Stone v MOORE - [2015] SADC 130

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
STONE v MOORE
[2015] SADC 130
Judgment of His Honour Auxiliary Judge Clayton
22 September 2015
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATION
DEFAMATION - PUBLICATION - WHO IS A THIRD PERSON
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - STATEMENTS MADE IN RESPECT OF A DUTY OR INTEREST
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - REBUTTAL OF PRIVILEGE BY MALICE
DEFAMATION - JUSTIFICATION
The plaintiff and the defendant are siblings now aged in their 70s. In the days following the death of their mother in 2012 the defendant made an oral statement in the presence of his partner, the plaintiff’s son and the plaintiff’s daughter-in-law. Shortly afterwards the defendant requested the plaintiff’s daughter-in-law to forward an e-mail to the plaintiff. The plaintiff argued that was a publication of the contents to the daughter-in-law. The plaintiff alleges both statements are defamatory.
Held:
(1) The oral statement gave rise to defamatory imputations but was protected by qualified privilege.
(2) Notwithstanding the fact that there was evidence of ill will between the parties, the plaintiff did not establish that the defendant was motivated by malice when he made the oral statement. His motivation was to advise his nephew and his wife of matters of family history.
(3) Publication of the letter to the plaintiff’s daughter-in-law for the purpose of forwarding the document by e-mail to the plaintiff was a sufficient publication.
(4) If the e-mail gave rise to defamatory imputations, those implications were justified by the defendant.
Defamation Act 2005 (SA) s 28, referred to.
Gatley on Libel and Slander 12th Edition chapter 2 paragraph 2.1; Prichard v Krantz (1984) 37 SASR 379; Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519; Duncan and Neill On Defamation Second Edition; Cassidy v Daily Mirror (1929) 2KB 331; Merivale v Carson (1887) 20 QBD 275; Harrison v Bush (1856) 5E & B 344; London Association for Protection of Trade v Greenlands (1916) 2 AC 15; Stanton v Fell (2013) NSW SC 1001; Toogood v Spyring (1834) 149 ER 1044; Adam v Ward (1917) AC 309; Austin v Mirror Newspapers (1985) 3 NSW LR 354; Gatley on Libel and Slander 11th Edition; Theophanos v Herald and Weekly Times (1994) 182 CLR 104; Lange v Australian Broadcasting Commission (1997) 189 CLR 520; Horrocks v Lowe (1975) AC 135; Gillooly on The Law of Defamation In Australia and New Zealand ,; Hanrahan v Ainsworth (1990) 22 NSW LR 73; Williamson v Freer (1874) LR 9 C.P 393; Pullman v Hill and Co (1891) 1 QB 524; Riddick v Thames Board Mills (1977) 1 QB 881; Sutherland v Stopes (1925) AC at 55; Howden v Truth and Sportsman (1937) 58 CLR 416; Radio 2UE Sydney P/L v Chesterton (2009) 238 CLR 460, considered.

STONE v MOORE
[2015] SADC 130

The plaintiff (Carole) and the defendant (Frank) are siblings now aged in their 70s. Carole claims damages for defamation as a consequence of two statements published by Frank with respect to Carole in the weeks following the death of their mother, Mavis.
The first publication was an oral statement made by Frank on 7 August 2012 in the presence of his partner Susan Prior, Adam, the son of Carole, and Mirella, Adam’s wife. The second publication was a letter from Frank to Carole which Frank sent to Mirella on 8 August 2012 for purpose of forwarding the letter by e-mail to Carole.
In order to put the issues in the case into context it is necessary to consider events that took place over about six decades.
Carole was born in 1938 and Frank was born in 1942. They spent their childhood at the family home in an established suburb of Adelaide. They came from a caring and loving family. Since leaving home Carole and Frank have separately had rewarding lives and they are now apparently both well off.
Carole has one son, Adam, who was born in Melbourne in 1963. She and her husband, Dean Stone, enjoy a good and close relationship with Adam his wife Mirella and their two children. Frank also has a good and close relationship with his children and grandchildren. Up until the time when this litigation was commenced Adam also had a close relationship with Frank, whom his children call GUF, short for Great Uncle Frank.
Carole left the family home in 1957. There is a dispute as to why Carole left. I deal with the dispute, which touches on one of the imputations of an alleged defamatory statement, later.
While Carole and Frank have had little to do with each other from the time when Carole left home, there is no evidence of ill will between them up until the events in question. Carole was invited by the family of Frank to functions such as weddings and in 1964 / 1965 Frank stayed with Carole, Dean and Adam in Melbourne. Generally their attitude towards each other appears to have been one of indifference.
Carole and Dean spend time interstate and overseas. The have an apartment in the snowfields which Carole referred to in evidence as a “home”. Their main place of residence is, and for the last 40 or 50 years has been in suburban Adelaide.
After Carole left the family home in 1957 Carole and Mavis, became "estranged", to adopt the term which has been used by the parties.
Carole married Dean in 1958 after leaving her parents home.
In the early 1960’s there was a reconciliation and Carole and Mavis resumed a normal mother and adult daughter relationship. In about November 1963 Carole and Adam stayed with Mavis and her father Frank Snr at her parent’s home. Later in that year Frank Snr and Mavis stayed for about a week with Carole and Dean in Victoria.
After Carole, Dean and Adam returned to live in South Australia in about 1965 Frank Snr and Mavis visited them at their home. The regularity of the visits is not clear, nor is the extent of other contact that Carole had with Mavis. However, the evidence is that the relationship between Carole and her parents had been repaired.
Frank Snr died in1972. At the time Carole, Dean and Adam were living in a house which they had built in Springfield. An understanding was reached that Carole and Dean would build a granny flat on top of their garage for Mavis.
When the time came Mavis decided not to move into the flat. There is evidence she feared she would become an unpaid babysitter. From about that time the relationship between Mavis and Carole soured and they remained estranged up until the time of Mavis’s death at the age of 97 on 31 July 2012.
Other than the fact that Carole occasionally posted cards to Mavis there was almost no contact between them for decades. The evidence of Carole is that she did not see her mother after 1979.[1]
[1] T 23.7.
Between 1972 and 1979 Carole's brother Frank returned to live with Mavis. He was a devoted son and always maintained close contact with Mavis visiting her and speaking over the telephone regularly. In 1999 Frank arranged for Mavis to join him in Brisbane where he built a house for her.
In the Second Statement of Claim Carole alleges that she and Frank have been estranged for over 40 years.[2] The evidence establishes that Carole and Frank only ever had limited contact. For example there was an unsuccessful morning tea at the home of Adam and Mirella in 2005 and there was an accidental meeting in about 2006 or 2007 when Frank and his partner Susan went with Mirella to watch her son at a swimming lesson and Carole arrived at the swimming pool for the same purpose.
[2] Paragraph 3.
Although Frank had almost no contact with Carole he did develop a close relationship with her son Adam and Mirella which continued from about 1998 until the death of Mavis in 2012.
The circumstances surrounding Carole leaving home in 1957.
Upon leaving school Carole obtained employment with an insurance company. One day she became ill at home but still went to work. She gave evidence she was very unwell with a severe pain in the stomach and had to go home.[3] She was visited by the family doctor who caused her to be admitted to hospital where she was operated on. Carole gave evidence that the doctors had found an ovarian cyst that had burst.[4]
[3] T 7-30.
[4] T 8.
By that time Carole had already met her future husband Dean Stone. Carole gave evidence that Dean had been welcome in her home but that came to an end when her father told her that she had to leave home.
Carole gave evidence that the circumstances giving rise to her leaving home were that a neighbour had told her mother that she had seen Dean and Carole looking at engagement rings, her parents did not want her to marry Dean and her father said that if she continued or wanted to continue to see Dean she had to leave home.[5]
[5] T 8.22.
Carole gave evidence that her grandmother, who overheard the conversation, was very upset and said to her father “Frank, surely you don't mean that” to which her father replied that he did. Carole said that her father “gave me a date and time to leave and I did.”[6] The date and time was not identified. There is a dispute as to that evidence.
[6] T 8.29.
One of the allegedly defamatory statements which I will refer to later is that Carole had had an abortion. Carole gave evidence that she has never had an abortion.[7]
[7] T 8.14.
The evidence of Frank was 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. He said that when he came out of his room his parents were very distressed. Frank was told by his mother, either that evening or the next morning, that the doctor had examined Carole who was bleeding a great deal and Carole had gone to hospital. Frank was told that the doctor had told 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.[8]
[8] T 282 – 283.
Frank gave evidence that his father told him something similar the next day.[9]
[9] T 283.
Frank said that following the event his parents, particularly his father, were very upset about what had happened to Carole. His father told him that the parents blamed Dean for what had happened and that they had told Carole that Dean would no longer be welcome at their house. Frank gave evidence that Carole moved out of the home one week later.[10]
[10] T 283.
Dean gave evidence that he recalled when Carole left her home. At the time he was told by Carole if she wanted to continue to see Dean she would have to leave home.[11]
[11] T 180.
Frank has not raised the defence of justification with respect to his statement that Carole had an abortion and it is unnecessary for me 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.
Carole and Dean were engaged on 13 September 1957 and married on 10 October 1958. Her parents were invited but did not attend the wedding. Frank Snr refused Carole's request to give her away. Frank was also invited but did not attend the wedding.
Carole was asked when did she first hear the allegation that she had an abortion. She answered that she heard the allegation from Adam after Frank had made the allegation to Adam and Mirella following her mother's death.[12]
[12] T 9.30.
I find that Carole was not ejected from the family home but chose to leave after Dean was no longer welcome.
The relationship between the parties after Carole left home in 1957
After marrying Dean in 1958 Carole and Dean lived in a suburb of Adelaide for about two years during which time she never saw her parents or brother. Dean’s work took him and Carole to Melbourne where they remained for 18 months to 2 years. During that period, Carole had no contact with her parents or brother. Dean’s work then took them to Sydney.
For most of the time that she was living in Melbourne and Sydney Carole was in employment. She stopped when she became pregnant with Adam who was born in 1963.
During the time that Dean and Carole were in Melbourne and Sydney the only contact that Carole had with her parents was a letter from Mavis advising that Frank Snr. had suffered a heart attack and would like to see her. Because of difficulties with her pregnancy Carole was unable to travel and replied in writing that she was unable to come. After Adam was born Carole wrote to her parents advising that she had a son and they had a grandson.[13] The parents sent a card to the hospital and a teddy bear for Adam.
[13] T 12.
Carole brought Adam to Adelaide to visit Mavis in November 1963 when Adam was about three months old. She stayed with Dean's mother and took Adam to her parent’s home to show them the baby. Around that time Frank had a party for his 21st birthday but Carole was not invited.[14]
[14] T 12.
Carole and Dean moved from Sydney back to Melbourne. At Dean's suggestion Carole invited her parents to visit. They accepted the invitation and stayed for approximately 7 or 8 days. Adam was then about 12 months old.
