Rader v Haines

[2022] NSWCA 198

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Rader v Haines [2022] NSWCA 198

Hearing dates:

23 August 2022

Date of orders:

05 October 2022

Decision date:

05 October 2022

Before:

Macfarlan JA at [1];
Brereton JA at [2];
Basten AJA at [90].

Decision:

(1) Grant leave to appeal to the extent required.

(2) Dismiss the appeal, with costs.

Catchwords:

DEFAMATION – Requirement of “serious harm” to reputation under Defamation Act 2013 (UK), s 1 – Limited publication – Time at which harm falls to be determined – Relevance of duration of period of harm – Relevance of delay in complaint and commencement of proceedings – Whether imputation regarding specific instance of conduct supports general imputation – Whether Court is required to determine that each conveyed imputation is defamatory in nature – Primary judge’s conclusion that serious harm threshold not satisfied upheld

DEFAMATION – Defences – Common law qualified privilege – Where matter complained of was an email sent to complainant’s parents by his ex-wife’s parents regarding family matters – Defining of privileged occasion – Relevance of conveyed imputations to occasion – Whether privilege lost by publication being actuated by malice

Legislation Cited:

Defamation Act 1974 (NSW), s 13

Defamation Act 2005 (NSW), ss 10A, 33

Defamation Act 2013 (UK), s 1

Cases Cited:

Aktas v Westpac Banking Corporation Limited (2010) 241 CLR 79; [2010] HCA 25

Andreyevich v Kosovich (1947) 47 SR (NSW) 357

Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5

Cush v Dillon; Boland v Dillon (2011) 243 CLR 298; [2011] HCA 30

Dow Jones v Gutnick (2002) 210 CLR 575

Enders v Erbas and Associates Pty Ltd [2014] NSWCA 70; (2014) Aust Torts Reports ¶82–161

Fairfax Media Publications Ltd v King [2015] NSWCA 172

Guise v Kouvelis (1947) 74 CLR 102

Hills v Tabe [2022] EWHC 316 (QB)

Hockey v Fairfax Media [2015] FCA 652; (2015) 237 FCR 33

Jones v Sutton (2004) 61 NSWLR 614; [2004] NSWCA 439

Lachaux v Independent Print Ltd [2020] AC 612; [2019] UKSC 27

LVMH Watch & Jewellery Australia Pty Ltd v Michael Lassanah [2011] NSWCA 370

McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 96-97

Mirror Newspapers v Fitzpatrick [1984] 1 NSWLR 643

Monroe v Hopkins [2017] EWHC 433; [2017] 4 WLR 68

Murray v Raynor [2019] NSWCA 274

Nationwide News v Warton [2002] NSWCA 377

Newman v Whittington [2022] NSWSC 249

Parris v Ajayi [2021] EWHC 285

Perkins v New South Wales Aboriginal Land Council, Badgery-Parker J, 15 August 1997, unreported

Sobrinho v Impresa Publishing SA [2016] EWHC 66

Thornton v Telegraph Media Group [2011] 1 WLR 1985; [2010] EWHC 1414 (QB)

Category:

Principal judgment

Parties:

Damian Rader (a pseudonym) (Appellant)
Donald Haines (a pseudonym) (First Respondent)
Janet Haines (a pseudonym) (Second Respondent)

Representation:

Counsel:

R K M Rasmussen (Appellant)
M Richardson SC with D J Helvadjian (Respondent)

Solicitors:

O’Brien Civil and Criminal Solicitors (Appellant)
Mathas Law (Respondent)

File Number(s):

2021/346396

Publication restriction:

Pursuant to Court Suppression and Non-Publication Orders Act 2010 (NSW), s 8 the names of the parties are suppressed and replaced with the pseudonyms adopted in this judgment.

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Civil

Citation:

[2021] NSWDC 610

Date of Decision:

17 November 2021

Before:

Gibson DCJ

File Number(s):

2020/47051

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 16 February 2019 the respondents – who are the parents of the appellant’s ex-wife – sent an email to the appellant’s parents ostensibly concerning the education of their mutual grandchildren, but also canvassing the ongoing acrimony between the appellant and his ex-wife. On 13 February 2020 the appellant instituted proceedings in the District Court for damages for defamation arising out of the email. On 17 November 2021, the primary judge dismissed the proceedings on the dual bases that the appellant had failed to discharge the onus of proof of demonstrating serious harm to his reputation, and that the publication took place on an occasion of qualified privilege and was not actuated by malice. On appeal:

Held, per Brereton JA at [89] (Macfarlan JA and Basten AJA agreeing at [1], [90]) dismissing the appeal, with costs:

As to whether the appellant suffered “serious harm” to his reputation

1. Her Honour’s conclusion that the appellant failed to satisfy the “serious harm” threshold in Defamation Act 2013 (UK), s 1 was correct: [68]. The publication was limited to the appellant’s parents and there was no evidence of reputational harm in any other audience including via the ‘grapevine effect’ [54]. Any adverse effect of the imputations on the appellant’s reputation with his parents had dissipated within weeks, and any discord in their relationship did not amount to “serious harm”: [66]-[67]. In that regard, her Honour did not treat the absence of ongoing or permanent harm as conclusive, but permissibly treated the duration of the harm as a relevant factor as to whether the harm amounted to “serious harm”: [34].

As to the defence of qualified privilege at common law

2. Her Honour did not err in identifying and defining the protected occasion, nor in holding that the occasion was one of qualified privilege and that the imputations were relevant to that occasion: [76]. The occasion was not confined to the education of the grandchildren, but extended to the relationship between the grandparents’ respective children, and the allegedly defamatory statements were all sufficiently connected to that occasion to attract the defence: [75].

3. The evidence does not show that the respondents were actuated by malice, either in the form of a desire to influence the Family Court proceedings (which had not yet been commenced), or a desire “to turn the appellant’s parents against him”: [84]. Her Honour did not err in upholding the defence of qualified privilege: [85].

Judgment

1. MACFARLAN JA: I agree with Brereton JA.

2. BRERETON JA: On 13 February 2020 the present appellant Mr Damian Rader instituted proceedings in the District Court against the respondents Mr and Mrs Haines, who are the parents of Mr Rader’s estranged wife Karen, and their company, for damages for defamation arising out of an email sent by the Haines to Mr Rader’s parents (“the Raders”) in England in February 2019. ^[1] On 17 November 2021, Gibson DCJ, in a thorough and comprehensive judgment which was delivered with admirable expedition within about six weeks after it was reserved, gave judgment for the defendants. ^[2] Mr Rader appeals to this Court purportedly as of right, but in response to a late objection to competency also filed, with the leave of the Court, an application for leave to appeal if it be required.

   1. In circumstances that Mr Rader had commenced or defended proceedings in several jurisdictions on diverse issues, including family law issues, some but not all of which had been anonymised, the primary judge gave the parties pseudonyms, observing that this was a family that was exposed to high conflict and adversarial court proceedings. The appellant did not press Ground 1, which challenged this approach. Accordingly, the names used in this judgment are pseudonyms, and the pseudonyms have also been substituted in the extracts from the evidence.

   2. Rader v Haines [2021] NSWDC 610 (“Primary judgment”).

The matter complained of and the imputations

3. The matter complained of is an email sent by Mr and Mrs Haines, using their company’s email address, on 16 February 2019 at 10:07pm (AEDT) to Mr Rader’s parents in the United Kingdom, where it was received at 11:07am (GMT). Subject to the substitution of pseudonyms, the email was as follows (the grandchildren being referred to as “X” and “Y”):

“Subject: Children’s schooling

Dear Margaret and Derek,

We realise it has been a rather long time since we last communicated. Christmas would have been special for you, spending it with Damian and the kids and we trust you are now well recovered and are also both in good health.

We thought we would contact you to keep you fully informed regarding the kids ongoing schooling. As you may be aware we have endeavoured to provide funds for all of our grandchildren to cover the cost of private school tuition with the parents contributing as appropriate, depending on their circumstance.

Up until now we have been happy to pay the full costs of both X and Y’s school fees but our situation is changing this year for them. We note Damian elected not to work at all during all of 2018, has purchased himself an expensive motor vehicle and has then taken the children on two extensive and expensive holidays, one in October and the other over Christmas. We also note he decided for them to all travel in business class. We have always considered it an extravagance to travel with children other than in economy. Damian obviously has access to funds and we think it is only appropriate for Damian to contribute towards the cost of school fees this year. For 2019 we have advised Damian that we are prepared to pay 50% of the tuition fee costs on a term by term basis, with Damian paying the balance. For your information Damian hasn’t yet advised whether or not he intends to pay his share of the costs.

The attitude of Damian towards Karen and us is also not helping in our position regarding school fees. Up until Tuesday of this week, Damian has denied us access to the children (with Damian present, of course) without having an ‘independent third party present’. We consider this offensive. The last time we saw them was in the business class departure lounge of Sydney airport, around the 5th of October, when we were travelling overseas and they were leaving for Japan.

In addition to the above circumstances, Damian’s attitude towards Karen has been appalling. Damian had been coming to Karen’s apartment in Waverley uninvited on many occasions since she had been there. In case you may have not been aware of the reason Karen move out of Paddington, this occurred about two weeks after Damian forcibly made her leave the house by waking her up at midnight, making her pack one bag and leave immediately. She collected her dog, then drove her car and parked outside a local police station where she felt it was the safest place to spend the night, (in the car). Damian had been shouting obscenities to her as she drove away. She returned the next day, stayed in a room separate to Damian and quietly arranged to rent a flat in Waverley. She finally left about two weeks after the incident.

