The Harvey v Henderson Case: A Recent Example
The New South Wales Supreme Court decision in Harvey v Henderson [2025] NSWSC 601 provides valuable insights into the role of malice in defamation proceedings. The case involved a wildlife carer and charity founder who sued two former committee members over emails and social media posts alleging fraud and misuse of charitable funds. The defendants had published various communications suggesting the plaintiff was running the Wild2Free charity as a "private fundraiser" for herself and had engaged in "fraudulent conduct." While some publications were protected by qualified privilege due to the parties' roles as committee members, the case ultimately turned on whether malice could be established to defeat these defences.
Understanding Malice in Defamation Law
Malice in defamation law is not simply ill-will or spite, though these may form part of it. As the court in Harvey v Henderson noted, drawing from established authority, malice consists of one of three things: personal spite, an intention to injure the plaintiff without just cause, or knowledge of the falsity of what is said. The formulation derives from well-established principles, as cited in Australand Holdings Ltd v Transparency and Accountability Council Incorporated [2008] NSWSC 669, which referenced the authoritative text Clerk & Lindsell on Torts.
However, malice is not limited to these three categories. Any improper motive may constitute malice sufficient to defeat a defence of qualified privilege. This was affirmed in Harvey v Henderson, where the court acknowledged that malice could extend beyond the traditional categories to encompass any purpose not covered by the privilege being claimed.
The Relationship Between Malice and Qualified Privilege
Qualified privilege provides a crucial defence in defamation proceedings, protecting communications made in certain circumstances where freedom of expression serves the public interest. As the High Court explained in Cush v Dillon; Boland v Dillon (2011) 243 CLR 298, qualified privilege is based on public policy that recognises freedom of communication may sometimes be more important than protecting individual reputation.
However, this protection is not absolute. The privilege is qualified by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement. As stated in Roberts v Bass (2002) 212 CLR 1, express malice defeats the privilege when the defendant uses the privileged occasion for a reason not referable to the duty or interest pursued.
In Harvey v Henderson, the court emphasised that even where qualified privilege might otherwise apply - such as communications between board members about potential misconduct - the defence fails if the dominant purpose for the publication was improper. The mere existence of a legitimate occasion for communication does not provide carte blanche to defame.
The Burden and Standard of Proof
Crucially, the burden of proving malice rests with the plaintiff. Once a defendant establishes that qualified privilege applies, the plaintiff must prove malice to defeat the defence. This allocation of burden reflects the law's recognition that those communicating on privileged occasions should not be too readily stripped of protection.
The standard of proof remains the civil standard - balance of probabilities. However, as noted in Harvey v Henderson, where allegations of fraud or dishonesty are involved, the court must be conscious of the gravity of such allegations, following the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.
It's important to note that under section 36 of the Defamation Act 2005 (NSW), the court must disregard the defendant's malice or state of mind when awarding damages, except to the extent that it affects the actual harm sustained by the plaintiff. This statutory provision ensures damages remain compensatory rather than punitive, even where malice is established.
What Does and Doesn't Constitute Malice
The Harvey v Henderson decision provides helpful guidance on what will and won't establish malice:
What may constitute malice:
Knowledge that the published material is false
Publishing for a purpose unrelated to the privileged occasion
Personal spite or desire to injure without justification
Using defamation as leverage for unrelated gains
Conduct during litigation, including prolonged hostile cross-examination or pursuing a defence bound to fail (as noted in Harbour Radio Pty Ltd v John Tingle [2001] NSWCA 194)
What doesn't necessarily constitute malice:
Conducting a campaign of publications (unless for an improper purpose)
Strong belief in the truth of allegations, even if ultimately unproven
Multiple complaints to authorities, if genuinely held
Failure to apologise (though this may affect damages)
Publishing material that turns out to be false, without knowledge of falsity
Importantly, Harvey v Henderson clarified that neither lack of belief in the truth of a statement nor its objective falsity is sufficient alone to establish malice and destroy qualified privilege. This protects those who communicate in good faith on privileged occasions, even when mistaken.
Mixed Purposes and Dominant Motive
A significant aspect of the malice analysis involves situations where a defendant may have multiple reasons for publishing defamatory material. As Harvey v Henderson demonstrates, conduct may have several purposes. The court must identify the "substantial or operative purpose" for the publication. Only when this dominant purpose is improper will malice be established.
