Tolega Pty Ltd v Sandell

Case [2011] SASC 100

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

TOLEGA PTY LTD v SANDELL

[2011] SASC 100

Judgment of The Honourable Justice Anderson

22 June 2011

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - IN GENERAL

DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - STATEMENTS MADE IN RESPECT OF A DUTY OR INTEREST - PARTICULAR STATEMENTS - IN PROTECTION OF DEFENDANT'S OWN INTEREST

DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - STATEMENTS MADE IN RESPECT OF A DUTY OR INTEREST - PARTICULAR STATEMENTS - ON MATTERS OF PUBLIC INTEREST - WHAT CONSTITUTES PRIVILEGED OCCASION, COMMUNICATION OR CONDUCT

Appeal from decision of a magistrate - respondent published newsletter which contained imputations defamatory of the appellant - whether common law defence of qualified privilege made out by appellant in respect of publication - whether an occasion of qualified privilege existed - whether defamatory imputations contained in the publication were sufficiently connected to the privileged occasion.

Held: Magistrate erred in determining first that the defamatory publication was not made on a privileged occasion and secondly that the defamatory imputations were not sufficiently connected to the privileged occasion - appeal allowed.

Aged Care Act 1997 (Cth) Part 4.1, s 54-2 and s 67-5; Quality of Care Principles 1997 (Cth), referred to.
Megna v Marshall [2010] NSWSC 686, applied.
Aktas v Westpac Banking Corporation Ltd [2010] HCA 25; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; Manefield v Childcare NSW [2010] NSWSC 1420, discussed.
Adam v Ward [1917] AC 309; Holmes a Court v Papaconstuntionos [2011] NSWCA 59; Bennett v Cohen [2009] NSWCA 60, considered.

TOLEGA PTY LTD v SANDELL
[2011] SASC 100

g

Civil

ANDERSON J

Introduction

  1. This is an appeal by way of rehearing from the decision of a magistrate who found the defendant (the present appellant) had published a newsletter containing imputations that were defamatory of the plaintiff. The Newsletter was published on 4 November 2005. The only issue on appeal is whether the magistrate correctly dealt with the issue of qualified privilege.

  2. The magistrate found that the plaintiff had established that the words contained in the newsletter conveyed four imputations that were defamatory of the plaintiff. The plaintiff was awarded damages exceeding but reduced to the jurisdictional limit of $40,000 plus interest and costs. The issue on appeal is whether the magistrate should have found the defence of qualified privilege for defamation was made out in respect of the publication. The defendant does not appeal against the finding that the imputations were conveyed, or on the question of damages.

  3. In an appeal by way of rehearing, the appellate court is placed in the position of the trial judge. The appellant court must decide on the proper inference to be drawn from facts that are either undisputed or are established by the findings of the trial judge. The appellate court is required to consider suggested errors of fact-finding and is obliged to give…

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AGLC
Tolega Pty Ltd v Sandell [2011] SASC 100
Case
[2011] SASC 100
Decision Date

CaseChat Overview and Summary

Tolega Pty Ltd, the Approved Provider of Bartonvale Nursing Home, appealed against a decision of the Supreme Court of South Australia, which held that the respondent had not established the defence of qualified privilege in relation to a newsletter published by the respondent that contained imputations defamatory of Tolega. The respondent, employed by Tolega as a personal carer, published the newsletter following an investigation into allegations of harassment by the Nursing Home staff, which recommended an urgent investigation into the quality of care provided at the Nursing Home. The investigation led to a report by the Commonwealth Aged Care Standards Accreditation Agency, which identified evidence that Tolega had not complied with Accreditation Standards and recommended sanctions. Tolega was subsequently subject to a Sanctions Notice from the Commonwealth Department of Health and Aging, which stated that the Nursing Home was not complying with the Accreditation Standards and consequently there was “immediate and severe risk” to residents in its care.

The court was required to decide whether the common law defence of qualified privilege made out by Tolega in respect of the publication. The court was also required to determine whether an occasion of qualified privilege existed and whether the defamatory imputations contained in the publication were sufficiently connected to the privileged occasion. The court found that the occasion was one of qualified privilege, as the circumstances were such as to give rise to the requisite duty or interest in the publisher, and the reciprocal interest in the recipient in receiving the publication. The court held that the learned magistrate erred in determining that whether the respondent had fairly and properly conducted itself was relevant to the first strand of inquiry, as such a consideration goes to the issue of malice and is only relevant to the third strand of any inquiry but not relevant to this case.

The court allowed the appeal and concluded that the magistrate was most likely attempting to say that there was not an occasion of qualified privilege even though the facts and surrounding circumstances were sufficient to create the potential for such an occasion. The court held that Her Honour did not regard the defamatory statements as being sufficiently relevant to the occasion of privilege, but the court disagreed with this finding. The court concluded that the magistrate was incorrect in her decision, and the occasion was one of qualified privilege. The court allowed the appeal and will hear the parties as to costs.

Orders

Orders of the court

I allow the appeal. I will hear the parties as to costs.