When Karen left Paddington she took the children with her, together with the cat. She went back for her cat after Damian threw it into the street, saying Karen had to look after it. During the twelve months Karen was living in this apartment in Waverley, the children alternated staying with her and staying with Damian. Karen was working during this period.

Karen left the apartment in Waverley when the lease expired in August. Damian had been using Karen’s Nissan and refused to give Karen access to it, causing Karen to hire removalists for the move. Damian told Karen the car was ‘communal property’ even though it is registered in her name and Karen paid all costs associated with it. Karen eventually reported the car to the police as having been taken without her consent. Karen and the kids then decided to move into a larger three bedroom apartment in Double Bay. Damian continued to make uninvited visits to her apartment, almost to the extent of stalking. He actually had begun stalking Karen by arriving unannounced in the middle of the day at her place of work, causing her significant embarrassment. Damian’s unwanted attention was causing Karen immense stress. It was during this period that Damian apparently contacted you to advise that reference to suicide sites was found on Karen’s computer, apparently by Y. We understand you advised Damian to pass this information to us. The suicide site did not in fact, originate from Karen’s computer. Karen subsequently found they had originated from Y’s smart phone while he was at camp. It is still unclear as to how the information came from Y’s phone to Karen’s computer.

Karen decided to travel to Launceston to relax over a long weekend and do some work on her house. She arranged for a tradesman to travel with her to do the work and while at Sydney airport departure was once again confronted by Damian while waiting to board. Damian had begun to actively stalk her. Damian also verbally and nastily abused the tradesman travelling with her.

The stress that Karen was under caused her to have a breakdown before she left Launceston. When she returned to Sydney she sought medical help which caused her to leave her job. To facilitate her recovery she was admitted to a specialised clinic, under the care of medical specialist. During this period the children stayed with Damian. As soon as Damian became aware of Karen’s medical issues he cancelled her private health insurance without notifying her, causing Karen more stress as an outcome.

Karen recovered from her breakdown and began looking for work late last year. To keep Damian from causing her stress she took out an ADVO against him. Damian can no longer come near her. In apparent retaliation it appears that Damian encouraged the children to each take an ADVO out against her. We consider the children’s apparent stated cause to be spurious at best. Karen has had no access to (or from) her children since September last year, including any access at school events. Karen’s ADVO against Damian cites violence (when police came to Paddington and took Damian away, around 2008, for near strangulation), for stalking at her residence and at her place of work as well as stalking her at Sydney airport. Of course, there was also a lot of physical and mental abuse by Damian during all the years Karen was with him. The children’s ADVO against Karen apparently cites drunkenness and hitting, causing bruising. Karen vehemently denies hitting and causing bruising. Karen agrees she was drinking to excess, caused by stress during that period. Karen no longer drinks heavily and is not dependent on alcohol.

A few weeks before Christmas Rebecca contacted Y by Facebook asking him if he would like a particular T shirt for Christmas. Damian responded by having the NSW police telephoned Rebecca asking why she was contacting Y. (In fact there is no restriction on Karen’s siblings contacting the children, in any cases). Rebecca, of course was stunned and upset by that phone call. Damian is controlling all of the children’s communications both to and from them.

We are sorry to burden you with unpleasant information, but the above are all facts. We are fully aware that relationship breakdowns are awful and unbelievably stressful on the parties concerned. We can only hope that both Karen and Damian get over their animosity and decide to have an amicable approach to each other and make their own separate paths in the future.

Our very best regards,

Janet and Donald

Donald F. Haines

Director”

4. Mr Rader pleaded that the matter complained of conveyed imputations that he:

1. stole his ex-partner’s car;

2. is a thief;

3. stalked his ex-partner;

4. is a stalker;

5. inflicted violence on his ex-partner;

6. inflicted mental abuse on his ex-partner;

7. attempted to strangle his ex-partner;

8. is a violent man; and

9. in the alternative, that there were reasonable grounds to suspect that he stole from, stalked and inflicted violence on his ex-partner.

5. Because the email was received and read in England, it was common ground that the substantive law of England was applicable. ^[3] Her Honour found that all the alleged imputations other than (b) and (i) were conveyed. No question arises concerning (i) which was an alternative, but Mr Rader complains that her Honour erred in failing to find that imputation (b) was conveyed. However, her Honour’s judgment rested on two main foundations: the first was that Mr Rader failed to discharge the onus of proving that the publication of the imputations caused or was likely to cause serious harm to his reputation, for the purposes of s 1 of the Defamation Act 2013 (UK) (“the UK Act”); and the second was that the publication occurred on an occasion of qualified privilege at common law and was not actuated by malice. Her Honour contingently assessed damages at $15,000.

   3. Liability for the publication falls to be determined in accordance with the lex loci delicti: Dow Jones v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at [44] (Gleeson CJ, McHugh, Gummow and Hayne JJ). It was common ground at the trial that, because the Raders, who lived in England, received and read the email there, the applicable substantive law was the Defamation Act 2013 (UK) and the common law of England.

6. The notice of appeal contained 13 grounds. However, at the hearing of the appeal, the appellant did not press Grounds 1 (which attacked the pseudonym order), or 2 and 3 (which included complaints of actual and apprehended bias on the part of the trial judge), and it is therefore unnecessary to consider them. Nor did he press Ground 10 (which complained that her Honour erred in failing to draw an adverse inference from the fact that the Haines did not give evidence), nor Ground 13 (which complained that her Honour erred in finding that there was no conduct that warranted an award of aggravated damages). Ground 12 (which complains about her Honour’s contingent assessment of damages) need be addressed only if the appeal succeeds on the question of liability. The remaining issues may conveniently be addressed, to the extent that it is necessary to do so, under the headings of “Serious Harm” and “Qualified Privilege”.

Serious harm

7. Section 1 of the UK Act relevantly provides:

…A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

8. Although it does not apply in the present case, a similar but not identical provision now appears in the uniform Australian Acts. Since 1 July 2021, s 10A of the Defamation Act 2005 (NSW) now provides:

(1)   It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.

9. Two grounds of appeal fall to be considered preliminary to addressing the appellant’s attack on her Honour’s conclusion that Mr Rader had failed to discharge the onus of demonstrating serious harm, because if successful they might affect the assessment of the harm.

Was imputation (b) – that the appellant is a thief – established (Ground 5)?

10. The appellant contends that the trial judge erred in finding that imputation (b) – that the appellant is a thief – was not conveyed. In declining to find that imputation (b) was conveyed by the matter complained of, her Honour said:^[4]

“Applying the principles set out by Eady J, I am satisfied that each of the imputations pleaded is conveyed save for imputation (b), which is that the plaintiff is a thief. While there are references to more than one incident of stalking and violence of the kind capable of conveying imputations that the plaintiff is a stalker and capable of violence (imputations (d) and (h)), the only reference to theft is that the plaintiff took his former wife’s car without her consent and that she reported this to the police. That one act does not amount to a pattern of conduct warranting an imputation that the plaintiff is a thief.”

4. Primary judgment at [18].

11. The appellant submits that as imputation (a) (that the appellant stole his ex-partner’s car) was found to be conveyed, it should follow that imputation (b) (that he is a thief) was also conveyed, and that the reasoning in the passage set out above erroneously assumes that to amount to an imputation that someone is “a thief” requires that it be suggested that they have stolen on multiple occasions.

11. Although a publication concerning a specific instance may be capable of supporting a general imputation, it does not necessarily do so; “close and careful attention to the specific circumstances with a view to determining whether the specific conduct alleged in a particular case, unlike specific incidents alleged in other cases, can support a general imputation” is required. ^[5]   As Emmett JA (with whom McColl JA and Leeming JA agreed) said in Fairfax Media Publications Ltd v King:^[6]

“Some epithets may fairly arise from a specific instance. Thus, if a person is alleged to have committed a murder, the epithet “murderer” may well flow from that specific instance. However, the epithets applied to Mr King, of having conducted himself in a corrupt manner and of having engaged in serious corporate misconduct, are of such a nebulous character that specific instances of conduct that might constitute corruption or corporate misconduct do not necessarily justify the imprecise epithet. The particulars of truth set out in the Defence do not themselves necessarily lead to the epithets in question. It might be one thing if the contextual imputations alleged were that Mr King had engaged in the conduct specified in paragraphs 23.1 to 23.59 of the Defence (or, if the contextual imputations were more general but precise, such as that “Mr King approved bribes”). However, there is no necessary direct connection between the allegations made in those paragraphs and the impugned imputations. The requirement of precision in the formulation of a contextual imputation is that “facts, matters and circumstances that can be relied on to establish its truth bear a reasonable relationship both to the contextual imputation itself and to the published material relied on by the plaintiff”.

5. Nationwide News v Warton [2002] NSWCA 377 at [56], [60] (Heydon JA, with whom Handley JA and Hodgson JA agreed). See also Boyd v Mirror Newspapers Ltd (1980) 2 NSWLR 449 at 455; and Strasberg v Westfield Ltd [2002] NSWSC 689 at [4] (Levine J).

6. [2015] NSWCA 172 at [42].

13. The answer depends, at least to some extent, on whether it can be said that the conduct is imputed as being characteristic or definitive of the plaintiff. As the example given by Emmett JA of “a murderer” indicates, it is not invariably necessary that there be a suggestion of repeated behaviour before the epithet arises. But I do not accept that an assertion that a person has once, in the course of a matrimonial dispute, taken possession of a car registered in his or her spouse’s name, conveys that the person is “a thief”. Her Honour adopted the approach endorsed by the authorities and was right to find that the generic imputation was not conveyed.

