been made aware of the appellant’s email.[50] There is no evidence to the effect that the email received on the Sporting Shooters Association of Australia email address was forwarded to any of its members and no evidence as to by whom, if anyone, it might have been read. I do not accept that it was a natural and probable consequence that an email of this nature would have been sent on to the Association’s members. Nevertheless, given that the respondent’s email was sent to at least 10 additional persons with club affiliations and to at least some one or more persons at the Sporting Shooters Association of Australia, the potential for the “grapevine” effect should not be overlooked.
[48] TT159.
[49] TT167.
[50] TT172.
I find that the common law defence of qualified privilege has not been made out.
I turn to consider, more briefly, the statutory defence. The notion of “interest” as used in subsection 22(1)(a) of the Defamation Act 1974 (NSW)[51] which is in the same terms as subsection 28(1)(a) was explained by Hunt J in Barbaro v Amalgamated Television Services Pty Ltd.[52]
The interest or apparent interest of the recipients need not be a proprietary one, nor even a pecuniary one. The word “interest” is not used in any technical sense; it is used in the broadest popular sense, to connote that the interest in knowing a particular fact is not simply a matter of curiosity, but a matter of substance apart from its mere quality as news. The interest must be definite; it may be direct or indirect, but it must not be vague or insubstantial — so long as the interest is of so tangible a nature that it is expedient to protect it for the common convenience and welfare of society, it will come within the privilege afforded by the section.
[51] New section 30 of the Defamation Act 2005 (NSW).
[52] (1985) 1 NSWLR 30 at 40. This passage has been approved of by the New South Wales Court of Appeal, Echo Publications Pty Ltd v Tucker & Ors [2007] NSWCA 320 at [7]-[8]; Griffiths v Australian Broadcasting Corporation [2010] NSWCA 257 at [103]-[104].
The notion of interest with respect to the statutory defence may be wider than that for the common law defence. Nevertheless, for the reasons earlier given, in particular the fact that a number of the target audience did not have an interest or apparent interest in receiving the defamatory material, I would reject the defence under section 28 as well.
(iii) Triviality (ground 1)
Section 31 of the Defamation Act 2005 (SA) provides:
31—Defence of triviality
It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.
I set out later in these reasons the legal framework applicable to any assessment of general damages for defamation. The common law presumes that some damage will flow from the publication of a libel (defamation in permanent form). The statute has now intervened to provide for the defence of triviality – where the circumstances of publication are such that the plaintiff was unlikely to sustain any harm.
The defence directs attention to “the circumstances of the publication” which includes the context of the publication, the imputations conveyed, the extent of the publication, the nature of the recipients and the relationship, if any, between the recipients and the plaintiff.[53] Whether or not there is a chance of republication and the operation of the “grapevine” effect can be relevant considerations. The question of whether the statutory defence is confined to likelihood of harm to reputation or also embraces likelihood of harm by way of distress and hurt feelings is not yet settled.[54]
[53] Jones v Sutton [2004] NSWCA 439 at [15], Barrow v Bolt [2015] VSCA 107 at [35], Smith v Lucht [2016] QCA 267 at [37].
[54] The question was left open in Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70 at [104] and Barrow v Bolt [2015] VSCA 107 at [43] but in Smith v Lucht [2016] QCA 439 at [54] the Queensland Court of Appeal, by majority, restricted the defence to harm to reputation.
The Magistrate found the defence of triviality to be made out. His Honour’s reasoning included the following.[55]
I am satisfied that the people to whom the emails were published all had some knowledge of the clubs and a degree of understanding of the background to the emails. That is why the emails were forwarded to them. The recipients would have recognised that both parties were in the midst of an angry dispute. There is nothing in [the respondent’s] email to suggest that [the appellant] has been untruthful on any occasion other than in his email.
. . . .
All the recipients of the emails would conclude from reading the words ‘Steve you are a compete utter liar’ that in [the respondent’s] opinion, [the appellant] had abused him in the telephone conversation and written an email that completely misrepresented the contents of the conversation.
While the email’s limited audience may well have found the overall behaviour of both parties inelegant and perhaps ill-advised, it is hardly conceivable that any recipient would be moved to change their opinion of [the appellant], by [the respondent’s] angry abuse and hyperbole. I am satisfied that the circumstances of publication were such that [the appellant] was unlikely to suffer harm. The defence of triviality is also made out.