Carole was invited to and attended Frank’s first wedding to Jenny in around 1965 or 66.[15] While Carole was still living in Melbourne Frank visited and stayed with her and Dean.
[15] T 15.
When Adam was two and a half to 3 years of age Carole and Dean returned to live in South Australia. At first they rented a flat and then purchased a house. Carole started seeing more of her parents. She said they got together for Christmas and birthdays and she used to visit her mother every Thursday and have lunch.[16] Her parents visited her home regularly.[17] Frank and his wife also visited Carole's home although she was never invited to their home.[18] When Frank was involved in a serious accident Carole visited him in hospital and attended at the accident scene.
[16] T 14.
[17] T 15.
[18] T 16.
Carole gave evidence that in 1973 her relationship with Frank was a friendly one.[19] While there is no specific evidence of anything happening after that time which might have caused the relationship to sour, Carole and Frank drifted apart.
[19] T 20.
Carole and Dean moved house again and then built the house at Springfield. The Springfield house was not built until after the death of Carole's father. Prior to his death Carole had continued to see her parents on a regular basis.[20] Her parents visited her house and Carole visited Mavis weekly.
[20] T 18.
Mavis stayed with Carole and Dean after Frank Snr’s funeral. There is a minor dispute as to for how long. Irrespective of that dispute the evidence does establish the existence of a friendly relationship between Carole and Mavis in the period leading up to the death of Frank Snr.
After Mavis declined the offer of the granny flat at Springfield Dean and Carole employed a housekeeper who occupied the flat.
Frank's first marriage to Jenny had come to an end and he remarried Alison in 1979. Carole said that she was not invited to the wedding and that she never met Frank’s second wife.[21] Other evidence, which I need not traverse and a photograph, establish Carole’s evidence to be incorrect.
[21] T 19.
Carole gave evidence that Mavis telephoned her when Carole was living at Springfield and said that she wanted to tell Carole that Frank had remarried and had another child. Carole said that she said to her mother “I wondered when you were going to tell me” and that caused her mother to become furious with her. Carole said she had not known that Frank had remarried or that he had another child whose name was Kieren. Carole gave evidence “that is when everything went very sour.”[22] Carole attributed the deterioration of her relationship with Mavis to that conversation. Carole said:
She just didn't want to speak to me anymore. Unfortunately I never got to know Kieren or anything about him until my grandson was christened and I didn't know Kieren or where he was or anything about him.[23]
[22] T 22.
[23] T 23.
Carole said that after that conversation with Mavis in about 1979 she did not see her mother, although she did attempt to. She said she tried on Mother's Day “and things”.[24] She went to the home but Mavis was either not home or chose not to answer the door. Carole could not remember how often she visited but said it was perhaps three times a year. She sent Mavis birthday cards but never received any response. Whatever the reason, Mavis and Carole were again estranged. They never saw each other again.
[24] T 11.
The first time that Carole met Kieran was at the christening of her grandson Connor who was born in 1995. The christening was a year later. Frank and Kieren were invited to the christening, having previously been invited to the wedding of Adam and Mirella.[25] Frank and Mavis did not attend the wedding of Adam and Mirella but some of Frank's children including Kieren did.
[25] T 23.
In 1982 Frank’s employment took him to Brisbane where he had obtained a senior position with a newspaper. Carole could not say when he moved to Queensland. Carole did not become aware that her mother had moved to Queensland until approximately 2000. Mavis remained in Queensland until her death.
While she described herself and Frank as being estranged, Carole gave evidence that Adam and Frank had a close uncle/nephew relationship.[26] Carole was aware that Frank and Susan came to Adelaide on several occasions and stayed with Adam. Carole did attempt to make contact with Frank when he had a liver transplant in the early 2000s and spoke with Susan to enquire whether she could visit Frank in hospital but he was too ill.[27]
[26] T 25.
[27] T 26.
The illness of Mavis in 2011
Frank gave evidence that the health of Mavis began to seriously decline in 2011. He said that she was admitted to hospital in July 2011 and was seen by a heart specialist who thought she may have had a heart attack. Frank was told that there was a strong possibility that Mavis would not survive the night but to everyone's surprise she rallied. Frank visited her in hospital every day. She remained in hospital for a week or 10 days and then returned home. From that time she was on oxygen. Frank paid her medical bills and for some of her home care.
Carole was told that Mavis was unwell in mid-2011. She said that they were driving up the mountain to Falls Creek and received a call on Dean's carphone. Carole told Dean that her mother wasn't well and that she would go back to Bright or Albury, catch a plane and return but she got another call to say that Mavis “was all right” and “had got over whatever it was”. Carole “didn't do anything more about coming back.”[28]
[28] T 86.
Between that event in July 2011 and the death of Mavis on 31 July 2012 Carole did not communicate with Mavis.
In the last year of her life Mavis's health was up and down. Frank had his own health problems and received a marginal liver transplant in December 2011.
Susan developed the practice of distributing e-mail reports on the health of Mavis to “the tribe”. The recipients were Frank's children together with Adam and Mirella. One such report is exhibit D 18 which was sent on 30 July 2012, the day before Mavis passed away.
Carole was not included in the distribution list but Frank relied upon Adam and Mirella to keep her informed.
The events following the death of Mavis
Mavis died on 31 July 2012. Carole, who was in Falls Creek, was advised of the death by Adam. She wanted to attend the funeral. Carole gave evidence that Dean telephoned the funeral parlour and he was informed that Frank had instructed the funeral parlour not to tell her anything.[29]
[29] T 27.17.
Frank denied that he gave such an instruction to the funeral parlour. He said “they knew it was a private funeral but I certainly did not give them instructions not to give details to Carole or anybody else.”[30]
[30] T 308.34.

I have mentioned this dispute because if the instruction suggested by Carole had been given it could be evidence of malice.
Carole gave evidence that the information given to Dean caused her to write to Frank. She had never had Frank's address and did not have her own e-mail facility. If Carole wished to send a message by e-mail she used the assistance of others. In this case she used Mirella. While Carole was still in Falls Creek she sent a confidential fax to the post office for Mirella to collect and forward on to Frank. On 2 August 2012 Mirella sent an e-mail to Susan stating:
As we discussed, please find attached the letter from Carole. I am sorry I have had to send this to you.
Mirella’s apology to Susan gives some insight into the nature of what was to follow.
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 would contact me on (mobile number) and advise me of the arrangements for Mum's funeral.
Thank you. Regards, Carole.
The letter to Frank speaks for itself. Although it does contain a condolence the principal point of the letter was to express a complaint about the way in which Carole had been informed of the death of Mavis and about the way in which she was being treated. There may have been some basis for what Carole said but the terms of the letter were hardly likely to foster a friendly relationship.
Frank gave evidence that after Mavis had passed away he did not call Carole. He said he did not even call his own children on the day that it happened because he was too upset.[31] On the following day he did speak to family members but not Carole. He was asked why and said “Carole hadn't shown any interest in her mother for many, many, many years. I couldn't see any point.”[32] Frank said that he never made a decision not to call Carole but never turned his mind to it.[33] He denied that he was seeking to avoid Carole as she suggested in her letter to him of 2 August.
[31] T 306.
[32] T 307.
[33] T 307.
Although Carole had provided him with her telephone number, Frank never called her. He said he had many things to attend to.[34] He and Sue kept Adam and Mirella informed. Frank believed that they passed the information on to Carole.[35]
[34] T 308.
[35] T 308.
Carole said that the response which she received to the letter was advice that Frank did not want her at the funeral.[36] Carole did want to attend the funeral and so she and Dean decided to return from Falls Creek to Adelaide straight away.[37]
[36] T 28.
[37] T 28.
The alleged defamation on 7 August.
Carole was pressing Adam for details of the funeral arrangement. Adam was communicating with both Frank and Carole. It is clear that 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.
The topic of Carole's relationship with Mavis was raised. During the conversation which followed, Frank made a statement which is the basis for the first allegedly defamatory statement. The Second Statement of Claim alleges that Frank published the following words concerning Carole:
Carole had gotten pregnant and was sent home from work as she was bleeding; she had a backyard abortion; the family doctor was called and confirmed that Carole had an abortion and that she had nearly died; our parents were so upset at what Carole was put through that Carole was told that Dean could never set foot in their house again; Carole chose to marry Dean and was no longer welcome in the family home and was asked to leave home.
There is no consensus in the evidence as to the precise words that were spoken. I return to the topic later.
The alleged defamation by e-mail of 8 August.[38]
[38] Exhibit P4.
On 8 August Carole caused Mirella to send another e-mail to Frank advising that she had returned to Adelaide “in readiness for the funeral”. The e‑mail advised the telephone number for Carole's home in Adelaide.[39]
[39] Exhibit P2, P3, and T 20.
At 8:57 am on 8 August Frank sent an e-mail to Mirella requesting her to pass on the following message to Carole.
Carole,
The funeral has now been confirmed for this Friday. I am inviting only the grandchildren and great-grandchildren 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 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[40]
[40] Exhibit P4.
It is the publication of that e-mail to Mirella which is the second defamatory statement relied upon by Carole. I return to the document later.
Events following the allegedly defamatory statements
The e-mail was passed onto Carole by Mirella. Carole said “I was very, very hurt and upset. In that e-mail he is telling me that I am a hypocrite.”
On the morning of 8 August Carole was asked to attend at the home of Adam and Mirella. Carole gave evidence that was when Adam told her the story that Frank had told him that she had had an abortion. She said ‘In fact, “a backyard abortion” was the term used and my son was very, very distressed’. Carole said that she was “very, very upset and distressed too. I had never heard of such a thing until that time, it was the first I ever heard of it and the first my husband had ever heard of it.”[41]
[41] T 31 – 32.
On 9 August 2012 Carole, via Mirella, replied to Frank by e‑mail:
Dear Frank,
I was very distressed to receive your e-mail 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 that a more dignified reaction was warranted.
Regards, Carole.[42]
[42] Exhibit P5.
Nothing was said in that e-mail about what Frank had said to Adam and Mirella on 7 August.
The funeral was arranged for 10 August. Mavis's death was notified in the personal notices in The Advertiser on the same day. The notice advised that Mavis had been buried privately at Cheltenham cemetery on August 10, 2012 and referred to:
A much loved and loving mother grandmother and great grandmother of
Frank and Susan,
Adam, Mirella,
Connor and Matilda Louise
Tim, Sarah and Amelia
Derek, Julene, Jemima,
Cooper and Sofler
Kieren and Theresa.
While Carole's son Adam, daughter-in-law Mirella and grandchildren Connor and Matilda were referred to, together with the rest of Mavis's descendants, there was no reference to Carole. Carole said that her reaction to reading the notice was that she thought ‘it was very mean and spiteful’ of her brother because her name was not there.[43] Later she said it was “spiteful and malicious”.[44]
[43] T 30, T 79.35.
[44] T 78.35.
There was nothing to prevent Carole from placing a death notice herself but Frank’s omission of the name of his sister from the comprehensive list of family members in the death notice which he published might demonstrate malice.
