Stone v Moore

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
STONE v MOORE
[2016] SASCFC 50
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Doyle)
11 May 2016
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATION
DEFAMATION - JUSTIFICATION - TRUTH
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - STATEMENTS MADE IN RESPECT OF A DUTY OR INTEREST
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - REBUTTAL OF PRIVILEGE BY MALICE
The appellant and respondent are siblings aged in their 70s. The appellant brought a defamation claim against the respondent in respect of two publications made by the respondent following the death of their mother. The trial judge dismissed the claim in respect of both publications.
In respect of the first publication, the trial judge held that two defamatory imputations were conveyed, but they were conveyed on an occasion of qualified privilege. The defence of qualified privilege was not defeated by malice. In respect of the second publication, the trial judge found that two of the five imputations were conveyed. However, he found that they were defensible as true.
The appellant appealed on a number of grounds. In respect of the first publication, the appellant contended that the trial judge erred in holding that the publication was made on an occasion of qualified privilege, or alternatively in not finding malice on the part of the respondent. In respect of the second publication, the appellant appealed on the grounds that the trial judge erred in not finding that certain imputations were conveyed. The appellant also contended that the trial judge erred in finding that the imputations conveyed were true.
Held as per Doyle J (Kourakis CJ and Stanley J agreeing), allowing the appeal:
1. In respect of the first publication, the trial judge correctly held that the statement was made on an occasion of qualified privilege, and that malice was not proven.
2. In respect of the second publication, the trial judge erred in not holding that the second, third and fifth pleaded imputations were conveyed and not proven to be true, with the result that the appellant is entitled to an award of $2,000 in respect of the second publication.
Defamation Act 2005 (SA) s 28, s 23, referred to.
Carr v Lipscombe [2006] WASC 142; Horrocks v Lowe [1975] AC 135, discussed.
Browne v Dunn (1893) 6 R 67; Wade v Australian Railway Historical Society (2000) 77 SASR 221; Fox v Percy (2003) 214 CLR 118; The Age Co Ltd v Elliott (2006) 14 VR 375; Roberts v Bass (2002) 212 CLR 1; Cush v Dillon (2011) 243 CLR 298; Papaconstuntinos v Holmes À Court (2012) 249 CLR 534; Andreyevich v Kosovich (1947) 47 SR (NSW) 357; Howe v Lees (1910) 11 CLR 361; Bennette v Cohen [2009] NSWCA 60; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; Adam v Ward [1917] AC 309; Stuart v Bell [1891] 2 QB 341; Moffat v Coats (1906) 44 SLR 20; Adams v Coleridge (1884) 1 TLR 84; Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30; Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354; Lewis v Daily Telegraph Ltd [1964] AC 234; Farquhar v Bottom [1980] 2 NSWLR 380; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; Triggell v Pheeney (1951) 82 CLR 497, considered.

STONE v MOORE
[2016] SASCFC 50
Full Court: Kourakis CJ, Stanley and Doyle JJ

KOURAKIS CJ: I agree that the appeal should be allowed and join in the orders proposed by Doyle J. Save for the following qualification, I agree with the reasons His Honour gives.
I would identify the occasion of qualified privilege on which the first publication was made a little differently. The community expects family members to be free to resolve family affairs uninhibited by the threat of a defamation action. However, if family tension, without more, is the identifying criterion, the delineation between what is germane to the occasion, and what is an abuse of it, is problematic. Defamatory statements are part of the armoury of a family at war. The occasion of privilege should not be so widely defined as to allow their indiscriminate use indefinitely. I would prefer to identify the occasion by reference to an interest in resolving a family affair by which I mean such things as family functions, arrangements for the education, advancement or care of family members, and the possession, use or enjoyment of family property. I do not intend that list to be prescriptive or closed. The point I seek to make is that it is the resolution of family tension over particular affairs of that kind which creates a sufficient interest to cloak, with qualified privilege, defamatory statements made about the family members involved in them.
The slightly more restrictive approach I take is inconsequential in the circumstances of this case because the first publication occurred in the course of a discussion in which Frank explained to Adam his decision not to inform Carole of, or involve her in, the funeral arrangements of their mother. The statements he made were germane to that occasion. The evidence does not support a finding that Frank’s dominant motivation was other than to explain and justify his position.
STANLEY J: I agree with the orders proposed by Doyle J and with his reasons.
DOYLE J:
The appellant (Carole) and respondent (Frank) are siblings aged in their 70s. Their parents, now deceased, were Mavis and Frank Senior.
Carole brought a defamation claim against Frank in respect of two publications made by him in the weeks following the death of Mavis. The first was an oral statement made by Frank on 7 August 2012 (the 7 August statement). It was made in the presence of his partner (Susan), his nephew and the son of Carole (Adam), and Adam’s wife (Mirella). It related to the circumstances surrounding Carole’s estrangement from her mother and included reference to an allegation that she had an abortion when she was about 19 years of age. The second was an email which Frank sent to Mirella on 8 August 2012 (the 8 August email) for the purpose of her forwarding to Carole. The email criticised Carole’s treatment of her mother, Mavis.
The trial judge dismissed the claim in respect of both publications. In relation to the 7 August statement, his Honour held that two defamatory imputations were conveyed, but that they were conveyed on an occasion of qualified privilege both at common law and under s 28 of the Defamation Act 2005 (SA). The defences of qualified privilege were not defeated by malice on the part of Frank. In relation to the 8 August email, his Honour found that only two of the five pleaded imputations were conveyed. His Honour also held that to the extent that the pleaded imputations were conveyed they were defensible as true.
Carole’s claim thus failed in respect of both publications. She has appealed in respect of both publications.
In respect of the first publication she contends that the trial judge erred in holding that the statement was made on an occasion of qualified privilege, or alternatively in not finding malice on the part of Frank in making the statement. Resolution of these issues turns in part on what words were spoken by Frank on 7 August, and in part on the context (both general and immediate) in which he spoke.
In respect of the second publication, the appellant contends that the trial judge erred in not finding that certain imputations were conveyed. She also contends that the trial judge erred in finding that the imputations conveyed were true. Resolution of this latter issue requires a consideration of the relationship between Carole and her mother over a number of decades.
For the reasons which follow, it is my view that no error has been established in the trial judge’s approach to the first publication. The appeal in respect of that publication, the 7 August statement, must fail. However, I would allow the appeal in respect of the second publication, the 8 August email, on the basis that three of the imputations which were conveyed were not proven to be true. However, given the nature and circumstances of the second publication, it is my view that only a very modest award of damages is appropriate. I would award damages in the amount of $2,000. I would not include any component by way of aggravated damages.
Family history
By way of overview of the relevant family history, Carole was born in 1938 and moved out of the family home in 1957 when she was about 19 years of age. There followed a period of a few years when Carole and Mavis were estranged. In the early 1960s they resumed a normal mother and adult daughter relationship. At some point following Frank Senior’s death in 1972 the relationship soured, and Carole and Mavis remained estranged until Mavis’ death at the age of 97 in 2012.
While Frank and Carole had little to do with each other from the time Carole left home, there was no evidence of ill will between them prior to the events the subject of these proceedings. Frank maintained a good relationship throughout with Carole’s son Adam and his family.
To resolve the various issues arising on appeal, it is necessary to set out the family history in greater detail. Except where indicated, the following narrative is drawn from the trial judge’s findings.
As mentioned, Carole was born in 1938. Frank was born in 1942. They spent their childhood in the family home in Adelaide.
Carole became engaged to Dean Stone in September 1957, and then married him in October 1958 after she had left the family home. They have one son, Adam, who was born in 1963. Adam’s first wife was Linda. He subsequently married Mirella. Adam, Mirella and their two children maintained a close relationship with Frank, at least until commencement of these proceedings.
Frank is married to Susan, having previously been married to Jenny and then Alison.
