Makeig v Derwent

Makeig v Derwent concerned an appeal to the New South Wales Court of Appeal regarding a defamation action. The plaintiff, Makeig, had sued the defendant, Derwent, for defamatory publications. The primary dispute revolved around the availability and application of the defence of qualified privilege, both at common law and under the *Defamation Act 1974* (NSW).

The central legal issues before the Court of Appeal were the relationship between the common law defence of qualified privilege and the statutory defence provided by section 22 of the *Defamation Act 1974* (NSW), the meaning of "reasonableness" in the context of these defences, and the concept of malice as it pertains to defeating a claim of qualified privilege. The court was required to determine whether the publications in question were protected by qualified privilege and, if so, whether any malice on the part of the defendant vitiated that defence.

The Court of Appeal analysed the interplay between the common law and statutory qualified privilege defences, noting that the statutory defence, while drawing on common law principles, introduced its own specific requirements. The court considered the elements necessary to establish qualified privilege, including the existence of a duty or interest to publish and a corresponding duty or interest in the recipient to receive the information. The court also examined the test for malice, which involves a lack of honest belief in the truth of the publication. The court found that the trial judge had erred in certain aspects of their determination of the qualified privilege defence.

Consequently, the Court of Appeal allowed the appeal, granted leave to file a cross-appeal but dismissed it, and vacated the trial judge's order for damages. The matter was remitted to the District Court to determine whether the relevant publication was made under qualified privilege at common law, and if so, to assess the appropriate damages. The order for the defendant to pay the plaintiff's costs at trial was affirmed.