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. He was in Adelaide driving in a car and had to pull over. Carole told Frank that she wanted to attend the funeral. She said that he was violently opposed to it and said “If you come it will be as if you are not there. As far as I'm concerned, you won't be there.”[45]
[45] T 31.
Notwithstanding Frank's opposition Carole did attend the funeral which was conducted by a minister of religion at the graveside. After the service Carole and Mirella returned home. The others, most of whom were from interstate, were taken by Frank on a tour of sites which had been important to Mavis. They had scones (Mavis's favourite) and coffee at a cafe and that evening they had a celebration of Mavis's life at a Glenelg restaurant. Carole was not invited.
Counsel asked Carole whether at any time prior to 8 August Adam had sought information from her concerning her relationship with Mavis. Carole replied:
He may have said once that it was a shame why, but there was no insistence on knowing why there was no relationship between my mother and myself.[46]
[46] T 32.
Carole gave evidence that she had never discussed with Adam why she had left home because “I didn't want my son and my mother's grandson to think poorly of my mother and father, of his grandparents. I suppose it was a protective thing but I didn't want him to think poorly of his grandparents.”[47]
[47] T 32.
As a result of learning what Frank had said to Adam and Mirella on 7 August and as a result of the publication of the e-mail to Mirella,[48] Carole resolved to seek an apology from Frank. Her solicitor was instructed to write to Frank and did so. [49]
[48] Exhibit P4.
[49] Exhibit P9.
There was no response to the solicitor's letter and Carole instructed her solicitor to take the matter further. A further letter was sent on 10 October 2012.[50] Frank responded to that letter by providing an offer to attend at a nominated place where proceedings could be served.[51] These proceedings were then instituted.
[50] Exhibit P 10.
[51] Exhibit P 11.
It was not until a trial had commenced in this court in November 2014 that Frank offered any sort of apology. The apology offered at that time[52] was not a full and unconditional apology and it was not accepted. Frank was not prepared to withdraw the allegation that Carole had undergone an abortion because it was his view that to do so would make liars of his parents.
[52] Exhibit D 23.
The defence of his parents’ credibility underlies Frank’s defence of this action.
Carole's solicitors wrote to Frank’s solicitors prior to the commencement of this trial on 11 August 2015 revisiting the issue of an apology.[53] Frank's position remained the same. The obstacle has been the inability of Frank to acknowledge that what his parents told him about an abortion was not correct. He has no personal knowledge of where the truth of the matter lies but his stand in the litigation has been to defend what he was told by his mother and father.
[53] Exhibit P 12A.
Frank has never acknowledged the alleged untruth of his statement that Carole had undergone an abortion
This action
Carole claims that both the statement made by Frank to Mirella, Adam and Susan on the evening of 7 August and the statement made to Mirella in the e-mail on 8 August were defamatory.[54]
[54] Exhibit P4.
As to the oral statement on 7 August Frank denies that the words spoken have the meanings which are relied upon by Carole and he claims that the words were spoken on an occasion of qualified privilege. Carole asserts that the defence of qualified privilege is not available because Frank was motivated by malice.
There is no consensus as to the precise words that were spoken on 7 August. Four persons were present and it is necessary to examine the evidence of each of them for the purpose of divining what was said.
In connection with the words spoken on 7 August there is a fundamental dispute. Carole's case is that Frank told Adam and Mirella, as a fact, that Carole had undergone a backyard abortion. Frank's case is that he did not state the facts but only repeated to Adam and Mirella that which he had been told by his mother and father.
There can be no contest as to the words in the e-mail which is exhibit P4. It is a matter of interpreting the document in order to determine whether the alleged meanings have been made out. Again with respect to exhibit P4 there is a dispute as to whether the alleged words are defamatory. Again Frank relies on the defence of qualified privilege and in that case also relies upon the defence of justification.
The oral statement on 7 August 2012 – the Pleadings
While there is a common theme to the evidence of the four persons who were present on 7 August, there are subtle differences.
The words which pleaded in the Statement of Claim are:
Carole (Carole) had gotten pregnant and was sent home from work as she was bleeding; she had a backyard abortion; the family doctor was called and confirmed that Carol had an abortion and that she had barely died; our parents were so upset at what Carol was put through that. Carol was told that Dean could never set foot in their house again; Carol chose to marry Dean and was no longer welcome in the family home and was asked to leave home.
The Defence alleges:
That the conversation on 7 August related primarily to arrangements for the funeral and was consequently emotional in nature. It is alleged that the question of Carole’s attendance at the funeral was discussed and Frank explained that his preference was that Carole not attend the funeral because she had not spoken with Mavis for 30 years and the funeral was to be a small and private farewell for those who were close to Mavis. Adam indicated that he was concerned about the possible impact on his ongoing relationship with Carole if he did not inform her of the funeral arrangements. Frank said he did not want to cause difficulty between Adam and Carole and agreed that Adam should tell her about the funeral arrangements if she called again, but that in any case Frank would call or e-mail Carole himself the following day to let her know the funeral arrangements. Adam then said that he did not know the reason for the estrangement between Carole and Mavis and that he had asked Carole on a number of occasions to tell them what had happened but she declined to do so. Adam asked Frank to tell him the reasons. Frank said that he should ask Carole. Adam and Mirella insisted that defendant tell them the reasons for the estrangement as Carole would not. Frank was ultimately persuaded to explain to Adam and Mirella his understanding of the reasons for the estrangement saying words to the following effect:
Frank Snr and Mavis had not been happy with the relationship between Carole and Dean. They believed he influenced her too much. One-day Carol came home from work as she was unwell. The family doctor was called, who said she was bleeding from an abortion, her condition was serious, and she could have died had she not received medical help. Frank Snr and Mavis were extremely upset that their daughter's life had been in danger, and blamed Dean for her having been in that position. They told Carole that Dean was no longer welcome in their home and wanted her to have nothing more to do with him. Carole chose to maintain her relationship with Dean and left the family home. She later married Dean.
The Defence pleads that some general discussion then followed regarding the fact that abortion was not legal in Australia in the 1950s and abortions were sometimes obtained through so-called “backyard abortionists” even though it was generally understood to be unsafe, Frank told Adam that he should discuss the situation with Carole and everyone present said words to the effect that the whole situation was very sad, and they sympathised with Carole whom they felt had missed out on important relationships and may have regrets."[55]
[55] Defence paragraph 7.
The Defence does not plead that Frank was only reporting what he had been told by his parents as opposed to making a statement of fact.
The evidence of Mirella as to 7 August
Mirella gave evidence that she was in the room intermittently because she was in the kitchen as well and was putting her children to sleep. Initially her evidence was:
From memory, I believe Adam was questioning how a daughter-how it was hard if Carole couldn't go to the funeral and how it would have been hard to have her-ask her to leave home and then I think Frank mentioned or asked Adam if he really wanted to know the truth as to why Carole was asked to leave home.
Mirella gave evidence that Adam said that he would like to know the truth and Frank “mentioned that Carole had had an abortion or came home from work bleeding and had had an abortion.”[56] Mirella said that was all she could remember.
[56] T 169.
Later Mirella was allowed to refresh her memory from a note which she had made at the request of Carole’s solicitors when the facts were still fresh in her memory. On that occasion Mirella gave evidence with the assistance of the note saying:
… Adam and Frank were discussing grandma's funeral and Frank could not understand why Carole would want to attend her mother's funeral, as she hadn't kept in touch with grandma over the past 12 months and she knew that she hadn't been well. Adam made a comment to Frank that it was hard for his mother, for Carole, to have been kicked out of home and it was hard for her, just because she wanted to marry Dean. Then, I believe, Frank asked Adam if he really wanted to know what had happened and Adam said he did. He didn't insist on knowing but said he would like to know and Frank continued to tell Adam that Carole came home from work one day, she was bleeding everywhere, so Frank's parents called the family doctor and the family doctor confirmed that Carole had had an abortion and had almost died from the abortion and Frank went on to tell us that Carole was told if she continued to see Dean she was no longer welcome in the home.[57]
[57] T 195.
Mirella acknowledged that without her statement she could not remember word for word everything that was discussed.[58]
[58] T 211.
The evidence of Adam as to 7 August.
Adam gave evidence of the conversation on 7 August. He told Frank that he was finding his position very stressful and that he felt like he was the meat in the sandwich. Frank was adamant that he did not want Carole at the funeral. Adam had conveyed to Carole an offer from Frank to allow Carole a private viewing but she said that she did want to go to the funeral. Adam said that he could not understand why his mother was thrown out of home as a young girl just because her parents did not approve of who she wanted to marry. Adam said:
My uncle – I remember he folded his arms and he put his head down like this (indicates) and he said “Well Adam, do you want to know what really happened?”. I replied to Uncle Frank, I said “yes, Frank, I do”. He was looking straight ahead when those couple of things were said to each other and he paused for a little. I was sitting on his right, he turned his head and looked at me and he said “Are you sure?”. If anything, I was just so curious. When he said "Are you sure?", I said “Yes, Frank I want to know”. Then that's when the conversation continued around my mother…. Uncle Frank seemed quite relaxed. He was very, very calm but, you know, when he asked me, you know, did I really want to know what really happened, he asked me a question, he offered me information. Of course I wanted to know what he was trying to say.[59]
[59] T 233.
After Adam said "Yes, Frank, I want to know” Frank said:
“Adam, did you know that-”, words to the effect, “– your mother had an abortion?”. He also went on to say that she was sent home from work, he said she was bleeding heavily and they sent her home and the family, being her mother and father - grandma and grandpa - got her a doctor around, which is logical, and the doctor was called in to have a look at my mother.[60]
[60] T 234.

Adam said that he was "emotionally pretty fraught” and was trying to hold back his emotions because he was very very upset at hearing that because he had thoughts of his mother being made to do this under duress.
Later Adam said:
I remember the conversation continuing and Frank stating that he believed that it was a backyard abortion,…[61]
[61] T 234.
In cross-examination Adam said "My uncle Frank offered… to advise me on a matter and I said to Frank "Yes, I want to know". Counsel suggested that Frank responded to an invitation that had been made to him to give Adam information and Adam replied "That is not correct Sir, my uncle Frank asked me a question "Do you really want to know?" It was put again that Frank responded to a question and Adam said:
No, he did not. I expressed my - my disgust at how my mother was thrown out of home as a young girl and how could anyone treat their daughter like that and he responded with ‑ I made a statement or statements, he responded with a question - do I want to know what really happened, and I said that I did and he again asked me “Are you sure?”.[62]
[62] T 259.
Adam said that the information was volunteered by Frank who was put under no pressure or duress but volunteered to give him that information.” He volunteered to give me that information by asking me.”[63] Adam said there was no venom in Frank’s tone of voice and he was just talking calmly and naturally. He has never known his uncle to be vindictive or dishonest with him.[64]
[63] T 259.
[64] T 260.