The circumstances of Carole leaving the family home in 1957 were a matter of dispute between the parties. It was common ground that Carole and Dean were in a relationship at the time, and that Carole’s parents did not approve of the relationship and did not want her to marry him. Carole’s evidence was that her father said that if she continued, or wanted to continue, to see Dean then she had to leave home. She said that her father gave her a date and time by which she was to leave, and that as a result of this she left home.
Frank, on the other hand, connected Carole’s leaving home to an incident he said occurred about a week earlier. He said that Carole was sent home from work as she was unwell and was found to be bleeding. The doctor came to the house and Frank was sent to his room. Frank said that when he came out of his room his parents were very distressed. He was told by his mother, either that evening or the next morning, that the doctor had examined Carole and that she was bleeding a great deal and had gone to hospital. He was told that the doctor had informed his parents that Carole had had an abortion, had lost a lot of blood and that it was just as well the doctor was called because she could have lost her life. Frank also gave evidence that his father told him something similar the next day.
Carole denied that she ever had an abortion. She did recall an incident when she was very unwell with severe pain in her stomach and had gone home from work. She was visited by the family doctor, who caused her to be admitted to hospital. Carole’s evidence was that she was operated on and the doctors found a burst ovarian cyst.
Frank did not raise the defence of justification in relation to his reference in the 7 August statement to Carole having had an abortion, and hence the trial judge said that it was unnecessary for him to make a finding as to whether the event which led to Carole’s hospitalisation was a burst ovarian cyst or the termination of a pregnancy.
The trial judge found that Carole was not ejected from the family home, but rather chose to leave after Dean was no longer welcome.
Carole and Dean married on 10 October 1958. Her parents were invited, but did not attend the wedding. Frank Senior refused Carole’s request to give her away. Frank was also invited to the wedding, but did not attend.
As mentioned, for a period of a few years following Carole leaving home, she and Mavis were estranged. Carole and Dean lived in Adelaide for about two years, but Carole did not see either her parents or brother in that time. They then moved to Melbourne for about two years, before moving to Sydney. During the period they were in Melbourne and Sydney, the only contact Carole had with her parents was a letter from Mavis advising that Frank Senior had suffered a heart attack and would like to see her. Carole was pregnant with Adam at the time, and was unable to travel because of difficulties with that pregnancy. She replied in writing that she was unable to visit. After Adam was born, Carole wrote again to her parents advising that she had a son. Her parents sent a card to the hospital and a gift for Adam.
From about the early 1960s, Carole and Mavis resumed a normal mother and adult daughter relationship. In late 1963 Carole and Adam visited and stayed with Mavis and Frank Senior in Adelaide. Soon after that, Mavis and Frank Senior also stayed for about a week with Carole and Dean, who had returned to live in Melbourne.
In about 1965, Carole, Dean and Adam returned to live in Adelaide. While the evidence was understandably general, from around this time Carole and her parents visited one and other regularly. Their relationship had been repaired.
However, there continued to be little if any relationship between Carole and Frank. They had not seen each other while Carole was living interstate. Carole was not invited to Frank’s 21^st birthday celebration in 1963. She was invited to and attended Frank’s first wedding to Jenny in 1965 or 1966. While Carole described her relationship with Frank up to 1973 as being a friendly one (despite their lack of contact), they thereafter drifted apart. However, there was no evidence of any particular incident or reason for that.
Carole alleged that she and Frank were estranged for over 40 years. They had only limited contact during that period. Frank did, however, develop a close relationship with Carole’s son Adam, and his wife Mirella, which continued until the death of Mavis in 2012. Frank also maintained a good relationship with his parents throughout their lives. The trial judge described him as a devoted son who always maintained close contact with Mavis, regularly visiting her and speaking with her by telephone.
Frank Senior died in 1972. In the period leading up to his death, Carole and Mavis continued to have a normal and friendly relationship. Following Frank’s death, Mavis stayed with Carole and Dean, although it is not clear for how long. Carole and Dean had built a house in Springfield and there was some discussion about a proposal that a granny flat be built over their garage for Mavis. Mavis declined this offer.
At some point following Frank Senior’s death the relationship between Carole and Mavis again deteriorated. Carole gave evidence in which she attributed the deterioration of her relationship with Mavis to a conversation they had following Frank’s second marriage, to Alison, in 1979. She said that Mavis informed her in that conversation of Frank’s marriage to Alison and the birth of their child Kieran. Carole said that when she responded by saying to her mother “I wondered when you were going to tell me”, Mavis became furious with her. She said that while she made some subsequent attempts to contact her mother, they became estranged and never saw each other again.
The trial judge did not accept that the estrangement followed from this conversation. His Honour linked the commencement of the second period of estrangement between Carole and Mavis to the incident in relation to the granny flat, at least in a temporal sense. However, after noting that their relationship deteriorated from about the time of this incident, his Honour added that it was unnecessary to make any finding as to the actual reason for the estrangement.
In any event, Carole and Mavis remained estranged until Mavis’ death on 31 July 2012. Other than occasional cards from Carole to Mavis, they had almost no contact. Carole’s evidence was that she did not see her mother after 1979.
Events surrounding Mavis’ death
Mavis’ health declined in 2011. This culminated in her being hospitalised in July of that year following a suspected heart attack. Frank was told that there was a risk she would not survive, but after 10 days in hospital she recovered sufficiently to return home. Carole was informed of Mavis’ poor health at the time. She was driving to Falls Creek when she received the news, but was planning to travel back to Adelaide in response to the news of her mother’s health. However, she was then told that her mother was “all right” and so abandoned her plans for travel.
Between that event in July 2011 and the death of Mavis, Carole did not communicate with Mavis. In the last year of Mavis’ life, her health was up and down. Susan (Frank’s third wife) developed a practice of distributing email reports on the health of Mavis. The recipients were Frank’s children, together with Adam and Mirella. Carole was not included in the distribution list, but Frank relied upon Adam and Mirella to keep her informed.
On 31 July 2012, when Mavis died, Carole was in Falls Creek and was informed of the death by Adam. Carole wanted to attend the funeral. Her evidence was that Dean telephoned the funeral parlour and was informed that Frank had instructed the funeral parlour not to tell her anything. Frank denied that he gave any such instruction to the funeral parlour. His evidence was that while they knew it was a private funeral, he did not give instructions to them not to give details to Carole or anybody else.
Carole’s evidence was that the information given to Dean caused her to write to Frank. She did not have Frank’s address, and did not have her own email facility. She relied upon the assistance of others to send emails, and on this occasion used Mirella. Whilst still in Falls Creek, Carole sent a confidential fax to the post office for Mirella to collect and forward to Frank. On 2 August 2012, Mirella sent an email to Susan stating:
As we discussed, please find attached the letter from Carole. I am sorry I have had to send this to you.
Attached to that message to Susan was the following letter from Carole which had been sent to the post office:
Dear Frank,
I was saddened to learn about the death of Mum on the morning of 31 July.
I was also disappointed that I had to learn of the death not directly from you as her son and my brother, but indirectly.
I am very concerned that you have obviously sought to avoid me in not advising me personally of mum’s death.
I am unaware of anything I may have done to deserve this.
I am also unaware of any funeral arrangements.
I would very much appreciate it if you were to contact me on [mobile number] and advise me of the arrangements for mum’s funeral.
Thank you.
Regards,
Carole.
Frank’s evidence was that after Mavis passed away he did not telephone Carole. He said he did not even call his own children on the day that it happened because he was too upset. On the following day he did speak to family members, but not to Carole. His explanation was that Carole had not shown any interest in her mother for many years and so he could not see any point in doing so. He denied that he had made any decision not to call her, but never turned his mind to it. He denied that he was seeking to avoid Carole as she had suggested in her letter. He said that he and his wife kept Adam and Mirella informed, and believed that they passed the information on to Carole.

