Interstate Defamation and the Mandatory Concerns Notice: When WA Practitioners Must Comply with Another Jurisdiction’s Pre-Action Requirements

An Analysis of Aguasa v Hunter [2026] WASCA 37

1. Introduction

Aguasa v Hunter [2026] WASCA 37 is the first appellate decision in Western Australia to determine whether the mandatory concerns notice requirement under s 12B of the Defamation Act 2005 (NSW) is a substantive law for the purposes of the choice of law provision in s 11(1) of the Defamation Act 2005 (WA). The Court of Appeal (Mitchell JA, Vaughan JA, and Cobby J) unanimously held that s 12B is substantive in character, with the consequence that a plaintiff commencing defamation proceedings in Western Australia in respect of matter published wholly in New South Wales must comply with the NSW concerns notice regime before filing proceedings.

The decision is of considerable practical significance for WA defamation practitioners. Western Australia has not adopted the 2021 uniform defamation reforms enacted in New South Wales, Queensland, Victoria, South Australia, Tasmania, and the Australian Capital Territory (at [17]). Those reforms introduced, among other things, a “serious harm” element to the cause of action (s 10A), a mandatory concerns notice regime (ss 12A–12B), a public interest defence (s 29A), and the removal of the triviality defence (at [16]–[17], [84]). Until Aguasa, it was arguable—supported by the obiter reasoning of Applegarth J in Peros v Nationwide News Pty Ltd [2024] QSC 80—that a WA plaintiff could avoid the concerns notice requirement by commencing proceedings in Western Australia, treating s 12B as merely procedural and therefore not picked up by s 11(1) of the WA Act.

That argument has now been decisively rejected. The decision requires WA practitioners to identify, at the outset of any defamation retainer, the jurisdiction in which the relevant publication occurred, to ascertain whether that jurisdiction has enacted a mandatory concerns notice regime, and to comply with the requirements of that regime before issuing proceedings. Failure to do so may result in the summary dismissal of the proceedings, as occurred at first instance before Tottle J (Aguasa v Hunter [2024] WASC 380) and as was upheld on appeal.

2. Relevant Legal Framework

The choice of law provision: s 11(1) of the WA Act

Section 11(1) of the Defamation Act 2005 (WA) provides that if a matter is published wholly within a particular Australian jurisdictional area, the substantive law applicable in that area must be applied in Western Australia to determine any cause of action for defamation based on the publication. The term “Australian jurisdictional area” includes each State and Territory: s 11(5)(a).

The provision gives effect to a “no advantage” principle. As Vaughan JA explained, s 11(1) evinces a legislative choice that it is undesirable for a plaintiff to receive a substantive advantage by suing in one forum rather than another (at [92]–[93]). Importantly, the substantive law of the other jurisdiction is applied in WA by operation of the WA Act itself; the law does not operate extraterritorially as a law of the other jurisdiction (at [90]–[91]).

The distinction between substantive and procedural law

The distinction between substantive law and procedural law is fundamental to this decision and warrants brief explanation. Substantive law is concerned with the rights, duties, and obligations of parties. It determines what a party is entitled to, what defences are available, and what remedies may be granted. Procedural law, by contrast, governs the manner in which those rights and duties are enforced—the machinery of litigation. It prescribes the steps by which a party brings and conducts court proceedings, such as rules about filing, service, pleading, and evidence.

The distinction matters in a choice of law context because, when a court in one jurisdiction applies the law of another, it ordinarily applies only the substantive law of the other jurisdiction and follows its own procedural rules. A WA court hearing a defamation claim governed by NSW substantive law will apply the NSW rules about the elements of the cause of action, available defences, and quantification of damages, but will follow WA procedural rules about how the proceedings are conducted.

In practice, the line between substance and procedure is not always clear. A legislative requirement that a plaintiff take a step before commencing proceedings—such as giving a notice—sits at the boundary. If such a requirement is characterised as procedural, it forms part of the machinery of the forum court and need not be complied with where proceedings are commenced in a different jurisdiction. If it is characterised as substantive, it attaches to the cause of action itself and must be complied with wherever the proceedings are commenced. That is the central question addressed in Aguasa v Hunter.