Counsel put that Adam formed the assessment that Frank believed what he was telling Adam to which he responded:
Well I - I believe that - my belief is that when I heard it is that he wouldn't have - likely wouldn't have made something like that up and he was obviously really assessing whether he was going to perhaps tell me by asking me the question again “Do you really want to know?” and he really sat there and had a think and then he said - turned around and said, “Do you really want to know?”. So it was perhaps something that he was considering whether he - he would tell me. I don't - and I don't believe that Frank would have told me a lie especially something of the gravity of that.[65]
[65] T 261.
The initial matter of interest to Adam was why did Carole leave home. Adam was interested in obtaining an answer to that question and in gaining an understanding of why his grandmother had remained distant from his mother and himself.
The evidence of Frank
Frank gave evidence that he knew that his sister was in her bedroom and that when he came out of his own room his parents were very distressed.[66] That evening or the next morning his mother told him that Carole had gone to hospital. He said:
Well, she told me that the doctor had examined my sister and that she had been bleeding a great deal. That the doctor told my parents that she had had an abortion. He said that she had lost a lot of blood and that it was just as well he was called because she could have lost her life.[67]
[66] T 281.
[67] T 282.
Frank said that his father told him:
… The same thing as my mother told me, that Carole had been sent home ill, that the doctor diagnosed that she had had an abortion, that she had gone to hospital. My mother and father, particularly I think my father, were very upset about what had happened to Carole, and they were very distressed about that, and he said that they blamed Dean for what had happened, and that they had told Carole that he would no longer be welcome at our house.[68]
[68] T 283.
Frank estimated that Carole moved out of the home one week after that event. He never spoke to Carole at the time.
He believed what his parents had told him.[69]
[69] T 283.
Franks next recollection of Carole is one day when he was in the backyard and looked up the driveway to see Dean at the front gate and Carole was taking things out from the house. Dean was standing on the boundary of the footpath waving his hands backward as if he was trying to prevent himself from falling forward, he thought for the amusement of Carole. That was about one week after Carole left hospital when she was in the process of moving out.[70]
[70] T 284.
Frank gave evidence of the discussion at the home of Adam and Mirella on 7 August. He said that Adam was extremely agitated and asked “What am I going to tell Carole?” He said that Carole had been placing a great deal of pressure on him and that she thought he was withholding information. Adam said he was afraid of what Carole might do.
Frank told Adam that the funeral had been finalised and that if Carole called again or if he wished to he could tell her that the funeral had been set for the coming Friday. Frank also undertook to contact Carole the next morning.
Frank told Adam that it was his preference that Carole did not attend the funeral. He said they were his feelings. They were also the feelings of Mavis but Frank did not mention that.
Frank said that after discussing the funeral arrangements Adam said to him “I still don’t understand why my grandmother and mother have been estranged for so long, I would like to know why”.[71] Frank said that was not the first time that Adam had raised the topic with him and that he had raised the topic in the late 1990s when Linda was seeking information. Adam raised it four or five times. On each occasion Frank told Adam he should speak with his mother.[72]
[71] T 310.33.
[72] T 311.
Frank gave evidence that Adam was very agitated and said ‘Whenever I asked her she won’t tell me’. Mirella said “That’s right, when Adam asks she just says that she will tell him one day.”
Frank was asked what went through his mind when he heard that and replied:
I could see that Adam, in particular, was very distressed. As a member of the family I felt he was entitled to know. I couldn’t understand why his mother wouldn’t talk to him about it and why she said “one day”, considering he was nearly going on for 50 and she was in her 70s. I hesitated. I said “Are you sure you want to know?”. He said “Yes, I do”.[73]
[73] T 311.24.
Frank was asked what did he say to Adam and he replied:
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.[74]
[74] T 311.32.
Frank continued that there was a general discussion and that it must have been a terrible position that Carole found herself in. He said there was a general agreement that would have been a very sad and difficult time for her.[75]
[75] T312.20.
Frank said there was no discussion on 7 August “about Carole having been kicked out of home”, but as part of the conversation about when Adam asked what had happened he did say he found it difficult to understand why Carole left home at such an early age.[76]
[76] T 312.25.
Frank was asked whether when he spoke to Adam about Carole having had an abortion he believed what he was telling him and he replied ‘I certainly did. I believe what my parents had told me and I made that clear to him that that was my understanding from my parents.’[77]
[77] T 313.23.
Frank gave evidence of a conversation with his partner Susan after she came back from Adelaide having visited Mavis in about 2000. He said:
Susan returned and told me that she had had a meeting with my mother after they had been taking curtains and various things and then my mother had told her that Carole had had an abortion. She was startled by that, because in the 20 years that she had known me I hadn't told her that and she asked me if it was true. [78]
[78] T 295.
That evidence is corroborated by Susan.
In cross-examination Frank acknowledged that he had not told anybody else the story about the abortion prior to 7 August,[79] and he had never sought to raise any concerns that he had concerning the events of about 1957 with his sister.[80]
[79] T 329.
[80] T 330.
Frank said that in the conversation of 7 August there was discussion about his mother and father blaming Dean for what took place. He said:
Naturally when they heard that her life had been put in danger, my parents had told Carole that Dean would no longer be welcome at the house.[81]
[81] T 314.
Frank denied other evidence that he hated Dean and said that he had a better relationship with Dean than with his sister. He said that he never had any close ties with Carole.[82]
[82] T 314.
Frank understands that Carole wants an acknowledgement that she is telling the truth when she says that she didn't have an abortion. He said he will not do it “because she wants me to say that my parents lied, in effect, and I won't do that.”[83] Nevertheless Frank stands by the terms of the apology in exhibit D 23.[84]
[83] T 324.
[84] T 323.
The evidence of Susan.
Evidence was also given as to the events of 7 August by Susan.
To the extent that there may be any significant difference between the evidence of the witnesses I prefer the evidence of Susan. She had a clear recollection of the events and was an impressive witness. I 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 the evidence of Susan was clearer and more persuasive.
Susan gave evidence that one day in 1999, after she and Mavis had finished shopping, they had lunch in a cafe. Mavis told Susan that from the time Mavis had decided not to move into the granny flat at Springfield Carole had not spoken to her. Mavis said there had been an estrangement after that event.
When pressed Mavis told Susan what had happened in the past. Mavis said that Carole had been a lovely young lady but everything changed when she went to a dance and met Dean. Mavis explained how she and Frank's father did not particularly like Dean because they thought that he influenced Carole too much. They thought that, in her words "he had turned her head.”[85]
[85] T 373.
Mavis told Susan that one day some time after that Carole came home from work unwell. They called the family doctor who came and said that Carole was bleeding very badly, that she had had an abortion and that without medical intervention she could have died.[86] Susan had not heard that story before and was quite stunned.
[86] T 373.
When she returned from Adelaide to Brisbane Susan raised what she had been told by Mavis with Frank who ‘sort of said “oh yes, didn't you know that?”’ Frank said that was what happened.
Susan also gave evidence that about a year later in 2000 she raised what she had learned from Mavis with Adam. She said that she had visited Adam and his then wife Linda at their new home. There was a discussion about disquiet in the family over the granny flat that had been built at Springfield. Adam said that there must be more that had caused Carole and Mavis not to talk. He asked Susan whether she could tell him what had gone on. Susan replied that Adam needed to speak with Carole about it. Adam said that he had asked his mother but she would not tell him. Susan said that she only knew what she had been told by other people. Adam pressed her. So did Linda who said "Please tell us what has gone on because Carole won't tell us." Susan's evidence continued:
…So I said to him “Well as far as I am aware Adam, it started when your mum started going out with Dean, your parents didn't like Dean”. He said “I know they didn't like Dean”. …I said, “that was the beginning of it, but then one day your mum came home from work unwell” and basically I relayed the story which Mavis had told me the year before… I told him that I had been told by his grandmother that Carole had come home from work unwell, that they called the family doctor who had come to the house, that the family doctor had examined her and discovered her to be bleeding badly. He had told Mavis and her husband that she had had an abortion and that she was very ill and without medical intervention she could die, she could have died. I told this to Adam.[87]
[87] T 377.
Adam was shocked by what Susan told him.
I accept that evidence of Susan. The evidence is significant because it shows that Adam had been aware of the subject matter of the discussion on 7 August 2012 from at least 2000. Amongst other things it demonstrates that Adam’s evidence was incorrect when he suggested that he did not know of the abortion prior to 7 August 2012.
Susan gave evidence that she was surprised that Adam had asked on 7 August why Mavis and Carole had not spoken for so long because she had had the discussion with him about that subject many years earlier.[88]
[88] T 383.
Susan gave evidence that on 7 August it was Frank who 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 “He again requested that Frank tell him. He said "Please Frank, tell us what happened”. Then Mirella who up until this point had been quiet said "Yes Frank, Carole won't tell us, would you please tell us what happened?"[89]
[89] T 401.
Susan gave evidence:
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”.[90]
[90] T 384.4.
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. “He presented it as a combination of his recollections of that day as a child and what his parents told him subsequently.”[91] I accept her evidence.
[91] T 399.
Susan said that Frank had not discussed with her that he intended to say those things before they visited Adam and Mirella on 7 August.[92] I accept that evidence.
[92] T 397.7.
She gave evidence that Adam was stunned. She told Adam that she had told him the story before but Adam appeared not to hear her because Susan had had that conversation with him previously with his former wife Linda, and Mirella was in the room. She didn't pursue it further.[93]
[93] T 384.25.
The cross examiner suggested to Susan that during the conversation on 7 August Frank had said “Adam do you want to know what really happened?” Susan gave evidence that that was not correct. I accept her evidence.[94]
[94] T 400.
The cross examiner suggested that Susan had made the story up.[95] She denied that. I accept the evidence of Susan.
[95] T 402.
The cross examiner also suggested that what happened was that after Adam made the comment to Frank that it was a pretty hard thing for Carole to be kicked out of the house because she wanted to marry Dean, Frank asked Adam if he wanted to know what really happened and Adam said he did. Susan responded:
“That is not how the conversation went. There was no suggestion that night, as I recall it, either by Frank or Adam that the reason she had left home was because she wanted to marry Dean. Frank told Adam, quite explicitly, that his parents had conveyed to him that they told Carole that Dean was no longer welcome in their home. They wanted her to cease the relationship with him but she subsequently chose to continue the relationship and she left home.”[96]
[96] T 402.
Susan agreed with a version of the conversation put by counsel, but said ‘He did not say in terms of “This is what happened”, He said it in the context of “This is what my parents told me that happened”’.[97] She also said “It was never expressed as his own evidence, it was expressed in terms of what his parents had told him; quite clearly.”[98] I accept her evidence.
[97] T 403.
[98] T 405.
Mr Heywood-Smith drew my attention to paragraph 5.5 of the Defence which does not plead that Frank was repeating what his parents had told him. Nevertheless I accept the evidence of Susan. The Defence is not conclusive of the issue.
It was suggested that Susan had discussed her evidence with Frank. She said that on the advice of counsel they had not discussed their evidence.[99]
[99] T 405.15.
