Paschalidis v Yellow Corporation
[2005] SASC 151
•21 April 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PASCHALIDIS v YELLOW CORPORATION AND ANOR
Judgment of The Honourable Justice Gray
21 April 2005
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - REFERENCE TO PLAINTIFF - IDENTIFICATION
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE
Appeal against decision of magistrate dismissing claim for defamation - magistrate found respondent had not defamed the appellant in a letter sent to third party with whom respondent had a contractual relationship.
Consideration of identification in context of defamation proceedings - consideration of defamatory meaning - consideration of doctrines of qualified privilege and malice.
The letter did not identify appellant - letter was not defamatory - letter published on occasion of qualified privilege - malice not established - appeal dismissed.
Hayward v Thompson [1982] QB 47; David Syme & Co v Canavan (1918) 25 CLR 234; Morgan v Odhams Press [1971] 2 All ER 1156; Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 204 ALR 193; Toogood v Spyring (1834) 1 Cr M & R 181; Adam v Ward [1917] AC 309; Watt v Longsdon [1930] 1 KB 130; Mowlds v Fergusson (1940) 64 CLR 206; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; Hollocks v Lowe [1975] AC 135; Roberts v Bass (2002) 212 CLR 1; Cornwall v Rowan (2004) 212 CLR 1, considered.
PASCHALIDIS v YELLOW CORPORATION AND ANOR
[2005] SASC 151Magistrates Appeal
GRAY J:
This is an appeal from a decision of a magistrate dismissing a claim for damages for defamation.
Trial before the Magistrate
The plaintiff, Christopher Paschalidis, a contract driver, commenced work in 2002 for the first defendant, Yellow Corporation Pty Ltd trading as “Yellow Couriers”.
At that time, a regular and important client of Yellow Corporation was a business that traded under the name of Chrisco. Chrisco’s business was to supply hampers as ordered by clients. Yellow Corporation had a contract with Chrisco to deliver hampers to clients of Chrisco.
When Mr Paschalidis commenced work as a contract driver he was provided with the “Chrisco Procedure Guide for Go Yellow Delivery Drivers”. The procedure guide provided instruction to delivery drivers.
In or about August 2003 Mr Paschalidis’ son-in-law, Chris Christopoulos, took over Mr Paschalidis’ delivery contract with Yellow Corporation. Mr Paschalidis was then employed by Mr Christopoulos as a driver. A delivery van, registered in the name of Chris Christopoulos, was marked with the Yellow Courier livery and carried the number 494 for identification purposes.
During November 2003 Chrisco received orders for Christmas hampers. A number of those hampers were to be delivered by Yellow Couriers.
On Sunday, 30 November 2003, Mr Paschalidis at the direction of Yellow Couriers delivered hampers for Chrisco. Part of his run that day involved the delivery of six hampers to Susan Ryles at 125 Fenden Road, Salisbury Plain. The hampers had a value of more than $1000.
Mr Paschalidis gave evidence that he attended the Fenden Road address. He entered the property and rang the doorbell. There was no answer. He looked through the windows and gained the impression that the house was empty. He said that he had a delivery docket with him which recorded the customer’s telephone number. He said that he telephoned but received a message advising that the number had been disconnected.
Mr Paschalidis then radioed Yellow Corporation office. The office was located at the same premises as the Chrisco warehouse. He spoke to Stephen Sykes, the dispatch supervisor. Mr Paschalidis claimed that he told Mr Sykes what had occurred at Fenden Road. He said that he advised Mr Sykes of the delivery docket number. He said that he understood that Mr Sykes had tried to contact Ms Ryles by telephone as Mr Sykes informed him over the radio that he was unable to “get through”. According to Mr Paschalidis, Mr Sykes told him to bring the hampers back.
Mr Paschalidis said that he completed other deliveries and returned to the Yellow Corporation office. He claims that he placed the six hampers intended for Ms Ryles outside the Yellow Corporation office. He then handed the dockets for the delivered and undelivered hampers to Mr Sykes. Mr Paschalidis then undertook another delivery run later that day.
On 1 December 2003, Mr Paschalidis received a telephone call from the operations manager of Yellow Corporation, Con Papagiannis. Mr Paschalidis said that Con Papagiannis asked him “what did you do with the boxes?” and that he responded, “what boxes?”. Con Papagiannis said that there were missing boxes and mentioned the Fenden Road address. Mr Paschalidis claimed that he was then able to place Con Papagiannis’ question in context.
