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
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Rader v Haines [2022] NSWCA 198
Case
[2022] NSWCA 198
Decision Date
CaseChat Overview and Summary
The appeal concerned a defamation claim brought by the plaintiff, Mr. Rader, against the defendants, Mr. and Mrs. Haines, his former in-laws. The dispute arose from an email sent by the defendants to the plaintiff's parents, which the plaintiff alleged contained defamatory imputations about him. The primary judge had found that the plaintiff had not satisfied the "serious harm" threshold required by section 1 of the Defamation Act 2013 (UK), and therefore dismissed the claim.
The Court of Appeal was required to determine whether the primary judge erred in finding that the plaintiff had failed to establish serious harm to his reputation. This involved considering the time at which the harm should be assessed, the relevance of the duration of any harm, and the impact of any delay in the plaintiff complaining or commencing proceedings. Additionally, the court had to consider whether an imputation concerning a specific instance of conduct could support a general imputation, and whether it was necessary for the court to find that each conveyed imputation was defamatory. The court also considered the defence of common law qualified privilege, specifically whether the occasion of sending the email was privileged and if that privilege was lost due to malice.
The Court of Appeal upheld the primary judge's conclusion that the serious harm threshold was not met. The judges reasoned that the limited publication of the email, coupled with the nature of the imputations and the lack of evidence of actual harm to the plaintiff's reputation, meant that the statutory requirement of serious harm had not been satisfied. The court also found that the defence of qualified privilege was likely made out, as the email concerned family matters and there was no sufficient evidence of malice to defeat the privilege.
Consequently, the Court of Appeal granted leave to appeal to the extent required and dismissed the appeal, ordering the appellant to pay the respondents' costs.