Ferguson v State of South Australia - [2018] SASC 90

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
FERGUSON v STATE OF SOUTH AUSTRALIA & ORS
[2018] SASC 90
Judgment of The Honourable Justice Stanley
26 June 2018
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
DEFAMATION - ACTIONS FOR DEFAMATION
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - REBUTTAL OF PRIVILEGE BY MALICE
TORTS - MISCELLANEOUS TORTS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - GENERALLY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - APPLICATION AND ORDER FOR FURTHER AND BETTER DISCOVERY
Appeal and cross-appeals from interlocutory orders made by a magistrate.
The plaintiff has brought a claim against the first and second defendants in defamation. This claim is out of time. The plaintiff seeks an extension of time within which to bring the action. He also has brought a claim against all defendants for injurious falsehood. In addition, the plaintiff brought applications for further and better discovery of a bundle of Freedom of Information (FOI) documents in respect of which the first defendant claimed public interest immunity (PII). The plaintiff also brought an application for better particulars.
The magistrate upheld the claim for PII after examining the documents. He dismissed the claims for further and better discovery and particulars. The magistrate granted the application for summary dismissal of the plaintiff’s claim in defamation. The magistrate refused the defendants’ applications to strike out the plaintiff’s pleadings and for summary judgment in respect of the plaintiff’s claim for injurious falsehood. The defendants have cross-appealed those orders.
Held:
1. The plaintiff’s appeal against the order for summary dismissal of the defamation actions against the first and second defendants is allowed. The order dismissing the plaintiff’s action in defamation is set aside.
2. The plaintiff’s appeal against the refusal to order the provision of better particulars is dismissed.
3. The plaintiff’s appeal against the refusal to order further discovery is allowed. Those orders are set aside.
4. The first defendant is ordered to provide particulars of the identity of the persons who made allegations to the second defendant relied upon by her in publishing the email of 4 June 2014 and particulars of the extent of the publication of that email.
5. The first defendant is ordered to produce the bundle of FOI documents in respect of which the magistrate allowed a claim for PII.
6. The cross-appeal from the refusal to order the strike out of the plaintiff’s pleadings is dismissed.
7. The cross appeal from the refusal to order summary judgment in the action for injurious falsehood is allowed. That order is set aside.
8. The plaintiff’s claims against the defendants for injurious falsehood are dismissed.
9. Judgment is entered for the third defendant against the plaintiff.
10. The appeal against the refusal of the application for an extension of time is allowed. That order is set aside.
11. The matter is listed for further hearing on the application for an extension of time.
12. Parties to be heard as to costs.
Freedom of Information Act 1991 (SA) Sch 1 cl 9; Defamation Act 2005 (SA) s 28; Limitations of Actions Act 1936 (SA) s 37; Magistrates Court Civil Rules r 24(1)(b), referred to.
Proude v Visic (No 4) (2013) 117 SASR 560; Rupcic v AW Baulderstone Pty Ltd (1987) 46 SASR 99; Matthews v Shaw [2014] SASC 74; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388, applied.
Milisits v South Australia (2014) 119 SASR 538; Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304; Joyce v Sengupta [1993] 1 All ER 897; Dye v Commonwealth Securities Ltd [1993] 1 All ER 897; Ballina Shire Council v Ringland [2012] FCA 242; Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460, discussed.

FERGUSON v STATE OF SOUTH AUSTRALIA & ORS
[2018] SASC 90
Magistrates Appeal
STANLEY J:
Introduction

This is an appeal and cross-appeals from interlocutory orders made by a magistrate. The plaintiff has brought a claim against the first and second defendants in defamation. This claim is out of time. The plaintiff seeks an extension of time within which to bring the action. He also has brought a claim against all defendants for injurious falsehood. In addition, the plaintiff brought applications for further and better discovery of a bundle of Freedom of Information (FOI) documents in respect of which the first defendant claimed public interest immunity. The plaintiff also brought an application for better particulars.