Counsel suggested that Susan had fabricated her evidence that she said to Adam “I told you this before”. She denied that saying “No, it is not a fabrication. I absolutely said that to Adam because I was shocked at his response to what Frank was saying.”[100] I accept the evidence of Susan.
[100] T 405.32.
Evidence of Linda McAuley.
The final witness was Linda McAuley, Adams first wife. When she first met Adam Linda learnt that Adam was not in contact with his grandmother and Linda took steps to invite Mavis to their wedding. Mavis did not attend the wedding and Linda went to her home to show the photographs, a friendship developed and they had several meetings. Through Mavis Linda was introduced to Frank.
Linda gave evidence that at one of her meetings with Mavis there was a conversation about why the family had not spoken for so long. Linda said Mavis told her:
That she was always regretful that their rift had occurred within the family, and I had asked in her mind why that had occurred and her words were, that when Dean and Carole met they weren't favourable towards Dean because they found him controlling over Carole; that Carole's dad had given an ultimatum between Dean or Carole staying in the family; and that she had said to me that Carole had fallen pregnant and had not used professional means to conclude that pregnancy; and that that is, essentially, what she had said had caused a rift between the family. That is as much as I can recall or as best as I can recall.[101]
[101] T 414 - 415.
Linda was asked whether she discussed what Mavis had told her with Adam and said “Yes, I shared everything with Adam in relation to his family, and the conversations that I had with Mavis.”[102]
[102] T 415.
That is further evidence that Adam knew about the abortion prior to the discussion on 7 August 2012. It throws further doubt on his reliability as a witness.
The reason for the estrangement.
The relationship between Carole and Mavis was summed up by Susan in her evidence of a conversation that she had with Mavis in 1999. Susan said:
She (Mavis) told me that after Carole had left and gone to Melbourne and married Dean, that subsequently there had been a form of getting back to the family after Adam was born, and that some contact had been resumed but that it had always been rather strained, and that after the incident in relation to the granny flat, Carole appeared to cease contact with her and she said, “I don't know why, I don't know why she doesn't want to talk to me”.[103]
[103] T 394.
I do not accept the evidence of Carole that the estrangement followed a conversation Carole had with Mavis when she was advised of Frank’s marriage to Alison and the birth of Kieran.
Susan was asked whether in the weeks prior to her death Mavis asked to see Carole. She replied “No, Mavis never asked, ever, to see Carole.”[104]
[104] T 395.
Defamation
On the question of what is defamatory Mr Heywood-Smith referred me to Gatley on Libel and Slander[105] The learned authors say:
The gist of the torts of libel and slander is the publication of matter, (usually words), conveying a defamatory imputation. In determining whether words are defamatory there are two stages, first to decide what they mean, and then to decide whether the meaning is defamatory… From a technical point of view “imputation” is to be preferred to “meaning” since extrinsic facts, whether or not they are generally known, may give rise to implications which go beyond the “meaning” of the words in the ordinary sense.
It is not every untrue statement about another person that gives rise to a claim. An untrue imputation is only actionable in English law if it is defamatory. At common law, an imputation will be treated as defamatory if:
(1)the words complained of fall within one, or more, of the several tests that have at various times been offered by the courts. That is to say the imputation must be to the claimant's discredit, or tend to lower him in the estimation of others, or cause him to be shunned or avoided, or expose him to hatred, contempt or ridicule.
(2)Whatever definition of defamatory is adopted, “it must include a qualification or threshold of seriousness so as to exclude trivial claims”
[105] 12th Edition chapter 2 paragraph 2.1.

Mr Heywood-Smith submitted that because the defendant chose not to justify the defamatory imputation the court should treat every aspect of the case on the basis that the plaintiff did not have an abortion in her youth.[106]
[106] O/L paragraph 16 and T 450.
The meanings relied on in respect of the statement made by Frank on 7 August.
As to the identification of the meanings which have been pleaded Mr Heywood-Smith referred to the reasons of King CJ in Prichard v Krantz.[107] The Chief Justice said:
A plaintiff would not, of course, be confined to a precise nuance and shade of meaning pleaded or particularised. Modern judges, in any class of case, have a considerable discretion as to the rigour with which they will confine a case presented by a party to the precise language the pleadings. In many cases, moreover, the more serious allegation can be regarded as including the less serious. In that sense, the court is free to attribute to the words a less injurious meaning than that attributed to them in the pleading. An allegation that the words used mean that the plaintiff is a rapist no doubt includes a meaning that he has been guilty of a less serious type of sexual assault. An allegation that the words mean that a person is a robber no doubt includes a meaning that he has taken property by criminally dishonest means falling short of robbery. It seems to me, however, that it would be contrary to the purpose of pleadings and particulars of the plaintiff could obtain a judgement upon the basis of the meaning of the word used which was not merely a less serious form of the imputation pleaded, but amounted to an imputation of a substantially different kind.
[107] (1984) 37 SASR 379, 386.
Mr Heywood-Smith also referred to Chakravarti v Advertiser Newspapers Limited[108] where the same principle and Krantz are referred to.
[108] (1998) 193 CLR 519, 521.
I accept the submission that the plaintiff is not precisely bound to the form of words in the ways she frames it but she will be bound if she advances a case that is more serious or differs materially from the case pleaded so the defendant might have been prejudiced. In Chakravarti Brennan J and McHugh J said:
If the defendant is, or might reasonably be thought to be, prejudiced, embarrassed or unfairly disadvantaged by the departure-whether in pleading or preparing for trial, or adducing evidence or in conducting the case before verdict-the plaintiff will be held to the meaning pleaded. If the meaning pleaded goes to the jury and is not found by the jury, the plaintiff fails. If there be no unfair advantage to the defendant by allowing another defamatory meaning to be relied on and to go and be considered by the jury-as where the plaintiff seeks to rely on a different nuance of meaning or, oftentimes, merely a less serious defamation-the defamatory meaning may be found by the jury.[109]
Gaudron and Gummow JJ said:
As a general rule there will be no disadvantage in allowing a plaintiff to rely on meanings which are comprehended in, or are less injurious than the meaning pleaded in his or her statement of claim. So, too, there will generally be no disadvantage in permitting reliance on a meaning which is simply a variant of the meaning pleaded. On the other hand there may be disadvantage if the plaintiff is allowed to rely on a substantially different meaning, or, even, a meaning which focuses on some different factual basis. Particularly is that so if the defendant has pleaded justification or, as in this case, justification of an alternative meaning. However, the question whether disadvantage will or may result is one to be answered having regard to all the circumstances of the case, including the material which is said to the defamatory and issues in the trial, and not simply by reference to the pleadings.[110]
[109] Page 534 Paragraph 24.
[110] Page 546 paragraph 60.
In paragraph 9 of the Second Statement of Claim it is alleged that the words set out in paragraph 7 in their natural and ordinary meaning meant and were intended to mean:
9.1 That the plaintiff had fallen pregnant whilst out of wedlock and thereby brought shame and disgrace on to her family and to herself;
9.2 The plaintiff sought to cover up that shame and disgrace by means of a backyard abortion;
9.3 By reason of these matters the plaintiff was ejected from her home.
The evidence as to what was said on 7 August does not accord precisely with the statement that is pleaded in paragraph 7 of the Second Statement of Claim. In determining whether the meanings which are pleaded in the Second Statement of Claim have been established I must be guided by the evidence as to what was said.
Mr Heywood-Smith argued that the imputations pleaded in 9.1 arise.[111] That the plaintiff had fallen pregnant whilst out of wedlock is apparent from the words spoken and that she brought shame and disgrace on her family is implicit.
[111] In several places Mr Heywood-Smith referred to paragraph 7 but I have interpreted that as references to paragraph 9.
I find that no matter whose evidence is accepted as to the conversation on 7 August words were spoken which conveyed the meanings alleged in paragraphs 9.1 and 9.2 of the Second Statement of Claim.
As to paragraph 9.3 the meaning alleged is that “by reason of these matters the plaintiff was ejected from home.” The Second Statement of Claim alleges Frank said: “our parents were so upset at what Carole was put through that Carole was told that Dean could never set foot in their house again; Carole chose to marry Dean and was no longer welcome in the family home and was asked to leave home.”[112]
[112] Paragraph 7.
Frank’s evidence was that there was no discussion in relation to “kicking her out of the house or because she wanted to marry Dean” and the discussion ….“was not in relation to her being evicted from the house. It all came from him saying he wanted to know the reason why his grandmother and his mother had been estranged for so long, all based on that”.[113]
[113] T 339.
I accept the evidence of Susan who said that Frank said “they wanted her to leave the relationship with him (Dean) but she subsequently chose to continue the relationship and she left home”. I find that the words spoken on 7 August do not support the meaning alleged in paragraph 9.3, that is that Carole was ejected from her home.
In Paragraph 7.3 of the Defence Frank denies any intention to convey the meanings contended. While the intention of the defendant is irrelevant for determining whether the statement was defamatory or not the intention of the defendant is a matter which is relevant to the determination of the defendant's motive and the defence of qualified privilege. Also paragraph 9 of the Second Statement of Claim pleads that the words were intended to mean what is alleged.
In determining the meaning of words the intention and knowledge of the publisher are immaterial.[114] Gatley says:
… what imputation is conveyed by any particular words is to be determined by an objective test, that is, by the meaning in which the ordinary reasonable person would understand them, and is not to be determined by what the defendant intended to convey. "Liability for libel must not depend on the intention of defamer, but on the fact of defamation, and the rule is the same slander.[115]
[114] Gatley 12^th Edition paragraph 3.15.
[115] Cassidy v Daily Mirror (1929) 2 KB 331 at 354.
Duncan and Neill On Defamation, second edition also makes it clear that the test has to be applied to the meanings in which the words would be understood and not to the meaning intended by the defendant. [116]
[116] Paragraph 12.31 referring to Merivale v Carson (1887) 20 QBD 275, 281.
I find that by reason of the meanings alleged in paragraphs 9.1 and 9.2 of the Amended Statement of Claim the statement made by Frank on 7 August was defamatory.
The words were published to Adam, Mirella and Susan.
Susan was already aware of the allegation of an abortion as a result of her conversation with Mavis. Also she was Frank’s partner. I find that Adam was also already aware of the allegation as a result of discussions with Susan and Linda. Notwithstanding the limited audience Frank did publish a defamatory statement.