Carole said that despite it being made apparent to her that Frank did not want her at the funeral, she did want to attend and so she and Dean decided to travel from Falls Creek to Adelaide.
Carole was pressing Adam for details of the funeral arrangements. Adam was communicating with both Frank and Carole. Adam was uncomfortable with his situation. Frank and Susan visited Mirella during the day on 7 August and an arrangement was made to meet that evening. Frank and Susan went to the home of Adam and Mirella after dinner and there was a discussion about family matters.
It was during the course of this discussion that Frank made the 7 August statement which is the first publication complained of in these proceedings. The detail of the evidence in relation to this discussion is addressed later in these reasons. It is sufficient for present purposes to note that during the course of this discussion Frank made reference, in the context of an explanation for the estranged relationship between Carole and Mavis, to Carole having had an abortion.
On 8 August, Carole caused Mirella to send another email to Frank advising that she had returned to Adelaide in readiness for the funeral. The email advised the telephone number for Carole’s home in Adelaide.
Also on 8 August, Frank sent an email to Mirella requesting her to pass on the following message to Carole:
Carole,
The funeral now has been confirmed for this Friday. I am inviting only the grand-children and great grand-children to what will be a very small private burial.
I do not consider it appropriate for you to attend.
Yes, I am your brother and we have the same Mother, but only one of us has treated her the way a child should treat its mother. You have been worse than indifferent to your Mother’s well being, you have been callous.
If you believe by attending it will go some way towards alleviating your guilt you are sadly mistaken. It will be seen as an act of gross hypocrisy.
If you would like a private viewing I am willing to instruct the funeral parlour it has my approval to do so.
I can be contacted on [mobile number]
Frank
This 8 August email is the second publication complained of in these proceedings. The email was passed on to Carole by Mirella. Carole said she was very hurt and upset by it.
Also on 8 August, Carole was asked to attend at the home of Adam and Mirella. She said that this was the occasion when Adam told her the story that Frank had told him to the effect that she had had an abortion. She said that her son referred to “a backyard abortion” and was very, very distressed. Carole said that she was very upset and distressed, and had never heard of such a thing until that time.
On 9 August 2012 Carole, via Mirella, replied to Frank by email:
Dear Frank,
I was very distressed to receive your email of 8 August via Mirella.
I was particularly distressed that you do not consider that I should attend Mother’s funeral.
The accusations you make against me in your e-mail are without merit and highly offensive.
Again and, as previously stated to you, I am unaware of anything I may have done to deserve such an offensive reaction from you. In all the present circumstances, I would have thought a more dignified reaction was warranted.
Regards,
Carole.
Nothing was said in that email about what Frank had said to Adam and Mirella on 7 August in relation to the abortion.
The funeral was arranged for 10 August. Mavis’ death was notified in the personal notices in The Advertiser newspaper on the same day. The notice referred to a number of family members, but did not refer to Carole.
Between the death of Mavis on 31 July and the funeral on 10 August, Carole only spoke to her brother on one occasion, which was when she telephoned him. She told him that she wanted to attend the funeral. Her evidence was that Frank was opposed to this and said “if you come it will be as if you are not there. As far as I am concerned, you won’t be there.”
Notwithstanding Frank’s opposition, Carole did attend the funeral which was conducted at the site of Mavis’ grave. After the service Carole and Mirella returned home. The others who attended, most of whom were from interstate, were taken by Frank on a tour of sites which had been important to Mavis. There was an evening celebration of Mavis’ life at a Glenelg restaurant. Carole was not invited and did not attend.
Challenges to the trial judge’s findings of fact
During the course of the appeal a number of the trial judge’s findings of fact were challenged by the appellant, some directly and some indirectly. The Court was provided with an annotated summary of some of the evidence relevant to the challenged findings, as well as a table identifying a number of findings which it was said had not been the subject of cross-examination in compliance with the principle in Browne v Dunn.[1]
[1] Browne v Dunn (1893) 6 R 67.
As this is an appeal by way of rehearing it is appropriate that this Court undertake an independent review of the evidence and findings below, and form its own view as to the appropriate outcomes. That said, the appeal is not a hearing de novo, and it is not for this Court to substitute its own view, or otherwise interfere, unless satisfied that the trial judge has made an error.[2] Further, in conducting its own review of the evidence and findings below, while not shying away from the task of weighing conflicting evidence and drawing inferences where appropriate, this Court should nevertheless have regard to the findings of the trial judge, and any advantage that he may have had in making the findings. In particular, the Court should be mindful of the trial judge’s advantage in assessing the credibility of witnesses, and in so doing be guided by the principles set out in Fox v Percy.[3]
[2] Wade v Australian Railway Historical Society (2000) 77 SASR 221 at [38]-[40].
[3] Fox v Percy (2003) 214 CLR 118.
In the ultimate analysis, I have not found it necessary to address every challenge made to the trial judge’s findings. To the extent the challenged findings are relevant to the reasoning and conclusions in relation to the matters in contention on this appeal, they are addressed below in the context in which they arise.
In relation to the submissions alleging non-compliance with the principle in Browne v Dunn, the trial judge did not mention this principle in his reasons. However, having reviewed the evidence in relation to the matters relevant to the issues on appeal, there is no reason to think the trial judge overlooked the principle, or did not otherwise bring it to bear in his findings of fact.
Finally in relation to factual matters, the appellant made a submission to the effect that because the respondent did not plead or establish a defence of justification in relation to the imputations conveyed by the 7 August statement as to an abortion, these imputations must be presumed to be false.
This presumption of falsity is often referred to in defamation law. While it is a generally accepted principle, its operation is ordinarily seen in the context of explanations of the onus of proof in defamation claims, and in particular in respect of the defence of justification and the issue of damages. The presumption explains (if it is not merely a consequence or reflection of) the need for a defendant to prove the truth of any defamatory imputation (or some other defence) if it is to avoid a finding of liability, and the Courts’ preparedness to assume or infer some loss of reputation even in the absence of evidence. It also operates to prevent evidence being led in mitigation of damages in the absence of a defence of justification.
The appellant in this case, however, seeks to make greater forensic use of the presumption of falsity. She contends that the trial judge should have approached the factual issues in the case on the footing that – by reason of the presumption of falsity – there was no abortion. The appellant did not cite any authority in support of this extended forensic operation of the presumption. In my view, the appellant’s submission overstates the significance of the presumption. Even in the limited sphere in which it operates, some disquiet has been expressed as to the foundation for the presumption.[4] I see no reason to extend its operation in the manner contended for. To inject this presumption into the fact finding task more generally in a defamation trial risks the Court making artificial findings, including findings contrary to evidence which the trial judge considers reliable.
[4] The Age Co Ltd v Elliott (2006) 14 VR 375 at [15], [20].
In the context of this case, it was therefore appropriate for the trial judge to adopt the approach he did, namely proceeding on the basis of a presumption of falsity in respect of the imputations arising from the 7 August statement in recognising that the defendant carried the onus on the defences raised, but nevertheless declining to make any express finding as to whether or not as a matter of fact the appellant did have an abortion. I do not think it was necessary for his Honour to make a finding on this issue in order to determine the issue of malice, or any other issue which arose in the case. Nor do I accept that the presumption can be invoked to impugn the respondent’s evidence.
First publication: the 7 August statement
As the trial judge found, there was a common theme to the evidence of the four people (Frank, Susan, Adam and Mirella) who were present when Frank said the words complained of on 7 August. All agreed that a conversation took place between Adam and Frank, in the context of arrangements for Mavis’ funeral, as to the difficulties in the relationship between Carole and Mavis. They agreed that during the course of this conversation Frank told Adam that a reason for the estrangement was that Carole had had an abortion.
There were two main differences in their accounts. The first was whether (and the extent to which) Frank was responding to a query from Adam or volunteered the information. The second was whether Frank spoke in terms of what his parents told him about the abortion, or in terms that suggested personal knowledge of the fact of an abortion. There was also a dispute as to whether Adam had previously been informed of the allegation that Carole had had an abortion.
Both Adam and Mirella recalled Adam making reference to Carole being required to leave home because her parents did not approve of Dean. Adam said that he was expressing his inability to understand, and disgust, that his mother had been thrown out of home as a young girl. They said that in that context, Frank asked Adam whether he wanted to know what had really happened, and that Adam said that he did. Adam added that Frank then asked again, saying “are you sure?” or “do you really want to know?” Adam and Mirella said that Frank then told Adam that Carole had come home from work one day, was bleeding, and a doctor was called who confirmed that Carole had had an abortion. Adam recalled reference being made to a backyard abortion.
Adam rejected the suggestion that in referring to an abortion Frank was merely responding to an invitation by Adam to give him information. He characterised the exchange as Frank having volunteered the information. That said, I note that, even on Adam’s account, it was only ‘volunteered’ after Frank had twice checked whether Adam wanted to know what had happened.
The terms in which Adam and Mirella recounted the conversation suggested that Frank spoke in terms of the abortion being a fact rather than merely something he had been told by his parents. That said, as the trial judge noted, Mirella made it plain that she was having difficulty in recalling the detail of the conversation, and so not much weight can be attached to her evidence in determining the detail of what was said.
Frank’s evidence was that Adam said words to the effect that he did not know why Mavis and Carole were estranged and he would like to know why. Frank said that Adam had made similar inquiries of him on four or five earlier occasions and that each time he told Adam that he (Adam) would need to speak to his mother. Frank said that on this occasion Adam was agitated and distressed, and said that Carole would not tell him. Frank said that he felt that as a member of the family Adam was entitled to know; that he could not understand why Carole would not talk to Adam about it given that he was approaching nearly 50 years of age. After hesitating, he said “are you sure you want to know?” and Adam said “yes”. Frank’s evidence as to what he then said to Adam was:
I told him that to the best of my belief that my parents had told me that Carole had been sent home one day from work as she was ill. That the family doctor was called. She was bleeding. The doctor told my parents that Carole had had an abortion. He said that she had lost a lot of blood and had she not received attention she would have died.
Frank said that he believed what he was saying because he believed what his parents had told him. He said that he made it clear to Adam that what he was telling him was his understanding from his parents.
Frank said that there followed a general discussion about the terrible position that Carole must have found herself in. He said that there was general agreement that it would have been a very sad and difficult time for her. Frank did say that he did not recall any discussion on this occasion about Carole having been “kicked out of home”, but that Adam had said that he found it difficult to understand why Carole left home at such an early age.
The trial judge also summarised the evidence of Frank’s wife, Susan. He commenced by noting that to the extent there were any significant differences between the evidence of the witnesses, he preferred the evidence of Susan. She had a clear recollection of the events and was an impressive witness. The trial judge said that he formed the opinion that all of the witnesses as to the events of 7 August were attempting to give their best recollection of events three years ago, but that the evidence of Susan was clearer and more persuasive.
As to the conversation on 7 August, Susan said that Adam asked why Mavis and Carole had not spoken for so long. She said that Frank responded to Adam, saying “there are a number of things involved” and “it goes back a long way but you really need to speak to your mother about that”. Adam said that he had tried to speak to his mother but she would not tell him, although she said she would tell him one day. Frank responded telling Adam he should speak to his mother about the matter. Adam did not accept that and again requested that Frank tell him. He said “please Frank, tell us what happened’. Then Mirella, who until this point had been quiet, said “yes Frank, Carole won’t tell us, will you please tell us what happened?”
Susan’s evidence as to Frank’s response was as follows:
So Frank said “It all started back when your mum started going out with Dean” and Adam said “Yes, I know that they didn’t like Dean” and Frank said “No, they didn’t like Dean. They thought that he influenced her too much, that she would do anything he said” and Frank said “I was only a small boy Adam, when all of this happened”. He said “But I remember my parents telling me that Carole had had an abortion”. He said “I had been at home one day when Carole had come home from work unwell and the family doctor had been called” and he said “I was sent to my room and then later my parents told me that she was extremely unwell, that she could have died from blood loss from an abortion”.
When cross-examined, it was put to Susan that in the conversation Frank presented the alleged abortion as a fact rather than what his parents told him. Susan said that was not correct. She said that he presented it as a combination of his recollections of that day as a child and what his parents had told him subsequently. She later said that Frank’s statement about the abortion was quite clearly expressed in terms of what his parents told him. The trial judge expressly accepted Susan’s evidence on this topic.
Having reviewed the evidence in relation to the 7 August statement, there is no reason to interfere with the trial judge’s findings, and in particular his acceptance of the evidence of Susan. It is therefore appropriate to proceed on the basis that the 7 August statement was made in response to questioning from Adam, and that Frank expressed himself in terms of what he had been told by his parents as to the abortion.
Before leaving the evidence on this topic, I note that one of the difficulties that led to the trial judge having doubts about the reliability of Adam as a witness was Adam’s denial of any previous knowledge of the allegation that Carole had had an abortion. The trial judge accepted the evidence of both Susan (Frank’s wife) and Linda (Adam’s former wife) that they had many years earlier been told by Mavis that Carole had had an abortion, and that they had mentioned this to Adam. I find this curious because while it explains Susan’s evidence that she was surprised when Adam asked the reason for the estrangement, it does not explain why Adam would have asked about the reasons for the estrangement if he already knew (or at least knew of a matter which might have provided some explanation for the estrangement). However, as the issue of Adam’s knowledge is not of any great significance to the issues on appeal, I do not need to address it further. I do not think the curiosity that I have adverted to is a basis for interfering with the trial judge’s findings in relation to the 7 August statement.
I have set out the evidence and findings in relation to the words spoken by Frank on 7 August in some detail because they are relevant to the existence of an occasion of qualified privilege as well as the issues which have arisen in relation to malice and unreasonableness.
First publication: imputations and publication
So far as the meaning of the words complained of in respect of the first publication is concerned, there is no longer any dispute. The trial judge found that the following two imputations were conveyed:
1.The appellant had fallen pregnant whilst out of wedlock and thereby brought shame and disgrace on to her family and to herself.
2.The appellant sought to cover-up that shame and disgrace by means of a backyard abortion.
While the appellant pleaded a third imputation (namely, that by reason of the matters in the first two imputations, she was ejected from her home), the trial judge relied primarily on the evidence of Susan in finding that the words spoken by Frank did not give rise to this meaning. The trial judge’s rejection of this imputation is not challenged on appeal. I proceed therefore on the basis that the first two imputations were conveyed.
The 7 August statement was made by Frank in the presence of Adam, Mirella and Susan. As the trial judge noted, Susan was already aware of the allegation of an abortion as a result of a conversation she had with Mavis. His Honour found that Adam was also already aware of the allegation as a result of the discussions he had with Susan and Linda. However, the trial judge held that despite the limited audience, and the knowledge of these two members of it, Frank did publish a defamatory statement. Again, this finding is not challenged.
The challenge to the trial judge’s conclusions in relation to the first publication is confined to whether an occasion of qualified privilege arose (under the common law and statutory defences of qualified privilege), and if so whether the defence which would otherwise exist was defeated either by malice or, in the case of the statutory defence, on the basis that the respondent’s conduct was not reasonable.
First publication: an occasion of common law qualified privilege
The trial judge held that Frank made the 7 August statement on an occasion of qualified privilege, both at common law and under s 28 of the Defamation Act. In so holding, his Honour essentially adopted the contention of the respondent that the requisite duty and interest arose from the familial context in which the statement was made. On appeal, the appellant challenges the existence of an occasion of qualified privilege, both at common law and under s 28.

