Machado & Anor v Underwood & Anor - [2016] SASCFC 65

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MACHADO & ANOR v UNDERWOOD & ANOR
[2016] SASCFC 65
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Nicholson)
3 June 2016
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATION
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - STATEMENTS MADE IN RESPECT OF A DUTY OR INTEREST - PARTICULAR STATEMENTS - ON MATTERS OF PUBLIC INTEREST - WHAT CONSTITUTES PRIVILEGED OCCASION, COMMUNICATION OR CONDUCT
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - STATEMENTS MADE IN RESPECT OF A DUTY OR INTEREST - PARTICULAR STATEMENTS - REASONABLENESS OF PUBLICATION
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - REBUTTAL OF PRIVILEGE BY MALICE
DEFAMATION - DAMAGES - GENERAL DAMAGES - ASSESSMENT - IN GENERAL
This is an appeal against the decision of a Magistrate allowing a claim for damages for defamation. The first respondent, Mr Underwood, is a project officer with the Department of Environment and Natural Resources and is involved with the Department’s Investigation and Compliance Unit. The first appellant, Mr Machado, is the President of the second appellant, the Australian Marine Wildlife Research and Rescue Organisation (AMWRRO).
Mr Underwood sued Mr Machado and AMWRRO in the Magistrates Court in relation to an email sent to the Minister for Sustainability, Environment and Conservation on 21 December 2011. The email raised Mr Machado’s concerns that an allegedly sick koala was in the care of persons who did not hold the relevant permit required pursuant to the National Parks and Wildlife Act 1972 (SA). Mr Underwood claimed that the email gave rise to imputations that:
- Mr Underwood was dishonest and a liar in his communications with Mr Machado about a koala referred to in the email;
- Mr Underwood concealed his dishonest activities from the Department and was involved in a cover up over the dealings with the koala;
- Mr Underwood had no proper regard for the health or welfare of the koala;
- By reasons of his handling of the care of the koala, he was incompetent in his job and unfit to hold his position as a project officer;
- Mr Underwood had acted so as to undermine the work and objectives of the Department; and
- Mr Underwood had acted in an unreasonably aggressive and intimidating manner in the performance of his role as a project officer when dealing with Mr Machado.
The Magistrate found that the email gave rise to the imputations and were defamatory, that Mr Machado and AMWRRO had acted unreasonably and, therefore, the statutory defence of qualified privilege had no application, that Mr Machado and AMWRRO’s conduct was actuated by malice and, therefore, the common law defence of qualified privilege had no application, that the defence of honest option had no application, and that the Mr Machado and AMWRRO had not made an “appropriate disclosure” in order to be protected by the Whistleblowers Protection Act 1993 (SA).
Mr Machado and AMWRRO have appealed against the decision of…

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: [2016] SASCFC 65
Decision Date: 3 June 2016

CaseChat Overview and Summary

The case of *Machado & Anor v Underwood & Anor* involved a defamation claim brought by the appellants, Mr. Machado and another party, against the respondents, Mr. Underwood and another party. The dispute arose from statements made by Mr. Underwood concerning the care of a koala named Banjo, which had been rescued and was being rehabilitated by volunteers associated with Fauna Rescue. Mr. Machado, who had complained to the Department about the care of the koala, was informed by Mr. Underwood about the koala's health and the circumstances of its transfer to new carers. The matter was heard in the Supreme Court of South Australia.

The central legal issues before the court were whether the statements made by Mr. Underwood constituted defamation, and if so, whether those statements were protected by the defence of qualified privilege. Specifically, the court had to consider whether the statements were made in response to a duty or interest, whether the publication of the statements was reasonable, and whether the defence of qualified privilege could be rebutted by evidence of malice on the part of Mr. Underwood. The court also had to determine the extent of publication of the alleged defamatory material and, if liability was established, the appropriate quantum of damages.

The court's reasoning focused on the application of the defence of qualified privilege. It was found that the occasion of the communication was privileged, as Mr. Underwood had a duty to report his findings and concerns to Mr. Machado, who had made an inquiry. The court also considered the reasonableness of the publication, noting that the statements were made in a private email to Mr. Machado, who had a legitimate interest in the matter. Crucially, the court found no evidence of malice on the part of Mr. Underwood that would defeat the qualified privilege. The court determined that the statements, when viewed in their context, did not convey the defamatory imputations pleaded by the appellants.