In my view, there is very limited, if any, evidence that would support the finding in the first sentence quoted above. Whilst I agree, to a degree, with the sentiments expressed by the Magistrate above, they should be reflected in any assessment of damages. Given the nature of the defamatory publication, as found, and the extent of its publication and the potential for the “grapevine” effect to operate, it cannot be said with confidence that the appellant was unlikely to sustain any harm to reputation at all. The defence of triviality is not made out.
[55] Magistrate’s Reasons at [83], [86] and [87].
(iv) Procedural fairness (ground 4A)
I am satisfied that the appeal with respect to the respondent’s defamatory email should be allowed on the issue of liability, on the basis that none of the defences raised by the respondent can be sustained. It is therefore unnecessary for me to consider the procedural unfairness complaint, appeal ground 4A.
(v) Assessment of damages on the appellant’s claim (grounds 1, 3.10 and 3.11)
The appellant in his amended claim has sought general (non-economic loss) damages caused by the defamation. The plaintiff has not claimed nor particularised any specific financial losses by way of special damages. However, the damages pleading asserts that the publication was “calculated to disparage the [appellant] in his role as President of the Southern Vales … and as a business proprietor generally …” (emphasis added).
The Act contains two provisions which bear on the overall assessment of any award of damages for defamation.
Section 32 provides:
32—Damages to bear rational relationship to harm
In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
Section 34 provides:
34—State of mind of defendant generally not relevant to awarding damages
In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.
The Act also provides that a plaintiff cannot be awarded exemplary or punitive damages[56] and provides for a non-exclusive list of matters that might be taken into account by way of mitigation.[57]
[56] Section 35.
[57] Section 36.
General damages
Section 33 of the Act prescribes a maximum amount that can be awarded for non-economic loss.[58] That amount may be exceeded but if and only if the Court is satisfied that the circumstances warrant an award of aggravated damages.[59] However, these proceedings were brought in the Magistrates Court and the appellant has only claimed damages of $30,000, which is well under the statutory maximum.
[58] Subsection 33(3).
[59] Subsection 33(2).

The sting of the imputation that I and the Magistrate have found to have been conveyed has earlier been set out. General damages are intended to compensate for harm caused by the effect of the defamatory publication on the plaintiff and on his reputation.[60] They are directed at three purposes:[61]
(i)consolation for caused personal distress and hurt (solatium);
(ii)reparation for harm caused to the plaintiff’s personal and business reputation; and
(iii)vindication of the plaintiff’s reputation.
In Carson v John Fairfax & Sons Ltd,[62] the plurality[63] explained further as follows.
The first two purposes are frequently considered together and constitute consolidation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant; the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant’s reputation.
[60] Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1315].
[61] Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60-61.
[62] (1993) 178 CLR 44 at 60-61.
[63] Mason CJ, Deane, Dawson and Gaudron JJ.
As far as the first purpose is concerned, a plaintiff is entitled to be compensated for injured feelings such as, hurt, loss of self-esteem, sense of indignity and sense of outrage. The focus is on the plaintiff’s reaction and feelings.[64] Typically, the primary damage to a plaintiff’s reputation and injury to feelings is “occasioned at the time of publication and shortly thereafter”.[65] However, compensation for continuing harm is a component of normal compensatory damages.[66] In Cassell & Co Ltd v Broome,[67] Lord Diplock observed as follows.
[T]he harm done by the publication, for which damages are recoverable under [compensatory damages] does not come to an end when the publication is made. As Lord Atkin said in Ley v Hamilton … “It is impossible to track the scandal, to know what quarters the poison may reach.” So long as its withdrawal is not communicated to all those whom it has reached it may continue to spread. I venture to think that this is the rationale of the undoubted rule that persistence by the defendant in a plea of justification or a repetition of the original libel by him at the trial can increase the damages … The defendant’s conduct between the date of publication and the conclusion of the trial may thus increase [compensatory damages].
(Citation omitted)
[64] Cassell & Co Ltd v Broome & Anor [1972] AC 1027 at 1125.
[65] Greig v WIN Television NSW Pty Ltd [2009] NSWSC 877 at [5].
[66] Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 at 238 (Toohey J with whom Dawson and McHugh JJ agreed).
[67] [1972] AC 1027 at 1125.
The following was stated by the New South Wales Court of Appeal in Channel Seven Sydney Pty Ltd v Mohammed.[68]
It will not always be the case that injury of this sort will end or even lessen as time passes. Belief in the sting of the imputations may become more entrenched; the number of the plaintiff’s acquaintances who are aware of the imputations may increase; the plaintiff’s awareness of the lower regard in which he is held, and the consequent loss of self-esteem, may grow over time. These are factual matters that the current framework for assessing damages enables the court to consider.