The uniform defamation law framework

The WA and NSW Acts were enacted in 2005 as part of uniform model provisions agreed to by all State and Territory Attorneys General. They were in substantially identical terms until the NSW Act was amended by the Defamation Amendment Act 2020 (NSW), effective 1 July 2021 (at [15]–[16], [82]–[83]).

The 2020 NSW amendments

The amendments introduced several significant changes, including the serious harm element (s 10A), the mandatory concerns notice regime (ss 12A–12B), a reformed s 18 defence, an extension of the limitation period to accommodate the concerns notice process (Limitation Act 1969 (NSW), s 14B(2)–(3)), and a new public interest defence (s 29A) (at [16], [84]).

The substantive/procedural distinction

The foundational authority is John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503. The plurality identified two guiding principles: first, matters that affect the existence, extent, or enforceability of rights or duties are matters of substance; and second, rules directed to governing or regulating the mode or conduct of court proceedings are procedural (at [99]). As Vaughan JA observed, these are not alternative formulations but complementary descriptions of the same conceptual distinction (at [162]–[164]).

The key “notice before action” authority is Hamilton v Merck and Co Inc [2006] NSWCA 55, in which the NSW Court of Appeal characterised pre-commencement requirements under the Personal Injuries Proceedings Act 2002 (Qld) as procedural. Spigelman CJ recognised, however, that such a prohibition on commencement of proceedings is “capable” of constituting a substantive condition precedent where employed in a legislative scheme that creates a new right or substitutes a legislative scheme for pre-existing common law rights (at [34], [171]–[172]).

In Wickham Freight Lines Pty Ltd v Ferguson [2013] NSWCA 66, the NSW Court of Appeal held that provisions which were integral parts of a legislative package limiting common law entitlements could not be isolated as procedural, even where they regulated the process by which the entitlement was established (at [37], [175]–[177]).

Peros v Nationwide News Pty Ltd [2024] QSC 80 was the only prior decision to directly address s 12B in the defamation context. Applegarth J held, in obiter, that s 12B of the Queensland equivalent was procedural, reasoning that it regulated the enforcement of a pre-existing common law right and was analogous to the provisions considered in Hamilton (at [50]–[58], [180]–[185]).

3. The Facts of the Case

The appellant, Ms Aguasa, commenced defamation proceedings against the respondents, Ms Hunter and Ms Cotter, in the Supreme Court of Western Australia on 29 November 2023 (at [74]). The proceedings concerned emails published by the respondents on 18 August 2023 to a third party located in New South Wales (at [1], [74]). It was an agreed fact that publication occurred wholly within New South Wales (at [1]).

It was also agreed that the appellant gave no notice—whether a concerns notice within the meaning of the NSW Act or otherwise—to either respondent prior to serving the writ of summons (at [75]).

The respondents applied to Tottle J, as case manager, to dismiss the proceedings on the ground that the appellant had failed to comply with s 12B(1) of the NSW Act (at [3], [76]–[77]). The appellant accepted that, by operation of s 11(1) of the WA Act, the substantive law of NSW applied, but contended that s 12B was procedural and therefore not picked up by s 11(1) (at [78]).

The primary judge held, with “some hesitation,” that s 12B was substantive and dismissed the proceedings (at [4], [79]–[80]).

4. Analysis of the Court’s Reasoning

The joint reasons: Mitchell JA and Cobby J

Mitchell JA and Cobby J approached the characterisation by considering the 2020 NSW amendments as a coherent legislative package. Their Honours identified four reasons why s 12B should be characterised as substantive.

First, the enactment of s 10A introduced a new element of the cause of action (serious harm), representing a substantive change to the existing law (at [41]).

Second, ss 12A and 12B restrict the right to commence proceedings for defamation. The court lacks power to excuse non-compliance with s 12B(1)(a) (the concerns notice requirement) or to permit reliance on imputations not identified in the concerns notice under s 12B(1)(b). Each of those provisions therefore concerns the “existence, extent and enforceability” of the aggrieved person’s right to commence proceedings (at [42]–[45]).

Third, the amendments to the Limitation Act 1969 (NSW) extending the limitation period to accommodate the concerns notice process are ordinarily to be characterised as substantive, consistent with John Pfeiffer (at [46]).

Fourth, the availability of the s 18 defence is conditioned upon the issue of a concerns notice. A construction of s 12B that renders the s 18 defence unavailable because no concerns notice was issued is to be avoided (at [48]–[49], [63]).

