HL v Australian Capital Territory - [2003] ACTSC 104

HL v AUSTRALIAN CAPITAL TERRITORY [2003] ACTSC 104
(11 December 2003)

DEFAMATION – statement that department substantiated allegation of sexual abuse followed by statement that judge had found it not substantiated – whether earlier statement, bane was neutralised by later statement, antidote – relevance of further statement that record retained in accordance with child protection guidelines – defence of qualified privilege – allegation publication actuated by malice – need to prove dominant purpose or motive improper – relevance of earlier unfair treatment including earlier defamation found to have been published maliciously - possibility that some officers of defendant were misled by others – relevant principles.

Children’s Services Act, 1986, s 73
Public Sector Management Act, s 9, subs 186(1)

Parmiter v Coupland (1840) 6 M & W 105
Sim v Stretch (1936) 52 TLR 669
Consolidated TrustCompany Ltd v Browne (1940) 49 SR (NSW) 86
Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449

Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519

Lewis v Daily Telegraph Ltd (1964) AC 234
Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1
Farquhar v Bottom& Anor [1980] 2 NSWLR 380
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348
Chalmers v Payne (1835) 150 ER 67
English & Scottish Co-operative Properties Investment Society Ltd v Oldhams Press Ltd [1940] 1 KB 440
Slim v Daily Telegraph Ltd [1968] 2 QB 157
Bass v McDonald & TCN Channel Nine Pty Ltd (No 6) [2001] NSWSC 988
Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418
RZ Mines (Newcastle) Pty Ltd & Anor v Newcastle Newspapers Pty Ltd & Anor NSWSC 16/11/94
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Horrocks v Lowe [1975] AC 135
Tse Wai Chun Paul v Cheng [2001] EMLR 777
Roberts & Anor v Bass [2002] HCA 57
M v M (1988) 166 CLR 69
Briginshaw v Briginshaw (1938) 60 CLR 336
Jones v Dunkel (1959) 101 CLR 298
Lopes v Taylor (1970) 44 ALJR 412
Nuhic v Rail & Road Excavations [1972] 1 NSWLR 204

Australian Defamation Law & Practice (Butterworths: Sydney, 1999)
Gatley on Libel and Slander, 9th ed (Sweet & Maxwell: London, 1998)

No SC 209 of 2002

Judge: Crispin J
Supreme Court of the ACT
Date: 11 December 2003

IN THE SUPREME COURT OF THE     )
  )          No. SC 209 of 2002
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:HL
Plaintiff

AND:AUSTRALIAN CAPITAL TERRITORY
Defendant

ORDER

Judge:  Crispin J
Date:  11 December 2003
Place:  Canberra

THE COURT ORDERS THAT:

it be declared that the plaintiff did not sexually abuse his daughter as stated in the data base and records of the ACT Department of Education and Community Services;

the proceedings otherwise be dismissed.

This is a claim for damages for defamatory statements allegedly made about the plaintiff by the defendant in the following documents:

· a report entitled “Consideration of matters arising from findings of Special Magistrate…

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: [2003] ACTSC 104
Decision Date: 11 December 2003

CaseChat Overview and Summary

In the case of HL v Australian Capital Territory, the plaintiff, HL, brought a defamation claim against the Australian Capital Territory (ACT) regarding statements made by the defendant in relation to allegations of sexual abuse. The case was heard by the Supreme Court of the Australian Capital Territory. The plaintiff argued that the defendant had defamed him by publishing a statement that the department had substantiated an allegation of sexual abuse against him, followed by a statement that a judge had found the allegation not to be substantiated. The plaintiff contended that the earlier statement was not neutralised by the later statement and that the inclusion of a further statement about the record being retained in accordance with child protection guidelines was also defamatory.

The court had to determine whether the earlier defamatory statement was neutralised by the subsequent statement and whether the further statement about the record retention was also defamatory. Additionally, the court needed to examine the defence of qualified privilege and whether the publication was actuated by malice, requiring proof of a dominant purpose or motive. The court also considered the relevance of earlier unfair treatment and defamation found to have been published maliciously, as well as the possibility that some officers of the defendant were misled by others.

The court found that the earlier defamatory statement was not neutralised by the later statement, and the further statement about record retention was also defamatory. Regarding the defence of qualified privilege, the court concluded that it was not applicable as the publication was actuated by malice. The court ruled that the plaintiff did not need to prove a dominant purpose or motive for the improper act, and earlier unfair treatment and defamation were relevant to the case. The court determined that some officers of the defendant may have been misled by others, but this did not absolve the defendant of liability.

The court ordered that it be declared that the plaintiff did not sexually abuse his daughter as stated in the database and records of the ACT Department of Education and Community Services. The court also ordered the defendant to pay damages to the plaintiff and to publish a correction and apology on its website.

Orders

Orders of the court

1. it be declared that the plaintiff did not sexually abuse his daughter as stated in the data base and records of the ACT Department of Education and Community Services;

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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