[68] [2010] NSWCA 335; (2010) 278 ALR 232 at [236].
A plaintiff is not obliged to adduce evidence of pre-publication reputation or evidence from persons prepared to say that the plaintiff’s reputation was lowered in their estimation upon hearing the defamatory publication. Damage to reputation is presumed to follow from a defamatory publication.[69]
[69] See, for example, Bristow v Adams [2012] NSWCA 166, Beazley JA at [7] and Basten JA at [23]-[26].
The Magistrate, having dismissed the appellant’s claim on liability, found that in any event he had not suffered any damage. Such a finding was not surprising (although not inevitable) given his Honour’s decision to allow the defence of triviality.[70] On the basis of this finding the Magistrate allowed only “nominal damages” of $500. Whilst not clear, it is likely that his Honour accepted that some damage, if only hurt feelings, was suffered, thus justifying the award of $500.
[70] Triviality looks to whether the circumstances of publication were such that the plaintiff was unlikely to sustain any harm. The enquiry requires the Court to position itself at the time of publication and look forward. It does not necessarily follow that as at the time of any judgment no loss would, in fact, have been suffered.
The appellant’s claim for damages is based on:
(i)consolation for hurt feelings and distress; and
(ii)reparation for harm to reputation generally including the effect the defamation may or is likely to have on his future engagement as an international range officer at shooting competitions.[71]
Any award would also need to be sufficient to vindicate the appellant’s reputation.
[71] Initially, the appellant also sought reparation with respect to damage to his panel beating business but there was no evidence to support this contention and it was not pursued at trial or on appeal.
By appeal ground 3.10, the appellant complains that the Magistrate:
[T]otally failed to make any appropriate assessment for the personal hurt and distress caused to the plaintiff and the apprehension of the plaintiff as to the effect on his international reputation as a trusted and respected officer to Judge and assess international and local shooting competitions.
(Emphasis added)
I agree with the respondent’s submission that the Magistrate did have regard to the evidence concerning the appellant’s relationship with other club members after the publication and to his wife’s evidence concerning the effect of the respondent’s email on the appellant.[72] However, the very nature of the respondent’s defamatory imputation, published as widely as it was and which has not been justified, is such as inevitably to have caused distress and hurt feelings. Further, I accept that the Magistrate did not specifically address the appellant’s “apprehension” as to prospects for selection as an official at future competitions.
[72] Magistrate’s Reasons at [97]-[99].
I agree with the respondent’s submission that the Magistrate did review the evidence as to whether in fact there had been or was likely to be any loss of opportunity. I also agree that his Honour’s finding that the appellant’s prospects had not been compromised,[73] was open on the evidence and, bearing in mind his Honour’s natural advantage when assessing the witnesses, there is nothing in the evidence that would cause me to disturb that finding.
[73] See Magistrate’s Reasons at [89]-[92].
Nevertheless, the appellant’s apprehension in this respect (particularly given the publication to the Sporting Shooters Association) is a matter that should be factored into any assessment of damage based on personal hurt and distress.
In my view, the Magistrate’s assessment was governed in part by his Honour’s incorrect findings on triviality[74] and failed to take account of the appellant’s “apprehension” of future loss of opportunity as forming part of his distress over the defamatory publication. Damages should be assessed afresh.
[74] See Magistrate’s Reasons at [88].
It will be apparent from the foregoing that I take a different approach to that of the Magistrate and would increase the award of damages with respect to hurt feelings and damage to reputation. As far as the latter is concerned, something must be allowed notwithstanding that there was some evidence before the Magistrate that, for some witnesses, their view of the appellant had not been affected. Again, the number and nature of the recipients of the respondent’s email, together with the grapevine effect, mean that it cannot be assumed that this attitude would be universal amongst all those who became aware of the email.
Nevertheless, on my review of the email exchange and the available evidence, I agree with a number of the sentiments expressed by the Magistrate, in particular:[75]
[75] Magistrate’s Reasons at [85], [98] and [100].
But the ordinary man who does not live in an ivory tower understands that men might argue and use intemperate language. The ordinary man is astute enough to recognise that this had occurred before [the appellant] composed his email. [The respondent’s] email is a response to [the appellant’s] claims. The ordinary man is unlikely to assess the language in either email as if it were news. An ordinary man would recognise the language in the email as including abuse and hyperbole.
