Schlaepfer v ASIC

In the Federal Court, Schlaepfer sued ASIC for defamation, alleging that ASIC officers had made defamatory statements to stockbrokers, expressing concerns about potential market manipulation and identifying the plaintiffs. The court was tasked with determining whether the communications conveyed defamatory imputations, whether the plaintiffs were identified by the communications, and whether the defences of common law and statutory qualified privilege applied. Additionally, the court needed to assess whether the tort of injurious falsehood was established, focusing on whether there was proof of malice.

The court found that the communications made by the ASIC officers to the stockbrokers conveyed the regulator’s concerns about potential market manipulation, which could be interpreted as defamatory imputations. The plaintiffs were identified by these communications, fulfilling the criteria for defamation. However, the court concluded that the common law qualified privilege defence was established, as the communications were made in good faith and were relevant to the officers' duties. Furthermore, the statutory qualified privilege was also affirmed, as the communications were made in the course of ASIC's statutory functions.

The court held that the plaintiffs failed to prove the tort of injurious falsehood, specifically the element of malice. The officers' communications were found to be made in good faith and without any intent to cause harm. Therefore, the court dismissed the claim of injurious falsehood. The court ultimately found in favour of ASIC, upholding the qualified privilege defences and rejecting the defamation and injurious falsehood claims.