14. In any event, it matters not, because although imputation (b) was found not to have been conveyed, her Honour when considering the issues of serious harm and qualified privilege proceeded on the basis that it was:^[7]

“In practical terms, whether imputation (b) is conveyed or not makes no difference in terms of the defences pleaded. I should note, however, that I have determined the defences on the basis that this imputation is conveyed, as well as whether it is not, to accommodate the possibility that I have erred in this finding.”

7. Primary judgment at [21].

15. Accordingly, although in my judgment Ground 5 fails, even if it were to succeed, it would not affect the basis of the judgment.

Should the trial judge have found that the imputations were defamatory (Ground 4)?

16. The appellant contends that the trial judge failed to find that each of the imputations pleaded was defamatory of the plaintiff. It is submitted that her Honour did not make any express determination as to whether the imputations found were defamatory, and that it is not clear whether her Honour turned her mind to the issue. It is said that, no concession having been made by the respondents to the effect that, if their publications conveyed the meanings pleaded, they were defamatory, her Honour was required to address the question of whether the imputations were defamatory. ^[8] It was submitted that this was a discrete question from that of serious harm; that an express finding should have been made that the imputations were defamatory; and that if her Honour had undertaken the task of expressly addressing whether each imputation was defamatory, this would have resulted in a “very different” approach being taken to the question of serious harm.

    8. Cf Hockey v Fairfax Media [2015] FCA 652 at [62]-[73]; (2015) 237 FCR 33.

17. The approach for which this submission contends is irreconcilable with the words of s 1 of the UK Act, according to which a statement is not defamatory unless its publication causes or is likely to cause serious harm to reputation. Under s 1, whether or not serious harm is occasioned is part of the exercise of finding an imputation to be defamatory, and not a separate inquiry as the appellant contends. In this respect, the provision differs from the new NSW provision (s 10A), which makes “serious harm” an additional element of the cause of action, and it may well be that the position under the NSW provision is otherwise. However, it would be wrong, under s 1, to find a publication defamatory before being satisfied that it occasioned serious harm to reputation. There was no error on the part of her Honour in this respect.

Did the appellant prove serious harm to his reputation (Ground 6)?

18. The appellant contends that her Honour erred in determining that the appellant had failed to discharge the onus of proof of demonstrating serious harm to his reputation.

19. Section 1 of the UK Act says that before a statement is defamatory it must have caused or be likely to cause “serious harm to the reputation of the claimant.” This requirement concerns the seriousness of the harm to reputation, not of the imputation. This distinction has been recognised in the leading English cases, in which it has been held that the application of the test is to be determined by reference to the actual facts about the impact of the imputation, and not just the meaning of the words; although the meaning is necessarily part of the impact, because all else being equal a grave imputation will cause more harm than a trivial one, it is only part of the equation, because the gravest imputation will cause no harm if it has no impact. In Lachaux v Independent Print Ltd,^[9] Lord Sumption JSC (with whom Lord Kerr of Tonaghmore, Lord Wilson, Lord Hodge and Lord Briggs JJSC agreed), said:

“[12] Although the Act must be construed as a whole, the issue must turn primarily on the language of s 1. This shows, very clearly to my mind, that it not only raises the threshold of seriousness above that envisaged in Jameel (Yousef) and Thornton, but requires its application to be determined by reference to the actual facts about its impact and not just to the meaning of the words.

…

[14] Secondly, s 1 necessarily means that a statement which would previously have been regarded as defamatory, because of its inherent tendency to cause some harm to reputation, is not to be so regarded unless it ‘has caused or is likely to cause’ harm which is ‘serious’. The reference to a situation where the statement “has caused” serious harm is to the consequences of the publication, and not the publication itself. It points to some historic harm, which is shown to have actually occurred. This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. The same must be true of the reference to harm which is ‘likely’ to be caused.”

9. [2020] AC 612; [2019] UKSC 27 (“Lachaux”).

20. As his Lordship explained, this view is reinforced by the terms of s 1(2), which is concerned with defamation of a corporation:

“[15] Thirdly, it is necessary to read s 1(1) with s 1(2). Section 1(2) is concerned with the way in which s 1(1) is to be applied to statements said to be defamatory of a body trading for profit. It refers to the same concept of ‘serious harm’ as s 1(1), but provides that in the case of such a body it must have caused or be likely to cause ‘serious financial loss’. The financial loss envisaged here is not the same as special damage, in the sense in which that term is used in the law of defamation. Section 1 is concerned with harm to reputation, whereas (as I have pointed out) special damage represents pecuniary loss to interests other than reputation. What is clear, however, is that s 1(2) must refer not to the harm done to the claimant’s reputation, but to the loss which that harm has caused or is likely to cause. The financial loss is the measure of the harm and must exceed the threshold of seriousness. As applied to harm which the defamatory statement ‘has caused’, this necessarily calls for an investigation of the actual impact of the statement. A given statement said to be defamatory may cause greater or lesser financial loss to the claimant, depending on his or her particular circumstances and the reaction of those to whom it is published. Whether that financial loss has occurred and whether it is ‘serious’ are questions which cannot be answered by reference only to the inherent tendency of the words. The draftsman must have intended that the question what harm it was ‘likely to cause’ should be decided on the same basis.”

21. Thus his Lordship concluded (emphasis added):

“[16] Finally, if serious harm can be demonstrated only by reference to the inherent tendency of the words, it is difficult to see that any substantial change to the law of defamation has been achieved by what was evidently intended as a significant amendment. The main reason why harm which was less than ‘serious’ had given rise to liability before the Act was that damage to reputation was presumed from the words alone and might therefore be very different from any damage which could be established in fact. If, as Ms Page submits, the presumption still works in that way, then this anomaly has been carried through into the Act. Suppose that the words amount to a grave allegation against the claimant, but they are published to a small number of people, or to people none of whom believe it, or possibly to people among whom the claimant had no reputation to be harmed. The law’s traditional answer is that these matters may mitigate damages but do not affect the defamatory character of the words. Yet it is plain that section 1 was intended to make them part of the test of the defamatory character of the statement.”

22. Applying these principles to the facts of that case, his Lordship endorsed as relevant considerations the meaning of the words and the gravity of the imputations they conveyed, the situation of the plaintiff, the circumstances including the scale of the publication, and the inherent probabilities including the likelihood that it had come to the attention of others who knew or would come to know the plaintiff (emphasis added):

“[21] On the footing that (as I would hold) Mr Lachaux must demonstrate as a fact that the harm caused by the publications complained of was serious, Warby J held that it was. He heard evidence from Mr Lachaux himself and three other witnesses of fact, and received written evidence from his solicitor. He also received agreed figures, some of them estimates, of the print runs and estimated readership of the publications complained of and the user numbers for online publications. He based his finding of serious harm on (i) the scale of the publications; (ii) the fact that the statements complained of had come to the attention of at least one identifiable person in the United Kingdom who knew Mr Lachaux and (iii) that they were likely to have come to the attention of others who either knew him or would come to know him in future; and (iv) the gravity of the statements themselves, according to the meaning attributed to them by Sir David Eady. Mr Lachaux would have been entitled to produce evidence from those who had read the statements about its impact on them. But I do not accept, any more than the judge did, that his case must necessarily fail for want of such evidence. The judge’s finding was based on a combination of the meaning of the words, the situation of Mr Lachaux, the circumstances of publication and the inherent probabilities. There is no reason why inferences of fact as to the seriousness of the harm done to Mr Lachaux’s reputation should not be drawn from considerations of this kind. …”

23. In this State, Lachaux was applied by Sackar J in the context of the new s 10A in Newman v Whittington ^[10] to hold that its effect was that a plaintiff must prove serious harm as a fact in every case. 

    10. [2022] NSWSC 249 at [69].

24. That the section requires that attention be directed to the impact of the imputation which depends on a combination of the inherent tendency of the words and their actual impact on the recipients, and that a grave allegation may not occasion serious harm if the audience is small or do not believe it, was recognised by Richard Spearman QC, sitting as a Deputy Judge of the Queens Bench Division, in Parris v Ajayi (emphasis added):^[11]

“[167] As Lord Sumption explained in Lachaux v Independent Print Ltd [2020] AC 612 at [14], whether a statement has caused “serious harm” falls to be established ‘by reference to the impact which the statement is shown actually to have had”, and that, in turn, “depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated”. Further, as appears from [16], in light of wording of section 1(1) of the Defamation Act 2013 (“A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”), a statement may not be defamatory even if it amounts to “a grave allegation against the claimant” if (for example) it is “published to a small number of people, or to people none of whom believe it, or possibly to people among whom the claimant had no reputation to be harmed”. At the same time, the assessment of harm of a defamatory statement in not simply “a numbers game” (see Mardas v New York Times Co [2009] EMLR 8, Eady J at [15]). Indeed: “Reported cases have shown that very serious harm to a reputation can be caused by the publication of a defamatory statement to one person” (Sobrinho v Impresa Publishing SA [2016] EMLR 12, Dingemans J at [47]).”

11. [2021] EWHC 285 at [167].