Mr Paschalidis said that he had explained that he was unable to deliver the hampers, had returned to the Yellow Corporation office, and had left the hampers by the door. Mr Paschalidis recalled that Con Papagiannis said, “I think you pinched the boxes”. Thereafter, according to Mr Paschalidis’ evidence, he received another “five or so” telephone calls from Con Papagiannis and that on each occasion he was accused of stealing the hampers. On the last of the calls, Con Papagiannis told him “I’m suspending you from the Chrisco work because I think you stole the boxes”.
Mr Paschalidis arranged to speak to Christopher Papagiannis, the managing director of Yellow Corporation. He met with him on the morning of 2 December 2003. Christopher Papagiannis took a statement from him. Mr Paschalidis told Christopher Papagiannis of his attendance at Fenden Road, his observations of the property and the telephone call to the number on the docket. He recalled his subsequent conversation with Mr Sykes and his return of the six hampers at the direction of Mr Sykes. Mr Paschalidis also said that on the Sunday as he prepared to leave to commence the next run he saw Mr Sykes put three of the hampers on a trolley and walk with them around the side of the warehouse and then return for the other three hampers, which were then dealt with in the same way. This account of Mr Sykes’ movements had not been mentioned in Mr Paschalidis’ earlier discussions with Con Papagiannis.
On 3 December 2003, Mr Paschalidis again met with Christopher Papagiannis at around midday. Christopher Papagiannis told him that he had been to the Chrisco office and had taken statements. Christopher Papagiannis told him that he was going to charge him for the boxes and said, “I think you stole the boxes”. He then showed Mr Paschalidis a letter to Chrisco in the following terms:
Carmine Del Giacco
Chrisco Hampers
237 Payneham Road
Joslin SA 5070
1st December 2003
Re; Missing hampers for Member No 1279178
On 1st December 2003 I received a call from Chrisco Sydney asking what had happened to the delivery for Susan Ryles of 125 Fenden Rd Salisbury Plain. The customer’s daughter had been home all day and no one had been past.
I immediately asked Steve Sykes, the dispatch supervisor if he was aware of any returns from drivers that were undelivered on Sunday 30th November. He was not aware of any, just as Phil and I were not aware of any outstanding delivery on that day or for that name.
Upon checking the run, the delivery docket was still in the run order, with the following notation in the deliver comments ‘No one home house empty! Phone # disconnected’
I rang the driver Chris, car 494, to ask what had happened and he said the house was empty and he brought 6 boxes back and unloaded them outside the front door of the ATCO office. He claims to have advised Steve that he was unable to deliver and that he had brought the docket to Steve’s attention.
None of us here have any recollection neither of Chris advising us nor or [sic] unloading any boxes at the door. The standard practice is to immediately contact the customer and arrange redelivery. However the docket was still in the original run file indicating that no notification occurred.
We conducted a search of the warehouse and freezer container. The six boxes were not on the premises.
The boxes are missing and Yellow Couriers will reimburse Chrisco Hampers the cost of the hampers in the first instance. The customer will be delivered their hampers on Tuesday 2nd December 2003.
I have taken car 494 off Chrisco deliveries pending further investigation and a replacement has been arranged so that there will be no effect on the delivery schedule.
Our sincere apologies for this incident. We have instigated a change to procedures relating to returns to avoid any repeat of such an incident.
C Papgiannis [sic]
Transport Development Manager
Mr Paschalidis said that he was shocked at the contents of the letter. He sought legal advice and then instructed his solicitor to write seeking an apology. An apology was refused and the present proceedings were commenced.
Much of the account given by Mr Paschalidis was disputed. Con Papagiannis recalled that he was working at the Yellow Corporation’s office on 30 November 2003. He worked in close proximity to Stephen Sykes and could overhear his conversations. He had no recollection of any radio call involving Mr Sykes that afternoon. He also had no knowledge of any hampers being returned that day. He did not see any hampers returned and he did not see Mr Sykes handling any returned hampers.
Con Papagiannis gave evidence that on 1 December he received an enquiry from Chrisco’s Sydney office regarding the non-delivery of some hampers. He called for the docket which was produced by Mr Sykes. He noted that Mr Paschalidis was the driver responsible for the delivery. That led him to telephone Mr Paschalidis to enquire about the hampers. He recalled that Mr Paschalidis told him that he had brought the hampers back.
