Authors: Ben Hall, Partner, Wendy Bure, Senior Associate & Amanda Le, Law Graduate
A recent decision of the New South Wales Court of Appeal (KSMC Holdings t/as Hubba Bubba Childcare on Haig v Bowden [2020] NSWCA 28) represents a rare ‘win’ for defendants in defamation proceedings. The decision includes a detailed discussion of the defence of common law qualified privilege.
Background
The defendants own and operate a childcare centre in Chatswood, New South Wales.
The plaintiff was an employee of the defendants.
In April 2016 the defendants published a monthly newsletter, which was sent via email, to parents of the children who attended the Centre. That newsletter relevantly stated that:
'Matt [the plaintiff] – is unfortunately no longer with us due to disciplinary reasons. While being good with the children in general, Matt was not truthful with us regarding his studies and some other issues, and I felt it was better for him to move on and possibly gain a bit more life experience. We wish him well with his future.'
In response, the plaintiff commenced proceedings in the District Court of New South Wales, alleging that the contents of that email were defamatory.
Decision at first instance
The plaintiff alleged that the email conveyed several defamatory imputations, including that he was dishonest, that he had not been truthful with the Centre regarding his studies, that he was fired for disciplinary reasons, that he conducted himself in such a manner that the Centre terminated his employment, and that he was not a fit and proper person to work in childcare.
At trial, the judge was required to determine:
- whether the imputations, as alleged by the plaintiff, arose from the subject publication;
- whether the alleged imputations carried meanings that were defamatory of the plaintiff;
- whether the defences relied upon by the defendants, including a defence of qualified privilege was made out;
- if a defence of qualified privilege was made out, whether the plaintiff had established that the publication was actuated by malice, thereby circumventing the defence; and
- the extent of the plaintiff’s entitlement to compensatory, aggravated and special damages, if liability was established.
The trial judge was satisfied that the email conveyed each of the plaintiff’s pleaded imputations and that they carried meanings that were defamatory. His Honour considered and rejected each of the defendants’ defences, including their defence of qualified privilege.
In so doing, the trial judge found that the defence of qualified privilege only protected the communication insofar as it conveyed the plaintiff’s departure as an employee from the Centre, as distinct from the reason for that departure, and found that apart from the statement 'We wish him well for the future' '[used] language … that went well beyond [the purpose of business related communications concerning the plaintiff] by adding gratuitous comments that impugned the [plaintiff’s] character and reputation in an injurious way'.