The defence of qualified privilege
The defendant claims that the meanings alleged were conveyed and the conversation occurred on an occasion of qualified privilege pursuant to section 28 of the Defamation Act 2005 (SA). The particulars assert that:
(a)Adam and Mirella had a clear interest (Interest) in receiving information regarding Frank's knowledge of the reasons for and the nature of Carole's relationship with and estrangement from Mavis and Frank (Subject Matter), in that:
(i)Adam is Carole’s son and Mavis's grandson, and Mirella is Carole's daughter-in-law and Mavis's granddaughter in law;
(ii)both Adam and Mirella have a close relationship with Carole, and had a close relationship with Mavis prior to her death;
(iii)the relationship between Carole and Mavis formed part of Adam and Mirella’s family history;
(iv)by virtue of the preceding facts, Adam and Mirella had an interest in better understanding the relationship between Carole and Mavis;
(v)Further, both Adam and Mirella made express to Frank during the Conversation their interest in gaining an improved understanding of the relationship between Carole and Mavis;
(b)Susan shared Adam and Mirella’s Interest in the Subject Matter, in that she is Frank's partner of more than 30 years, has a close relationship with Adam and Mirella, and had a close relationship with Mavis prior to her death;
(c)Any matter published to Adam and Mirella by Frank was published in the course of conveying to them his knowledge and understanding regarding the Subject Matter (Information); and
(d)Any matter published to Susan by Frank was published in the course of conveying to her the Information, or in the alternative was merely incidental to his communication of the Information to Adam and Mirella;
(e)Frank conducted himself reasonably in all of the circumstances when providing the Information, in that he:
(i)initially encouraged Adam and Mirella to obtain the Information from Carole directly;
(ii)only provided the Information when Adam and Mirella pressed him for it, and impressed upon him their Interest in receiving the Information;
(iii)provided the Information in a private setting, and to a very limited audience, all of whom have the relevant Interest in receiving the Information;
(iv)provided only information which he believed honestly, in good faith, and on a proper basis, to be true or substantially true, based on:
(A)his own recollections of the events and circumstances which surrounded Carole leaving the family home when he was a teenager, namely:
(I)being present at the family home when Carole returned home from work unwell and the family doctor was called;
(II)Being sent to his room while the family doctor examined Carole; and
(III)Subsequently being out in the backyard of the family home and looking up the driveway to the front gate, and observing that Dean was picking Carole up to go somewhere, and was standing on the boundary of the property and flailing his arms as if to prevent himself from stepping onto the property for Carole's amusement;
(B)his conversations with his parents, Frank Snr and Mavis, whose veracity he had no reason to doubt, in relation to the Subject Matter, namely:
(I)a conversation in the family home with both Frank Snr and Mavis, proximate to the family doctor having attended, in which they informed Frank that Carole had had an abortion which had caused her to bleed, that she could have died, and that both of them were very upset by what had happened to Carole and angry that Dean as a result of it;
(II)a conversation in the family home with both Frank Snr and Mavis, proximate to Carole leaving the family home, in which they informed Frank that they had told Dean he was no longer welcome at the family home;
(III)Subsequent conversations with Mavis before the birth of Adam to the effect that Carole may have difficulty having children because of damage caused by the abortion;
(IV)Subsequent conversations with Mavis on numerous occasions over the more than 50 years that followed, in which she referred to Carole's experience and indicated that she and Frank Snr blamed Dean;
(v)provided the Information in a sensitive way, including by making clear that he considered the whole situation to be very sad and sympathised with Carole; and
(vi)encouraged Adam and Mirella to discuss the Information with Carole.[117]
…..
[117] Defence paragraph 8.2.
Particulars of common-law defence of qualified privilege
(a)Frank repeats and refers to the particulars to paragraph 8.2 of this defence and says that in those premises:
(i)he conveyed the Information to Adam and Mirella in pursuance of a social and moral duty to persons who had a corresponding duty or interest to receive Information about the Subject Matter;
(ii)he, Susan, Adam and Mirella had a common legitimate interest in the Information and the Subject Matter
For the statutory defence of qualified privilege to apply the defendant must prove:
(a) the recipient has an interest or apparent interest in having information on some subject; and
(b) that 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." S 28 (1)
The recipient has an apparent interest in having information on a subject if at the time of the publication the defendant believed on reasonable grounds that the recipient has that interest.[118]
[118] S 28 (2).
In determining whether the conduct of the defendant is reasonable the court may take into account the seriousness of any defamatory imputation carried by the matter published and the extent to which the matter published distinguishes between suspicions, allegations and proven facts.[119] Also the court may take into account the sources of information in the matter published and the integrity of those sources.[120]
[119] S 28 (3) (c) and (d).
[120] Paragraph (g).
The statutory defence is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.[121]
[121] Subsection 28 (4).
The common-law defence of qualified privilege applies when a publication “is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned… If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society.” [122]
[122] Stanton v Fell (2013) NSW SC 1001 [123] citing Toogood v Spyring (1834) 149 ER 1044, 1049-1050.
In 1855 in Harrison v Bush the principle was described by Lord Campbell CJ in the following terms:
A communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contain criminatory matter which, without this privilege, would be slanderous and actionable.[123]
[123] (1856) 5E & B 344, 348.
Later in Pullman v Hill and Co-Lord Esher MR said:
The occasion is privileged when the person who makes a communication has a moral duty to make it to the person to whom he does make it, and the person who receives it has an interest in hearing it. Both these conditions must exist in order that the occasion may be privileged.[124]
[124] (1891) 1 QB 524, 529
In London Association for Protection of Trade v Greenlands Lord Parker said:
It is therefore a principle of law that a person asked for information affecting the credit of another is justified in giving it, provided (1) that he bona fide believes in the truth of the information which he gives; (2) that he bona fide believes that the person making the enquiry has an interest which justifies it;…[125]
[125] (1916) 2 AC 15 at 42
The authors of Duncan & Neill on Defamation suggest that the observation of Lord Parker can be applied to the case of any person who is asked for information and honestly believes that the person asking the question has a proper interest in receiving the information.[126]
[126] Duncan & Neill On Defamation Second Edition para 14.06
In Adam v Ward Lord Atkinson said:
….a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest, or a duty, legal, social or moral to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. This reciprocity is essential.[127]
[127] (1917) AC 309 at 334.
The type of interest that is required was described by the Privy Council in Austin v Mirror Newspapers[128] in the following terms:
An interest material to the affairs of the recipient of the information such as would for instance assist in the making of an important decision or the determining of a particular course of action.
[128] (1985) 3 NSW LR 354 at 358.
The existence of a close family relationship can establish the requisite duty or interest. Gatley states:
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 these interests may be protected, and any such information they volunteered will be privileged, provided it is given bona fide and with the honest purpose of protecting these interests.[129]
[129] Gatley on Libel and Slander 11th Edition paragraph 14.38.
In connection with the statement made on 7 August Mr Douglas submitted that there was an interest or a social or moral duty because of the close familial relationship between the participants in the conversation and both Carole and Mavis, and the content of the conversation related entirely to family matters and matters of family history. He argued that each of the participants to the conversation had a clear personal interest in having information on those matters both at common-law and under statute. To the extent that either Susan or Mirella did not have that interest, which Mr Douglas denied, they were merely incidental participants in the conversation.
It was submitted by Mr Douglas that there is a clear public interest in close family members being able to speak freely and openly to one another about matters causing or which have in the past caused tension or dissension within the family, without fear of reprisal in public court proceedings.
Mr Heywood-Smith denied the existence of an appropriate interest. He submitted that the communication of a highly defamatory allegation, unverified and unverifiable, in the circumstances which pertained here, was not in either the authors or the recipient's interest.[130]
[130] Para 30.
Mr Heywood-Smith referred to paragraph 3 of the Reply where the plaintiff denies that Mirella or Susan had the requisite interest. In addition, the Reply alleges that Frank did not conduct himself reasonably because Frank had never raised the issue with Carole or Dean over a period in excess of 50 years,[131] between 1998 to 7 August 2012 Frank never approached Carole or Dean and told them that Adam was seeking information which they were duty bound to provide to Adam,[132] the words were spoken by the defendant advisedly following a question by Susan directed to Mirella as to whether the plaintiff was “litigious”[133] and the words were spoken by Frank in circumstances whereby he knew that he could not or alternatively was not prepared to justify the implications conveyed by them.[134]
[131] Para 3.1.
[132] Para 3.2.
[133] Para 3.3.
[134] Para 3.4.

I find that Mirella and Susan did have a relevant interest by reason of their close family relationships with Adam and Frank.
I accept the argument of Mr Douglas and the argument in paragraph 8.2 of the Defence.[135]
[135] Set out above.
I accept the testimony of Susan and Frank which establishes the factual assertions in paragraph 8.2 of the Defence.
In my opinion the fact that Frank had never raised the issue with Carole or Dean is inconsequential. Frank had almost no contact with Carole and Dean for several decades. I find that Frank had no prior notice that the topic was going to arise in the conversation with Adam on 7 August. There had been no prior reason for Frank to contact Carole and raise a very delicate matter.
I accept the evidence of Susan that Frank never asked whether Carole was litigious. There was a conversation about litigation that Carole and Dean were involved in but that was in a different context. Specifically there is no evidence that Frank spoke the words advisedly. If Susan had asked about litigation for the suggested reason the discussion which followed would have discouraged Frank from making any statement that might give rise to a claim. However, I reject any suggestion that Susan or Frank asked a question to assess the risk of being sued.
There is no evidence to support the plaintiff’s allegation that Frank spoke the words in circumstances whereby he knew that he could not justify the implications as alleged in paragraph 3.4.
I reject the submission that Frank did not conduct himself reasonably. I find that Frank did conduct himself reasonably. He had reasonable grounds to believe that what his mother and father had told him was true. That belief was reinforced by his knowledge of what Mavis later told each of Susan and Linda. I accept the evidence of Susan as to the circumstances in which Frank made the statements.
I reject the matters raised by paragraph 3 of the Reply.
For the purposes of the statute it is not necessary that all of the criteria listed in sub paragraphs (a) to subparagraph (j) of subsection 28 (3) be satisfied. That subsection is merely a list of matters which the court may take into account.
I accept the evidence of Frank and Susan that the discussion arose in response to direct questioning from Adam and Mirella about the circumstances in which Carole left home.[136] I find that the discussion gave rise to reasonable grounds on which Frank believed, for the purposes of subsection 28 (3) of the Act, that Adam and Mirella had an interest in those matters.
[136] T 195, T 211.
I accept the evidence for the defendant that the statements were presented as a combination of Frank's own recollection and what he was told by his parents rather than as a statement of fact.
I accept the submission of Mr Douglas that it is relevant in the circumstances that Carole and Dean had declined to discuss the matters in question and Frank was the only person to who could provide Adam and Mirella with first-hand information on a topic which was of interest to them.
Mr Heywood-Smith submitted[137] that there was a question as to whether the requirements in subsection 28(1)(a) were satisfied. I have considered all the submissions in paragraphs 22 and 23 of his written outline. In my opinion it was of no consequence that Frank had not raised the allegation with Carole in 55 years. I find that the requirements of that subsection have been satisfied.
[137] Outline paragraph 23.
In my opinion the privilege was not lost because Frank knew that he could never justify the words. There is no evidence that Frank had ever applied his mind to that topic. He had no prior reason to believe that the conversation on 7 August would take the course that it did.
Despite the fact that paragraph 5.5 (h) of the Defence does not plead that the words were a report of what Frank had been told by his parents, I accept the evidence by Susan and Frank that Frank presented the information as what he had been advised by his mother and his father.
