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…
Keep reading for free
Create a free CaseChat account to read Machado & Anor v Underwood & Anor and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2016] SASCFC 65
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: KOURAKIS CJ
Full text does not contain this section.