The kids are not all right An update on the operation of serious harm in defamation matters
13 October 2022
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13 October 2022
On 16 February 2019, the respondents, Mr and Mrs Haines (who are the parents of the ex-wife of the appellant), emailed the parents of the appellant (Mr Rader) in England regarding the education of their mutual grandchildren, but also detailing the ongoing deterioration of the relationship between Mr Rader and his ex-wife.
On 17 November 2021, Mr Rader commenced defamation proceedings against Mr and Mrs Haines in the New South Wales District Court. Mr Radar alleged that the email conveyed various imputations, including that he stole his ex-partner's car, is a thief, stalked his ex-partner and inflicted violence on his ex-partner.
Significantly, because the publication of the email occurred in England the applicable law for determining liability was the Defamation Act 2013 (UK) (UK Act) and not the Defamation Act 2005 (NSW).
At first instance, Justice Gibson applied the United Kingdom Supreme Court's decision in Lachaux v Independent Print [2019] UKSC 27, to find that Mr Rader failed to discharge the onus of proof of demonstrating serious harm to his reputation on the basis that the publication was limited to the appellant’s parents, who were already aware of the acrimonious relationship between their son and the Haines' daughter. Despite the seriousness of the allegations, discord in the appellant's relationship with his parents for a short duration did not amount to serious harm.
The principles established in Lachaux can be summarised as follows:
Her Honour also found that the publication took place on an occasion of qualified privilege and was not motivated by malice.
On appeal, Mr Rader argued that Justice Gibson was wrong to conclude that he had failed to discharge the onus of proof of demonstrating serious harm to his reputation and that her Honour erred in upholding the defence of qualified privilege in respect of the publication.
The New South Wales Court of Appeal unanimously upheld Justice Gibson's decision and dismissed the appeal, agreeing with her Honour that Mr Rader failed to satisfy the 'serious harm' threshold under the UK Act. In doing so, the Court of Appeal made the following propositions in respect of section 1 of the UK Act:
In relation to whether the email was an occasion of publication that attracted qualified privilege, Justice Brereton upheld Justice Gibson's decision and noted that it was plain that an occasion of private communication between two sets of grandparents relating to their mutual grandchildren and the acrimonious relationship between their adult children attracted qualified privilege.
This decision indicates that Australian courts will look closely to UK authority when applying the new 'serious harm' element enacted by the Model Defamation Amendment Provisions 2020 in future defamation matters where publication occurs in Australia.
However, it should be taken into account that the Australian 'serious harm' provision may function differently from the UK provisions. In Australia, 'serious harm' must be established as an initial threshold. In the UK, seeking early determination of 'serious harm' at the interim stage has been unfavourably considered by the courts as the assessment involves consideration from the first evidence of the harm, until its end, including at the time of the trial (Doyle v Smith [2018] EWHC 2935 at [117]-[120]).
On 10 October 2022, in the preliminary issues trial of Zimmerman v Perkiss [2022] NSWDC 448, Gibson DCJ adopted the test for serious harm and the time of assessment of harm as explained in Rader v Haines as statements of principle.
Authors: Lachlan Wright, Senior Associate and Charlotte Reimer, Graduate.
The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
Readers should take legal advice before applying it to specific issues or transactions.
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