I find that the defendant has proved that the recipients had an interest or apparent interest in having the information and that the matter was published to the recipient's in the course of giving to the recipients information on that subject. I find that the conduct of the defendant in publishing the matter was reasonable and accordingly the defendant is entitled to the protection of section 28 of the Defamation Act 2005.
I find the words were spoken on occasion of qualified privilege.
Malice
The common-law defence of qualified privilege is defeated if the plaintiff proves that the defendant was motivated by malice.
“Malice” has been described as “ill will, spite or other improper motive”. Theophanos v Herald and Weekly Times[138] and Lange v Australian Broadcasting Commission.[139]
[138] (1994) 182 CLR 104, 136.
[139] (1997) 189 CLR 520.
The law as to malice was discussed in the speech of Lord Diplock in Horrocks v Lowe[140] His Lordship said:
… in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit – the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which is entitled to protect by doing so. If he uses the occasion to some other reason he loses protection of privilege.
So, the motive with which the defendant on a privileged occasion made the statement defamatory of the plaintiff becomes crucial. The protection might, however be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. “Express malice” is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive the plaintiff sets out to prove. But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interest.
The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. If it be proved that he did not believe that what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interest can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person.
Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, “honest belief”. If he publishes untrue defamatory material recklessly, without considering all caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false….
Even a positive belief in the truth of what is published on a privileged occasion – which is presumed unless the contrary is proved – may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames. If this be proved, then even positive belief in the truth that is published will not enable the defamer to avail himself of the protection of privilege to which he would otherwise have been entitled. There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant’s dominant motive may have been to obtain some private advantage unconnected with the duty or the interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true.
Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to truth of its falsity. The motives with which human beings act are mixed. They find it difficult to hate the sin but love the sinner. Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with the duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person's conduct and welcomed the opportunity of expressing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no part in his motives for publishing what he believes to be true that “express malice” can properly be found.
[140] (1975) AC 135 at 149.
Subsection 28 (4) of the Defamation Act also provides that the statutory defence of qualified privilege "is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice."
It is clear that in August 2012 Carole and Frank were not on good terms. The exchange of e-mails between them and the fact that Frank did not want Carole to attend the funeral are sufficient evidence of that.
Frank had always been very close to Mavis. On the other hand Mavis and Carole had little to do with each other during the last three decades of Mavis's life. Their relationship appears to have deteriorated from about the time when Mavis declined to move into the granny flat at Springfield in the 1970s, but it is unnecessary to make any finding as to the actual reason for the estrangement.
Exhibit D 20 is a letter written by Mavis which was included in the deed packet with her will. In the letter, which is dated 10 July 1994, Mavis explained why Carole was not mentioned in the will. Mavis wrote that her parents had given Carole everything until she reached the age of 18 when she left home. Mavis wrote that caused her father and Mavis a great deal of stress and unhappiness which eventually caused her father to have a heart attack. Mavis wrote that eventually there was a reconciliation but Carole never showed her parents any real affection,. She made the statement "so she is not interested in me during my life, she does not deserve the benefit at my death." Mavis described Frank as a caring attentive son.
While they had little to do with each other there is no evidence of any friction between Frank and Carole up until the time of Mavis death.
Mavis was critically ill and was hospitalised about 12 months prior to her ultimate death. Notwithstanding knowledge of that illness Carole did not contact Mavis prior to Mavis's death.
During the weeks leading up to Mavis's death Frank and Susan distributed e-mails to his children and to Adam and Mirella which provided updates as to Mavis's condition. Carole was not included in the distribution. Frank said he relied upon Adam to keep Carole informed. Adam gave evidence that he did keep her informed of Mavis’s condition.[141]
[141] T 243.24.
Mavis died on the morning of 31 July 2012. Following Mavis's death there was the exchange of e-mails which I have referred to between Frank and Carole.
Carole gave evidence that Frank had instructed the funeral parlour not to provide information to Carole. Frank gave evidence to the contrary. I make no finding as to that topic.
It is common ground that Frank did not want Carole to attend the funeral. He had told her that if she did attend he would treat her as if she was not there.
Frank gave evidence that after her serious illness in 2011 Mavis told him “that because Carole hadn't shown any interest in her she didn't want Carole to attend her funeral.”[142] If Frank was giving effect to his mother's wishes that may be relevant to the question of malice on his part.
[142] T 315.
Carole was not invited by Frank to the activities that followed the burial.
His email of 8 August[143] by itself is sufficient to indicate that Frank was not well disposed towards Carole.
[143] Exhibit P4.
However, does the evidence make out the defence of malice?
Mr Heywood-Smith submitted that an ulterior or extraneous purpose could be inferred by the court.[144] He also argued that the defendant was prepared to make the allegation knowing that neither he nor his sister could adequately establish or refute it.[145] I do not accept that submission. There is no evidence that Frank applied his mind to the question of whether either he or his sister could establish or refute the statement or that he was motivated by that circumstance. There was no reason for Frank to have done that. Frank believed the statements made to him by Mavis and his father and he knew of the statements which Mavis had made to Susan and Linda.
[144] O/L 31.
[145] O/L 32.
I do not accept the plaintiff’s submission that choosing to hide behind a suggestion that his parents had told him about an abortion was a ‘late coming “life raft”.’[146] As I have mentioned I accept the evidence of Susan that the statements to Adam and Mirella were in the context of Frank repeating what he had been told by his mother and his father.
[146] Paragraph 33.
While Frank was not well disposed towards Carole, I find that malice was not the motivating factor for him to make the statement on 11 August.
The position is stated succinctly in Gillooly, The Law of Defamation In Australia and New Zealand, in the following terms:
Malice in the mind of the defendant is irrelevant unless it is proved to be either the sole or dominant motive for publishing the defamatory matter.
The author refers to Horrocks v Lowe supra, Hanrahan v Ainsworth[147] and Lange v ABC (supra)
[147] (1990) 22 NSW LR 73 at 105.
The plaintiff has not proved that the sole or dominant motive for publishing the statement on 7 August was Frank's attitude towards his sister. I find that the evidence does not establish that in making the statement on 7 August Frank was motivated by malice. I find 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.
I find that the statement on 7 August was made on an occasion of qualified privilege.
The alleged defamation by reason of the e-mail of 8 August (exhibit P4)
The publication of the e-mail to Carole herself cannot give rise to a claim for defamation. It is the publication of the e-mail to Mirella which is complained of.
Mirella was not intended to be the ultimate recipient of the message but was the medium through which the message was to be conveyed to Carole. The publication to Mirella was incidental to the intended publication to Carole. As I have mentioned the services of Mirella had previously been utilised by both parties to facilitate the exchange of e-mails.
In paragraph 10 of the Second Statement of Claim it is alleged that the words in the e-mail to Mirella meant and were understood to mean:
10.1 The plaintiff was estranged from her mother because of the alleged abortion incident;
10.2 By reason of that estrangement the plaintiff never treated her mother as a child should;
10.3 By reason of that estrangement the plaintiff was worse than indifferent, indeed callous, to her mother's well-being;
10.4 The plaintiff is guilt ridden towards her treatment of her mother;
10.5 The plaintiff is a hypocrite."
The plaintiff claims that they are the natural and ordinary meaning of the words in the e-mail or alternatively by reason of the prior publication of “the words” to Mirella on 7 August meant and were understood to have the meanings particularised. “The words” are defined as the words spoken at the meeting on 7 August.
Mr Heywood-Smith argued Mirella had heard “the words” spoken on 7 August which included the suggestion that her mother-in-law came home bleeding, a doctor was called and she had an abortion. He argued that against that background the assertion in the e-mail of “alleviating your guilt” directed Mirella’s mind to the guilt that Carole had associated with what she had subjected her parents to many years before at the time of the alleged abortion incident. For that reason he argued that the meanings pleaded do arise. He acknowledged that the words must be construed against the whole e-mail.
In his Defence (para 6) Frank admits sending the e-mail to Carole but denies that constituted a publication to Mirella because:
(a)Frank used Mirella’s e-mail address because that was the means which Carole previously used to contact him, and Mirella had offered, by e-mail to Frank and Susan dated 6 August 2012, to forward an e-mail to Carole;
(b)Frank did not have any alternative e-mail address to Carole, or means of sending a fax;
(c)The subject line of the e-mail contained the words “please pass this on Mirella”, and the e-mail was clearly addressed to “Carole”;
(d)Mirella printed the e-mail and delivered it to Carole at her home on the same day; and
(e)Mirella was merely an incidental recipient of the e-mail;
Frank denies that the meanings contended in paragraph 10 were published to Mirella, denies that those meanings were defamatory of Carole, and pleads that the meanings were conveyed and the e-mail was sent on an occasion of qualified privilege pursuant to section 28 of the Defamation Act 2005. Particulars are given of the statutory defence of qualified privilege.
Frank also pleads that the meanings were conveyed and the e-mail was sent on an occasion of qualified privilege at common law. Particulars of the common-law defence are provided.[148]
[148] Defence 10.3.
Additionally there is a plea that if the alleged meanings were conveyed they were true or substantially true in substance and in fact.[149] As particulars of justification Frank repeats paragraphs 3 and 10 (c) (iii) (C) of the Defence.
[149] Defence 10.4.
Qualified privilege for the publication to Mirella
The publication to Mirella was not for a reason that can give rise to a claim of qualified privilege. I accept the submission of Mr Heywood-Smith that there was simply no interest in publishing the e-mail to Mirella.[150] I do not accept the submission in[151] the defendant’s written submissions that Mirella had a clear interest in understanding Frank's opinions and perspectives in relation to the shared family history. The email was not concerned with the family history.
[150] O/L 35.
[151] Paragraph 151.
The reason for the publication to Mirella was so that the message could be passed on to Carole. I find that the publication of the e-mail to Mirella was not made on an occasion of qualified privilege.
Was publication to Mirella a sufficient publication?
The publication to Mirella was incidental to the transmission of the letter to Carole. At the relevant time Mirella acted as a conduit to facilitate communications by e-mail between Frank and Carole.
Gatley on Libel and Slander, 11th Edition states that:
"In the past telegrams were necessarily communicated to the agents of the Telegraph Company which transmitted them."[152]
[152] Paragraph 6.15.
Gatley also states that the sending of a libellous postcard has been held to be prima facie evidence of publication to the persons who handled the postcard and that in the case of a libel contained in a telegram the contents "are necessarily communicated to all clerks through whose hands it passes.[153] Williamson v Freer.[154]
[153] Paragraph 34.8.
[154] (1874) LR 9 C.P. 393 at 395.

Gatley also states that there is a publication where the defamatory matter is communicated to the claimant’s agent.[155]
[155] Paragraph 6.8.
It has been held that dictation of a letter to a typist is sufficient publication. Pullman v Hill and Co;[156] Riddick v Thames Board Mills.[157]
[156] (1891) 2 QB 524.
[157] (1977) 1 QB 881.
I find that the e-mail was published to Mirella.
The meanings conveyed by the email
Do the words which were published convey the meanings which are alleged in paragraph 10 of the Statement of Claim?