Con Papagiannis made enquiries with staff at the office. No one recalled any hampers being returned. He then telephoned Mr Paschalidis again and told him that he had been unable to locate the boxes and asked him where they had been left. Mr Paschalidis told him that they had been left at the front door. Con Papagiannis then informed Mr Paschalidis that he had not followed the Chrisco Procedure Guide.
A search was made of the Chrisco warehouse looking for the missing hampers. None could be found. Con Papagiannis then telephoned the Chrisco Sydney office, obtained the telephone number for Ms Ryles and rang and spoke to her.
Following this telephone call Con Papagiannis spoke again to Mr Paschalidis and informed him that he was taking him off the Chrisco delivery run. He then prepared the letter referred to earlier in these reasons. The letter was prepared to provide a report in answer to an enquiry from the Chrisco office. He addressed the letter to Carmine Del Giacco, the Chrisco officer responsible for South Australian operations. He emailed the letter to Chris Papagiannis for approval. He received that approval on 2 December 2003. He then proceeded to email the letter to Mr Del Giacco.
Mr Sykes gave evidence that he had no recollection of Mr Paschalidis radioing him on the Sunday and advising him of the non-delivery of the hampers. He denied having any dealings with any hampers returned on the Sunday. Mr Sykes said the first involvement that he had was on 1 December 2003 when Con Papagiannis asked him for the invoice for Ms Ryles. He searched through his paperwork, located the Ryles docket for hampers that had been delivered and gave the docket to Con Papagiannis. He confirmed that he had participated in the search of the warehouse and could not find the missing hampers.
The Magistrate’s Reasons
The magistrate had a number of factual issues to resolve. The magistrate rejected Mr Paschalidis’ evidence where it differed from that of the witnesses called by Yellow Corporation:
I have rejected the plaintiff’s evidence where ever it is in conflict with the evidence of other witnesses because I do have serious doubts about his reliability and his credibility. I formed the impression the plaintiff reconstructed much of his evidence in order to support his case. I found his explanation for his failure to mention to Con Papagiannis that he saw Stephen Sykes moving the six hampers which he says he returned and left at the front door of the ATCO office lacking credibility. It must have been obvious to him from everything Con Papagiannis said that the hampers were missing and Con Papagiannis was trying to find them. For the plaintiff to suggest that he could not remember that he had seen Stephen Sykes place three of them on a trolley and take them ‘around the warehouse’ and then return and place the remaining three on the trolley and take them the same way is quite simply unbelievable. Had that occurred I have no doubt the plaintiff would have said as much to Con Papagiannis. The fact that he did not make any such allegation to Con Papagiannis indicates to my mind that it simply did not occur. When the plaintiff suggested that to Chris Papagiannis it was a lie. The reason for the lie in my opinion can only be that the plaintiff concocted the story that he had returned the six hampers to the ATCO office and needed an explanation as to where they had gone.
Con Papagiannis gave evidence in an open and forthright manner. There was nothing about either his manner of giving evidence or his evidence proper that caused me to doubt either his reliability or credibility.
Stephen Sykes gave limited evidence but there was nothing about his evidence proper or his manner of giving evidence that caused me to doubt his reliability or credibility.
The magistrate concluded that the letter of 1 December 2003 was a report from Yellow Corporation to Chrisco about the non-delivery of the hampers to Ms Ryles. That finding is of importance when considering the defence of qualified privilege.
The first question addressed by the magistrate was whether the letter was defamatory to the appellant. In that respect, the magistrate noted that Mr Paschalidis acknowledged that each sentence of the letter was factually correct. However, Mr Paschalidis’ complaint was that it was implicit in the letter that he had lied about reporting the non-delivery of the hampers to Mr Sykes and about returning the hampers to the office and that he had dishonestly kept the hampers for himself. Mr Paschalidis placed particular emphasis on an assertion that, in the letter, his explanations were referred to as “claims” whereas Con Papagiannis’ explanations were described as facts.