The separate reasons: Vaughan JA

Vaughan JA arrived at the same conclusion but by a different analytical route, providing separate reasons that addressed additional arguments raised by the appellant. His Honour accepted several propositions that were, in isolation, favourable to the appellant.

Vaughan JA accepted that pt 3 of the NSW Act, viewed holistically, is “distinctly more procedural than substantive” (at [203]). His Honour also accepted that, standing alone, s 12B(1)(a) does not modify or extinguish the general law right to damages for defamation; it is concerned only with the procedural means by which the cause of action is commenced (at [228]). Further, Vaughan JA accepted that the statutory purpose behind the concerns notice regime is to avoid litigation altogether, which is “distinctly procedural in nature” (at [215]–[216]).

Despite these concessions, Vaughan JA held that the determinative factor was the interaction between s 12B(1)(a) and the defence of failure to accept a reasonable offer to make amends in s 18(1) of the NSW Act. The s 18(1) defence is substantive—it provides a defence to an action, thereby precluding a remedy and affecting the enforceability of rights (at [244]). The defence is predicated on the giving of a concerns notice under s 12A (at [129], [242]). Accordingly, if s 12B(1)(a) is characterised as procedural, the s 18(1) defence becomes unavailable in proceedings commenced in WA—a result contrary to the “no advantage” principle evinced by s 11(1) of the WA Act (at [241]).

In Vaughan JA’s analysis, s 12B(1)(a) is “inseparable from and ought not be considered in isolation as fulfilling a function distinct from the substantive defence provided for in s 18(1)” (at [251]). The concerns notice regime has a “continuing consequence” for the purpose of the substantive defence; it is “an integral part of a legislative package that has as one of its key features a substantive defence in s 18(1)” (at [249]).

Departure from Peros

All members of the Court respectfully declined to follow Applegarth J’s obiter reasoning in Peros. Mitchell JA and Cobby J considered that Applegarth J’s analysis of the s 18 defence—which characterised the unavailability of the defence as merely a consequence of s 12B “simply not applying” in a rare case—was unsatisfactory (at [59]–[63]). Vaughan JA considered that Applegarth J’s reasoning on this point was grounded in the anterior extraterritoriality finding, which did not arise in the present appeal (at [254]).

5. Assessing the Consequences

Immediate procedural consequences

The immediate consequence of the decision is that defamation proceedings commenced in WA without a concerns notice compliant with the law of the place of publication will be liable to summary dismissal. This follows from the NSW Court of Appeal’s holding in Cavar v Campbelltown Catholic Club Ltd [2024] NSWCA 126 that it is “clearly correct” to summarily dismiss proceedings commenced in contravention of s 12B(1) (at [76]).

The s 18 defence

A critical practical consequence is that the s 18 defence under the NSW Act—predicated on a concerns notice having been issued—replaces the s 18 defence under the WA Act in proceedings to which s 11(1) applies. The WA Act’s s 18 defence, which requires only that the publisher made an offer “as soon as practicable after becoming aware” that the matter is or may be defamatory, will not be available. The NSW Act’s s 18 defence requires both the receipt of a concerns notice and the making of an offer within the applicable period (at [25]–[26], [127]–[129]).

Limitation period implications

Where s 11(1) of the WA Act applies to pick up NSW substantive law, the limitation provisions of the Limitation Act 1969 (NSW) will also apply by operation of s 5 of the Choice of Law (Limitation Periods) Act 1994 (WA) (at [89], [119]). This includes s 14B(2)–(3) of the Limitation Act 1969 (NSW), which extends the one-year limitation period by up to 56 days where a concerns notice is given within 56 days of the limitation period’s expiry (at [22]–[23], [117]–[118]).

Broader implications for non-reform jurisdictions

Western Australia and the Northern Territory are the only Australian jurisdictions that have not adopted the 2021 uniform defamation reforms (at [17]). The decision means that WA’s non-adoption of the reforms offers no practical advantage to a plaintiff in respect of publications occurring in reform jurisdictions. The “no advantage” principle embedded in s 11(1) of the WA Act ensures that the substantive law of the place of publication governs, regardless of the forum chosen.