. . . .
It was clear from the evidence given by the members of the different clubs that relationships by the clubs were strained. However there was nothing at all to suggest that the problem arose because members of either club believed that [the appellant] was a liar. I am satisfied that the problem between the clubs arises principally from ongoing problems associated with the clubs’ differing views of their obligation under the deed and the legal proceedings against [the respondent] in particular, which I am satisfied, have exacerbated the strained relationships between the two clubs. As an example, I refer to the evidence given by Mr Kevin Baldwin which I accept. Given this factor, the evidence I refer to above concerning the ongoing use of [the appellant’s] services by members of the Black Powder Club significant in considering the question of damage.
. . . .
As already noted, I have no doubt that [the appellant] is very angry. The present climate encourages his negative emotion and explains his wife’s observations. Mrs Brown’s observations concerning public attitudes to the situation confirm my own. Each man has done himself more harm by their reactive behaviour, than the emails they have exchanged.
As earlier found, I allow the appeal against the Magistrate’s dismissal of the appellant’s claim. Whilst I would order substantive not nominal damages, they should only be modest. I set aside the Magistrate’s assessment and order in lieu that the respondent is liable to the appellant for damages in the amount of $3,500 inclusive of pre-judgment interest.
(vi) Qualified privilege with respect to the counterclaim (grounds 3.14, 3.15, 3.16, 3.17 and 3.18)
As earlier indicated no defence to the counterclaim was filed. The Magistrate relied on rules 24(6) and 34(1) of the Magistrates Court (Civil) Rules 2013 which are in these terms.
24.(1)     …
(6) No pleading beyond a reply is allowed except with leave of the Court.
..  .  .
34.(1)     A plaintiff will be taken to have filed a defence forthwith to a counterclaim or set-off, and pleaded to the general issue.
His Honour then observed as follows.[76]
The effect of these two rules is that in an action such as the present where a defendant to counterclaim is entitled to rely on specific common law and statutory defences but raises none of them the Court is entitled, in the normal course, to assume that no such defence is relied upon.
I raised the issue with [the appellant’s counsel] at the outset and there was no application made to amend. [The appellant’s counsel] said:
The defence is qualified privilege…in the sense that it is a response to an offensive phone call and in fact true but your honour can I just make this other point. The counterclaim is limited to $1736. So I don’t want to spend too long debating it.
[76] Magistrate’s Reasons at [116]-[117].
The Magistrate then addressed both the common law and statutory defences of qualified privilege.[77] His Honour assumed that the appellant and the (limited) recipients of his email had a reciprocal interest in the business matters contained in the appellant’s email. I agree that to this extent the occasion was one of qualified privilege. His Honour then found as follows.[78]
[77] Magistrate’s Reasons at [119]-[125].
[78] Magistrate’s Reasons at [120].
Even if the recipients of [the appellant’s] email did have a sufficient interest in the operations of the Range Management Committee to be advised of [the appellant’s] decision, it is difficult to see that they needed to be told of [the respondent’s] behaviour. But if they did, then they certainly required a more accurate account of the phone call than they received. For this reason I cannot conclude that the email was sufficiently germane to the occasion of privilege.
The Magistrate had earlier made the following findings.[79]
While I cannot make accurate findings as to who said what and in what order words were spoken, I prefer the substance of [the respondent’s] recollection on this matter. I am satisfied that in the email he sent to others, [the appellant] deliberately edited his summary of the conversation he had with [the respondent].
. . . .
I am satisfied that [the appellant’s] angry email did significantly distort the conversation by omitting his own abuse and by focusing only on [the respondent’s] culpability in the argument. I am satisfied that [the respondent] positively believed that [the appellant] was deliberately misrepresenting a significant part of the telephone conversation to his own benefit. There is a degree of truth in this. He acted without malice in the relevant sense.
The findings of the Magistrate concerning the phone conversation and its distortion by the appellant in his email were open on the evidence. Again, there is no basis in the evidence on which those findings ought to be disturbed particularly given the Magistrate’s expressed preference for the evidence of the respondent.
[79] Magistrate’s Reasons at [69] and [76].
