Catchwords: DEFAMATION – Whether an email sent by the company secretary of a company to the two directors of the company conveyed defamatory imputations of two of the shareholders of the company – whether defences of statutory and common law qualified privilege applied – whether defence of “triviality” established – defence of triviality established – judgment for respondent.
15, 16 and 17 April 2020 25 and 26 May 2020 and 1 July 2020
Date of Last Submission:
1 July 2020
Delivered at:
Sydney
Delivered on:
30 October 2020
REPRESENTATION
Counsel for the Applicants:
Mr R Rasmussen, by video
Solicitors for the Applicants:
Kalantzis Lawyers
Counsel for the Respondent:
Mr T Crispin, by video
Solicitors for the Respondent:
Lloyd & Lloyd Solicitors
ORDERS
Judgment for the respondent.
By 13 November 2020 the parties file and serve written submissions on the question of costs together with such affidavits, if any, on which they intend to rely.
By 20 November 2020 the parties inform the associate to Judge Manousaridis whether they wish to supplement their written submissions by oral argument or whether they agree to the question of costs being determined on the papers.
FEDERAL CIRCUIT COURT OF AUSTRALIA
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
Sarina v O'Shannassy (No.5) [2020] FCCA 2911
Case
[2020] FCCA 2911
Decision Date
CaseChat Overview and Summary
The proceeding concerned a defamation claim brought by the applicant, Sarina, against the respondent, O'Shannassy. The dispute arose from an email sent by the respondent, in their capacity as company secretary, to the two directors of a company. The applicant alleged that this email conveyed defamatory imputations concerning her and another shareholder.
The court was required to determine whether the email contained defamatory imputations about the applicant, and if so, whether any of the defences raised by the respondent were made out. Specifically, the court considered the defences of statutory and common law qualified privilege, as well as the defence of triviality under section 33 of the *Defamation Act 2005* (NSW).
His Honour Judge Manousaridis found that the defence of triviality was established. This defence applies where the defendant proves that the imputation carried by the defamatory matter has not caused, and is not likely to cause, the plaintiff the serious harm required to justify the award of damages. Consequently, the court entered judgment for the respondent.