So far as the common law is concerned, the rationale for the defence of qualified privilege is the recognition that, in certain circumstance, a plaintiff’s right to protect his or her reputation must be subordinated to other, greater public interests. It is thus a defence grounded in considerations of public policy, or the common convenience and welfare of society.[5]
[5] Roberts v Bass (2002) 212 CLR 1 at [62]; Cush v Dillon (2011) 243 CLR 298 at [12]; Papaconstuntinos v Holmes À Court (2012) 249 CLR 534 at 50.
While this is an accurate summary of the rationale for the defence, it is not to be understood as a complete statement of the law relating to this defence, or a test for determining when an occasion of privilege arises. In particular, it is not necessary to form the view that the content of a particular statement or communication was in the public interest or of benefit to society for it to have occurred on an occasion of privilege.[6] Rather, the concept of public interest operates at a higher level of generality, namely that the duty or interest of publisher and recipient is such that it is in the public interest that a person should be free to make the type of statement in the type of circumstances where the particular statement in question was made.[7] The concepts of public interest, and the common convenience and welfare of society, are more in the nature of the result or conclusion that explains why the law recognises an occasion of privilege than the determinant of whether an occasion is privileged.[8]
[6]    Papaconstuntinos v Holmes À Court (2012) 249 CLR 534 at [49]; Andreyevich v Kosovich (1947) 47 SR (NSW) 357 at 362; Howe v Lees (1910) 11 CLR 361 at 368-369.
[7]    Bennette v Cohen [2009] NSWCA 60 at [207].
[8]    Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 at [55], [63].
Broadly speaking, the determinant of whether an occasion of privilege exists is whether the relevant publisher had a duty or an interest in publishing the matter, and the recipient had a corresponding interest in receiving the matter. This is sometimes referred to as the necessary reciprocity of duty or interest between the publisher and recipient.[9]
[9] Cush v Dillon (2011) 243 CLR 298 at [12]; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 at [9], [55]; Roberts v Bass (2002) 212 CLR 1 at [62]; Adam v Ward [1917] AC 309 at 334.
Once the defendant establishes that the defamatory matter was published on an occasion of privilege the defence will succeed, subject to two qualifications. The first is that the defence will nevertheless fail if the defamatory statement was extraneous, irrelevant or not germane to the privileged occasion.[10] The second is that the defence will also fail if the plaintiff establishes malice on the part of the defendant, a matter addressed later in these reasons.[11]
[10] Cush v Dillon (2011) 243 CLR 298 at [19]-[22]; Adam v Ward [1917] AC 309 at 321; Horrocks v Lowe [1975] AC 135 at 151.
[11] Cush v Dillon (2011) 243 CLR 298 at [14]-[15].
In determining whether a privileged occasion exists, the courts have generally taken a broad view of the requisite reciprocity of duty or interest, recognising also that the concept of duty and interest overlap to some extent.
In relation to the publisher’s duty, the duty need not be a legal one. It may be a moral or social one. As Griffith CJ observed in Howe v Lee:[12]
The term “moral duty” is not used in a sense implying that a man who failed to make the communication under the circumstances would necessarily be regarded by his fellows as open to censure, but in the sense implying that it was made on an occasion on which a man who desired to do his duty to his neighbour would reasonably believe that he ought to make it.
[12] Howe v Lees (1910) 11 CLR 361 at 369.
In Stuart v Bell,[13] Lindley LJ suggested that a moral or social duty meant “a duty recognised by English people of ordinary intelligence and moral principle, but at the same time not a duty enforceable by legal proceedings, whether civil or criminal”.
[13] Stuart v Bell [1891] 2 QB 341 at 350.
On the other hand, the existence of a moral or social duty requires more than an idle curiosity in the concerns of another. It also requires more than a mere belief that the recipient will be interested in the relevant information or that it is appropriate to communicate that information. The requisite duty (or interest) must in fact exist.
As to the concept of an interest on the part of publisher, it is again not used in any narrow or technical sense. It is used in the broad popular sense that one might be interested in knowing a fact. But the interest must be more than as a matter of gossip or curiosity. It must be definite or tangible, and be a matter of substance apart from its mere quality as news.[14] As mentioned, there must also be a reciprocity of interest between the publisher and the recipient. However, the High Court has recently put the requirement of reciprocity in terms of a “community of interest” between the publisher and its audience, so as not to suggest the need for a perfect correspondence of interests.[15]
[14] Howe v Lees (1910) 11 CLR 361 at 377 and 398.
[15] Papaconstuntinos v Holmes À Court (2012) 249 CLR 334 at 541.
It is not possible to catalogue exhaustively all the circumstances in which a privileged occasion may exist. The categories of common law qualified privilege are not closed. Whether an occasion is privileged needs to be determined in the particular circumstances of the given case. Relevant considerations will include the identity of the publisher, and the persons to whom publication occurred. They will also include why, when and in what circumstances publication occurred, including the relationship between publisher and recipient. While not decisive, it will often assist in establishing the existence of a privileged occasion either that there is a request for the relevant communication, or some pre-existing relationship between the parties to the communication.
The existence of a close family relationship may establish the requisite duty or interest. The authors of Gatley on Libel and Slander state:[16]
The fact that a close family relationship exists between A and B may make it the especial duty of A to inform B of facts which he knows about C, in order that B’s interests may be protected, and any such information though volunteered, will be privileged, provided it is given bono fide and with the honest purpose of protecting B’s interests.
[16] Gatley on Libel and Slander, Eleventh Edition at [14.38].
The examples of privileged occasions within a family setting given by the authors of Gatley include where an uncle warned his nephew’s mother about the character of a companion of the nephew,[17] and where a brother wrote a letter to his sister warning her about the character of the man she proposed to marry.[18] The authors note that although there have been dramatic changes in the nature of family relationships since the time these cases were decided, the principle remains valid even if its application may now differ.
[17] Moffat v Coats (1906) 44 SLR 20 at 21.
[18] Adams v Coleridge (1884) 1 TLR 84 at 86.
More recently, Master Newnes declined to strike out a defence of qualified privilege in Carr v Lipscombe.[19] The defendant in that case sent an email to his six children in which he made defamatory statements about the plaintiff relating to a commercial transaction in which the defendant and plaintiff had been involved. The defendant, who was 70 years of age, alleged that the statements he made related to difficulties he had experienced in his business and with the plaintiff which were at the time of the email causing him great distress and anxiety, and were adversely affecting his health and well-being. The Master acknowledged that it was not sufficient that a family relationship existed. It must be established that, by reason of that family relationship, the necessary reciprocity of duty or interest existed.[20] However, his Honour held that a close family relationship may make it the social or moral duty of a parent to inform, or afford a parent an interest in informing, their children of matters affecting the parent’s health and well-being, and in interests of the children to know of such matters. Communications in relation to a commercial dispute which affect a parent’s health or well-being may arguably fall within that category. In normal circumstances no legal duty will arise, but there may be a social or moral duty, or interest, arising out of the natural love and affection between a parent and a child which is sufficient to establish a privileged occasion.[21]
[19] Carr v Lipscombe [2006] WASC 142.
[20] Carr v Lipscombe [2006] WASC 142 at [18].
[21] Carr v Lipscombe [2006] WASC 142 at [29].
In my view, in the context of this case, the family relationship gave rise to a duty or interest on the part of Frank, and a corresponding interest on the part of Adam (and the others present), such that the 7 August statement was made on an occasion of privilege. Adam was, of course, Frank’s nephew. Susan and Mirella, the other two people present, were their respective spouses. Frank’s mother, Mavis, had recently died and an issue had arisen over Carole’s attendance at the funeral given that she had been estranged from Mavis (her mother) for some decade. As a result of the strained or limited relationship between Carole and Frank, Adam (and to some extent Mirella) had taken on the role of passing on communications between Frank and Carole in relation to the funeral arrangements. Adam was uncomfortable with his role, and on the evening in question was distressed. It was in that context that the discussion in question occurred and in which Frank made the 7 August statement.