In that case, while the defendants may have been motivated by grievances about fund distribution and equipment allocation, the court was not satisfied that any improper purpose was the operating factor in their publications to fellow board members about governance concerns.
The Distinction Between Malice and Aggravated Damages
Harvey v Henderson also illustrates the important distinction between malice for defeating qualified privilege and malice for aggravated damages. While the court found insufficient evidence of malice to defeat qualified privilege for certain publications, it separately considered whether malice existed for the purpose of awarding aggravated damages.
The Statutory Framework: Section 36 of the Defamation Act
A critical provision governing the role of malice in damages is section 36 of the Defamation Act 2005 (NSW), which states:
"In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff."
This provision fundamentally shapes how courts approach malice in the damages context. As Harvey v Henderson demonstrates, the court must ensure there is a rational relationship between the harm sustained and damages awarded, regardless of the defendant's malice or state of mind. Malice can only influence damages to the extent it actually increases the harm suffered by the plaintiff.
Practical Effect of Section 36
The statutory limitation means that:
Malice is not punitive: Courts cannot increase damages simply to punish a malicious defendant
Focus on actual harm: The relevant inquiry is whether the defendant's malice caused additional harm to the plaintiff
Examples of increased harm: Malice might increase harm where:
The defendant's known spite makes the publication more hurtful to the plaintiff
Malicious intent becomes known to others, compounding reputational damage
The manner of publication, driven by malice, increases the spread or impact
When malicious intent becomes known to others: This occurs where the defendant's improper motive becomes apparent to those who read or hear about the defamatory publication. For instance, if readers become aware that the defendant published the material out of spite or to gain leverage in an unrelated dispute, this knowledge may cause them to discuss the allegations more widely or view the plaintiff with additional suspicion. The "grapevine effect" can be amplified when the audience knows the publication was maliciously motivated, as it may lend a perverse credibility to the allegations ("there must be something to it if they're so determined to destroy her"). In Harvey v Henderson, evidence of the defendants' campaign and circulation of court documents could potentially fall into this category, though the court ultimately found insufficient evidence of malice.
When manner of publication increases spread or impact: Malice may drive a defendant to publish in a particularly damaging way - choosing the widest possible audience, the most damaging forum, or timing publication for maximum harm. For example, a defendant acting maliciously might post on multiple social media platforms rather than sending a private email, might choose inflammatory language designed to go viral, or might time publication to coincide with the plaintiff's important business dealings. In Harvey v Henderson, the defendants' use of public Facebook pages rather than private communications to committee members could be seen as an example, though the court noted the posts were removed quickly, limiting their impact.
Aggravated damages remain compensatory in nature, not punitive. As the High Court stated in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, such damages compensate for additional harm caused by the defendant's conduct that is "improper, unjustifiable or lacking in bona fides." The absence of an apology, while not establishing malice to defeat privilege, may be relevant to the plaintiff's hurt feelings and thus ordinary compensatory damages.
Practical Implications
For legal practitioners, Harvey v Henderson reinforces several key principles:
Document the legitimate purpose: When advising clients who need to communicate potentially defamatory material on a privileged occasion, ensure they can articulate and document the legitimate purpose for the communication.
Stay within bounds: Communications should be limited to what is relevant and necessary for the privileged purpose. In Harvey v Henderson, social media posts attacking a third party in response to criticism were held to fall outside the privilege of reply to attack.
Consider the audience: Qualified privilege based on duty or interest requires reciprocity. Publishing to the world at large on social media will rarely attract privilege, as the court noted regarding the ABC South East NSW Facebook page posts.
Belief in truth matters: Honest belief in the truth of defamatory statements, while not a complete defence, makes proving malice significantly more difficult for a plaintiff.
Timing and context: The court will examine the entire context, including what precipitated the publications and their timing relative to other events or disputes.
Conclusion
The role of malice in defamation law represents a careful balance between protecting reputation and preserving freedom of communication on matters of legitimate interest. Harvey v Henderson [2025] NSWSC 601 demonstrates that while qualified privilege provides important protection for necessary communications, it cannot be used as a shield for publications motivated by improper purposes.
Understanding when malice will be found requires careful analysis of the publisher's dominant motive, the relationship between the parties, and the connection between what was published and any legitimate interest or duty. For those operating in positions of responsibility - whether as company directors, committee members, or in other fiduciary roles - the case underscores both the protection available for proper governance communications and the limits of that protection when improper purposes intrude.