6. Worked Example

Hypothetical: A Perth-based business owner discovers that a former employee has published a defamatory post on social media on 1 February 2026. The post is accessible to and read by recipients in Queensland, where the former employee resides. There is no evidence of publication outside Queensland. The business owner consults a WA lawyer on 15 March 2026.

Identification of applicable law

Publication occurred wholly within Queensland. By operation of s 11(1) of the WA Act, the substantive law of Queensland must be applied. Queensland has adopted the 2021 uniform defamation reforms. The Defamation Act 2005 (Qld) includes an equivalent mandatory concerns notice regime (ss 12A–12B) and the reformed s 18 defence.

Pre-action steps required

The lawyer must prepare and serve a concerns notice complying with s 12A of the Queensland Act. The notice must: (a) be in writing; (b) specify the location where the matter can be accessed (the social media URL); (c) inform the publisher of the defamatory imputations; and (d) inform the publisher of the serious harm to the aggrieved person’s reputation.

Timing

The limitation period is one year from publication: 1 February 2027. If the concerns notice is served by 15 March 2026, the applicable period for an offer to make amends is 28 days (s 14(2)(b)). Proceedings may not be commenced before expiry of that period unless leave is granted under s 12B(3). If the concerns notice is served within 56 days before 1 February 2027 (i.e. after 7 December 2026), the limitation period is automatically extended under the Queensland equivalent of s 14B(2)–(3).

Consequences of non-compliance

If the lawyer issues proceedings in WA without a compliant concerns notice, the defendant may apply for summary dismissal. Based on Aguasa and Cavar, such an application will succeed. The s 18 defence under the WA Act will not be available to the defendant; only the Queensland Act’s s 18 defence (requiring a concerns notice) will apply.

Defendant’s position

If a compliant concerns notice is served, the defendant should consider making an offer to make amends within the applicable period. A reasonable offer, if not accepted, provides the defendant with the substantive defence under s 18(1) of the Queensland Act. Failure to make such an offer within the applicable period forecloses the defence.

7. Practitioner Guidance: A Step-by-Step Framework

Step 1: Identify the place of publication. At the outset of every defamation retainer, determine where the relevant matter was published. If the matter was published wholly within a single Australian jurisdiction, s 11(1) of the WA Act applies and the substantive law of that jurisdiction governs. If the matter was published across multiple jurisdictions, s 11(2) applies and the law of the jurisdiction with the closest connection to the harm governs. In either case, the applicable substantive law must be ascertained before any pre-action steps are taken.

Step 2: Determine whether the applicable jurisdiction has adopted the 2021 reforms. As at the date of this article, all Australian jurisdictions except Western Australia and the Northern Territory have enacted mandatory concerns notice regimes. If the applicable jurisdiction is a reform jurisdiction, s 12B applies as a substantive law: Aguasa at [6], [73], [256].

Step 3: Prepare a compliant concerns notice. Ensure the concerns notice complies with the requirements of s 12A of the applicable jurisdiction’s legislation. This includes the serious harm requirement in s 12A(1)(a)(iv), which does not appear in the WA Act’s definition of a concerns notice (s 14(2) of the WA Act). The concerns notice must identify the imputations to be relied upon in any subsequent proceedings, as the plaintiff will be confined to those imputations or imputations substantially the same: s 12B(1)(b), s 12B(2).

Step 4: Serve the concerns notice and allow the applicable period to elapse. The applicable period for an offer to make amends is ordinarily 28 days (s 14(2)(b)). If the publisher requests further particulars under s 12A(3), the applicable period runs from 14 days after those particulars are provided (s 14(2)(a)). Proceedings cannot be commenced before the applicable period elapses, unless leave is granted under s 12B(3).

Step 5: Consider limitation period implications. If the concerns notice is served within 56 days of the one-year limitation period’s expiry, s 14B(2)–(3) of the Limitation Act 1969 (NSW) (or its equivalent) extends the limitation period automatically. Calculate the applicable dates at the outset to avoid being statute-barred. The limitation provisions apply as part of the substantive law by operation of s 5 of the Choice of Law (Limitation Periods) Act 1994 (WA): Aguasa at [89], [119].

Step 6: For defendants, respond to the concerns notice promptly. A publisher who receives a concerns notice should consider making an offer to make amends within the applicable period. The s 18(1) defence under the NSW Act requires the offer to have been made “as soon as reasonably practicable after the publisher was given a concerns notice” and “within the applicable period” (s 18(1)(a)). Delay may forfeit the defence.