25. These considerations are redolent of those identified by this Court as relevant to the defence of “Unlikelihood of harm” formerly provided by s 13 of the Defamation Act 1974 (NSW) and subsequently s 33 of the Defamation Act 2005 (NSW). Section 13 of the Defamation Act1974 provided a defence of “Unlikelihood of harm” where “the circumstances of the publication of the matter complained of were such that the person defamed was not likely to suffer harm.” In Jones v Sutton, ^[12] this Court held that the test to be applied was whether, in the circumstances of the publication, the plaintiff was not likely to suffer harm, which required proof of the absence of a real chance or possibility of harm, and that it was not confined to publication involving trivial matters or content. ^[13]   With reference to the judgment of Badgery-Parker J in Perkins v New South Wales Aboriginal Land Council, ^[14] Beazley JA, with whom Santow JA and Stein AJA agreed, explained that publications of serious defamatory content could still be made in circumstances in which the person was not likely to suffer harm, so as to engage s 13, and that this might well be so in circumstances where the publication was to a small number of persons well acquainted with the plaintiff and able themselves to make a judgment of their own knowledge as to the likelihood that there was any substance in the imputation conveyed (emphasis added):^[15]

    12. (2004) 61 NSWLR 614; [2004] NSWCA 439.

    13. (2004) 61 NSWLR 614; [2004] NSWCA 439 at [13].

    14. Badgery-Parker J, 15 August 1997, unreported.

    15. (2004) 61 NSWLR 614; [2004] NSWCA 439 at [14]-[15].

“[14] In the later decision of Perkins v New South Wales Aboriginal Land Council (Badgery-Parker J, 15 August 1997, unreported), Badgery-Parker J explained why it is that publications of serious content that are defamatory may still be caught by s 13. He said (at 27):

“… The question to which s 13 directs attention is whether the
circumstances of the publication were such that the plaintiff was unlikely
to suffer harm. It appears to me, with respect, that the characterisation of the defamation as trivial involves circularity of reasoning: a defamation, no matter what the substance of the imputation, will be trivial only if the circumstances of its publication were such that the plaintiff was unlikely to suffer harm. Obviously, since the circumstances include, as the court said in Morosi, the nature of what was published, the defence is less likely to be made out where the content of the imputation is serious than when the content of the imputation is trivial, but it is misleading, in my view, to embark upon a consideration of s 13 from the stand point that its application is only in respect of trivial defamations. The question whether a defamation is trivial can only be answered after, not before, the circumstances of the publication have been evaluated in terms of s 13.”

[15] His Honour concluded that the major circumstance of the publication that
would make it unlikely that the plaintiff would suffer harm, apart from content,
was the extent of publication, the nature of the recipients and their relationship
with the plaintiff. He said (at 27): “… It would be relatively easy to make out
the defence in circumstances where the publication was to a small number of
persons well acquainted with the plaintiff and able themselves to make a judgment of their own knowledge as to the likelihood that there was any substance in the imputation conveyed”.”

26. In Jones v Sutton it was also held that injury to feelings was not “harm” of the kind contemplated by s 13, which was confined to injury to reputation. ^[16] The same applies in respect of the “harm to reputation” referred to in s 1 of the UK Act. In Monroe v Hopkins, ^[17] Warby J said:

“67. All of this, however, is about injury to feelings, and the issue I have to address at this stage is whether serious harm to reputation has been proved. As Dingemans J noted in Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB), [2016] EMLR 12 [46], unless serious harm to reputation can be established an injury to feelings alone, however grave, will not be sufficient.”

16. (2004) 61 NSWLR 614; [2004] NSWCA 439 at [38]; see also Enders v Erbas and Associates Pty Ltd [2014] NSWCA 70 at [97], [104]; (2014) Aust Torts Reports ¶82–161.

17. [2017] EWHC 433 at [67] (QB).

27. Courts appear so far to have avoided endeavouring to explain the word “serious”. Indeed, it has been said that “serious” is an ordinary word in common usage. ^[18] But in my view there is utility in giving some further explanation of its content. It is used in the sense third mentioned in the Oxford Dictionary definition, namely “significant or worrying because of possible danger or risk; not slight or negligible”, for which the example given is “she escaped serious injury”, and the synonyms include “severe” and “grave”. In Lachaux, whereas the Court of Appeal had considered that the new statutory test was the same as the common law “tendency to cause substantial harm” test, in Thornton v Telegraph Media Group, ^[19] albeit raised to the level of “serious harm”, the Supreme Court confirmed that it “raises the threshold of seriousness above that envisaged in Jameel (Yousef) and Thornton”. ^[20] At least, this shows that “serious” involves more than merely “substantial”. In Monroe v Hopkins, Warby J concluded that “whilst the claimant may not have proved that her reputation suffered gravely, I am satisfied that she has established that the publications complained of caused serious harm to her reputation and met the threshold set by s 1 of the 2013 Act”. ^[21] In my opinion, “serious” harm sits on the spectrum above “substantial” but below “grave”. Importantly, there can be harm which, though substantial, does not reach the level of serious harm.

    18. Sobrinho v Impresa Publishing SA [2016] EWHC 66 at [46] (QB); quoted in Monroe v Hopkins [2017] EWHC 433 at [68] (QB), [2017] 4 WLR 68).

    19. Thornton v Telegraph Media Group [2011] 1 WLR 1985; [2010] EWHC 1414 (QB) at [95]-[96].

    20. Lachaux at [12].

    21. [2017] EWHC 433 at [74] (QB).

27. The authorities to which reference has been made found the following propositions in respect of s 1 of the UK Act:

1. In order to succeed, a plaintiff must satisfy the threshold of showing that the publication has caused or is likely to cause serious harm to his or her reputation.

2. “Serious” harm involves harm that is more than merely substantial, though it need not be grave.

3. The requirement for serious harm to reputation is concerned with actual or likely reputational damage – that is, the impact of the imputation, in all the circumstances, on the plaintiff’s reputation – arising from a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. It is not satisfied by the gravity of the imputation alone. Nor is it satisfied by injury to feelings, however great. Relevant factors include the meaning of the words, the extent of the publication, the nature of the recipients and their relationship with the plaintiff, and whether they believe the imputations.

4. A grave imputation may not result in serious harm, typically where the publication is to a small number of persons well acquainted with the plaintiff who are not disposed to believe it, and any impact of the imputation on the plaintiff’s reputation is transitory or ephemeral.

29. The following conclusions of the trial judge accord with those propositions:

1. Section 1 introduced a “new threshold of serious harm which did not previously exist”, and “Claimants therefore need to establish that serious harm has been caused or is likely to be caused as a fact”; ^[22]

2. “More than the mere inherent tendency of the words is required, even where the words amount to a grave allegation against the plaintiff, and special emphasis is to be placed on the circumstances and extent of publication”; ^[23]

3. “Serious harm should not be conflated with hurt to feelings. However distraught the plaintiff may have been, this personal hurt is not evidence of harm to reputation because harm depends upon ‘a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated’”; ^[24] and

4. “findings of serious harm should be based on the circumstances and extent of publication, whether the publication was likely to have come to the attention of others at the time or in the future and the gravity of the imputations. The meaning of the words, the situation of the plaintiff, the circumstances of publication and the inherent probabilities are also relevant”. ^[25]

Time for assessment of harm

22. Primary judgment at [121].

23. Primary judgment at [123].

24. Primary judgment at [125]

25. Primary judgment at [146].

30. The appellant submitted that her Honour wrongly measured the harm as at the time when proceedings were instituted, and so disregarded harm at an earlier time, thus erroneously applying a “permanent harm” rather than a “serious harm” test. Particular reference was made to the following passage, which occurs at the outset of her Honour’s evaluation of the harm:^[26]

“All of the evidence led by the plaintiff related to serious harm at and shortly after the time of publication. By the time he commenced proceedings, there could be no question of harm; his parents were supporting him in his court proceedings and his mother had travelled to Australia to give support or evidence on his behalf. Nor is there any evidence of harm as at the date of the trial. As noted above, the very limited nature of the publication means that there is no likelihood of harm in the future.”

26. Primary judgment at [132].

31. Her Honour had also earlier observed that the level of harm was not to be determined solely at the time of publication, before commenting that harm “arguably cannot be said to be serious” if it has dissipated after a short period of time. ^[27]

    27. Primary judgment at [130].

32. I accept that there may be serious harm without permanent harm. It is not at all inconceivable that grave reputational harm could be occasioned for a time, yet the plaintiff’s reputation restored even before proceedings are commenced. However, there is nothing to indicate that her Honour applied a test of “permanent” harm, nor disregarded harm which occurred before the institution of proceedings. Her Honour referred to the harm which had occurred at and near the time of publication, and did not disregard it on the basis that it was not continuing when proceedings were instituted, but rightly held that its short duration was relevant to whether it could be said to be “serious” (emphasis added):

“[137] The timeline for the allegations, the phone call between the grandparents and the subsequent FaceTime calls during which the plaintiff put documents onto the screen for his parents to look at is also relevant. Mr Richardson SC submits that any suspicions were gone before the week was out; Mr Rasmussen submits it was some weeks. Even taking the plaintiff’s evidence at its highest, this is still a very short period of time.

[138] Mr Rasmussen’s response is that the seriousness of the allegations is such that the length of time is immaterial. The seriousness of the allegations must, however, be viewed in context. In Lachaux, similar serious allegations were published to the world. In these proceedings, the defendants are expressing views about ADVO litigation where there are two clearly drawn camps. There is a degree of unreality in submitting that actual harm can be done in such circumstances.”