The magistrate upheld the claim for public interest immunity after examining the documents. He dismissed the claims for further and better discovery and particulars.
The magistrate granted the application for summary dismissal of the plaintiff’s claim in defamation. The magistrate refused the defendants’ applications to strike out the plaintiff’s pleadings and for summary judgment in respect of the plaintiff’s claim for injurious falsehood. The defendants have cross-appealed those orders.
Background
The plaintiff was a teacher employed by Department for Education and Child Development (DECD) in the APY Lands. He claims to have been defamed by the first and second defendants in separate publications made, first, in or about July and August 2013 and, second, on 4 June 2014. The basis of the claims in defamation concerns allegations of serious misconduct made by the third defendant to the second defendant, who was the principal of the school at which the plaintiff was employed, who in turn published those allegations in an email to three officers of DECD. The first and second defendants plead a defence of qualified privilege and plead that the claim is statute barred. By his reply, the plaintiff pleads that the publication was actuated by malice.
The magistrate granted the application for summary judgment in the defamation action.
The plaintiff’s claim for injurious falsehood relies upon the same publications. The magistrate declined to order summary judgment on the ground that he could not be satisfied that the plaintiff’s claim could not succeed on any possible view of the facts or the law. He did so on the basis that there was an issue as to whether the tort is wide enough to accommodate any falsehood which does not directly relate to a person’s business but rather affects their standing in a business or professional community.
Appeal from order refusing application for further discovery
The plaintiff made an application for further discovery of a bundle of FOI documents in respect of which the first defendant made a claim for public interest immunity. The magistrate dismissed the application. The first and second defendants submit that the magistrate was correct to do so on two bases. First, that there is a public interest in protecting exempt documents under the Freedom of Information Act 1991 (SA) (the FOI Act) from being disclosed. Second, that there is a public interest in protecting the confidential nature of the particular disclosures made in the circumstances of this case. The principles applicable to consideration of whether documents are entitled to public interest immunity was discussed by the Full Court in Milisits v South Australia.[1]Those principles are:[2]
[1] [2014] SASCFC 67, (2014) 119 SASR 538.
[2] [2014] SASCFC 67 at [23], (2014) 119 SASR 538 at 545-547.
(1) The general rule is that a court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it: Sankey v Whitlam (1978) 142 CLR 1 at 38.
(2) However, the court recognises that there are two aspects to the public interest which may conflict. They were described by Lord Reid in Conway v Rimmer [1968] AC 9l0 at 940 in these terms:
'There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.'
Those observations were adopted by Gibbs ACJ in Sankey v Whitlam at 38. Stephen J expressed the competition between these two aspects of the public interest in these terms in Sankey v Whitlam at 48-49:
'These principles, stated in their broadest form, each reflect different aspects of the public weal. Because disclosure to the world at large of some information concerning sensitive areas of government and administration may prejudice the national interest there exists a public interest in preventing the curial process from being made the means of any such disclosure. At the same time the proper administration of justice, of prime importance in the national interest, requires that evidence necessary if justice is to be done should be freely available to those who litigate in our courts.'
(3) It is the duty of the court, not the privilege of the executive, to determine whether a document will be produced or may be withheld: Sankey v Whitlam at 38, 58-59, 95-96. As Stephen J said in Sankey v Whitlam at 58, a claim to Crown privilege has no automatic operation; it always remains a function of the court to determine that claim.
(4) The court determines whether a document should be produced or withheld by deciding whether the public interest which requires that the document should not be produced outweighs the public interest that a court in performing its functions should not be denied access to relevant evidence: Sankey v Whitlam at 38-39. In Commonwealth v Northern Land Council (1993) 176 CLR 604 at 616 the court approved the following observations of Gibbs ACJ in Sankey v Whitlam at 43.
'I consider that although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure for ever. The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interest of justice. The court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection - the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned. If a strong case has been made out for the production of the documents, and the court concludes that their disclosure would not really be detrimental to the public interest, an order for production will be made.'