Step 7: Document compliance. Retain evidence of service of the concerns notice and the date on which the applicable period elapses. If the publisher requests further particulars, retain copies of the request and the response. This documentation will be critical if the defendant challenges the validity of the concerns notice or the timing of commencement.

8. Evidence and Arguments Available to Each Side

For the plaintiff (aggrieved person)

•         Compliance evidence: Retain copies of the concerns notice, proof of service, and evidence that the applicable period elapsed before proceedings were commenced.

•         Imputation particulars: Ensure that all imputations pleaded in the statement of claim were particularised in the concerns notice, or are substantially the same as those particularised: s 12B(1)(b), s 12B(2)(b). Detailed imputation drafting at the concerns notice stage is essential, as the plaintiff will be confined to those imputations or substantially similar ones.

•         Serious harm evidence: Prepare evidence of serious harm at the concerns notice stage, as s 12A(1)(a)(iv) requires the notice to inform the publisher of the alleged serious harm. This evidence will also be required at the s 10A stage of proceedings.

•         Leave applications: If the limitation period is imminent and the applicable period has not elapsed, consider applying for leave under s 12B(3). The court may grant leave if it is just and reasonable to do so (s 12B(3)(b)) or the proceedings will be statute-barred once the applicable period has expired (s 12B(3)(a)).

For the defendant (publisher)

•         Non-compliance challenge: If proceedings are commenced without a compliant concerns notice, apply for summary dismissal. Aguasa and Cavar establish that summary dismissal is the appropriate remedy.

•         Concerns notice deficiency: Challenge the adequacy of the concerns notice under s 12A. If the notice fails to adequately particularise the information required by s 12A(1)(a)(ii)–(v), the publisher may issue a further particulars notice under s 12A(3). If the aggrieved person fails to provide reasonable further particulars within 14 days, the aggrieved person is taken not to have given a concerns notice: s 12A(5).

•         Section 18 defence: If a concerns notice is received, make an offer to make amends promptly and within the applicable period to preserve the s 18(1) defence. Document the reasonableness of the offer.

•         Imputation confinement: If the plaintiff pleads imputations not particularised in the concerns notice and not substantially the same, challenge those imputations as impermissible under s 12B(1)(b) and s 12B(2)(b). The court has no power to excuse non-compliance with s 12B(1)(b): Aguasa at [44].

9. Key Takeaways for Legal Practice

1.      Section 12B of the NSW Act is substantive. The WA Court of Appeal has unanimously held that the mandatory concerns notice requirement under s 12B of the NSW Act (and by extension, its equivalents in other reform jurisdictions) is a substantive law for the purposes of s 11(1) of the WA Act. This is now settled law in Western Australia.

2.      The concerns notice regime of the place of publication applies. Where a defamatory matter is published wholly within a reform jurisdiction, the concerns notice requirements of that jurisdiction must be complied with before proceedings are commenced in WA. A concerns notice compliant with the WA Act will not suffice if the applicable law is that of NSW, Queensland, or another reform jurisdiction.

3.      The interaction with the s 18 defence is determinative. The reasoning of both the joint judgment and Vaughan JA identifies the interaction between s 12B(1)(a) and the s 18(1) defence as a critical, and ultimately determinative, factor. The s 18 defence is substantive; characterising s 12B as procedural would render the s 18 defence unavailable, contrary to the “no advantage” principle.

4.      The WA Act’s s 18 defence is displaced. Where s 11(1) of the WA Act applies, the substantive law of the place of publication replaces the substantive law of WA. This means the WA Act’s s 18 defence—which does not require a concerns notice—is not available. It is not a mandatory law of the forum: Aguasa at [65], [151]–[153].

5.      Peros is not to be followed. The obiter reasoning of Applegarth J in Peros that s 12B is procedural has been respectfully declined by all three members of the WA Court of Appeal. Practitioners should not rely on Peros as authority for characterising s 12B as procedural.

6.      Imputation drafting at the concerns notice stage is critical. The plaintiff is confined to imputations particularised in the concerns notice, or imputations substantially the same (s 12B(1)(b), s 12B(2)). Careful and comprehensive imputation drafting at the pre-action stage is essential. The court has no power to excuse non-compliance: Aguasa at [44].