The magistrate was not persuaded that the letter was defamatory of the appellant. He said:
I am not persuaded the letter is defamatory of the plaintiff. The specific allegation is that the letter imputes that the plaintiff is not truthful and is dishonest. There are no clear and unambiguous words suggesting that the plaintiff is either untruthful or is dishonest. It is suggested the words are capable of bearing the inference that he is untruthful and dishonest. I disagree with that. I am not persuaded that an ordinary reasonable reader of fair average intelligence would draw any such inference. At best, for the plaintiff’s case, I think the words used are capable of creating a suspicion about the plaintiff. That is not sufficient to establish defamation.
The magistrate went on to consider other contentions as to why Mr Paschalidis’ claim should fail. He concluded that the letter did not identify Mr Paschalidis. The words, “I rang the driver Chris, car 494” were not sufficient identification. The magistrate concluded that the letter, if defamatory, was not actionable because it was not published of or concerning Mr Paschalidis.
The magistrate briefly considered the defence of qualified privilege. He concluded that the letter was written on an occasion of qualified privilege. He reasoned that the letter was a response to an enquiry from a contracting party and that it was sent to an appropriate officer of that party. The letter was sent by email and was not published to anyone other than its intended recipient. In the magistrate’s opinion the letter was fair and even-handed. He did not discern any malice in the letter.
For these reasons the magistrate dismissed Mr Paschalidis’ claim.
The Appeal
Factual Findings
On appeal, counsel for Mr Paschalidis submitted that the magistrate had wrongly embarked upon an examination of the truth of the alleged defamatory statement. It was said that justification had not been pleaded. However, counsel acknowledged that as part of Mr Paschalidis’ case, presumably with respect to an issue of malice, evidence about the circumstances relating to the hampers was relevant and admissible. It was accepted that Mr Paschalidis had directly raised issues concerning the falsity of the alleged defamatory statement.
In these circumstances it was appropriate for Yellow Corporation to address the factual allegations in evidence and for the magistrate to reach conclusions of fact. No objection on the ground of relevance was taken to the evidence from the Yellow Corporation witnesses. There is no substance to this complaint.
Counsel for Mr Paschalidis did not challenge any of the findings of fact made by the magistrate. The findings were open as part of the magistrate’s discretionary fact-finding process. It is not suggested that he had regard to any inappropriate material or that he had failed to have regard to relevant material. No error of law was identified. In these circumstances, the magistrate’s findings of facts about what had occurred and his acceptance of the evidence led by Yellow Corporation against that of Mr Paschalidis cannot be disturbed.
Identification
The test for determining identification is whether a reasonable person would believe that the statements in the letter referred to Mr Paschalidis. This test will be satisfied even where the author uses something other than an actual name to identify a person: [1]
If the defendant intended to refer to the plaintiff, he cannot escape liability simply by not giving his name. He may use asterisks or blanks. He may use initials or words with a hidden meaning. He may use any other device. But still, if he intended to refer to the appellant, he is liable.
[1] Hayward v Thompson [1982] QB 47 at 60 (Lord Denning MR).
The letter referred to “Chris, car 494”. It identified the driver of car 494 in the Yellow Couriers fleet. Mr Paschalidis gave the following evidence:
Q. Is the van identified in some way.
A. Yes.
Q. In what way.
A. I have gotten special number from Yellow Couriers.
Q. Do each of the drivers have a different number for their vans
A. That’s correct.
Q. What number van do you drive.
A. 494.
Q.Have you always driven van 494 since you commenced with Yellow Couriers.
A. Yes.
The letter of 1 December 2003 does not directly name Mr Paschalidis. It refers to the driver of car 494.
In David Syme & Co v Canavan[2] Isaacs J expressed the test for determining whether an unnamed plaintiff is sufficiently identified as follows:[3]
The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to?
If the plaintiff is not directly named, the connection between the plaintiff and the defamatory matter may be proved by the extrinsic facts. In this case, there was no evidence indicating that the recipient of the letter, Carmine Del Giacco, knew that the letter referred to Mr Paschalidis. Indeed, the purpose of the letter was to notify the Chrisco Sydney office of what was being done to rectify the problem of the missing hampers, not to identify the person responsible.
[2] (1918) 25 CLR 234.
[3] (1918) 25 CLR 234 at 238.
Where a reader, with particular knowledge of matters that may lead the reader to understand the statement, identifies a person, the person defamed is identified by innuendo. The specific question to ask is: would ordinary reasonable persons invested with the requisite special knowledge understand the defamatory statement to refer to the plaintiff?
