New South Wales Court of Appeal - Decisions of Interest Search - Area of law: Defamation
Defamation: negligence; novel duties of care; defamation
Mr Perera brought three claims against Genworth, a mortgage insurer, arising out of claims made by Genworth concerning Mr Perera’s expertise as a property valuer.
First, Mr Perera brought an action in negligence occasioning economic loss, positing a novel duty of care said to be owed by a potential plaintiff to a potential defendant not to bring proceedings negligently.
Secondly, Mr Perera brought an action in defamation on the basis of a letter written by Genworth and sent to Genworth’s client.
Thirdly, Mr Perera brought an action in negligence occasioning psychological injury resulting from a senior employee of Genworth threatening to sue Mr Perera personally for an alleged negligent valuation.
The issue on appeal was whether the primary judge erred in summarily dismissing each of Mr Perera’s claims. This raised:
- a question as to the proper approach where novel duties of care cut across or subvert other legal principles; and
- as to the defamation claim, a question whether the relevant imputations were specified and whether they were capable of arising.
- The primary judge did not err in striking out the two claims in negligence. The asserted novel duties of care could not exist coherently with the current law, including torts based on misuse of legal process, the absence of a duty of care owed by one litigant to another and the importance of unfettered access to the courts. As such, findings of fact were unnecessary.
- The defamation proceedings should not have been struck out and should proceed in the District Court.
Perera v Genworth Financial Mortgage Insurance Pty Ltd  NSWCA 19
Defamation: appeal; identification; challenge to factual finding at trial that defamatory matter identified appellant; whether matter complained of was published of and concerning the appellant; errors identified in article details; whether ordinary reasonable reader would understand article as referring to the appellant; standards of ordinary reasonable reader; whether appellant required witness evidence of identification; finding by primary judge that appellant identified by name in article; reasonableness of appellant’s witnesses’ evidence
Zoef v Nationwide News Pty Ltd  NSWCA 283
Defamation: appeal; defence of failure to accept reasonable offer to make amends upheld at trial; Defamation Act 2005 (NSW), s 18; challenge to finding that offer of amends was reasonable; challenge to finding that defence was available; objective test of reasonableness; s 18(1)(c); appellant’s willingness to accept offer after withdrawal by respondent sole consideration identified by primary judge; whether offer reasonable; seriousness of defamation and damage to appellant; adequacy of monetary compensation offered; significant disparity between prominence of defamatory matter and proposed apology; whether defence of failure to accept offer of amends required publication of an apology; construction of s 18(2); whether respondent made offer as soon as practicable; whether subsequent withdrawal of offer precluded respondent’s defence at trial; letter stated offer open until first day of trial unless withdrawn in writing; offer withdrawn in writing after eight months
Zoef v Nationwide News Pty Ltd  NSWCA 283
Defamation: defence; contextual truth; Defamation Act 2005 (NSW), s 26; appeal from primary judge’s refusal to strike out contextual imputation “the plaintiff is dishonest”; news item broadcast about plaintiff’s links to illegal investment schemes; reference to plaintiff as casualty of ICAC inquiry into Liberal Party finances; whether contextual imputation unarguably bad; whether general contextual imputation carried “in addition to” other specific imputations complained of; primary judge understanding of Fairfax Media Publications v Zeccola  NSWCA 329; whether general imputation of dishonesty at least arguably capable of arising
Cornwell v Channel Seven Sydney Pty Ltd  NSWCA 255
Defamation: defence; contextual truth; Defamation Act 2005 (NSW) s 26; plaintiff pleaded imputation of paying to have defendant murdered; defendants pleaded contextual imputation of wanting to have defendant killed; whether contextual imputation capable of being conveyed “in addition to” plaintiff’s imputation; application of “differ in substance” test; qualified privilege at common law defence; reply to attack; where plaintiff’s reply attacks third party; whether plaintiff complicit in attack; whether sufficient that attack on third party necessary to vindicate plaintiff’s reputation; whether reply “commensurate with the occasion”
Abou-Lokmeh v Harbour Radio Pty Ltd  NSWCA 228
Defamation: preliminary discovery; newspaper rule; whether “effective remedy” once newspaper defendant undertook not to rely on defences of qualified privilege.
Liu v The Age Company Limited  NSWCA 115
Defamation: article published in Sunday Mail regarding the appellant and the State election; article allegedly imputed that the appellant had obtained financial benefit through connections with the Australian Labour Party, was involved in dishonest election practices and had breached the Code of Conduct of the Australian Institute of Company Directors; whether the primary judge erred in finding that the first imputation was not defamatory; whether the primary judge erred in finding that the second imputation was justified; article defamatory in the sense that it would cause the ordinary reasonable reader to think less of the plaintiff; primary judge’s consideration of the defence of justification uninvited by the parties and should be set aside; common law qualified privilege did not arise on the basis of the mere fact that the topic of the publication is a matter of public interest.
De Poi v Advertiser-News Weekend Publishing Company Pty Ltd  SASCFC 25
Defamation: assessment of non-economic damages; mitigation of damages; effect on plaintiff’s reputation of imputations found to be true in whole or in part; whether relevant findings not made; contextual imputation found not to be true by jury; whether trial judge impermissibly took contextual imputation into account.
Channel Seven Sydney Pty Ltd v Fisher  NSWCA 414
Defamation: application to Court of Appeal for interim relief to prevent hearing at first instance proceeding without a jury; defendants elected for a jury trial but purported to withdraw election shortly before hearing; whether defendants can withdraw their election; whether primary judge had the power to extend the time limits for other party to elect to have a jury trial
Chel v Fairfax Media Publications Pty Ltd (No 2)  NSWCA 379
Defamation: application to Court of Appeal for interim relief to prevent hearing at first instance proceeding without a jury; defendants elected for a jury trial but purported to withdraw election shortly before hearing
Chel v Fairfax Media Publications Pty Ltd  NSWCA 355