See also Sankey v Whitlam per Stephen J at 63-64 and per Mason J at 98-99.
(5) When carrying out this balancing task, the court will give weight to the Minister's opinion that the documents should not be produced but will form its own opinion whether the public interest will be the better served by production or non-production: Sankey v Whitlam at 44-45, 96.
(6) Those who urge privilege on the ground of public interest immunity for classes of documents, regardless of particular contents, carry a heavy burden: Sankey v Whitlam per Stephen J at 62; see also Lord Reid in Rogers v Home Secretary [1973] AC 388 at 400. Speaking generally, a claim of public interest immunity for a class of documents will be upheld only if it is really necessary in the public interest or for the proper functioning of the public service to withhold the documents from production: Sankey v Whitlam at 39.
(7) ... [T]here can be no single rule of thumb by which to determine whether a document should be produced for inspection... The fundamental principle is that documents may be withheld from production only if, and to the extent that, the public interest renders it necessary.
The magistrate upheld the claim for PII as follows:
Applying the public interest test as outlined above, I am of the view the bundle of FOI documents ought not to be disclosed. Those documents constitute internal deliberations from employees of the Department for Education and Child Development (‘DECD’) in relation to an FOI application made by the plaintiff to release the contents of the email of 4 June 2014. In my opinion, it is essential to the proper functioning of the public service that public servants are free to report concerns relating to their colleagues to their superiors without fear of repercussions.
The State claims PII on the basis that it is necessary to the proper administration of the government that employees feel free to disclose instances of misconduct without fear that their identity will be disclosed to the person about whom they are making the allegation. In my view, that submission cannot be sustained. There is not a public interest in attaching a class immunity to documents evidencing reports made to educational authorities alleging misconduct on the part of teachers. Informants may need protection in some circumstances but that cannot always be so. Teachers should not be deprived of the proper opportunity to defend themselves from malicious, aggrieved or mistaken complainants who make false allegations that could destroy careers.
There is a balancing exercise required in evaluating any claim for PII. The Court must weigh the public interest in protecting a document from disclosure and the public interest that a court in performing its functions should not be denied access to relevant evidence. Having examined the documents myself at the invitation of the parties, I am satisfied that the application for PII should be rejected.
The documents consist of a bundle of emails between the FOI officer and persons who appear to have been a source of information in relation to the preparation of the email of 4 June 2014. They are documents brought into existence pursuant to the FOI Act for the purposes of determining whether the documents should be released pursuant to a request under the FOI Act. They are internal working documents for the purposes of Schedule 1, Clause 9 of the FOI Act. That states:
9—Internal working documents
(1) A document is an exempt document if it contains matter—
(a)     that relates to—
(i) any opinion, advice or recommendation that has been obtained, prepared or recorded; or
(ii) any consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency; and
(b)     the disclosure of which would, on balance, be contrary to the public interest.
(2) A document is not an exempt document by virtue of this clause if it merely consists of—
(a)     matter that appears in an agency's policy document; or
(b)     factual or statistical material.
Section 9(1)(b) makes clear that a document is not an exempt document if, on balance, disclosure is not contrary to the public interest. Again, this involves a balancing exercise.
The documents are emails between the DECD FOI officer and persons who have made allegations against the plaintiff, which concern whether there is any objection to the release of the email of 4 June 2014.
One person objects to the release of that email on the basis that it does not accurately reflect what he said to the author of the email. I consider the plaintiff will be substantially prejudiced if the document is not disclosed. The email has now been released. The plaintiff must now be aware of that person’s identity. The protection of the identity of the informant is no longer necessary.
The other person asserts in a vague way that she feared for her safety if her identity was revealed. The State has not adduced any evidence which would provide a foundation that this person’s fear had some basis in fact and was genuinely held. In any event, if the allegation made against the plaintiff, for which she is said to be the source, is true then the plaintiff would presumably have little difficulty in inferring her identity. If the allegations are not true, then there is no proper basis to confer the protection of PII on the documents. I am satisfied that the public interest in the documents being available in the litigation outweigh any public interest in preserving them from disclosure. In the circumstances the heavy burden imposed upon the claimant for PII has not been established in relation to the bundle of documents.