In that context, I consider that Frank had both a moral or social duty to inform, and an interest in informing, Adam (and the others present) as to the reasons for the difficult relationship between Carole and Mavis. Using the language of Griffith CJ in Howe v Lees (extracted above), while Frank would not have been open to censure if he did not, nevertheless it was reasonable to conclude that he ought to do so. It was reasonable to conclude that Adam should be informed of the reasons for the estrangement which was presenting tensions within his family. Further, Adam had a corresponding interest in knowing, or there was a community of interest in him knowing, why his mother and grandmother had been estranged. The relationship between Carole and Mavis was not a matter of merely historical relevance. It continued to be relevant or operative in the context of events following Mavis’ death, and, in particular, arrangements for Mavis’ funeral.
To so conclude is not to say that any statement by one family member about another will occur on an occasion of privilege. To the contrary, the mere fact of a family relationship will not ordinarily suffice. There will generally need to be more. In Carr v Lipscombe, for example, it was the fact that the defendant’s health was being affected by the relevant issue that (arguably) gave rise to an occasion of privilege in him communicating with his children. It is not possible to state exhaustively when an occasion of privilege will arise in a family setting. However, in addition to the examples given by the authors of Gatley, I think it can be said that the requisite reciprocity of duty or interest will often arise (as it did in this case) when the communication is made so as to explain, understand or alleviate tensions or dysfunction within a family, and is made to affected family members. Put another way, it will often be in the public interest, and to the benefit of society, that family members be able to communicate freely about tensions or dysfunction within their family without fear of reprisal in court proceedings.
As mentioned earlier, even if such an occasion exists, a statement will nevertheless not be protected if it is not relevant or germane to the occasion, or is motivated by malice.
As to the former, a broad view is taken of the connection to the privileged occasion required to attract the defence. The statement in question need not be central to the topic or occasion. It need only be relevant.[22] The focus is on the existence of a duty or interest in respect of the relevant topic, and not the precise words spoken. A statement does not cease to be sufficiently connected because it is defamatory or wrong. Nor does it cease to be sufficiently connected merely because it is excessive or extravagant – although this may be relevant to the issue of malice. There is a distinction between statements which are excessive yet within the privileged occasion, and statements which exceed the privileged occasion in the sense that they are irrelevant to it. In Cush v Dillon, the Court accepted that the communication of rumours and facts may equally be protected as relevant to the occasion.[23]
[22] Cush v Dillon (2011) 243 CLR 298 at [19]-[24].
[23] Cush v Dillon (2011) 243 CLR 298 at [22]-[23], [51]-[52].
By parity of reasoning, it does not matter for present purposes whether in fact Frank believed that Carole had an abortion, or had any proper basis for that belief. Nor does it matter that he spoke in terms of his own knowledge or what his parents had told him. Furthermore, it does not matter that the alleged abortion occurred over 50 years earlier, that it had not been discussed by Frank previously, or that Carole had not been given an opportunity to respond to the allegation before it was made. While these matters may be relevant to the issue of malice (and reasonableness under the statutory defence) they do not negate the existence of a privileged occasion. Nor in my view do any of them take the statement made by Frank outside the occasion of the privilege. The topic of the communication was the relationship between Carole and Mavis, and the allegation of an abortion was relevant and pertinent to that topic.
At trial there was a dispute as to whether Frank volunteered the reference to Carole’s abortion or said it in response to a question from Adam. The trial judge resolved this dispute by accepting Susan’s evidence (summarised earlier), which characterised it more as a response to a question than information which was volunteered. There is no reason or basis to interfere with this finding of fact. However, in my view, it does not matter significantly how the statement was characterised. If the allegation had been volunteered entirely gratuitously in the absence of any operative family tension or dysfunction, or in the absence of any discussion about the same, then there may well have been no occasion of privilege. But here there was both operative tension or dysfunction, and a discussion about the same. As such, the allegation would in my view have been relevant and pertinent to the privileged occasion regardless of whether it was volunteered or made in response to a question. I do not think it matters that the reference to the abortion was unnecessary, in the sense that Frank could have declined to mention it. While again a matter that might be relevant to malice or reasonableness, it is sufficient for present purposes that the reference was relevant and pertinent to the occasion of privilege.
First publication: malice
A defendant will be deprived of the common law defence of qualified privilege if the plaintiff proves that the defendant was actuated by malice. This requires establishing that the defendant’s sole or dominate motive or purpose in making a relevant statement was an improper one. An improper motive or purpose is one which is foreign to, or not connected to the furtherance of, the duty or interest which protects the making of the statement.[24]
[24] Cush v Dillon (2011) 243 CLR 298 at [14]-[15]; Horrocks v Lowe [1975] AC 135 at 149; Roberts v Bass (2002) 212 CLR 1 at [62], [76].
It is not sufficient to establish malice that one of the defendant’s motives in publishing the defamatory statement was an improper one. It must be the defendant’s sole or dominant motive.[25] Further, the actuating state of mind must be proven by evidence, not by mere conjecture.[26] While malice will usually fall to be inferred from the defendant’s conduct, words and knowledge, the public interest which qualified privilege exists to serve means it is not lightly to be inferred.[27]
[25] Horrocks v Lowe [1975] AC 135 at 149; Roberts v Bass (2002) 212 CLR 1 at [104].
[26] Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51.
[27] Horrocks v Lowe [1975] AC 135 at 150-151.
As it is an improper motive that destroys the privilege, lack of belief in the truth of the statement, or even ill-will felt towards the person defamed, will not necessarily be sufficient to destroy the privilege. However, positive knowledge that a statement is untrue, while not of itself proof of the improper motive that malice requires, may nevertheless be almost conclusive evidence of malice. This is because a person who knowingly publishes false and defamatory material will usually have an improper motive. But a distinction needs to be drawn between positive knowledge that a statement in untrue and a mere lack of belief in the truth of the statement. There will be many circumstances where the latter does not provide cogent evidence of any improper motive or malice.[28]
[28] Cush v Dillon (2011) 243 CLR 298 at [28]-[29]; Roberts v Bass (2002) 212 CLR 1 at [76]-[78], [83], [185].
If a defendant honestly believes what they published, then it will ordinarily be difficult to establish an improper motive or malice. Further, a defendant need not be reasonable in their belief. Carelessness, impulsiveness, or irrationality short of reckless indifference as to the truth or falsity of the defamatory statement will not usually constitute evidence of malice.[29] As Lord Diplock observed in Horrocks v Lowe:[30]
In ordinary life it is rare indeed for people to from their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative values. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be “honest”, that is, a positive belief that the conclusions they have reached are true. The law demands no more.
[29] Horrocks v Lowe [1975] AC 135 at 150.
[30] Horrocks v Lowe [1975] AC 135 at 150.
The appellant contended that an improper motive could be inferred by the Court. It was contended that the respondent’s motive was to further his (alleged) ill-will or animus towards the appellant, and to discourage or prevent her from attending her mother’s funeral, or at least to justify his stance in respect of the latter.
In summarising the evidence relevant to malice, the trial judge explained that while Frank and Carole had very little contact in the decades prior to Mavis’ death, there was no evidence of any incident or event that caused their relationship to deteriorate, or indeed of any friction between them prior to Mavis’ death.
Focusing on events around the time of Mavis’ death, the trial judge referred to Frank’s role in distributing email updates on Mavis’ health. While these were not sent directly to Carole, Frank said that he relied upon Adam to keep Carole informed (which Adam did). His Honour referred to Carole’s evidence about being told (second hand) of an instruction by Frank to the funeral parlour not to give her information. Frank gave evidence to the contrary, and the trial judge expressly made no finding on this issue.

