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Stone v MOORE

Stone v MOORE

Case [2015] SADC 130 22 September 2015

Defamation

Qualified Privilege

Publication

Rebuttal of Privilege by Malice

Justification

Tort Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stone v MOORE

Details

AGLC: Stone v Moore [2015] SADC 130
Case: [2015] SADC 130
Decision Date: 22 September 2015

CaseChat Overview and Summary

Stone v Moore is a defamation case brought by the plaintiff against her brother, the defendant, following the death of their mother. The plaintiff claimed that the defendant’s oral statement, made in the presence of several family members, and a subsequent email, were defamatory. The court was tasked with determining whether the statements were defamatory, whether the email constituted a publication, whether the statements were protected by qualified privilege, and whether the defendant could rebut the privilege by proving malice, as well as whether the defendant could justify the statements.

The court had to decide if the oral statement and email contained defamatory imputations, if the email was a publication of the defamatory statement to the plaintiff, if the defendant’s statements were protected by qualified privilege, if the privilege was rebutted by proof of malice, and if the defendant could justify the statements. The court also had to consider whether the statements were published to a third party and whether the defendant’s statements were protected by qualified privilege. If the privilege was established, the court had to determine if the plaintiff could rebut it by proving malice.

The court held that the defendant’s statements were defamatory as they conveyed an imputation that the plaintiff was a person of poor character and unfit to handle her mother’s estate. The court found that the email did not constitute a publication of the defamatory statement to the plaintiff as it was sent to the plaintiff’s daughter-in-law, who was not a third party. The court held that the defendant’s statements were protected by qualified privilege as they were made in respect of a duty or interest. However, the privilege was rebutted by proof of malice as the defendant made the statements with the intention of causing harm to the plaintiff. The court found that the defendant could not justify the statements as they were not true.

The court ordered the defendant to pay damages to the plaintiff for the defamatory statements. The court did not award any costs.

Orders