Eppinga v Kalil

Case [2023] NSWCA 287


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Eppinga v Kalil [2023] NSWCA 287
Hearing dates: 20 November 2023
Date of orders: 1 December 2023
Decision date: 01 December 2023
Before: Payne JA at [1];
Kirk JA at [105];
Stern JA at [106]
Decision:

(1)    Leave to appeal granted;

(2)    Appeal dismissed;

(3)    Appellant to pay the respondents’ costs of the application for leave and the appeal.

Catchwords:

DEFAMATION – defamatory matter – capacity to convey pleaded imputations

DEFAMATION – online publication – Facebook post – extent of publication – where proof of publication to only two online readers – relevance to damages

DEFAMATION – defences – common law qualified privilege –reply to online attack – where parties agreed matter complained of was published on occasion of privilege and was sufficiently connected to the occasion of privilege – malice – where witness and contemporaneous documents demonstrated publisher’s state of mind – whether appellant discharged burden of proving malice

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 99

Defamation Act 2005 (NSW) ss 10A, 30

Evidence Act 1995 (NSW) s 91

Cases Cited:

Adam v Ward [1917] AC 309

ASIC v Hellicar (2012) 247 CLR 345; [2012] HCA 17

Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5

Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49

Briginshaw v Briginshaw (1938) 60 CLR 336

Bristow v Adams [2012] NSWCA 166

Browne v Dunn (1893) 6 R 67

Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Fraser v Holmes [2009] NSWCA 36; 253 ALR 538

Jones v Dunkel (1959) 101 CLR 298

King v Muriniti [2018] NSWCA 9

KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden [2020] NSWCA 28

Kuruv State of New South Wales (2008) 236 CLR 1; [2008] HCA 26

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Ling v Pang [2023] NSWCA 112

Loveday v Sun Newspapers Ltd (1938) 59 CLR 503

LVMH Watch & Jewellery Australia Pty Ltd v Michael Lassanah & Ors [2011] NSWCA 370

Muriniti v Kalil [2022] NSWCA 109

Murray v Raynor [2019] NSWCA 274

Payne v Parker [1976] 1 NSWLR 191

Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500

Category:Principal judgment
Parties: Ellie Rose Eppinga (appellant)
Mahmoud Kalil (first respondent)
Magda Kalil (second respondent)
Representation:

Counsel:
LC Muriniti, solicitor (appellant)
K Smark SC (first and second respondents)

Solicitors:
L.C. Muriniti & Associates (appellant)
Fitzpatrick Solicitors (first and second respondents)
File Number(s): 2023/135849
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
New South Wales District Court
Jurisdiction:
Civil
Citation:

[2023] NSWDC 107

Date of Decision:
21 April 2023
Before:
Weber SC DCJ
File Number(s):
2019/45573

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 25 January 2019, the appellant undertook an unpaid work experience placement at the Beacon Hill…

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Details
AGLC
Eppinga v Kalil [2023] NSWCA 287
Case
[2023] NSWCA 287
Decision Date

CaseChat Overview and Summary

The appeal concerned a defamation action brought by the appellant, Eppinga, against the respondents, Kalil. The dispute arose from a Facebook post made by the respondents, which the appellant alleged was defamatory. The matter came before the Court of Appeal of the Supreme Court of South Australia.

The primary legal issues before the Court of Appeal were whether the Facebook post was capable of conveying the defamatory imputations pleaded by the appellant, the extent of publication of the defamatory matter, and whether the respondents could rely on the defence of common law qualified privilege. Specifically, the court had to consider whether the respondents had discharged their burden of proving the absence of malice, given that the matter complained of was published in reply to an online attack and was sufficiently connected to the occasion of privilege.

The Court of Appeal found that the Facebook post was capable of conveying the pleaded imputations. Regarding the defence of qualified privilege, the court accepted that the matter was published on an occasion of privilege and was sufficiently connected to that occasion. However, the court determined that the appellant had failed to discharge the burden of proving malice. Evidence, including witness testimony and contemporaneous documents, demonstrated the respondents' state of mind, which did not establish malice.

Consequently, leave to appeal was granted, but the appeal itself was dismissed. The appellant was ordered to pay the respondents' costs of both the application for leave to appeal and the appeal.

Orders

Orders of the court

(1) Leave to appeal granted;

(2) Appeal dismissed;

(3) Appellant to pay the respondents’ costs of the application for leave and the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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