It is common ground that Frank did not want Carole to attend the funeral, and that he told her this. His stated reason was that his mother had told him that because Carole had not shown interest in her, she did not want Carole to attend her funeral, and that he was thus giving effect to his mother’s wishes. The trial judge also referred to the communications between Frank and Carole following Mavis’ death, including Frank’s email of 8 August – noting that this communication did indicate that Frank was not well disposed towards Carole.
The trial judge ultimately rejected the appellant’s allegation of malice. His Honour held that while Frank was not well disposed towards Carole, the appellant did not prove that Frank’s sole or dominate motive for publishing the 7 August statement was his attitude towards his sister. It had thus not been proved that Frank was motivated by malice. To the contrary, the trial judge made a positive finding that Frank was motivated by a desire to inform Adam and Mirella of their family history and the reason why Mavis was estranged from Carole and Adam.
On appeal, the appellant’s challenge to the trial judge’s refusal to find malice focussed upon the respondent’s preparedness to make the allegation knowing that it could not be proven or refuted. The trial judge noted this submission, but did not accept it because there was no evidence that Frank applied his mind to the question of whether he or his sister could establish or refute the statement, or that he was motivated by that circumstance. Indeed, the trial judge went on to say that there was no reason for Frank to have done that. Frank believed the statement made to him by Mavis and his father, and he knew of the statements which Mavis had made to Susan and Linda as to the abortion.
I agree with the trial judge’s reasoning on this issue. The unchallenged finding that the defendant honestly believed the statement he made was true is a very significant matter. Even though his basis for this belief was of a hearsay nature, this is of little significance in this context. He had a basis for the belief he held, and it cannot be inferred that he was recklessly indifferent as to the truth. Whether he was likely to be able to prove the truth of the statement, or even turned his mind to this matter, is beside the point.
In my view, the way in which the 7 August conversation unfolded, on the findings of the trial judge, also tells against the existence of an improper motive. In particular, based on the evidence of Susan, the trial judge held that Frank did not make reference to the abortion out of the blue, or in an otherwise gratuitous fashion. The conversation had turned to the topic of the estrangement of Mavis and Carole. Adam made it plain that he wanted further information, and Frank hesitated before ultimately mentioning the abortion. It is relevant that Frank made it plain that his knowledge was based largely on what his parents told him. It is also relevant that the reference to an abortion was followed by some expressions of sympathy towards Carole and discussion of the difficult position she had found herself in.
In my view, no error has been established in the trial judge’s finding that the 7 August statement was made by the respondent on an occasion of privilege, and that the defence is not defeated by malice. It follows that the appeal must be dismissed insofar as it relates to the first publication.
First publication: statutory qualified privilege
Given the existence of a common law occasion of privilege, which was not defeated by malice, the existence of an additional or alternative statutory defence of qualified privilege is academic. However, for completeness I set out my reasons for upholding the trial judge’s conclusion that this defence was also established.
Under s 28(1) of the Defamation Act, there is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves:
(a)     the recipient has an interest or apparent interest in having information on some       subject; and
(b)     the matter is published to the recipient in the course of giving to the recipient information on that subject; and
(c)     the conduct of the defendant in publishing that matter is reasonable in the     circumstances.
As to the first of these three limbs, under s 28(2) the recipient has an apparent interest in having information on a subject if the defendant believes on reasonable grounds that the recipient has that interest.
The intention of the statutory defence of qualified privilege is to broaden the nature of the interest which will found a defence relative to the common law. The focus is on the interest of the recipient rather than a reciprocity or community of interests. Again, the concept of interest is not to be narrowly or technically construed. It is used in the broader, popular sense of a matter of substance in which the relevant audience might legitimately have an interest in knowing, as long as that interest goes beyond being a matter of curiosity or prurient interest. The interest or apparent interest may be direct or indirect, but it must nevertheless be definite or tangible, and not vague or insubstantial.[31]
[31] Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 40; Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 359.
For the same reasons that I have concluded that Adam (as well as Susan and Mirella) had an interest in receiving information in relation to the reasons for the estrangement between Carole and Mavis for the purposes of establishing an occasion of privilege at common law, they also had an “interest or apparent interest” in having information on that subject for the purposes of s 28(1) of the Defamation Act.
Turning to the second limb of the statutory defence of qualified privilege, this resembles the common law requirement that the publication be relevant or pertinent to the occasion of privilege. For the same reasons that I have concluded this common law requirement was satisfied, I am also of the view that this second limb of the statutory defence was satisfied.
The third limb of the statutory defence requires that the defendant established that his conduct in publishing the matter was reasonable in the circumstances. Section 28(3) provides that in determining whether the conduct of a defendant in publishing a matter was reasonable in the circumstances, a court may take into account the following:
(a)    the extent to which the matter published is of public interest; and
(b)    the extent to which the matter published relates to the performance of the public functions or activities of the person, and
(c)    the seriousness of any defamatory imputation carried by the matter published; and
(d)    the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and
(e)    whether it was in the public interest in the circumstances for the matter published to be published expeditiously; and
(f)     the nature of the business environment in which the defendant operates; and
(g)    the sources of the information in the matter published and the integrity of those sources; and
(h)    whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; and
(i)   any other steps taken to verify the information in the matter published, and
(j)   any other circumstances that the court considers relevant.
The trial judge concluded that Frank did act reasonably in publishing the 7 August statement. Critical to his Honour’s conclusion were his findings that (i) Frank believed the statement to be true; (ii) Frank had reasonable grounds to believe what his parents had told him was true, including by reason of his knowledge that Mavis had later told Susan and Linda that Carole had had an abortion; (iii) the statement was made in the context of a discussion about Carole’s relationship with Mavis such that it was reasonable for Frank to believe that Adam and Mirella had an interest in being told about the abortion; and (iv) the statement was presented as a combination of Frank’s own recollection and what he was told by his parents rather than as a statement of fact.
There was a proper basis for each of these findings in the evidence, and in my view they supported his Honour’s conclusion that Frank’s conduct in making the 7 August statement was reasonable in the circumstances.
The trial judge correctly observed that it was not necessary that all of the matters listed in s 28(3)(a) to (j) be ‘satisfied’. They are merely matters that the Court may take into account. Some of the matters listed are likely to be more relevant to the circumstances of a publication to the public (for example, through a media outlet), than to the circumstances of a publication to a limited audience such as occurred in this case. This is likely a recognition of the fact that the statutory defence is capable of extending to publications to the public, whereas the common law would rarely, if ever, have extended the defence that far.
To the extent the matters in s 28(3) are relevant here, they are largely neutral. While the relationship between Carole and Mavis is not a matter of public interest (s 28(3)(a)), and the imputations were relatively serious (s 28(3)(c)), on the trial judge’s findings Frank did distinguish between what was based on information from his parents as opposed to facts he knew of his own knowledge (s 28(3)(d)). It is relevant that Frank’s sources (his parents, and to some extent, Susan and Linda) were reasonably reliable (s 28(3)(g)), and that given that his parents were dead, and the time that had passed, there were limited if any options for Frank to verify his understanding (s 28(3)(i)).
The appellant made much of Frank’s failure to seek Carole’s response to the allegation before repeating it to Adam, Mirella and Susan (s 28(3)(h)). In my view, this consideration carries little weight in the context of this case. In part the reason for this was that Frank had heard the allegation from sources which he reasonably regarded as reliable. Also significant in this respect is the fact that the 7 August statement was made to a limited audience in a setting where the topic for discussion arose relatively spontaneously. By way of contrast, this was not a case involving a media outlet choosing to break a story to the public at large. In those circumstances – particularly where there is no urgency, or the publisher’s sources are potentially unreliable – the need to obtain and publish the affected person’s side of the story is often critical.
In my view, consideration of the matters listed in s 28(3) does not alter the conclusion that Frank’s conduct in making the 7 August statement was reasonable in the circumstances.