The Magistrate also found the appellant to have been motivated by malice. His Honour found the appellant’s account of the telephone conversation to be “recklessly deficient” and after noting that “recklessness will only destroy qualified privilege if it amounts to wilful blindness” went on to find[80] as follows.[81]
But I find that he was wilfully blind to his own poor behaviour and deliberately omitted to provide a balanced account of the conversation to the extent that he was able to recall it. Further, I find it very likely that a motivation for sending the email was to vent his anger and punish [the respondent] for his perceived impudence.
Again, the Magistrate’s findings of fact and inference of malice were open on the evidence. There is no basis in the evidence to disturb these findings within the constraints identified in the line of cases culminating in Fox v Percy.[82] The finding of malice and that the defamatory imputations in the appellant’s email were not germane to the privileged occasion are sufficient to justify the Magistrate’s finding that the appellant’s conduct in publishing the defamatory statements was not reasonable in the circumstances (section 28(3) of the Act). None of the complaints in appeal grounds 3.14 to 3.18 inclusive can be upheld.
[80] For the reasons at Magistrate’s Reasons at [122]-[125].
[81] Magistrate’s Reasons at [124].
[82] [2003] HCA 22; (2003) 214 CLR 118.
(vii) General damages on the counterclaim (grounds 3.12 and 3.13)
The respondent’s amended defence and counterclaim concludes with the following prayers for relief.
12.The Defendant has suffered loss as he has;
a.     incurred legal costs with respect to the purported defamatory words, the defamatory words and the defamatory statements, prior to the bringing of this Action by the Plaintiff, in the amount of $1,320; and
b.    lost wages of $416.
13.The Defendant seeks the following remedies:
a.     Judgment in the amount of $1,736
b.    Costs on an indemnity basis
c.     Interest
The pleading in this respect purports to particularise special damages said to have been suffered and impliedly caused by the appellant’s defamatory publication. I have earlier set out the legal framework applicable to an assessment of general damages for defamation. Ordinarily, economic loss or special damages, if suffered, must be pleaded and particularised.[83] It would appear that the respondent has sought to do this. However, there is no expressly pleaded claim for general damages. The appellant contends that the respondent’s claim was thus specifically limited to one for special damages and that insofar as the Magistrate awarded general damages he was in error.
[83] Save for a claim for general economic loss as envisaged in Andrews & Anor v John Fairfax & Sons Ltd & Ors [1980] 2 NSWLR 235 at 251-252.
The appellant also contends that the two sums claimed, $1,320 for legal costs and $416 for lost wages are not recoverable as special damages. I agree with that contention; neither legal costs incurred nor time occupied in dealing with the defamatory publication (wages lost) are sufficiently causally connected to the publication of the defamatory matters.
The Magistrate’s reasons in support of his award of damages were economical.[84]
The counterclaim claims $1,736 by reference to two particularised heads of loss. [The respondent] gave some evidence of his special loss. Like [the appellant’s counsel], I entertain some doubt as to whether legal costs are recoverable as damages. But in any event I would allow general damages moderately in excess of the amount sought.
In the circumstances it is appropriate to allow damages in the amount claimed on the counter-claim.
It is plain enough that the Magistrate did not allow the special damages as particularised, per se, but rather general damages limited to that amount.
[84] Magistrate’s Reasons at [126]-[127].
I am satisfied that it was in order for the Magistrate to do so. Save for the statutory defence of triviality, which has not been relied on by the appellant by way of defence to the respondent’s claim, general damages for defamation (damage to reputation) are presumed. They do not need to be specifically referred to in the prayers for relief. In any event, the respondent has pleaded such a loss in paragraph 10 of the amended defence and counterclaim.
10.The defamatory statement would, in the minds of ordinary, reasonable people, harm the Defendant’s reputation and hold him up to ridicule, or lead others to shun or avoid the Defendant.
The Magistrate was entitled to award general damages. His Honour took a broad-brush approach and allowed the relatively modest amount of $1,736 as general damages. Something more than that was open to the Magistrate (and he indicated as much). However, there is no cross-appeal by the respondent as to quantum. Nor does the appellant appeal as to quantum. The appellant’s appeal grounds 3.12 and 3.13 are not made out.
Conclusion
The appeal is allowed in part and I make the following orders:
1.The Magistrate’s order dismissing the plaintiff’s (appellant’s) claim is set aside.
2.The plaintiff’s claim for defamation is allowed with judgment to be entered for the plaintiff in the amount of $3,500 inclusive of pre-judgment interest.
3.The appeal with respect to the defendant’s (respondent’s) counterclaim for defamation is dismissed.
I will hear the parties on the question of the costs of the trial and of the appeal.