33. The trial judge was thus plainly conscious of the gravity of the imputations but rightly recognised that this was only one factor. Her Honour did not treat the absence of any continuing harm when proceedings were instituted as conclusive, but proceeded to evaluate the harm on which the plaintiff relied, all of which preceded the institution of proceedings:

“[147] Taken at its highest, the plaintiff’s evidence is that his parents were angry and suspicious about him for a number of weeks because the defendants wrote to them setting out why they supported their daughter’s allegations, in circumstances where the plaintiff may have told his parents, wrongly, that those allegations had been withdrawn. At best, there was suspicion in the mind of parents who had extensive and recent background knowledge of the events and the ability to ascertain the facts from the source material in order to refute the allegations over a short period of time. There is no evidence of lurking doubt; the plaintiff’s mother apologised to him for not believing him and came to Australia to support him in his litigation.

…

[150] Fundamentally, however, this is an email sent to the two people who knew the plaintiff better than anyone, namely his parents, whose love and affection for him would have withstood any threat, serious or otherwise, to his reputation, particularly in circumstances where they already knew there were disputed allegations between the plaintiff and his wife, as well as what those allegations were. Those same two people also knew the defendants well, and knew that the reason they were not to be permitted unsupervised access was because of the likelihood that they could use that access to support their daughter in some way. They were not to be trusted.

[151] Accepting the plaintiff’s evidence at its highest, a discord in his relationship with his parents for some weeks does not amount to ‘“serious harm’, despite the seriousness of the imputations.”

34. In that passage, her Honour considered harm which had occurred before the institution of proceedings, although it was not continuing. Evaluation of the extent of the harm necessarily involved consideration of the period over which it was incurred. Reputational harm that endures for a substantial period is self-evidently more likely to be serious than harm that is ephemeral. Her Honour did not treat the absence of ongoing or permanent harm as conclusive, but the circumstance that any harm to the plaintiff’s reputation was transitory if not ephemeral was necessarily relevant to whether it could be said that it amounted to “serious harm”.

Timing of complaint

35. The appellant contends that in concluding that no serious harm was proven, the trial judge had regard to two irrelevant factors: his delay in commencing the proceedings, and his not earlier raising his complaint about the email with the Haines.

36. The plaintiff served a “Concerns Notice” only two hours before instituting proceedings, twelve months after the publication. He raised no complaint in earlier communications between the parties. Her Honour observed:

“[143] The plaintiff met and spoke with the defendants, and in particular the first defendant, on many occasions during the year after publication. His correspondence with them was often copied (“CC”) by him to his solicitor. He had many opportunities to raise his concerns with them, either informally or through his solicitor, since he was clearly in the habit of discussing his correspondence with the Haines with his legal advisers.

…

[149] The defendants also rely upon the lateness of the failure to complain. While Mr Rasmussen submitted that the plaintiff was preoccupied with other litigation, he was sending copies of his other correspondence with the defendants to his legal representatives and there was nothing to stop him from doing the same with the matter complained of. Whether or not the plaintiff started proceedings earlier, he could have served a Concerns Notice earlier if he was in fact concerned about the potential for damage.”

37. The appellant says there was no evidence that, had he raised his complaint earlier or informally, the Haines would have apologised or taken any other mitigatory action, and that he gave evidence of his valid personal reasons for delaying the commencement of the proceedings.

38. Although expressed as a complaint of “irrelevant considerations”, this is in reality no more than an aspect of the attack on the ultimate finding that serious harm was not established, and on an appeal by way of rehearing the appellant’s task is not so much to show that her Honour had regard to an irrelevant consideration, as to satisfy this Court that, contrary to the trial judge’s finding, the evidence established serious harm. Even if her Honour had regard to an irrelevant consideration, it does not follow that the ultimate conclusion that serious harm was not established was wrong.

39. Nonetheless, the absence of any expression of concern about the publication for a year, while far from conclusive, is not irrelevant to whether there has been or is likely to be serious harm. It is capable of supporting reasoning that the appellant was not particularly troubled by it, and did not perceive it to be occasioning ongoing harm. In McCarey v Associated Newspapers Ltd (No 2),^[28] Pearson LJ, with whom Diplock LJ and Willmer LJ agreed, accepted that the plaintiff had not acted unreasonably in delaying 11 months before commencing proceedings, but added:

“On the other hand, there is to my mind some significance in this long delay in bringing the libel actions. If the plaintiff had considered the libel actions, or the libels on him, to be very serious matters, he would presumably have brought his libel actions at once, whatever his Medical Defence Union might say. The fact that he was willing, for whatever reasons, to defer commencing all the libel actions for eleven months is some indication that he did not consider the injury to his reputation to be a highly serious matter.”

28. [1965] 2 QB 86 at 96-97.

40. Further, it does not appear that this consideration was material to her Honour’s decision on serious harm. As set out above,^[29] the observations in [149] were immediately followed by the sentence “Fundamentally, however, this is an email sent to the two people who knew the appellant better than anyone…” (emphasis added), which shows what was the real basis of her Honour’s conclusion. In any event, setting the consideration of delay in making any complaint to one side does not result in the appellant establishing serious harm.

Grapevine effect

29. See above at [33].

41. The appellant submits that her Honour erred in finding that there was no “grapevine effect” – that is, evidence that knowledge of the allegations spread beyond the immediate recipients and occasioned harm to his reputation in a wider audience. ^[30]

    30. Mirror Newspapers v Fitzpatrick [1984] 1 NSWLR 643.

42. It may be accepted that any “grapevine effect” would be relevant in establishing serious harm. ^[31]

    31. Hills v Tabe [2022] EWHC 316 (QB) at [24]; see also Jones v Sutton at [51], [54].

43. There were two categories of recipient to whom the “grapevine” evidence related: (a) mutual friends of the appellant and Karen, who were told by Karen that her parents had sent an email to the Raders to set the record straight, along with the substance of the allegations in it; and (b) friends of the Raders to whom Mrs Rader spoke about the email.

44. Her Honour addressed this evidence collectively at [141] and [148], as follows:

“[141] I am not satisfied that any persons other than the plaintiff’s parents would have read the matter complained of or that anyone other than their closest friends and family would have had any information about its contents. This includes the children’s godparents in Australia, whose knowledge of the matter complained of was little more than that in some way it was supportive of Karen’s ADVO allegations.

…

[148] There is no evidence that the defamatory publication was disseminated to third parties in a way that could have caused harm to the plaintiff’s reputation. The plaintiff’s friends knew only that a letter had been sent which supported Karen, in circumstances where they were aware of (and supported) the plaintiff’s version of events. The evidence of Mrs Brooks is to the effect that, while the plaintiff’s mother was still upset about the matter complained of when she came to Australia to support her son’s application, what upset her was that the defendants had written such a letter at all, not her belief that allegations that her son was a stalker and violent were true.”

45. Earlier, her Honour had said:

“[88] In Lachaux, where the matters complained of were published in the news media, the plaintiff called three witnesses, all of whom had read the matter complained of. That is not the case here. Nobody read the matter complained of except the plaintiff’s parents. The persons who heard the plaintiff’s mother’s discussion of its contents did not believe the allegations. What is more, Mrs Brooks and the plaintiff’s aunt already knew that Karen had made these allegations in the AVO taken out on her behalf, so these allegations were not new.

[89] Mr Rasmussen submitted that I should find the whole township where the plaintiff’s parents live would have known about these allegations being made by the defendants, and that the grapevine effect should be taken into account when determining serious harm. The evidence of these witnesses does not support these concerns.

[90] I note the plaintiff’s own evidence of what Karen had said to the children’s godparents but, at best, this is a reference to her parents writing to the Raders to “set the matter straight”, in circumstances where the friends to whom this was said already knew about her domestic violence and stalking allegations and did not believe them.”

46. As to the first category, the appellant gave evidence that two groups of friends raised the allegations with him over lunch, having apparently been told of them by Karen, who had mentioned the matter in the midst of emotional communications describing the breakdown of the marriage. ^[32] They all knew that the appellant had been involved in a difficult marriage breakdown and that ADVOs had been obtained. ^[33] The appellant said in cross-examination “I think they did believe some of what Karen had said that’s why they contacted me”. ^[34] However, they remained supportive of the appellant. ^[35]

    32. Tcpt, 23 August 2021, pp 69(38)-70(18), 73(39)-76(27).

    33. Tcpt, 24 August 2021, pp 113(09)-(21), 114(28)-(46).

    34. Tcpt, 24 August 2021, p 113(45)-(47).

    35. Tcpt, 24 August 2021, p 114(04)-(10).

47. The evidence concerning this category was given only by the appellant; none of his friends referred to was called as a witness. The appellant’s statement that he thought that these friends believed some of what Karen had said is not evidence that they believed the contents of the email, which they never saw let alone read. Moreover, the appellant’s opinion that others believed any of the allegations is of practically no probative value, in the absence of evidence of what expressions by those others founded that opinion. This is not a matter of credit but a recognition that a witness cannot give evidence of another’s state of mind. Moreover, objectively it is highly improbable that his friends – who were also friends of Karen – would lunch with him, and report to him what Karen had told them, if they believed the allegations to be true. The probabilities are that they would be disposed to disbelieve the allegations. Even if what Karen told them is regarded as arising from the publication of the matter complained of and not from a distinct publication by Karen, this does not demonstrate any adverse impact on the appellant’s reputation.

48. As to the second category, Mrs Rader gave evidence that she had told a few close friends – only those whom she absolutely trusted and knew would stand by her ^[36] – and that they did not believe the allegations, and became aware that Mrs Rader remained close to and supported her son: ^[37]

    36. Tcpt, 24 August 2021, pp 177(49)-178(06).

    37. Tcpt, 24 August 2021, pp 178(13)-(30); 165(09)-(22).

“Q. Those friends came to know didn’t they within weeks that you remained close to your son and supported him?