I would allow the plaintiff’s appeal against the orders made by the magistrate upholding the claim of public interest immunity in respect of the bundle of FOI documents and refusing the application for further discovery.
Appeal against order for summary judgment in the defamation action
The test for ordering summary judgment in favour of a defendant is whether it is established, assuming the plaintiff’s allegations of fact will be proved, that there is no reasonable basis for the claim against the defendant.[3] It is a necessarily stringent test. The application for summary judgment was supported by an affidavit of the second defendant setting out the circumstances in which she came to publish the email of 4 June 2014. The purpose of affidavit was to establish an evidentiary foundation for the defence of qualified privilege. The magistrate granted the application for summary judgment on the basis that he found that the defence of qualified privilege was made out. He found the second defendant published the email addressing serious concerns relating to the conduct of an employee, namely, the plaintiff. He found that publication in those circumstances was reasonable.
[3] Proude v Visic(No 4) (2013) 117 SASR 560.
Pursuant to s 28 of the Defamation Act 2005 (SA) a defendant pleading qualified privilege must prove, inter alia, that the publication was reasonable in all the circumstances. In determining whether publication is reasonable, the Court may have regard to various specified matters in s 28(3). It provides:
28—Defence of qualified privilege for provision of certain information
...
(3)In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—
(a)     the extent to which the matter published is of public interest; and
(b)     the extent to which the matter published relates to the performance of the public functions or activities of the person; and
(c)     the seriousness of any defamatory imputation carried by the matter published; and
(d)     the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and
(e)     whether it was in the public interest in the circumstances for the matter published to be published expeditiously; and
(f)    the nature of the business environment in which the defendant operates; and
(g)     the sources of the information in the matter published and the integrity of those sources; and
(h)     whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; and
(i)    any other steps taken to verify the information in the matter published; and
(j)    any other circumstances that the court considers relevant.

The plaintiff submits that the factors prescribed in placita (a), (c), (d) and (h) are relevant to the determination of whether the publication was reasonable in this case. In his reply, the plaintiff also pleads that the defendants were actuated by an improper purpose in publishing the email of 4 June 2014. The questions of reasonableness of publication and whether the publication was actuated by malice depend upon findings of fact that can only be made after all relevant evidence has been heard. It was not open to the magistrate to find the offence of qualified privilege established in the absence of hearing all the evidence relevant to the defence. The peremptory remedy of summary judgment cannot be applied in these circumstances.
I would allow the appeal against the order made for summary judgment in the defamation action.
Appeal against the refusal to order an extension of time
The first and second defendants submit that in any event the magistrate was correct in granting summary judgment because the plaintiff’s claim in defamation is statute barred. Section 37 of the Limitations of Actions Act 1936 (SA) provides:
37—Defamation proceedings generally to be commenced within 1 year
(1) An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.
(2) However, a court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in subsection (1) to a period of up to 3 years running from the date of the publication (but no further extension is to be allowed under any other provision of this Act).
The proceedings were issued on 25 May 2017. The plaintiff sought an extension of time to that date. The magistrate refused to extend time on the basis of prejudice to the State. Before the magistrate, the Crown submitted that key witnesses would need to be located and required to recall events occurring over four years ago. The defendants rely upon the judgment of the New South Wales Court of Appeal in Barrett v TCN Channel Nine Pty Ltd.[4]They submit that even if the test in s 37(2) is satisfied, the Court should not, in the exercise of its discretion, extend the time beyond the period within which it was thought reasonable to have sued. They submit this was no more than a year after the plaintiff’s discovery of the existence of the email of 4 June 2014, which occurred about one year later in June 2015.
[4] [2017] NSWCA 304.