Finally in relation to the statutory defence, s 28(4) provides that the defence is defeated if the plaintiff proves that the publication of the matter was actuated by malice. It would be rare that a defendant succeeds in establishing that he or she was reasonable under s 28(3) but the plaintiff nevertheless establishes malice. In any event, this is not such a case. For the reasons set out in my earlier consideration of the common law defence, no error has been established in the trial judge’s finding that the appellant failed to establish malice on the part of Frank.
It is for these reasons that I agree with the trial judge’s conclusion that the statutory defence of qualified privilege was established.
Second publication
The terms of the second publication, the 8 August email, are set out earlier in these reasons. Before addressing the submissions made in relation to the meanings conveyed by that email, and the truth of those meanings, I note that the trial judge accepted that publication to Mirella was sufficient publication for the purposes of defamation law. His Honour also rejected the contention that the publication occurred on an occasion of privilege, on the basis that there was no interest in publishing this email to Mirella. As the trial judge’s holdings in relation to these issues are not under challenge, I do not need to consider them further.
Second publication: imputations
The appellant pleaded five meanings or imputations, namely:
1.   The plaintiff was estranged from her mother because of the alleged abortion incident.
2.   By reason of that estrangement the plaintiff never treated her mother as a child should.
3.   By reason of that estrangement the plaintiff was worse than indifferent, indeed callous, to her mother’s well-being.
4.   The plaintiff is guilt ridden towards her treatment of her mother.
5.   The plaintiff is a hypocrite.
The appellant claimed that these meanings or imputations were the natural and ordinary meanings of the words in the 8 August email, or alternatively arose by reason of a true innuendo as a result of the prior publication of the 7 August statement.
Determination of the meanings conveyed by the words complained of is a question of fact, determined by reference to the objective standard of the ordinary reasonable reader, sometimes referred to as the hypothetical referee. The characteristics attributed to the ordinary reasonable reader are well known and do not require repetition.[32]
[32] Lewis v Daily Telegraph Ltd [1964] AC 234 at 258, 260; Farquhar v Bottom [1980] 2 NSWLR 380 at 386; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 573.
The trial judge found that the words in the 8 August email did not, either in their natural and ordinary meaning, or by way of true innuendo in light of the 7 August statement, convey that Carole “was estranged from her mother because of the alleged abortion incident”. His Honour reasoned that the email did not contain any express or implied reference to the topic of estrangement. Nor, his Honour said, did the email contain any reference to the alleged abortion incident.
There is no error in the trial judge’s reasoning in relation to the first meaning, either in terms of the natural and ordinary meaning of these words or in terms of the true innuendo pleaded by the appellant. As the trial judge explained, there is nothing in the email which expressly or impliedly refers to the alleged abortion. Nor, in my view, does the true innuendo contention alter the analysis. Knowledge of the earlier 7 August statement would not in my view have altered or added to the natural and ordinary meaning of the words. I do not think anything in the 8 August email would have been understood as a reference to the abortion incident even by a person having knowledge of the 7 August statement.
Turning to the second pleaded imputation, the trial judge held that the introductory words in this imputation (“by reason of that estrangement”) defined the meaning in that imputation. Thus, for the same reason that the first imputation was not established, the second imputation was also not established. The trial judge also considered the position on the alternative assumption that the second imputation did not refer to the estrangement, but rather was confined to a meaning that “the plaintiff never treated her mother as a child should”. This meaning was conveyed by the 8 August email.
The second imputation is poorly drafted. A reference to someone being estranged is not of itself defamatory. It does not attribute to the person estranged an act or condition which would make an ordinary person think less of them. On one view the words merely provide some factual context for the balance of the imputation (namely that the appellant never treated her mother as a child should). Read in this way, the second imputation might be understood as an imputation that the appellant never treated her mother as a child should in that she permitted their relationship to become estranged. Alternatively, it may be that by referring to “that estrangement”, the intention of the pleader was, as the trial judge reasoned, to draw in the reference to an abortion from imputation one. While this cross-reference would give the reference to estrangement a defamatory quality, it would involve a repetition of the defamatory sting in the first imputation, and would convert the second imputation into a double-barrelled imputation. Either way, the reference to “that estrangement” in the second imputation is confusing and unnecessary.
Despite the poor drafting, in my view it is appropriate to consider the appellant’s case on the basis that the reference in the second imputation to the estrangement either adds nothing, or is merely descriptive of the appellant’s relationship with her mother.
On that assumption, the second imputation does arise. By stating in the email that “only one of us has treated [Mavis] the way a child should treat its mother”, Frank was plainly implying that Carole had not treated her mother this way. Understood against the background of the 7 August statement, Carole’s “treatment” of her mother would have been understood as including reference to the period of estrangement.
A similar analysis is appropriate in respect of the third imputation, which again included an introductory reference to “that estrangement”. The 8 August email included express reference to Carole being indifferent and callous to her mother’s well-being. In the context of the 7 August statement, this would again have been understood as including reference to the period of estrangement.
The trial judge found that the four and fifth imputations were conveyed, and there is no challenge to these findings.
In summary, it is my view that the second to fifth imputations were conveyed.
Second publication: justification
The trial judge found that each of the second to fifth imputations were defensible as true. Under both the common law and s 23 of the Defamation Act, it is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter are substantially true. Substantially true is defined under the Act as meaning true in substance or not materially different from the truth. This reflects the content of the common law defence.
Most of the evidence relevant to the truth of the second to fifth imputations conveyed by the 8 August email has been canvassed in these reasons. The trial judge summarised his findings and conclusion in relation to the truth of the imputations conveyed by the second publication in the following terms:
The evidence establishes that Carole had not seen her mother since 1979 and during that period Carole had almost no contact with Mavis. Carole did not contact Mavis after learning in 2011 that Mavis had been admitted to hospital critically ill. At that time Mavis was about 96 years of age. Carole had no contact with her mother during the 12 months prior to Mavis death. For decades Frank alone attended to the needs of Mavis.
Carole had been kept aware of Mavis’s health by means of the e-mails which Susan sent to Adam and Mirella. The letter which Mavis placed in the deed packet with her will is an indication of Mavis’s attitude to the way that Carole had treated her. Even in July 2012, when Mavis was close to death, Carole made no attempt to even telephone or write to Mavis. In the circumstances which existed, a caring child would have taken steps to contact a very elderly mother who was in ill health.
I accept the defendant’s submission that Carole’s admitted conduct towards her mother particularly, during the final years of her life, was substantially below even the lowest bar that could objectively be set as to the behaviour, care and attention a person in modern Australian society is expected to display towards her mother.
The defendant has justified the allegation in paragraph 10.2.
I agree that the evidence establishes a long period of apparent (or objective) indifference on the part of Carole to her mother. I also agree that one would ordinarily expect more from an adult child. However, there are some difficulties with his Honour’s reasoning in this respect. His Honour did not take account of Mavis’ conduct. In my view it is relevant that Mavis demonstrated a similar level of indifference herself. It is also relevant that Carole may have felt (with some justification) that she was poorly treated at the time she was required to leave home. In determining whether it is true that Carole treated her mother in a way a child should not, it is my view that her conduct must be assessed in its context. Carole’s treatment of her mother was less than ideal. She could have done more than she did to repair the relationship. However, in my view, given what the evidence revealed as to the context for the estrangement (including some potential blame on the part of Mavis in Carole’s leaving home and in contributing to the subsequent periods of estrangement) it is going too far to say that Carole never treated her mother as a child should. In an ideal world, no child should treat their parent with indifference. However, in reality family relationships are often complicated or difficult, making it inappropriate to generalise. I do not think the evidence permitted a finding that Carole’s indifference was unjustifiable, or that she acted in a way that no child should towards her mother. It follows that I do not think the defence of justification was established in respect of the second imputation.