In Morgan v Odhams Press,[4] Lord Reid made the following observation:[5]
[T]he court recognises that rather far-fetched inferences may be made by sensible readers … [if we are to] take the ordinary man as our guide then we must accept a certain amount of loose thinking. The ordinary reader does not formulate reasons in his own mind: he gets a general impression and one can expect him to look again before coming to a conclusion and acting on it. But formulated reasons are very often an afterthought. The publishers of newspapers must know the habits of mind of their readers and I see no injustice in holding them liable if readers, behaving as they normally do, honestly reach conclusions which they might be expected to reach. If one were to adopt a stricter standard it would be too easy for purveyors of gossip to disguise their defamatory matter so that the judge would have to say that there is insufficient to entitle the plaintiff to go to trial on the question of whether the matter refers to him, but the ordinary reader with perhaps more worldly wisdom would see the connection and identify the plaintiff with consequent damage to his reputation for which the law would have to refuse him reparation…
What has to be decided is whether it would have been unreasonable for a hypothetical sensible reader who knew the special facts proved to infer that this article referred to the plaintiff. I shall not set out those facts because it appears to me that in the end it all depends on the way in which one is required to assume that a sensible reader will react on reading this kind of article in a daily newspaper. If one must assume that he thinks and acts cautiously as a lawyer would do in his professional capacity then I have no doubt that he would say that that inference is not justified in this case. But if ... sensible people do in fact read their newspapers and draw inferences then equally I have no doubt such people would quite probably draw this inference.
[4] [1971] 2 All ER 1156.
[5] [1971] 2 All ER 1156 at 1162-3.
The letter refers to the driver of car 494 by the name “Chris”. During cross-examination, Mr Paschalidis acknowledged that there were two persons by the name of “Chris” associated with car 494:
Q.But in August 2003 it was changed so the payments were going to [Chris Christopoulos]. Is he your son in law.
A. That’s correct.
Q. The van, the car 494 from August 2003 was registered in his name wasn’t it.
A. Yes.
Q.So the contract between Yellow Couriers was with Chris [Christopoulos] from August 2003 rather than still with you, that’s right isn’t it.
A. Yes, that’s correct.
Q. That was the situation as at the time of the Chrisco deliveries in November 2003, that’s right isn’t it.
A. Correct,
Q. The owner of the van was Chris being Chris [Christopoulos].
A. That’s correct.
This evidence provides some support for the finding that Mr Paschalidis was not identified by the letter of 1 December 2003.
In this case, Mr Paschalidis was not identified by innuendo because there was no evidence before the magistrate to support a finding that Mr Del Giacco had any particular knowledge that led him to identify Mr Paschalidis as the person referred to in the letter.
Defamatory Meaning
A statement is defamatory of a person of whom it is published if it tends to lower that person in the estimation of members of society generally.[6] It is clear that allegations of dishonesty, or other dishonourable conduct or imputations of a defect in the character of the defamed person are defamatory. The possible defamatory imputation arising from Con Papagiannis’ letter to Mr Del Giacco was that Mr Paschalidis was dishonest.
[6] Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 505-506.
The letter, the contents of which have been referred to earlier, does not on its face suggest that “driver Chris, car 494” was dishonest. The letter, inter alia, records claims made by driver Chris and then records the recollection of those at the office. The letter informs the reader that further investigation is to be undertaken and that car 494 had been taken off Chrisco deliveries pending that investigation.
A reasonable recipient of the letter would not conclude that driver Chris, car 494 was dishonest. The meaning conveyed by the letter was that there had been a claim by Chris; that this claim did not accord with the recollection of others; that there was to be further investigation about the matter and that, pending the investigation, car 494 had been taken off Chrisco deliveries.
The magistrate was entitled to conclude that the letter was not defamatory. It was not implicit in the letter that driver Chris was dishonest.
Qualified Privilege
The elements of the defence of qualified privilege were recently restated by McHugh J in Bashford v Information Australia (Newsletters) Pty Ltd:[7]
At common law, a defamatory statement receives qualified protection when it is made in discharge of a duty or the furtherance or protection of an interest of the maker of the statement or some person with whom the publisher has a direct business, professional or social connection, and the recipient of the statement has a corresponding duty to receive or interest in receiving it.
