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: 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
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
Category: Principal judgment Parties: Ellie Rose Eppinga (appellant)
Mahmoud Kalil (first respondent)
Magda Kalil (second respondent)Representation: Counsel:
Solicitors:
LC Muriniti, solicitor (appellant)
K Smark SC (first and second respondents)
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:
- 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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- AGLC
- Eppinga v Kalil [2023] NSWCA 287
- Case
- [2023] NSWCA 287
- Decision Date
CaseChat Overview and Summary
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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