The defendants submit that the plaintiff has failed to explain his dilatoriness in bringing the claim before May 2017 given that he was aware of the existence of the email of 4 June 2014 by mid-2015. The plaintiff submits that an explanation for the delay was that he was awaiting the outcome of his application for pre-action discovery which he made in September 2016 and which was not decided until April 2017. However, that does not explain the delay between mid-2015 and September 2016. In his reasons the magistrate declined to extend the time on the basis that the plaintiff did not plead any reason for the delay. The magistrate referred to the plaintiff’s application for pre-action discovery being made in September 2016 but the claim not being issued until 25 May 2017. However, the magistrate failed to refer to the relevant fact that a decision on the application for pre-action discovery was not given until April 2017. Further, the magistrate appears to have overlooked the terms of the plea in paragraph 19 of the statement of claim seeking an extension of time. That explains the failure to bring the proceedings within time because the plaintiff did not have knowledge of the publications until one year after publication, he was not able to ascertain some of the persons involved in the publication until the same time and he was not able definitively to establish that the third defendant was a relevant publisher despite applying for pre-action discovery. In my view, the exercise of the magistrate’s discretion miscarried. Further, there was no evidence of prejudice before the magistrate.
At issue is whether this Court should consider afresh the exercise of the discretion. I am satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced the action within one year from the date of publication, given he did not learn of the email of 4 June 2014 until about the time the limitation period expired. Once the Court is satisfied that the discretion to extend the time has been enlivened, the discretion is unfettered except to the extent that an extension of time of greater than three years cannot be granted.
Mr Redford, counsel for the appellant, submits that he was unaware that the magistrate would deal with the application for an extension of time on the application for summary judgment. He submits that the appellant would have put evidence before the Court on his application for an extension of time had he been aware that the magistrate intended to determine it as part of the application for summary judgment. In these circumstances I consider it is not appropriate to decide the length of any extension of time without affording the parties the opportunity to put relevant evidence before the Court. However, I would not make an order for summary judgment in reliance upon the plaintiff’s claim in defamation being statute barred.
Appeal from the order refusing the request for better particulars
Pursuant to the Magistrates Court Civil Rules 2013 (SA) r 24(1)(b), plaintiffs must comply with the Supreme Court Civil Rules 2006.   The degree of particularity required in a pleading depends on the nature and circumstances of the case.[5] Pleadings must give fair notice of a party’s case. However, the Court will only order better particulars if fair notice is not given by the existing pleading and the party making the application would suffer substantial prejudice without better particulars of the facts material to the other party’s case.[6] The request for better particulars relates to the facts relied upon for the defence of qualified privilege and whether the defendants can prove their conduct was reasonable in the circumstances. The plaintiff sought particulars of the persons who were the source of the allegations against the plaintiff and the extent of the publication of the email of 4 June 2014. The magistrate relied on the plea by the Crown that the conduct of the second defendant in publishing the material contained in the email of 4 June 2014 was reasonable in the circumstances. The magistrate reasoned that as the Crown is a model litigant that plea must be accepted and accordingly the application for further and better particulars was refused. It can be seen that the refusal turns on the magistrate’s conclusion that the defendants are entitled to summary judgment in the defamation action on the basis of the defence of qualified privilege. While it is accepted that the Crown conducts itself as a model litigant, it does not follow that every defence made by the Crown to a claim against the State is correct. The defendants submit that the approach taken by the magistrate discloses no error. Having reached the contrary view, given the plaintiff can pursue his claim in defamation, the issue is whether the plaintiff will suffer substantial prejudice if the particulars sought are not provided. The plaintiff has not established that this is the case. As a consequence of the plaintiff’s appeal on the issue of summary judgment and further discovery, there is no need for the provision of the particulars sought or, at least, the plaintiff has failed to demonstrate that he will suffer substantial prejudice from the failure to provide them. I would dismiss this ground of appeal.
[5]    Rupcic v AW Baulderstone Pty Ltd (1987) 46 SASR 99.