Turning to the third imputation, I consider it more clear that the defence of justification fell short in respect of this imputation. While Carole did treat her mother with apparent indifference, I do not think that it was established that her treatment was “worse than indifferent”, let alone callous. Callousness is generally understood as involving an insensitive and cruel disregard for others. It connotes an element of heartlessness. Again, I do not think even an extended period of estrangement establishes callousness on the part of Carole. While this might establish apparent (or objective) indifference, I do not think it was established, by inference or otherwise, that Carole was subjectively indifferent to her mother. This was not put to her, and she did not say that this was so. She may have had feelings for her mother but not have felt able to express them by reason of their history, or her perceptions of her mother’s treatment of her. In my view, “worst than indifferent” and “callous” connote an element of subjective and positive insensitivity and disregard by Carole for her mother that was not established on the evidence.
I am conscious that my conclusion in respect of the truth of the second and third imputations differs from that of the trial judge. However, as the difference is one that reflects merely a difference as to the ultimate conclusion to be drawn from the primary facts as found by his Honour, it is appropriate that I give effect to my conclusion.
I also note in this context three factual challenges made by the appellant. The first was to the trial judge’s finding that the appellant was not ejected from her home, but rather chose to leave after Dean was no longer welcome. The second was to the trial judge’s finding as to the cause of the second period of estrangement. The trial judge rejected the appellant’s evidence to the effect that this was precipitated by the phone conversation in about 1979 when Carole was informed of Frank’s marriage and child, and during the course of which Mavis became furious. As mentioned, the trial judge attributed the commencement of the second period of estrangement between Carole and Mavis to the incident in relation to the granny flat, at least in a temporal sense. The third was to the trial judge’s findings as to the appellant’s attempts to contact her mother during at least the early stages of the second period of estrangement.
In respect of the first two matters, the appellant’s complaint is essentially that the trial judge rejected her evidence despite the contrary position not being put to her in cross-examination. In my view, there is no reason to interfere with the trial judge’s findings. The trial judge was entitled to reject the appellant’s evidence as to her father’s ultimatum that led to her leaving home despite the fact that it was not squarely put to her in cross-examination that this evidence was false, or an exaggeration. As to the commencement of the second period of estrangement, the trial judge was again entitled to reject the appellant’s evidence, or contention, that the phone conversation with her mother was the cause of the estrangement. While rejecting this explanation for the estrangement, strictly speaking the trial judge did not make any positive finding as to its explanation or cause, and so the appellant’s complaint that any attempt to link it causally to the granny flat incident was based on hearsay evidence at most, is misconceived.
I am also not satisfied that the trial judge made any error in relation to the third matter. His Honour did refer late in his reasons to a lack of contact between the appellant and her mother during the relevant period. However, the trial judge had made earlier references in his reasons to the appellant’s evidence that she had made some unsuccessful attempts to maintain contact, and so there is no reason to conclude that the trial judge overlooked the appellant’s evidence on this issue.
In any event, the ultimate significance of these three factual challenges was confined to the defence of truth in relation to the imputations in the 8 August email. They do not bear on the issue of malice. All three matters were relied upon as supporting the submission that the appellant was not responsible for, or not entirely responsible for, the periods of estrangements. As it happens, I have reached this conclusion, or at least been unable to reach the conclusion that the appellant was entirely responsible, even on the facts as found by the trial judge. Hence the appellant has partially succeeded in relation to the defence of justification despite no error being established in the trial judge’s reasoning or findings in relation to the three matters identified.
That leaves imputations four and five. The trial judge held that both of these imputations were substantially true.
In respect of the fourth imputation (that Carole was guilt ridden towards her treatment of her mother), this is less serious than the other imputations pleaded in respect of the 8 August email, and indeed, in my view is barely defamatory. In any event, in considering the truth of this imputation, the trial judge referred to Carole’s concessions of partial responsibility for the lack of contact with her mother in the 30 years preceding her death, and of regret over not having reconnected with her mother prior to her passing. The trial judge held that these matters established guilt on the part of Carole, in the sense of regret for partial wrongdoing. In my view, this finding was open on the evidence. It has not been established that the trial judge erred in holding that the defence of justification (both at common law and under the Defamation Act) was made out in respect of the fourth imputation.
Turning to the fifth imputation (that Carole is a hypocrite), this arose from the statement in the 8 August email that Carole’s attendance at her mother’s funeral would be seen as an act of gross hypocrisy. In this context, the email conveyed the meaning that Carole was a hypocrite in the sense that she wished to attend the funeral to give the impression that she was grieving her mother’s death when her past treatment of her mother indicated that she was not, or could not be grieving her mother’s death.
I do not accept that the evidence established that Carole was a hypocrite in this sense. Often a family member who has fallen out with, or has become estranged from, another is nonetheless moved by his or her death to remember their mutual affection of the past. There is a natural and strong human emotion to wish to acknowledge those former bonds of love and affection and to grieve their loss by attendance at the funeral.
The evidence did not establish that Carole did not grieve her mother’s death. Carole herself testified that she was very hurt when she read the email accusing her of hypocrisy. Her answers in evidence-in-chief and in cross-examination proceeded on the implicit premise that she wished to attend the funeral to grieve her mother’s passing. It was put to Carole in cross-examination that she only wished to attend the funeral so that the wider family would accept that she had a right to mourn, which she rejected. While it was also put to Carole that she had acted in a manner that was hypocritical, this question was effectively disallowed by the trial judge. It was never put to Carole that she did not grieve her mother’s passing. The evidence of past indifference does not sustain an inference that Carole did not grieve her mother’s death. It follows that the trial judge erred in finding that the defence of justification was made out in respect of the fifth imputation.
Second publication: damages
It follows from my conclusion that the second to fifth imputations were conveyed by the 8 August email, and that the second, third and fifth imputations were not proven to be true, that the appellant is entitled to an award of damages for that defamatory publication.
The trial judge made assessments of damages for the two publications, to cater for the possibility that he was wrong in dismissing the appellant’s claims.
In respect of the first publication, the trial judge held that had it not been protected by qualified privilege, he would have awarded damages in the amount $10,000. Given my conclusion that this publication was defensible, it is not necessary to consider this assessment further.
In respect of the second publication, the trial judge held that had the defence of justification not been available, he would have awarded damages for the 8 August email in the amount of $100. The trial judge reasoned:
The e-mail of 8 August was ultimately published to Carole. That publication does not give rise to an entitlement to damages. However the incidental publication to Mirella who forwarded the letter on to Carole is a relevant publication. Notwithstanding that it was a publication to one person only. Mirella was fully aware of circumstances in which the letter was sent. It was in reply to a letter which Carole had sent via Mirella critical of Frank. In her covering letter to Susan, Mirella apologised for sending Carole’s letter. Mirella fully understood the context of Exhibit P4.
There is no evidence of a diminution in Carole’s reputation and there is no evidence of Carole suffering any hurt as a consequence of the e-mail.
The appellant contended that his Honour erred in his assessment of damages in respect of this second publication. In particular, it was contended that he erred (i) in holding that there was no evidence of a diminution in Carole’s reputation or her suffering any hurt as a consequence of the email, and (ii) in not making an award for aggravated damages.
The trial judge’s statement that there was no evidence of a diminution in Carole’s reputation is an accurate summary of the evidence. However, that is not the end of the matter so far as damages for defamation are concerned. First, it must be remembered that it is not necessary for a plaintiff in a defamation case to prove damage to reputation. It will generally be inferred. That said, in a case such as the present where publication is to a very limited audience, and the Court is in a position to find that it is unlikely that the publication had any significant impact on that audience’s view of the plaintiff, then it may be that only very minimal harm can be inferred.
Secondly, damages in defamation are designed not only to compensate the plaintiff for damage to their reputation, but also as compensation for hurt to the plaintiff’s feelings, and as vindication of the plaintiff’s reputation. Even though Carole only gave limited evidence about the impact on her of the email, and said that the 7 August statement was more hurtful, some level of hurt can and should be inferred. Similarly, the appellant was entitled to a sum which would provide some vindication of her reputation.
It is not apparent from the trial judge’s reasons whether he fell into error in the way contended. His statement to the effect that there was no evidence of a diminution in Carole’s reputation, or of hurt to her feelings, does not necessarily imply that his Honour assessed damages on the basis that the appellant was not entitled to any damages in respect of these matters. However, the amount of the assessment, namely $100, does establish error in the assessment process. In my view, by awarding an amount which might properly be considered as nominal damages, the trial judge fell into error.
It is appropriate that this Court assess damages afresh. While rejecting an award of nominal damages, I do accept the essential thrust of the trial judge’s reasoning on damages. It is relevant that the only recipient of the email was Mirella, and that she was unlikely to have altered her view of the appellant as a result of the publication. While Carole gave evidence that she was offended and hurt by what Frank said in the email, she gave no evidence of being hurt by those matters being published to Mirella. Indeed, her evidence was that she did not believe Mirella would have read the email, as opposed to merely glancing at it, or scanning it. The imputations are reasonably serious ones, but not at the most serious end of the spectrum of defamatory imputations. Moreover, family members can be expected to tolerate to a greater degree, and recover more quickly from, defamatory statements made in the course of family disputes. More often, the hurt of losing the affection of family members is greater than the hurt occasioned by the loss of reputation. Be that as it may, I accept that the accusations that as a daughter she was callously indifferent to her mother and guilty of gross hypocrisy were very hurtful.
In all of the circumstances, I am satisfied that while more than nominal damages were warranted it was appropriate that the award be a very modest one. I would assess the appellant’s damages in respect of the second publication at $2,000, inclusive of interest.
I am not satisfied that error has been established in the failure to include an amount for aggravated damages in this award.
In support of the contention that an award of aggravated damages was warranted, the appellant relied upon the respondent’s conduct in refusing to apologise for alleging that the appellant had an abortion, and in continuing to assert the truth of that allegation during the trial despite not pleading a defence of justification. Reference was also made to the appellant being cross-examined in relation to the abortion allegation and the truth of the 8 August email. In relation to the abortion allegation, the appellant pointed to the existence of some uncontested medical evidence to the effect that the appellant had scarring consistent with an operation earlier in her life to remove an ovarian cyst.
Aggravated damages are compensatory in nature, and may be awarded where the defendant’s conduct has in some way increased the hurt or humiliation suffered by the plaintiff. However, the defendant’s conduct must be improper, unjustifiable or lacking in bona fides.[33]
[33] Triggell v Pheeney (1951) 82 CLR 497 at 514.
There are a number of difficulties with the claim for aggravated damages in this case. The first is that the allegation of an abortion arose in the 7 August statement (the first publication) which I have found was defensible as having occurred on an occasion of qualified privilege. Obviously there can be no award of aggravated damages in respect of that publication. To the extent that it is submitted that this allegation is relevant to the claim for aggravated damages in relation to the 8 August email (the second publication), I do not accept that submission. Not only is any aggravated harm flowing from the allegation of abortion not connected to the 8 August email, but also I do not think the respondent’s conduct in respect of this allegation had the requisite character of impropriety to warrant an award of aggravated damages.
The respondent did not directly assert the truth of the allegation of an abortion at trial. His position was a slightly more nuanced one that he did not know whether she had had an abortion, but that he believed she had because that is what his parents had told him. Similarly, his reason for not apologising was because to do so would be to admit that his parents lied to him, which he would not do. Bearing in mind the trial judge’s finding that the respondent in fact believed what his parents told him, and that the reference to an abortion was made on an occasion of privilege and without malice, I do not consider that it is appropriate to make or include an award of aggravated damages.
I have read the transcript of the cross-examination of the appellant and do not consider there is anything about that cross-examination that warrants an award of aggravated damages. As to the allegation of an abortion, while the appellant was cross-examined about the events of 1957, it was never suggested to her that she lied about not having an abortion. It was suggested to the appellant in cross-examination that the contents of the 8 August email were true. While I have found that three of the imputations that arose from this email are not true, it does not automatically follow that an award of aggravated damages should be made. To the contrary, I am satisfied here that despite the defence of justification ultimately failing in respect of three imputations, there was nothing improper in raising this defence, or in the manner in which it was pursued at trial.
In my view, no basis has been established for including any component for aggravated damages in the damages award for the second publication.
Conclusion
In relation to the first publication, the 7 August statement, while it was defamatory of the appellant, it was made on an occasion of qualified privilege both at common law and under the Defamation Act. The defences of qualified privilege were not defeated by malice.
In relation to the second publication, the 8 August email, the second to fifth imputations were conveyed. While a defence of justification was established in respect of the fourth imputation, it was not established in respect of the second, third and fifth imputations. The appellant is entitled to an award of $2,000, inclusive of interest, for the second publication.
For these reasons, I would order:
1.   Appeal allowed.
2.   The trial judge’s order dated 22 September 2015 is set aside, and substituted with the following order.
3.   The defendant is to pay the plaintiff damages in the amount of $2,000, inclusive of interest.
I would hear the parties in relation to the issue of costs.

[2016] SASCFC 50

11 May 2016

Key Legal Topics

Areas of Law

Negligence & Tort

Civil Procedure

Legal Concepts

Appeal

Damages

Privilege

Costs