De Poi v Advertiser-News Weekend Publishing Company Pty Ltd (No 2)

Sandra De Poi (the appellant) brought a defamation action against Advertiser-News Weekend Publishing Company Pty Ltd (the respondent) concerning an article published in the Sunday Mail on 28 March 2010. The appellant alleged the article conveyed imputations that she had gained substantial financial benefit through her Australian Labor Party connections, demonstrating a lack of integrity, and that there were reasonable grounds to suspect her of breaching the Code of Conduct of the Australian Institute of Company Directors by engaging in dishonest electoral practices. The trial judge had dismissed the appellant's claim, finding one imputation was not conveyed and the other was justified, ordering the appellant to pay the respondent's costs on an indemnity basis. On appeal, the Court was required to determine whether the two specific imputations were conveyed by the article and whether the respondent had established any valid defences.

The Court found that both imputations were indeed conveyed by the article and that it was defamatory. The respondent's defences of qualified privilege at common law and under the Defamation Act 2005 (SA) were rejected, as the publication was to a large audience without a common interest, and the respondent had failed to act reasonably by not properly verifying the imputations or seeking a response from the appellant. The defence of justification was also dismissed, particularly as the trial judge had erroneously found it made out in relation to an imputation for which it had not been pleaded, prejudicing the appellant. The Court awarded the appellant general damages of $75,000.00 and indicated it would hear the parties on costs and interest.

In relation to costs, the Court ordered that the respondent pay 85 per cent of the appellant's costs of the trial on a solicitor/client basis, adjusting the usual order due to the respondent's costs incurred in pursuing a defence of justification that was only pleaded in respect of one imputation and was successful at trial but not pursued on appeal. The respondent was also ordered to pay the appellant's costs of the entire appeal on a party/party basis. The appellant was awarded interest in the sum of $15,000.00.