Enders v Erbas & Associates Pty Ltd - [2014] NSWCA 70

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Appeal

New South Wales

Case Title: Enders v Erbas & Associates Pty Limited

Medium Neutral Citation: [2014] NSWCA 70

Hearing Date(s): 17 February 2014

Decision Date: 19 March 2014

Before: Ward JA at [1]
Leeming JA at [2]
Tobias AJA at [7]

Decision:
(1) Leave to appeal granted.

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

(3) Appeal dismissed.

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

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

Catchwords: DEFAMATION - defences - common law qualified privilege - whether primary judge erred in not making a finding of malice - knowledge of falsity of imputations where the defendant does not intend the convey the imputations

DEFAMATION - defences - statutory qualified privilege - application of s 30(3)(h) of Defamation Act 2005 - whether reasonable in the circumstances not to have sought a response from the plaintiff - whether it may be reasonable to seek a response after publication of defamatory matter

DEFAMATION - defences - defence of triviality - whether the primary judge applied the wrong test - whether "any harm" includes hurt feelings

Legislation Cited: Defamation Act 1974 (NSW)
Defamation Act 2005 (NSW)

Cases Cited: Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366
Bray v Deutsche Bank AG [2008] EWHC 1263 (QB)
Bristow v Adams [2012] NSWCA 166
Enders v Erbas & Associates Pty Limited (No. 2) [2013] NSWDC 44
Fraser v Mirza [1993] S.C. 27
Horrocks v Lowe [1975] A.C. 135
Jones v Sutton [2004] NSWCA 439; (2004) 61 NSWLR 614
Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Loveless v Earl [1999] E.M.L.R 530
LVMH Watch & Jewellery Australia Pty Limited v Lassanah [2011] NSWCA 370
Marshall v Megna [2013] NSWCA 30
Morosi v Mirror Newspapers Limited [1977] 2 NSWLR 749 at 799
Papaconstuntinos v Holmes Ã Court [2009] NSWSC 903
Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1
Szanto v Melville [2011] VSC 574

Texts Cited: Gatley on Libel and Slander (12th ed 2013, Sweet & Maxwell)
Price, Duodu and Cain, Defamation Law, Procedure and Practice (4th ed 2010, Sweet & Maxwell)

Category: Principal judgment

Parties: Sylvia Enders (Applicant)
Erbas & Associates Pty Ltd (First Respondent)
Ken Gurcan Erbas (Second Respondent)

Representation

- Counsel: Counsel:
C Evatt /…

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.

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Details

Case: [2014] NSWCA 70
Decision Date: 19 March 2014

CaseChat Overview and Summary

Enders v Erbas & Associates Pty Ltd concerned a defamation proceeding where the applicant, Enders, appealed a decision of the primary judge. The respondent, Erbas & Associates Pty Ltd, was the publisher of the defamatory material. The core of the dispute revolved around the defences of common law qualified privilege, statutory qualified privilege under section 30(3)(h) of the *Defamation Act 2005* (NSW), and triviality.

The appeal raised several legal issues for determination by the Court of Appeal. These included whether the primary judge erred in failing to make a finding of malice, particularly in circumstances where the defendant did not intend to convey the imputations but possessed knowledge of their falsity. Further, the court considered whether it was reasonable for the respondent not to have sought a response from the applicant before publication, and whether it could be reasonable to seek a response after publication, in the context of statutory qualified privilege. Finally, the appeal questioned whether the primary judge applied the correct test for the defence of triviality, specifically whether "any harm" encompassed hurt feelings.

The Court of Appeal dismissed the appeal. While leave to appeal was granted, the court found no error in the primary judge's findings. Regarding common law qualified privilege, the court held that knowledge of falsity alone, without an intention to convey the imputations, did not necessarily establish malice. On statutory qualified privilege, the court determined that it was open to the primary judge to find that it was reasonable not to seek a response from the applicant prior to publication, and that seeking a response post-publication could also be considered reasonable in certain circumstances. The defence of triviality was also upheld, with the court confirming the primary judge's application of the correct test. Consequently, the applicant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

(1) Leave to appeal granted.

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

(3) Appeal dismissed.

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

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	Enders v Erbas & Associates Pty Limited
Medium Neutral Citation:	[2014] NSWCA 70
Hearing Date(s):	17 February 2014
Decision Date:	19 March 2014
Before:	Ward JA at [1] Leeming JA at [2] Tobias AJA at [7]
Decision:	(1) Leave to appeal granted. (2) The applicant to file her Notice of Appeal within seven days of the date of these orders. (3) Appeal dismissed. (4) The applicant to pay the respondent's costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	DEFAMATION - defences - common law qualified privilege - whether primary judge erred in not making a finding of malice - knowledge of falsity of imputations where the defendant does not intend the convey the imputations DEFAMATION - defences - statutory qualified privilege - application of s 30(3)(h) of Defamation Act 2005 - whether reasonable in the circumstances not to have sought a response from the plaintiff - whether it may be reasonable to seek a response after publication of defamatory matter DEFAMATION - defences - defence of triviality - whether the primary judge applied the wrong test - whether "any harm" includes hurt feelings
Legislation Cited:	Defamation Act 1974 (NSW) Defamation Act 2005 (NSW)
Cases Cited:	Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366 Bray v Deutsche Bank AG [2008] EWHC 1263 (QB) Bristow v Adams [2012] NSWCA 166 Enders v Erbas & Associates Pty Limited (No. 2) [2013] NSWDC 44 Fraser v Mirza [1993] S.C. 27 Horrocks v Lowe [1975] A.C. 135 Jones v Sutton [2004] NSWCA 439; (2004) 61 NSWLR 614 Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Loveless v Earl [1999] E.M.L.R 530 LVMH Watch & Jewellery Australia Pty Limited v Lassanah [2011] NSWCA 370 Marshall v Megna [2013] NSWCA 30 Morosi v Mirror Newspapers Limited [1977] 2 NSWLR 749 at 799 Papaconstuntinos v Holmes Ã Court [2009] NSWSC 903 Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 Szanto v Melville [2011] VSC 574
Texts Cited:	Gatley on Libel and Slander (12th ed 2013, Sweet & Maxwell) Price, Duodu and Cain, Defamation Law, Procedure and Practice (4th ed 2010, Sweet & Maxwell)
Category:	Principal judgment
Parties:	Sylvia Enders (Applicant) Erbas & Associates Pty Ltd (First Respondent) Ken Gurcan Erbas (Second Respondent)
Representation
- Counsel:	Counsel: C Evatt /…