[6]    Matthews v Shaw [2014] SASC 74 at [6]-[8].
Cross-appeal from the refusal to order the strike out of the plaintiff’s pleadings
The defendants’ application to strike out the plaintiff’s pleadings was brought in the alternative to the application for summary judgment in the defamation action. In the circumstances, having allowed the plaintiff’s appeal against the order for summary judgment, I would dismiss the defendants’ cross-appeal against the refusal to strike out the plaintiff’s pleadings. In my view, on the assumption that the plaintiff can prove the facts alleged, the pleadings disclose a reasonable cause of action.
Cross-appeal from the refusal to order summary judgment in the action for injurious falsehood
The defendants’ cross-appeal the refusal of the magistrate to dismiss the plaintiff’s claim for injurious falsehood. An action for injurious falsehood has four elements. They are:
(i)a false statement of or concerning the plaintiff’s goods or business, or their professional or commercial interests;
(ii)publication of that statement to a third person;
(iii)made maliciously; and
(iv)with proof of actual damage (which may include a general loss of business) suffered as a result of the statement.[7]
[7] Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69 at [52], (2001) 208 CLR 388 at 404.
At issue is whether the plaintiff’s claim in injurious falsehood has any reasonable possible of success. The defendants submit that even if the plaintiff proves that the impugned publications were published maliciously with knowledge of the falsity of the allegations contained therein, there is no remedy available to the plaintiff in the tort of injurious falsehood. It is submitted his remedy lies solely in defamation. The defendants submit that the only damage he claims is loss of salary and benefits attached to his employment as a teacher in the Anangu Pitjantjatjara Yankunytjatjara Lands and damage to his professional reputation as a teacher. They submit that such damage is damage to reputation rather than the plaintiff’s business, goods or professional practice. The remedy for the former lies in the tort of defamation while the remedy for the latter lies in the tort of injurious falsehood. This submission must be accepted. It does not turn on findings of fact.
Injurious falsehood is a separate tort from defamation. The elements of the tort are clearly distinguishable from defamation. As traditionally explained, the tort involves the publication of a false statement concerning a plaintiff’s goods or business made maliciously which results in actual damage to the plaintiff. The tort of injurious falsehood, in contradistinction to the tort of defamation, protects proprietary and commercial rather than personal interests.[8] The same facts may found actions in both defamation and injurious falsehood. In Palmer Bruyn & Parker Pty Ltd v Parsons,[9] Gummow J cited with approval the statement of Sir Donald Nicholls V-C in Joyce v Sengupta who said:[10]
The remedy provided by the law for words which injure a person’s reputation is defamation. Words may also injure a person without damaging his reputation. An example would be a claim that the seller of goods or land is not the true owner. Another example would be a false assertion that a person has closed down his business. Such claims would not necessarily damage the reputation of those concerned. The remedy provided for this is malicious falsehood, sometimes called injurious falsehood or trade libel. This cause of action embraces particular types of malicious falsehood such as slander of title and slander of goods, but it is not confined to those headings.
[8] Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69 at [58], (2001) 208 CLR 388 at 406.
[9] [2001] HCA 69, (2001) 208 CLR 388.
[10] [1993] 1 All ER 897 at 901.
In Dye v Commonwealth Securities Ltd,[11] Buchanan J said that the damage which is compensable for injurious falsehood is not injury to reputation; what must be injured is a person’s business or goods.[12] Yet the plaintiff’s claim is for damages to his professional reputation as a teacher.
[11] [2012] FCA 242.
[12] [2012] FCA 242 at [662].