A. In later weeks, yeah, yeah.

Q. They were never under any apprehension that you believed those allegations, perhaps beyond the first few days after having read them?

A. They, I don’t know what they believed. I, I know they thought Damian hadn’t done anything because they all know Damian so well, but they hadn’t been seeing what the situation was going, ongoing in Australia.

Q. You just said I think that these friends knew Damian well?

A. They’ve known Damian since he was a child, but they’ve not had much to do with him in latter years; they’ve seen him occasionally.

Q. And accordingly they wouldn’t ever have believed the allegations that were contained in the email?

A. Well they said they didn’t believe it, so I’ve got to go by what they said to me. What they thought I don’t know, but that’s what they said to me.”

49. Not one of the witnesses who gave evidence of having heard anything of the allegations in the email believed them. Mrs Clayton – the wife of a schoolfriend of the appellant – was told of the allegations in September 2019 by the appellant when he stayed with her in Toronto, Canada. She gave no evidence in chief of any impact of the allegations on her view of him. In cross-examination she said: ^[38]

“Q. You yourself don’t believe, do you, that Mr Rader engaged in any abusive conduct?

A. No, I do not believe that Damian has engaged in any abusive conduct.”

38. Tcpt, 24 August 2021, p 138(16)-(18).

50. Mrs Brooks, a family friend who knew all the protagonists, was told of the email by Mrs Rader when she visited Australia in late 2019. She too gave no evidence in chief of any impact of the allegations on her view of the appellant. In cross-examination she said: ^[39]

    39. Tcpt, 24 August 2021, p 147(01)-(12).

“Q. You yourself also believed the allegations were untrue didn’t you?

A. Yes I did.

Q. You didn’t believe that Mr Rader was guilty of any abusive conduct?

A. Well I had never witnessed it.

Q. And remained a friend of his?

A. I remained a friend of both parties.

Q. And your husband has also remained a friend of Mr Rader’s?

A. Yes, yes, absolutely.”

51. Mr Allan was a good friend of the Raders who had come to know the Raders through common service in the RAF. In February or March 2019, Mrs Rader told him that she had received an email from Karen’s parents that alleged that the appellant had been abusive. He continued: ^[40]

“…So there weren’t many more details, just that these allegations have been made which obviously Margaret was taking very seriously, and I, I listened for a while and I simply said to Margaret, I said, “Look, that is not Damian. In the years that I’ve known Damian from when he was a child, I’ve never seen him angry, I’ve never seen him, you know, violent in any way, it’s just, just not him.” I was trying to relieve the fears my friend who was distraught by, by what had happened. I assured Margaret that it, it just simply couldn’t be true, it couldn’t have happened.”

40. Tcpt, 24 August 2021, p 150(11)-(48).

52. In cross-examination, he said: ^[41]

“Q. It’s the case, isn’t it, that you never believed that Mr Damian Rader had engaged in any mental or physical abuse to his wife?

A. I, I, I just, I couldn’t believe that.

Q. I want to suggest to you that within a few weeks of the conversation with Ms Margaret Rader that you have given evidence about, that she told you she had in fact spoken to Damian.

A. Yeah, I, I, I can’t put an exact timeframe on it, but all I, all I remember is that they were back in contact with Damian, and I thought the whole thing had been sort of smoothed over.”

41. Tcpt, 24 August 2021, p 152(29)-(31).

53. Mrs Rader’s sister, who also lives in England, was told about the email by Mrs Rader in February or March 2019. She gave no evidence in chief of any impact of the allegations on her view of him. In cross-examination she said: ^[42]

“Q. You never believed any of the allegations against Damian did you?

A. No.”

42. Tcpt, 24 August 2021, p 157(04)-(05).

54. The evidence did not establish that anyone, in the small circle who had any knowledge of the email, believed the allegations. Indeed it established that they did not. The so-called “grapevine evidence” was not probative of any reputational harm. The trial judge was right to conclude that there was no evidence that knowledge of the allegations caused reputational damage in an audience wider than the immediate recipients of the email, being the Raders.

Trustworthy source

55. The appellant impugns the trial judge’s rejection of his contention that, when they received the email, the Raders perceived the Haines as reliable or “trustworthy” people whose opinions on these events would carry weight, fortifying the impact of the imputations. In this respect, her Honour said:

“[101] Accordingly, while I accept the plaintiff and his mother’s evidence as witnesses of credit in a general sense, I do not accept the evidence that the defendants were seen by them, at the time of the matter complained of, as reliable or ‘trustworthy’ (T 63, T 67, T 161, T 177) people whose opinions on these events would carry weight. The defendants had already shown they were in the enemy camp, and not to be trusted.”

56. Later, her Honour concluded:

“[135] The relationship between the plaintiff’s side of the family and the defendants’ side of the family was not merely strained at the time of publication of the matter complained of, but had broken down completely, due to the competing ADVOs which are referred to in the matter complained of. I am satisfied that the plaintiff’s parents knew enough about the allegations in the matter complained of to be able to answer the defendants, point by point, in their telephone conversation on 20 or 21 February 2019 (T 172), having only had one telephone conversation with the plaintiff about any background matters beforehand.

[136] I am satisfied that the plaintiff’s parents shared his views that the defendants and their other daughter were in the enemy camp. Neither of them considered the defendants were trustworthy persons whose residence in Australia meant they had an objective or reliable view. These were persons who could not be trusted (unlike them) to have unsupervised access to their grandchildren, even if the plaintiff was also present, and whose one attempt to contact one of the children about a Christmas present resulted in a complaint to the police. Far from being on a friendly footing with the defendants, the plaintiff had been sending copies of his correspondence with them about these topics to his solicitor as early as November 2018 (T 88). This pattern of sending copies of his emails to the defendants to his solicitor continued in 2019, including around the time of publication of the matter complained of (for example, email 30 January 2019 (CB:117); email 12 February 2019 (CB:125)).”

57. The appellant submits that her Honour conflated the appellant’s evidence of what he understood to be his parents’ view of the Haines, with the evidence of his mother Mrs Rader.

58. The starting point for consideration of this submission is the obvious – that in the circumstances of an acrimonious marriage breakdown, one party’s parents are inherently likely to be disposed to favour their child’s version and disfavour the other spouse’s account. Secondly, the appellant’s evidence of his observation and understanding of his parents’ attitude to the Haines is indicative that this was no exception. Thirdly, Mrs Rader’s sister gave this evidence: ^[43]

    43. Tcpt, 24 August 2021, p 157(07)-(25).

“Q. You support your nephew?

A. Yes.

Q. You were aware at this point, that is early in 2019 that he and Karen, his wife, were going through a difficult breakup?

A. Yes.

Q. You knew that for instance the police had been involved?

A. Yes.

Q. That apprehended domestic violence orders had been taken out inside the family?

A. Yes.

Q. You knew that she was alleging violence by Damian?

A. Yes.

Q. You knew also that the children had alleged violence by Karen?

A. Yes.”

59. It would be extraordinary if the appellant’s aunt knew those matters but his mother did not.

60. Fourthly, Mrs Rader had had the appellant and the children stay in her home for some weeks before the matter complained of was sent. ^[44]   After earlier denying it, Mrs Rader conceded that she knew prior to February 2019 of the ADVOs: ^[45]

    44. Primary judgment at [56].

    45. Tcpt, 24 August 2021, pp 175(31)-176(03).

“Q. I want to suggest that you’re confused about that and that you’re talking about a period in late 2017. That’s my suggestion to you. Do you agree or disagree? Is it possible?

A. It’s not impossible. I get confused. We used to go out there every year, so it’s--

Q. I want to suggest to you that in fact in the Australian summer of 2018 to 2019 your son and the two children had come to visit when you were in the UK and then travelled to Prague?

A. Correct, you're correct, sorry.

Q. Then in late 2018 by that stage at least two apprehended domestic violence order applications existed and there was no contact between on the one hand your son and two children, and Mrs Karen Rader on the other hand?

A. Correct.

Q. In other words, returning to the original question, it was the case wasn't it that by February 2019 things between them were in a very bad state?

A. Can you repeat that please?

Q. It was the case wasn’t it that by February 2019 things between them were in a very poor state?

A. It seemed to be that way, yes.”

61. It may well be, as the appellant submits, that the evidence did not directly show the Raders to be aware of the precise content of the ADVO applications, or that there were allegations, by Karen against the appellant, of stalking or violence. But they knew enough to accept that “things were in a very poor state”, and in those circumstances, in my view, the proposition that the Raders in February 2019 regarded the Haines as a trustworthy and reliable source of information about the relationship between their respective children is an improbable one.

Conclusion as to serious harm

62. As has been foreshadowed, however, the real question on appeal by way of rehearing is whether this Court is persuaded that, contrary to the trial judge’s finding, the evidence satisfied the “serious harm” threshold.

