KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden

KSMC Holdings Pty Ltd trading as Hubba Bubba Childcare on Haig (the plaintiff) brought a defamation action against Bowden (the defendant). The dispute concerned statements made by the defendant about the plaintiff's childcare business. The matter was heard on appeal in the Court of Appeal of the Supreme Court of New South Wales.

The Court of Appeal was required to determine whether the primary judge had correctly identified the occasion as privileged at common law, and if so, whether the plaintiff had established malice on the part of the defendant, thereby defeating the defence of qualified privilege. The court also considered whether the damages awarded by the primary judge were manifestly excessive and whether aggravated damages were warranted in the circumstances.

The Court of Appeal found that the occasion was indeed privileged. Their Honours reasoned that the defendant had a duty or interest to communicate information about the plaintiff's business to a person who had a corresponding duty or interest to receive it. Crucially, the court found no evidence of malice on the part of the defendant, concluding that the defendant's conduct was not improper, unjustifiable, or lacking in bona fides. Consequently, the defence of common law qualified privilege was upheld.

The appeal was allowed, the orders of the primary judge were set aside, and the statement of claim was dismissed. The plaintiff was ordered to pay the costs of the defendants at first instance, and the respondent (the plaintiff) was ordered to pay the costs of the appellants (the defendants) of the appeal.