[7] Bashford v Information Australia (Newsletters) Pty Ltd (2004) 204 ALR 193 at [53]. See also Toogood v Spyring (1834) 1 Cr M & R 181; Adam v Ward [1917] AC 309; Watt v Longsdon [1930] 1 KB 130; Mowlds v Fergusson (1940) 64 CLR 206; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211.
When determining whether an otherwise defamatory statement receives qualified protection it is necessary to resolve whether there was reciprocity of duty or interest between the maker and the recipient of the statement that would render the occasion of its communication privileged.[8] Gleeson CJ, Hayne and Heydon JJ in Bashford observed that in order to properly answer this question, a court must closely scrutinize the circumstances of the case, the situations of the parties and the events leading up to and surrounding the publication.[9]
[8] Bashford v Information Australia (Newsletters) Pty Ltd (2004) 204 ARL 193 at [23].
[9] (2004) 204 ALR 193 at [10].
The occasion of the publication of the letter containing the statements the subject of the present case was one of qualified privilege. In the circumstances of an ongoing contractual relationship between Chrisco and Yellow Corporation there was reciprocity of duty and interest. There was a direct business relationship. Yellow Corporation was under a duty to explain to Chrisco what had occurred and how the problem was being addressed. Chrisco had a corresponding interest in receiving this information. It was appropriate for a report to be provided by Yellow Corporation regarding the missing hampers.
The threshold requirement of reciprocity of duty between the maker of the statement and its recipient is satisfied.
Malice
It is a further requirement that an otherwise defamatory statement that is protected by qualified privilege be fairly made, or made without malice. Qualified privilege is defeated if a defendant was activated by “express” or “actual” malice. Express malice in this context means malice in fact. It amounts to an allegation that the words were published by a person actuated by express malice. A plaintiff must prove that a defendant’s dominant motive was not something directly connected with the privilege so as to constitute an abuse of the privilege of the occasion. The usual motive is a desire to injure the plaintiff. In Horrocks v Lowe,[10] Lord Diplock explained the application of malice in the following terms:
…in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit – the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communication it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege.
So, the motive with which the defendant on a privileged occasion made a statement defamatory of the appellant becomes crucial. The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved.
“Express malice” is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the appellant sets out to prove. But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interest.
[10] Hollocks v Lowe [1975] AC 135 at 149.
Lord Diplock’s explanation was applied by the High Court in Roberts v Bass,[11] where the majority described the application of ‘malice’ in the following terms:[12]
An occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the statement. A purpose or motive that is foreign to the occasion and actuates the making of the statement is called express malice.
[11] Roberts v Bass (2002) 212 CLR 1 at [9] (Gleeson CJ); [75] (Gaudron, McHugh and Gummow JJ).
[12] Roberts v Bass (2002) 212 CLR 1 at [75].
Roberts v Bass was also referred to by Bleby, Besanko and Sulan JJ in Cornwall v Rowan[13]. The Court there observed that Roberts established that even if there is a belief in the truth of a statement, malice would be established by proof that the publication was actuated by a motive foreign to the privileged occasion. Privilege could only be lost by proof of the existence of an improper motive and it was that motive which actuated the publication.[14] The Court made the following observation: [15]
…it is clear that an assessment of the motive of the publisher in publishing the otherwise defamatory material is paramount, and that cannot be determined without a consideration of the occasion which gives rise to the qualified privilege and the duty or interest which the privilege is designed to protect. It is also clear that mere lack of honest belief is insufficient to prove express malice.
…
Not even knowledge of falsity will always be sufficient to prove malice. It will not be sufficient if the publisher was under a duty to publish the information. Such a duty need not be a duty imposed by law, but may include a moral or social duty.
[13] (2004) 90 SASR 269.
[14] (2004) 90 SASR 269 at [281].
[15] (2004) 90 SASR 269 at [285]-[286].
In the present case, there was no evidence to support a finding of malice sufficient to defeat the plea of qualified privilege. Accordingly, even if the letter did sufficiently identify Mr Paschalidis and was defamatory of Mr Paschalidis, the claim was properly dismissed because the defence of qualified privilege had been made out.
Conclusion
The letter of 1 December 2003 did not sufficiently identify Mr Paschalidis. Moreover, the letter was not defamatory. Even if the letter was defamatory, it was published on an occasion of qualified privilege. Malice had not been established.
For these reasons, the appeal is dismissed.
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