Schlaepfer v Australian Securities and Investments Commission

The Court of Appeal of the Supreme Court of New South Wales considered an appeal by Mr Schlaepfer against orders made by a primary judge in defamation proceedings. Mr Schlaepfer alleged that the Australian Securities and Investments Commission (ASIC) had defamed him by publishing certain words. The primary judge had found that Mr Schlaepfer had failed to prove publication of the words as pleaded, and that the imputations complained of were not conveyed to an ordinary reasonable listener. ASIC had also sought to rely on defences of qualified privilege and justification.

The central legal issues before the Court of Appeal were whether the primary judge had erred in finding that slander was not proved in the terms pleaded, and whether the appellant had been identified by the matters complained of. Further, the court had to consider whether the imputations complained of were conveyed to the ordinary reasonable listener. The court also examined the primary judge's findings regarding ASIC's defences of qualified privilege and justification, including whether reasonableness was a necessary element to prove for the qualified privilege defence as pleaded, and whether the truth of the imputation of market manipulation had been sufficiently established for the justification defence.

The Court of Appeal upheld the primary judge's findings that Mr Schlaepfer had failed to prove publication of the slander in the terms pleaded and that the imputations were not conveyed to an ordinary reasonable listener. The court found that the contemporaneous email relied upon by Mr Schlaepfer did not establish publication of the specific words alleged. Regarding the defences, the court agreed with the primary judge that ASIC had established the defence of qualified privilege, finding that reasonableness was not a separate requirement for the defence as pleaded and that the circumstances supported its application. The court also found that ASIC had sufficiently established the truth of the imputation of market manipulation for the purposes of the justification defence, even without proving the specific trading of individual traders.

Consequently, the Court of Appeal ordered that the primary judge's order as to costs be vacated, that the appeal otherwise be dismissed, and that Mr Schlaepfer pay one third of the costs of the proceedings below and of the appeal.