Enders v Erbas & Associates Pty Ltd

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.