63. On any view of the evidence, the publication was limited to the appellant’s parents, who of all the people in the world best knew him and were best positioned to judge for themselves whether there was substance to the imputations, and whose relationship with him was such as to withstand even the most serious allegations. The publication to them occurred on 16 February 2019, in a context where they already knew about the acrimony and the ADVOs between their son and the Haines’ daughter. On 18 February 2019, they forwarded the email to the appellant, “FYI”. He telephoned them that day, and told them “It’s all lies, mum. I can prove it”. By 19 February, they had received, orally, a sufficiently detailed response from the appellant to be able to put it, point by point, to the Haines. They spoke with the Haines on 20 or 21 February, for about 20 minutes, refuting point by point the allegations in the email, using the information provided to them by the appellant. Although Mrs Rader denied that at that stage she believed her son, she said to the Haines something like, “Well, I’ll believe what Damian says and you’ll believe what Karen says”: ^[46]

    46. Tcpt, 24 August 2021, pp 171(41)-172(33).

“Q. Well, what you did with the Haines was to go through the email point by point, wasn’t it?

A. That’s correct.

Q. In fact, you said to the Haines, I suggest, “There is evidence to disprove most of the things you’ve said. The allegations have been disproved by statements made by the children to the police”.

A. Yes.

Q. That was information that you’d obtained from your son in the phone call the previous day?

A. Correct.

Q. What I want to suggest to you is that within three or four days of you receiving the email you had spoken to your son - first, do you agree with that?

A. I did.

Q. That you have obtained from your son his response to the allegations. Do you agree with that?

A. Verbally, yes.

Q. That you have put that response back to the Haines. Do you agree with that?

A. Correct.

Q. And that you believed your son. Do you agree with that?

A. No.

Q. Well, what I want to suggest to you is you wouldn’t have said to the Haines, “There is evidence to disprove most of the things you’ve said”, if you believed the allegations at that point, which is the time you spoke to the Haines. You wouldn’t have said that.

A. I would’ve said that because I wanted them to turn round and say, “Well, we’ve got evidence otherwise”.

Q. You recall earlier you gave some evidence to the effect that during the conversation you said something like, “Well, I’ll believe what Damian says and you’ll believe what Karen says”. That may not have it precisely right, but I think that’s the gist of what you said. Is that correct?

A. Correct.

Q. That was, I suggest to you, a truthful remark. You meant what you said?

A. I said that so that if they had any doubts they would tell me.”

64. Later, she gave this evidence: ^[47]

    47. Tcpt, 24 August 2021, p 176(05)-177(11).

“Q. I want to suggest to you that by the time you spoke to the Haines, and you agree that was on perhaps 20 or 21 February, that by that time you believed most of the things they said in their email of 16 February could be disproved by evidence?

A. I’m not sure I did believe it until I got more evidence from Damian which took quite a while to come through.

Q. Your position was by then when you spoke to them, as you told them that you rejected what the Haines had said in their email?

A. I told them that, yeah, because I wanted to see if they would come up with anything to say ”Well yeah, this is what Karen told us”, but I, I just couldn’t believe either side of that point. ·

Q. Isn’t it more likely two and a half years later that you said that to them because it was the truth?

A. Definitely not. It was very upsetting all this, that it, it just felt like somebody had pulled the rug out from under my feet, and these things that had been going on over there, I thought they had a, a better handle on things; I certainly would have if I had been in their, in their position. So why would I disbelieve them and why would I believe Damian if we thought that Damian hadn’t been telling us the truth all the way along?

…

Q. What I want to suggest to you is that within five or six days of receiving the emails you spoke to the Haines for about 20 minutes and gave them a point by point prevailing of the allegations contained in their email?

A. Yes, because that’s what Damian had told me. I had to go, go, run that by them to see what their reactions were. I still hadn’t had full evidence from Damian, I still hadn’t had full evidence from the Haines. Donald Haines said he would take on board everything I’d said and come back to me, and he never came back to me. He never came back and said “This was true, this was true, this was true”.

Q. It’s the case isn’t it though that within a few weeks you said to your son something to this effect, “Yes I’m convinced that what the Haines said is false, and I don’t understand why they did this”, do you agree with that?

A. Correct.

Q. You said you actually apologised to your son for not having believed him? A. Yes.

Q. You thanked your son for talking to you and for providing the evidence?

A Correct.

Q. I want to suggest that you had in fact reached that position within perhaps a maximum of one week from receiving the email from the Haines?

A Not correct. It took longer than that. This is the first time that I have ever in my life had a disagreement with my son, and when you’ve got such a close bond and somebody accuses your son of things as, as violent as that, it really 10 shook the foundations of our, of, of our relationship for quite a long time. It was very distressing, for me, for my husband, for the children and for Damian.”

65. Her cross-examination concluded: ^[48]

    48. Tcpt, 24 August 2021, p 179(36)-(50).

Q. Nothing in your relationship with your son has changed since you received the email on February 2019, between then and today?

A. It did for quite a while but it was a very upsetting time, it really rocked our relationship, it pulled the rug out from under our feet. I was physically ill, I was sick, I was distraught and my friends could see how, how dreadful I felt. This was, why would you, why would you send an email unless everything in it was true; you don’t put things on paper unless they’re true.

Q. Nonetheless you agree that within weeks you came to the view that everything in the email was false?

A. After quite a few weeks when Damian sent the, all the evidence through, yes.

Q. And you restored your relationship with your son?

A. Eventually, yes.

Q. And you’ve loved and supported him ever since?

A. And will continue to do so.”

66. Taking Mrs Rader’s evidence at its very highest, and even if the Raders at first regarded the Haines as a trustworthy and reliable source, any adverse effect of the imputations on the appellant’s reputation with the Raders had dissipated “after quite a few weeks”. Thereafter they had no “lurking doubt”; any disruption of the harmonious relationship between the appellant and his parents had entirely dissipated, within weeks. As has been explained, there was no evidence of reputational harm in any other audience. Such reputational harm as there was was with the appellant’s parents only, and short in duration.

67. In concluding that, despite the seriousness of the imputations, a discord in the appellant’s relationship with his parents for some weeks did not amount to “serious harm”,^[49] the trial judge was applying her vast experience in this field to a task which Lord Sumption said:^[50]

“…was to evaluate the material before [the Court], and arrive at a conclusion on an issue on which precision will rarely be possible. A concurrent assessment of the facts was made by the Court of Appeal. Findings of this kind would only rarely be disturbed by this court, in the absence of some error of principle potentially critical to the outcome.”

49. Primary judgment at [151]; see above at [33].

50. Lachaux at [21].

68. In my opinion, her Honour’s conclusion that the appellant had failed to satisfy the “serious harm” threshold was correct.

Qualified Privilege

69. As has been noted, the relevant publication is an email, captioned “Children’s Schooling”, sent by the maternal grandparents of the appellant’s children to the paternal grandparents, ostensibly regarding their mutual grandchildren’s education, but also referring to wider issues pertaining to the breakdown of the relationship between their respective children. Her Honour held the email was published on a “protected occasion” and was therefore entitled to qualified privilege at common law, on the basis that it was a communication regarding family issues in which all the parties had an interest: ^[51]

“[166] The circulation of the matter complained of – from one set of grandparents to another – is extremely narrow. The subject matter is related to the behaviour and welfare of close family members and made at a suitable time, in that something had to be done about school fees as the school term was starting. It was clearly published out of a moral, familial and social duty to communicate between the parties’ parents where the defendants (representing their daughter) were at odds with their son about supervised access, school fees and the ongoing acrimony between the two parties to the marriage. Mr and Mrs Rader had an interest in receiving the information because the subject matter was their grandchildren’s welfare and schooling as well as hearing the different perspective of the defendants, who were clearly concerned about the welfare of both their daughters, as to those events. There had been a prior history of consultation of parents by both parties to the marriage; for example, when the plaintiff found the suicide searches on Y’s phone, he rang his mother to ask what to do, and she told him to contact the second defendant, Karen’s mother (CB:44).

[167] That privilege was not lost because of gratuitous insult, irrelevant material or publication to persons with no interest in receiving it.

[168] For the above reasons, I am satisfied that the matter was published on a protected occasion and that the whole of its contents, as well as the imputations pleaded to arise, was relevant to the occasion.”

51. Primary judgment at [166]-[168].

70. In addition, in addressing the reply of malice, her Honour said:

“[173] As to the assertion that these were private matters, the Raders and the defendants were the children’s grandparents and they all had an interest in their children’s wellbeing as well as a continuing relationship with the grandchildren.”

Privileged occasion (Ground 7, 8)

71. The appellant contends that both the holding that the publication was made on a protected occasion and the finding that imputations were relevant and germane to the protected occasion were erroneous (Grounds 7 and 8 respectively).

72. The first step in considering whether a defamatory publication is made in circumstances attracting a qualified privilege at common law is to identify the privileged occasion. ^[52] This requires “close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication”. ^[53] In this, the “hallmark” of qualified privilege is reciprocity of duty or interest,^[54] or a “special and reciprocal interest”. ^[55]

    52. LVMH Watch & Jewellery Australia Pty Ltd v Michael Lassanah [2011] NSWCA 370 at [91]-[92] (Bergin CJ in Eq; Giles and Campbell JJA agreeing); Murray v Raynor [2019] NSWCA 274 at [22]-[24] (Payne JA; Macfarlan JA and Emmett AJA agreeing).

    53. Guise v Kouvelis (1947) 74 CLR 102 at 116 (Dixon J); Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at [10] (Gleeson CJ, Hayne and Heydon JJ); LVMH Watch & Jewellery Australia Pty Ltd v Michael Lassanah [2011] NSWCA 370 at [91].

    54. Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at [9] (Gleeson CJ, Hayne and Heydon JJ); Cush v Dillon; Boland v Dillon (2011) 243 CLR 298; [2011] HCA 30 at [11] (French CJ, Crennan and Kiefel JJ); LVMH Watch & Jewellery Australia Pty Ltd v Michael Lassanah [2011] NSWCA 370 at [91] (Bergin CJ in Eq; Giles and Campbell JJA agreeing).

