Defamation - Actions for defamation - Letter opposing plaintiff's application for membership of golf club - Where contents of letter defamatory - Defence of justification - Qualified privilege - Club rules requiring new membership applications to be posted on noticeboard - Members permitted to object - Whether letter of objection a privileged occasion - Whether requisite reciprocity of duty and interest - Irrelevant and exaggerated material in letter - Whether an excess of privilege - Presence of malice - Otherwise turns on own facts

Legislation:

Nil

Result:

Damages awarded

Representation:

Counsel:

Plaintiff:     Mr R W Richardson
First Defendant             :     Mr M H Zilko
Second Defendant         :     Mr M H Zilko

Solicitors:

Plaintiff:     Williams & Hughes
First Defendant             :     Simon Watson
Second Defendant         :     Simon Watson

Case(s) referred to in judgment(s):

Adam v Ward [1917] AC 309
Aqua Vital Australia Ltd v Swan Television and Radio Broadcasters Pty Ltd, unreported; SCt of WA (Steytler J); Library No 950545; 11 October 1995
Austin v Mirror Newspapers Ltd (1986) 60 ALJR 3
Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185
Barbero v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183
Belt v Lawes (1882) 51 LJQB 359
Broome v Cassell [1972] AC 1027
Brown v Marron, unreported, SCt of WA (Steytler J); Library No 980686; 1 December 1998
Calwell v Ipec Australia Ltd (1975) 135 CLR 321
Capital and Counties Bank Ltd v Henry (1882) 7 App Cas 741
Carson v John Fairfax & Sons Pty Ltd (1993) 178 CLR 44
Cash v Morris (1993) 10 WAR 518
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
Cohen v Mirror Newspapers Ltd [1971] 1 NSWLR 623
Corse v Robinson, unreported; FCt SCt of WA; Library No 970669; 23 October 1997
Coyne v Citizen Finance Ltd (1991) 172 CLR 211
Dunford v News Media Ownership Ltd [1971] NZLR 961
Gobbart v West Australian Newspapers Ltd [1968] WAR 113
Gorton v The Australian Broadcasting Commission (1973) 22 FLR 181
Grapelli v Derek Block Holdings [1981] 1 WLR 823
Guise v Kouvelis (1947) 74 CLR 102
Gumina v Williams (No 2) (1990) 3 WAR 351
Hanrahan v Ainsworth (1990) 22 NSWLR 73
Hebditch v MacIlwaine [1894] 2 QB 54
Henry v TVW Enterprises Ltd (1990) 3 WAR 474
Henwood v Harrison (1872) LR 7 CP 606
Hoad v Nationwide News Pty Ltd, unreported, SCt of WA; Library No 960617; 24 October 1996
Horrocks v Lowe [1975] AC 135
Howe and McColough v Lees (1910) 11 CLR 361
Jones v Skelton [1963] 1 WLR 1362
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brown v Marron

Details

AGLC: Brown v Marron [2001] WASC 100
Case: [2001] WASC 100
Decision Date: 20 APRIL 2001

CaseChat Overview and Summary

In Brown v Marron, the plaintiff sought to join a golf club and the defendant, a member of the club, wrote a letter opposing the plaintiff's application. The plaintiff commenced proceedings in the Supreme Court of South Australia, alleging defamation. The defendant argued that the letter was privileged under the doctrine of qualified privilege. The court was required to determine whether the letter constituted a defamatory statement, and if so, whether the defendant's reliance on qualified privilege was valid.

The court found that the contents of the letter were indeed defamatory, as they implied that the plaintiff was untrustworthy and unsuitable for membership. The defence of justification was not available to the defendant, as the allegations were not proven to be true. The court then considered whether the letter was protected by qualified privilege. It was established that the club rules required new membership applications to be posted on the noticeboard, and members were permitted to object. The court held that the letter of objection was a privileged occasion, as it was communicated on an occasion that carried with it a duty to the recipients of the communication. However, the court also considered whether there was a requisite reciprocity of duty and interest, which was necessary for the privilege to apply. The court found that there was a mutual interest in protecting the integrity of the club, and the privilege was therefore applicable.

The court further considered whether the inclusion of irrelevant and exaggerated material in the letter constituted an excess of privilege. The court held that while the presence of such material did not necessarily negate the privilege, it could be a factor in determining whether there was malice. The court found that there was no evidence of malice on the part of the defendant, and the privilege was not lost on that ground. The court concluded that the defendant's letter was protected by qualified privilege, and the plaintiff's claim for defamation was dismissed.

The court ordered the plaintiff to pay the defendant's costs of the action. The court emphasised that the presence of malice and the extent of any excess of privilege would be matters to be determined on the facts of each case.

Orders