A concise summary of the law is set out in Duncan and Neil On Defamation, Second Edition paragraph 4.04:
"4.04The natural and ordinary meaning of words is the meaning in which the words would be reasonably understood by ordinary people using their general knowledge and common sense. This meaning is determined in accordance with the following principles-
(a)The court decides the natural and ordinary meaning as a question of fact by attributing to the words the meaning which the court considers that they would convey to ordinary reasonable persons. It is not limited to the literal meaning of words but includes any inference or implication which would reasonably be drawn.
(b)The sense in which the words were intended is treated as irrelevant.
(c)The sense in which the words were in fact understood is treated as irrelevant though, it seems, regard will be had to the sort of people to whom the words were or were likely to have been published.
(d)The words are construed in the context.
(e)Where a case is tried with a jury the decision as to the natural and ordinary meaning of the words is for the jury, but the judge may first have to rule whether the words are capable in law of bearing one or more of the meanings which the parties contended."
Mr Heywood-Smith referred me to Gatley on Libel and Slander[158] and Radio 2UE Sydney P/L v Chesterton,[159] which reinforces the principle that the referees of whether a person has been defamed are ordinary, reasonable people.
[158] 12 Edition chapter 2 paragraph 2.1.
[159] (2009) 238 CLR 460, 467-468.
The implications set out in paragraph 8 of the Second Statement of Claim are pleaded to arise by natural and ordinary meaning and by true innuendo.
I must first consider whether the words convey the alleged meanings. Then the question is whether the words which were published are true in substance and in fact. The defendant has the onus of proving that the words are true.
It is not necessary to prove the truth of every detail of words. What the defendant must do is to prove the “sting” of the charge. In Edwards v Bell Burough J said: “As much must be justified as meets the sting of the charge, and if anything be contained in the charge, which does not add to the sting of it, that need not be justified.”[160]
[160] (1824) 1 Bing 403, 409.
The defendant must prove that the imputations arising from the matter complained of are substantially true. Sutherland v Stopes,[161] Howden v Truth and Sportsman.[162]
[161] (1925) AC at 55.
[162] (1937) 58 CLR 416 at 420.
Section 23 of the Defamation Act 2005 provides that it is a defence to publication of defamatory matter if the defendant proves that the defamatory imputation carried by the matter of which the plaintiff complains are substantially true.
I find that the words in the e-mail, either in their natural and ordinary meaning or by reason of the prior publication to Mirella of “the words”, do not convey the meaning alleged in paragraph 10.1 of the Second Statement of Claim, that is that Carole “was estranged from her mother because of the alleged abortion incident”, The e-mail does not contain any express or implied reference to the topic of estrangement. The estrangement after 1979 is something different from Carole leaving home in 1957. Nor does the e-mail contain any reference to the alleged abortion incident.
Paragraph 10.2 pleads “By reason of that estrangement the plaintiff never treated her mother as a child should” (my underlining). I accept the submission of Mr Douglas that the reference to “that estrangement” defines the meaning in paragraph 10.2. I find that the e-mail did not convey the meaning alleged in paragraph 10.2 of the Second Statement of Claim.
If I am wrong and the e-mail does contain the meaning alleged and because of the principle referred to in Chakravarti and Pritchard v Krantz (supra), paragraph 10.2 should be interpreted to contain only the unqualified statement, “only one of us has treated her the way a child should”, without any reference to “that estrangement”, I find the defendant has justified that meaning.
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.[163]
[163] Written submissions paragraph 175.
The defendant has justified the allegation in paragraph 10.2
The meaning alleged in paragraph 10.3 is “By reason of that estrangement the plaintiff was worse than indifferent, indeed callous, to her mother's well-being.” Paragraph 10.3 is also prefaced by the words “By reason of that estrangement…”. Again I find that the reference to “that estrangement” defines the meaning in paragraph 10.3. I find that the e-mail did not convey the meaning alleged in paragraph 10.3 of the Second Statement of Claim.
However, if I am wrong and the qualification “by reason of that estrangement…” in paragraph 10.2 can be ignored, I would find that the evidence does establish that Carole has been “worse than indifferent, indeed callous, to her mother’s well-being”. I would make that finding for the same reasons that the meaning alleged in paragraph 10.2 has been justified. I find that the defendant has justified the words in paragraph 10.3 of the Second Statement of Claim.
The meaning alleged in paragraph 10.4 is “The plaintiff is guilt ridden towards her treatment of her mother”. The e-mail contains the words “If you believe by attending (the funeral) it will go some way towards alleviating your guilt you are sadly mistaken.” I find those words in the e-mail do convey the meaning alleged in paragraph 10.4 which is defamatory.
I do not draw the same distinction between being “guilt ridden” and “guilty” that is made in paragraph 99.2 of Mr Douglas’s written submission.
At the time of Mavis's death Carole had had almost nothing to do with her mother for several decades but she was eager to be included in the funeral.
I accept Mr Douglas’s submission that the matters set out in paragraph 58.6 of his written submissions establish guilt. Those submissions refer to the fact that Carole conceded partial responsibility for the lack of contact with her mother in the 30 years preceding her mother's death[164] and conceded regret over not having reconnected with her mother prior to her mother's passing.[165] I accept the submission of Mr Douglas that she admitted constituent elements of guilt namely regret for partial wrongdoing.
[164] T 136; T 138.
[165] T 136.
In contrast with the fact that she had had nothing to do with Mavis for decades Carole wanted to attend the funeral. I find that the evidence gives rise to an inference that Carole wished to attend the funeral to alleviate guilt arising from the fact that she had had nothing to do with her mother. I find that the meaning alleged in paragraph 10.4 of the Second Statement of Claim has been justified.
The meaning alleged in paragraph 10.5 is “The plaintiff is a hypocrite.” The e-mail states that if Carole attended the funeral “it will be seen as an act of gross hypocrisy.” I find that the words in the e-mail do convey the alleged meaning which is defamatory.
In my opinion, that statement has been justified. When Carole’s desire to attend the funeral is contrasted with her conduct towards Mavis over several decades, in particular during the period following Mavis’s critical illness from 2011 to 2012, her conduct in wanting to attend the funeral was hypocritical.
To the extent that it may be necessary I find that the defendant has justified the defamatory words in the e-mail which is exhibit P4. Accordingly the claim which is based on the e-mail must be dismissed.
Delay and forensic disadvantage
In his written submissions and orally Mr Heywood-Smith complained about the delay of the defendant in raising the matter with Carole and consequential forensic disadvantage which she has suffered. He argued that the delay would have made it almost impossible for Carole to refute the allegation.[166]
[166] O/L paragraphs 19 and 20.
In this case the allegedly defamatory allegation is presumed to be false. Frank has not raised the defence of justification. There is nothing for Carole to refute.
I am unable to see how Carole is at a forensic disadvantage or how Frank’s delay in raising the abortion is relevant to the resolution of this case.
Conclusion
There should be judgement for the defendant.
Damages
Notwithstanding the fact that the plaintiff’s claim should, in my opinion, be dismissed I am required to make an assessment of damages. In his opening Mr Heywood-Smith said that the plaintiff sought $25,000. In his closing address Mr Heywood-Smith said that because of aggravating factors she now seeks $50,000.
A separate assessment should be made for each allegedly defamatory statement.
The oral statement on the evening of 7 August was made in the presence of Susan, Adam and Mirella. Each of those persons was already aware that Mavis had stated that Carole had had an abortion before she left the family home. There is no evidence that any of those persons thought any less of Carole as a result of the statement. The relationship between Carole, Adam, and Mirella did not suffer as a consequence of the statement.
I find that Adam and Susan were already aware from Mavis and Linda of the suggestion that Carole had undergone an abortion. There is no evidence that Carole's reputation has suffered as a consequence of what was said by Frank on 7 August.
Carole gave evidence that she had never heard the allegation prior to the publication of the words on 8 August. I accept that the allegations would have caused injury to her feelings.[167]
[167] T 457.10.
Mr Heywood-Smith suggested that in the circumstances of this case the plea of qualified privilege was a de facto plea of justification which should aggravate the damages.
Mr Heywood-Smith submitted that the defendant brazenly asserted the truth of the allegation of the abortion despite the fact that he did not plead justification. He submitted that by doing so he threw the allegation in his sister’s face without giving her the opportunity to contest a plea of justification. He said such conduct is unprecedented in common-law jurisdictions. He submitted that Gatley 12 Ed records no instance of it.[168] He pointed out that the plaintiffs evidence as to the events surrounding her admission to hospital many years ago were not challenged.[169] Using words of Alexander Pope, Mr Heywood-Smith categorised Frank as a person who is "willing to wound, and yet afraid to strike." In assessing damages I take those submissions into account.
[168] O/L 42.
[169] O/L 43.
Mr Heywood-Smith referred me to Gatley paragraph 32.59 for the well known proposition that damages can be aggravated by the way in which the case is conducted on behalf defendant at trial. Gatley says “The court can take into account that the claimant has been cross-examined in a wounding or insulting way, or has been personally criticised in the course of counsel’s closing speech.”
Mr Heywood-Smith submitted that the nature of the cross-examination was such as to aggravate the hurt. He said it was repeatedly put to the plaintiff that she was lying to the court and that the whole case was a matter of self-indulgence on her part.[170] The suggestions that Carole was lying related to her evidence about what she had been told about the condition of Mavis, what she had been told by White Lady Funerals and the suggestion that because her mother became angry with her in 1979 that justified her not speaking to her mother for the last 30 years of her life. They are all peripheral matters and in my opinion the robust cross‑examination was appropriate and did not aggravate damages.
[170] O/L 46.
Mr Heywood-Smith submitted that Carole had been cross-examined as to the events of 1957 on a basis suggestive of truth.[171] It was a searching cross-examination but it was never suggested that Carole lied about having had an abortion
[171] O/L 47.
It was put to Carole that the e-mail was true.[172] That was Frank’s case. I have found that it is justified by the evidence.
[172] T 133.31 – 38, O/L 48.
Mr Heywood-Smith pointed to the absence of an apology. While an apology was offered at the time of the first trial in November last year the apology was late, it was a conditional apology and was not a full and frank apology. Frank has explained why he is not able to withdraw the allegations. It was submitted that the nature of the cross-examination was such as to aggravate the hurt and that it was repeatedly put to the plaintiff that she was lying to the court.
The plaintiff’s outline refers to a suggestion that the plaintiff may have interfered in some way with the evidence of Adam and Mirella. [173]There is insufficient substance in that allegation for it to aggravate the damages.
[173] O/L 49.
Carole did say that the statement made on 7 August was the most hurtful thing that had happened to her. She is entitled to be compensated for that.
In assessing damages I am influenced by the fact that it was a limited publication. There is no evidence that the reputation of Carole has suffered any harm. However she should be compensated for the distress which she suffered.
If the statement on 7 August was not protected by qualified privilege, I would assess damages at $10,000.
The e-mail of 8 August[174] 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.
[174] 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.
If the defence of justification was not available I would assess damages in respect of the e-mail at $100.