Background

Background to the litigation

At the time of the defendant’s publication, the Defamation Act 2005 (SA) had not come into force.Background The appellant is the Approved Provider of the Bartonvale Nursing Home located at Enfield (“the Nursing Home”), pursuant to the Aged Care Act 1997 (Cth) (“the Act”). The respondent at the relevant time was employed by the appellant at the Nursing Home as a personal carer. In mid 2005, management implemented a number of changes to staff practices at the Nursing Home in an attempt to address deficits in nursing care. Subsequently, an independent consultant was appointed by the Nursing Home to investigate allegations of harassment by the Nursing Home staff. In a report following the investigation as well as dealing with the harassment allegations, recommendations were made that the quality of care provided at the Nursing Home be investigated as a matter of urgency. Pursuant to Part 4.1 of the Act, Approved Providers of aged care facilities are required to meet “Quality of Care Principles” made by the Minister under the Act. Section 54-2 of the Act states that the Quality of Care Principles may set out Accreditation Standards for the provision of residential care. The Quality of Care Principles 1997 made by the Minister under the Act set out four principle Accreditation Standards:(1)Management systems, staffing and organisational development(2)Health and personal care(3)Resident lifestyle(4)Physical environment and safe systems There are 44 expected outcomes across the four Accreditation Standards which the Nursing Home was required to comply with at all times. On 20 October 2005, the Commonwealth Aged Care Standards Accreditation Agency (“the Agency”) conducted a review audit of the Nursing Home. The Agency produced a report in which it identified evidence that the appellant as the Approved Provider of the Nursing Home had not complied with the Accreditation Standards (“Serious Risk Report”). It was noted in the Serious Risk Report that, “during the review audit, the assessment team identified evidence of serious risk to the health, safety or well being of residents…”. The report recommended that the Secretary to the Commonwealth Department of Health and Aging impose sanctions on the Nursing Home. On 21 October 2005, following the Serious Risk Report, the Commonwealth Department of Health and Aging (“the Department”) issued a notice of its decision to impose sanctions on the Nursing Home under s 67-5 of the Act (“the Sanctions Notice”). The Sanctions Notice stated that the Nursing Home was not complying with the Accreditation Standards and consequently there was “immediate and severe risk” to residents in its care. In particular, the notice identified non-compliance by the Nursing Home with Accreditation Standard 2 (Health and Personal Care) and Standard 3 (Resident Lifestyle). A reason that prompted the Department to impose sanctions was because the Agency’s Serious Risk Report had found that there were specific incidents of inadequate pain and skin care management at the Nursing Home and staff practices did not respect the privacy and dignity of residents.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I do not consider this to be a case where the irrelevance of the defamatory imputations is clear. As I say later, there are reasons which point to the imputations being relevant to the privileged occasion.Conclusion I find that the appellant succeeds in this appeal. The Newsletter was published on an occasion of qualified privilege. I am satisfied that the circumstances were such as to give rise to the requisite duty or interest in the publisher, and the reciprocal interest in the recipient in receiving the publication. I agree with respect that the learned magistrate erred in determining that whether the defendant has fairly and properly conducted itself is relevant to the first strand of inquiry. I agree that such a consideration goes to the issue of malice and is only relevant to the third strand of any inquiry but not relevant to this case. I do not agree with the respondent’s submission that there was no reciprocity of interest by the residents, relatives and representatives of the Nursing Home in receiving the publication. I find that the respondent incorrectly submitted that there must be reciprocity of interest in conveying the defamatory imputations as to the conduct of the appellant. In my view, the first strand of the inquiry requires only that the publication itself have the requisite interest to the reader, not the defamatory imputations that flow from the publication. The connection between the imputations and the publication goes to the relevance issue and is to be considered in the second strand of inquiry. In respect of the appellant’s criticisms that the magistrate incorrectly interpreted the decisions of the High Court in Aktas and Bashford, I agree with Mr Swan that it may not matter if the magistrate has nevertheless reached the correct result. It is difficult to determine what impact Her Honour’s misdirection to herself had on her determination that the occasion was not a privileged one. In any event, such consideration is not relevant given that I have found that an occasion of qualified privilege existed. The ultimate conclusion at [268] that an occasion existed, but was not an occasion of qualified privilege can, although not clearly expressed, be understood as Her Honour saying that there was a potentially privileged occasion which did not lead to a positive finding because of the way that the defendant conducted itself. This could only be relevant if malice was an issue. Her Honour noted earlier at [237] that malice was not an issue. To that extent the reasons are incorrect. I conclude that the magistrate was most likely attempting to say that there was not an occasion of qualified privilege even though the facts and surrounding circumstances were sufficient to create the potential for such an occasion. That is because Her Honour did not regard the defamatory statements as being sufficiently relevant to the occasion of privilege. If that is what Her Honour was saying then I respectfully disagree. I have earlier dealt with the background facts leading up to the publication of the Newsletter.

Ratio Decidendi

Legal Principle Established

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