Ultimately, the appeal was allowed, and the orders made by the Magistrate were set aside, with judgment entered for the defendant against the plaintiff. The third-party claim was dismissed, and the parties were to be heard on the matter of costs. The court assessed the seriousness of the matter as being in the lower range and indicated that if liability had been found, damages would have been awarded in the amount of $5,000.00.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

These reasons are arranged as follows:· The evidence – a koala is rescued ([10]-[14])· Mr Machado is told about Banjo ([15]-[18])· Mr Machado complains to the Department ([19]-[22])· A veterinary examination of Banjo ([23]-[29])· Mr Underwood reports back to Mr Machado ([30]-[31])· The email ([32])· The Magistrate’s findings of fact ([33]-[36])· The Magistrate’s Reasons ([37]-[42])· Appellate review of factual findings ([43]-[48])· Duelling Banjos ([49]-[64])· The Bighams’ permit status ([65]-[76])· Absence of evidence from Anne Bigham’s mother and Don Bigham ([77]-[78])· Anne Bigham’s notes ([79]-[80])· Change in departmental policy ([81]-[88])· The pleaded imputations (Grounds 1-2) ([89]-[96])· Defences ([97]-[104])· Appeal grounds 3, 4 and 5 – statutory qualified privilege and reasonableness ([105]-[129])· Appeal grounds 3, 4 and 6 – qualified privilege and malice ([130]-[145])· Appeal grounds 7-10 – the protection conferred by s 5 of the WPA ([146]-[161])· The position of the second respondent ([162]-[164])· The extent of publication ([165]-[171])· Damages (appeal grounds 12-14) ([172]-[177])· Conclusion ([178]-[179])The evidence – a koala is rescued At all relevant times, Rae Campbell was the coordinator of Fauna Rescue, an organisation designed to rescue, rehabilitate and release South Australian wildlife, including koalas. She was authorised, pursuant to the Act, to care for koalas. In late 2011, Rae Campbell rescued a koala, whom she named Banjo, from a suburban backyard where he was being menaced by dogs. She took Banjo to a vet for a health check. After three weeks, she passed him on to Don and Anne Bigham, a couple who were volunteers with Fauna Rescue and whom she mentored for about twelve months. Before doing so, Rae Campbell notified Sonya Nicholls, the Manager of the Fauna Permit Unit of the Department, of her intention to place Banjo in the Bighams’ care because she was about to be hospitalised for shoulder surgery. She was hoping to take Banjo back after her shoulder surgery but it did not go as well as expected. Rae Campbell had taught the Bighams the correct gum leaf to feed koalas and had instructed them in the handling of koalas. After the Bighams took on the care of Banjo, they returned from time to time to show Rae Campbell how he was progressing. Rae Campbell testified that some time after handing Banjo over to the Bighams, she received a telephone call from Mr Underwood who enquired about Banjo’s health at the time of the handover to the Bighams. Rae Campbell informed Mr Underwood that Banjo had been eating and drinking well and had no health problems whilst in her care. Following Mr Underwood’s call, Rae Campbell rang the Bighams and suggested they have Banjo examined by the vet, Dr Tristram Bennett. Rae Campbell testified that the Bighams reported back to her that Dr Bennett had found that Banjo had an undescended testicle but otherwise had given him a clean bill of health. Rae Campbell, in turn, reported that information to Mr Underwood. Mr Underwood’s testimony, set out below, was consistent with Rae Campbell’s evidence about their conversations.

Decision

Reasons for decision

KOURAKIS CJ

In my view, this matter falls in the lower range of seriousness. If Mr Machado was found to be liable for defamation, I would award damages in the amount of $5,000.00. Conclusion I would allow the appeal, set aside the orders made by the Magistrate and enter judgment for the defendant against the plaintiff. In this circumstance I would order that the third party claim be dismissed. I would hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

Established by: KOURAKIS CJ

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