In Ballina Shire Council v Ringland,[13] Gleeson CJ mentioned “an interesting question as to how far the action for injurious falsehood extends beyond the concepts of business or property.”[14] The issue was raised again by Gleeson CJ and Gummow J in Palmer Bruyn & Parker Pty Ltd v Parsons[15] but not resolved. However, the issue was addressed by the judgment of the plurality in Radio 2UE Sydney Pty Ltd v Chesterton.[16]They said:[17]
It is not in dispute that persons may be defamed in their business reputation. The common law has for some time recognised that words may not only reflect adversely upon a person’s private character, but may injure a person in his or her office, profession, business or trade. This may be so where the words reflect upon the person’s fitness or ability to undertake what is necessary to that business, profession or trade. But in each case the injury spoken of is that to the person’s reputation.
The remedy which the law provides for injury to a person’s business or professional reputation must be distinguished from that for malicious statements which result in damage not to the reputation but to the business or goods of a person. The former is provided by an action for defamation, the latter by that for injurious falsehood. Lord Esher MR explained the distinction in South Hetton Coal Co Ltd v North-Eastern News Association Ltd. A false statement that a wine merchant’s wine is not good, which is intended to and does cause loss to the wine merchant’s business, is an injurious (or “malicious”) falsehood. A statement reflecting upon that person’s judgment about the selection of wine, and therefore upon the conduct of his business, may be defamatory of him. Gummow J observed in Palmer Bruyn & Parker Pty Ltd v Parsons that the action for injurious falsehood is more closely allied to an action for deceit.
[Citations omitted].
[13] (1994) 33 NSWLR 680.
[14] (1994) 33 NSWLR 680 at 693.
[15] [2001] HCA 69 at [1] and [60], (2001) 208 CLR 388 at 393 and 407.
[16] [2009] HCA 16, (2009) 238 CLR 460.
[17] [2009] HCA 16 at [10]-[11], (2009) 238 CLR 460 at 468-469.
In Dye Buchanan J recognised that there may be cases where a person, whose profession or business depends upon their personal standing in the community, in the world of business or in their own profession, can claim damages for an injury to their trade or business arising from a maliciously false statement made about them.[18] That is not this case. On the authorities as they stand, at their highest, the plaintiff has no professional practice which is alleged to have been injured. He is not in business on his own account. He is an employee of DECD. He claims that his professional reputation has been damaged and that he has suffered actual loss of salary and benefits. He does not claim any actual damage to any commercial or proprietary interest. If he can make out those claims his remedy lies in defamation where he would be entitled to general damages for the loss of his professional reputation and special damages if he can prove actual financial loss as a result of the damage to his professional reputation.
[18] [2012] FCA 242 at [664].
I would allow the defendants’ appeal against the refusal to grant summary judgment in respect of the plaintiff’s claim for injurious falsehood. There is no reasonable basis for the plaintiff’s claim for injurious falsehood. The defendants are entitled to summary judgment in respect of those claims. The plaintiff is confined to a remedy, if he has one, in defamation.
As the plaintiff’s sole claim against the third defendant is for injurious falsehood, the third defendant is entitled to judgment in his favour. The plaintiff is free to pursue his claim against the first and second defendants in defamation.
Conclusion
I would allow the plaintiff’s appeal against the order for summary dismissal of the defamation actions against the first and second defendants. I would set aside the order dismissing the plaintiff’s action in defamation. I would dismiss the plaintiff’s appeal against the refusal to order the provision of better particulars. I would allow the plaintiff’s appeal against the refusal to order further discovery. I would set aside those orders. I would order the first defendant to provide particulars of the identity of the persons who made allegations to the second defendant relied upon by her in publishing the email of 4 June 2014 and particulars of the extent of the publication of that email. I would order the first defendant to produce the bundle of FOI documents in respect of which the magistrate allowed a claim for PII. I would dismiss the cross-appeal from the refusal to order the strike out of the plaintiff’s pleadings. I would allow the cross‑appeal from the refusal to order summary judgment in the action for injurious falsehood. I would set aside that order. I would dismiss the plaintiff’s claims against the defendants for injurious falsehood. I would enter judgment for the third defendant against the plaintiff.
I would allow the appeal against the refusal of the application for an extension of time. I would set aside that order. I would list the matter for further hearing on that application.
I would hear the parties as to costs.