    55. Andreyevich v Kosovich (1947) 47 SR (NSW) 357 at 363 (Jordan CJ), referred to in Aktas v Westpac Banking Corporation Limited (2010) 241 CLR 79; [2010] HCA 25 at [31] (French CJ, Gummow and Hayne JJ); LVMH Watch & Jewellery Australia Pty Ltd v Michael Lassanah [2011] NSWCA 370 at [91] (Bergin CJ in Eq; Giles and Campbell JJA agreeing).

71. In the passage extracted above,^[56] in particular at [166], her Honour plainly did this, identifying “a moral, familial and social duty to communicate” between the grandparents where the Haines (affiliated with their daughter) were at odds with their son-in-law the appellant “about access, school fees and the ongoing acrimony between the two parties to the marriage”, while the Raders had an interest in receiving the information “because the subject matter was their grandchildren’s welfare and schooling as well as hearing the different perspective of the defendants …”. The Haines had ceased to have contact with their grandchildren, whom they had previously minded and whose school fees they had paid. There were disputes between them and their daughter on the one hand and the appellant on the other about contact and school fees; and there were allegations and counter-allegations of bad behaviour of various sorts and ADVO applications between their respective children, Karen and the appellant. In other words, the maternal grandparents and paternal grandparents had a special reciprocal interest in the welfare and education of their mutual grandchildren, and also in the relationship between their respective children. It is telling that Mr Caldecott, a witness called by the appellant at trial, gave this evidence: ^[57]

“If it was my daughter, I think I’d have to contact the in-laws to let them know if there was something like that going on.”

56. See above at [69].

57. Tcpt, 24 August 2021, p 165(16)-(19).

74. In my opinion, it is plain that the occasion of a private communication between two sets of grandparents on issues relating to the education and welfare of their grandchildren and the relationship between their children in the midst of a family breakdown is one which attracts qualified privilege. The appellant submitted that there was no evidence of any prior correspondence between his parents and the respondents regarding the issues of the grandchildren, visitations, school fees, ADVOs, stalking or the appellant’s relationship with his ex-wife. However, the existence of an occasion of qualified privilege does not depend on there having been any prior communication on the topic, and it is irrelevant that the Raders and the Haines had not previously discussed the specific issues referred to in the email; what is important is the reciprocal duty or interest, which may exist, or be brought into existence, without prior communication between the persons involved, because of circumstances which create the shared interest. As it happens, the Raders and the Haines’ were connected on Facebook and had previously stayed with each other and shared meals.

75. The occasion so defined is not confined to the education of the grandchildren, but extends to the relationship between the grandparents’ respective children – the parents of their grandchildren. The allegedly defamatory statements were all on the topic of the relationship between the grandparents’ respective children and its breakdown. They were “sufficiently connected to the privileged occasion to attract the defence”. ^[58]

    58. Bashford v Information Australia (2004) 218 CLR 366; [2004] HCA 5 at [27].

76. Her Honour did not err in identifying and defining the protected occasion, nor in holding that the occasion was one of qualified privilege and that the imputations were relevant to that occasion.

Malice (Grounds 9 and 11)

77. The trial judge admitted into evidence, as Exhibit 1, a document which purports to state the terms on which the appellant and Karen had agreed to continue to reside under the one roof, and to record the events of and following an altercation and ADVO application, in May 2009, bearing the signature of Karen and countersigned as agreed by another, which the appellant denied was his signature. The document was admitted by the trial judge: ^[59]

“for the very limited purpose of being, for the purposes of the qualified privilege defence, information available to the defendants at the time that they were writing the matter complained of and checking its contents with their daughter”.

59. Primary judgment at [180]-[185].

78. The appellant complains that the exhibit was erroneously admitted (Ground 11), as its admission assumed that its contents were accurate, authentic and used in the manner suggested, where there was no evidence to that effect and where the appellant disputed its accuracy. However, her Honour used the document only to show what information was available to the Haines when they sent the email. For that purpose its accuracy was not material, and her Honour made no finding as to its accuracy.

79. In any event, other evidence established that the Haines checked the veracity of the contents of the email with their daughter prior to sending it, by sending a draft to Karen and seeking correction or confirmation of its accuracy. ^[60]

    60. Email from Haines to Karen of 12 February 2019.

80. The appellant complains that her Honour failed to address specifically the case put in his Amended Reply below, that the respondents were motivated by the dominant improper purposes of turning the appellant’s parents against him, and influencing ongoing Family Court and ADVO proceedings (Ground 9). ^[61] Her Honour’s summary of the particulars of malice included: ^[62]

“The defendants were actuated by four improper purposes (7V (a) – (d)). These included a desire to damage the plaintiff’s reputation, anger at his lifestyle, jealousy that the maternal grandparents were seeing the children, anger at his treatment of their daughter, ‘“the plaintiff’s responsibility for the origin of materials relating to suicide’, a desire to turn the plaintiff’s parents against him and a desire to influence the ongoing Family Court proceedings “improperly” (particular v).”

61. Amended Reply 7V(c) and (d).

62. Primary judgment at [169(e)].

81. Her Honour dealt with this particular as follows:

“[178] The assertion (in particular (d)) of a desire to influence the ongoing Family Law proceedings is misconceived, as those proceedings did not commence until after the matter complained of was sent. If what the plaintiff meant to assert was a desire to influence the ongoing ADVO proceedings, evidence to that effect must be led. In the absence of such evidence, the particular cannot be made out.”

82. Thus her Honour directly addressed and rejected the allegation about influencing Family Court and ADVO proceedings, observing that it was misconceived as the Family Law proceedings were not on foot when the email was sent. However, the appellant submits that her Honour failed to deal with the allegation about “turning the appellant’s parents against him”, which he says was crucial to his case on malice.

83. It may be that her Honour did not refer specifically to the allegation of “a desire to turn the plaintiff’s parents against him”, but in holding that particular (v) could not succeed in the absence of evidence probative of it, her Honour necessarily rejected the proposition that the respondents were actuated by an improper purpose of turning Mr Rader’s parents against him. It is to be noted that the submission now made that this was crucial to his case on malice is belied by her Honour’s undisputed statements that:^[63]

“[170] Although the plaintiff bears the onus, Mr Rasmussen’s submissions on malice are scant. The plaintiff expressly did not submit on malice in his written submissions, as Mr Richardson SC noted at paragraph 24 of his Reply submissions dated 17 September 2021. Mr Rasmussen provided additional submissions on 21 September 2021 (paragraphs 31 – 36) but referred to malice only briefly in his oral submissions (T 224 – 226).”

63. Primary judgment at [170].

84. A judge is not to be expected to deal specifically with every single unelaborated assertion contained in a party’s case. In any event, upon reviewing the evidence on a rehearing, albeit with due deference to her Honour’s position of advantage, I would not conclude that the respondents were actuated either by a desire to influence the Family Court proceedings (which had not yet been commenced), or by a desire “to turn the appellant’s parents against him”. The appellant has pointed to no evidence that they were actuated by such a purpose. The far more probable inference is that their purpose was to draw to the Raders’ attention their concerns about the conduct of their son, both to explain their decision about school fees, and in the hope that doing so might lead to a reduction in the overt conflict between their respective children. Her Honour did not err in rejecting Mr Rader’s assertion of malice.

85. It follows that her Honour did not err in upholding the defence of qualified privilege.

Conclusion

86. As the claim was rightly dismissed on the dual bases that the appellant had failed to discharge the onus of proof of demonstrating serious harm to his reputation, and that the publication took place on an occasion of qualified privilege and was not actuated by malice, it is unnecessary to address the grounds which impugn the judge’s contingent assessment of damages.

87. As has been mentioned, the respondents challenge the competency of the appeal, arguing that leave is required because the matter at issue amounts to no more than $100,000. Her Honour contingently assessed damages at $15,000. The appellant relied on an affidavit of his solicitor which states that in his opinion, the matter at issue amounts to $100,000 or more. ^[64] The basis of that bare ipse dixit is not disclosed, and as the respondents submit seems “highly improbable”, but it was not challenged by cross-examination. Nonetheless it is difficult to see how, given the limited nature of the publication, an award of damages in excess of $100,000 could ever realistically have been contemplated.

    64. Affidavit of Stewart O’Connell of 17 February 2022.

88. Although I incline to the view that leave to appeal was required, it is unnecessary to resolve this issue. The challenge to competency was a late one. Because the July 2021 amendments to the Defamation Act 2005 (NSW) introduce an equivalent “serious harm” test as that which is in issue in the appeal, the appeal involves a question of principle of some general importance. I would grant leave to appeal, if it be required.

89. In my opinion, therefore, leave to appeal if required should be granted, but the appeal should be dismissed, with costs.

90. BASTEN AJA: I agree with the orders proposed by Brereton JA. With one minor reservation, I also agree with his reasons.

91. The reservation relates to the exegesis on the meaning of “serious” in s 1 of the Defamation Act 2013 (UK). There is a risk in seeking synonyms, which may later be treated as valid replacements for the ordinary English word adopted by the Parliament. There is also a risk in seeking to place the term on a scale, between other terms of equal imprecision. The critical concept is “serious harm to the reputation of the claimant”; it is that to which the court is required to attend by reference to the evidence of a range of matters. Analysis of individual component words is apt to distract from that inherently impressionistic exercise.

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Endnotes

Decision last updated: 05 October 2022