7.      Limitation period calculations must account for the concerns notice process. Practitioners must calculate the applicable period for an offer to make amends (ordinarily 28 days) and any potential extension of the limitation period under the applicable limitation legislation when planning the timing of concerns notices and proceedings.

8.      The cross-vesting legislation does not alter the analysis. The Court rejected the argument that s 11(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) could affect the characterisation of s 12B or the availability of the WA Act’s s 18 defence (at [66]–[68], [154]–[157]).

9.      WA’s non-adoption of the reforms does not insulate WA plaintiffs. The decision underscores that WA’s failure to adopt the 2021 uniform defamation reforms offers no advantage to a plaintiff whose publication occurred in a reform jurisdiction. The “no advantage” principle in s 11(1) ensures parity of substantive law regardless of the forum chosen.

10.  Broader implications for the substance/procedure distinction. The decision contributes to the developing jurisprudence on the characterisation of notice before action provisions. Vaughan JA’s detailed analysis of the principles from John Pfeiffer, Hamilton, and Wickham Freight Lines provides a structured framework for determining whether a notice before action requirement is substantive or procedural, with particular emphasis on whether the requirement interacts with other substantive provisions of the legislative regime.

10. Conclusion

Aguasa v Hunter resolves a question of significant practical importance for WA defamation practitioners. The decision establishes that the mandatory concerns notice requirement enacted by reform jurisdictions is a substantive law that applies in WA proceedings by operation of s 11(1) of the WA Act. The characterisation turns not on the procedural appearance of s 12B in isolation, but on its inseparable connection to the substantive defence in s 18(1)—a connection that gives the concerns notice regime a continuing significance well beyond the pre-action phase.

For practitioners, the core message is one of diligence at the intake stage. The jurisdiction of publication must be identified, the applicable concerns notice regime ascertained, and compliance achieved before proceedings are filed. Defendants, equally, must understand that the s 18 defence under the applicable jurisdiction—not the WA Act—governs their position, and must respond to concerns notices promptly and within the statutory timeframe.

The decision also highlights the consequences of WA’s continued divergence from the uniform defamation law framework. While WA retains the pre-reform regime for publications occurring within its borders, the practical reality is that WA practitioners are increasingly required to navigate the reformed regime when acting in respect of interstate publications. A working knowledge of the concerns notice requirements under the NSW Act and its counterparts is now indispensable.

Understanding the Contextual Truth Defence in Defamation Law

The Al Muderis Case: A Recent Application

The Federal Court's decision in Al Muderis v Nine Network Australia Pty Ltd [2025] FCA 909 provides valuable insights into the operation of the contextual truth defence in defamation proceedings. Dr Munjed Al Muderis, an orthopaedic surgeon specialising in osseointegration procedures, brought defamation proceedings against Nine Network and associated media outlets concerning a Four Corners broadcast titled "The Agony" and related online articles published in 2023. The publications examined the experiences of certain patients who had undergone osseointegration surgery with Dr Al Muderis, with the surgeon alleging the materials conveyed 75 defamatory imputations about his surgical practice and patient care. The Court ultimately found that the respondents had established the contextual truth defence under section 26 of the Defamation Act 2005 (NSW), dismissing the application.

The Legislative Framework

Section 26 of the Defamation Act 2005 (NSW) provides a complete defence to defamation where a defendant can establish two essential elements. First, the published matter must carry one or more imputations that are substantially true (known as "contextual imputations"). Second, any defamatory imputations complained of by the plaintiff that are not contextual imputations must not further harm the plaintiff's reputation because of the substantial truth of the contextual imputations.

The defence underwent significant amendment on 1 July 2021, with the introduction of section 26(2) proving particularly important. As the Court noted in Al Muderis v Nine Network Australia Pty Ltd [2025] FCA 909, this provision means it is no longer necessary that a defendant's contextual imputations be different in substance from a plaintiff's pleaded imputations. A defendant may now rely on any imputations carried by a publication - whether the same as, permissible variants of, carrying a common sting with, or entirely different in substance from the imputations of which the plaintiff complains - as contextual imputations.

The Defence Must Defeat All Defamatory Stings

A fundamental principle of the contextual truth defence is that it must defeat the entire defamatory matter of which the plaintiff complains. As established in Besser v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 at [78], the defence "must defeat the whole defamatory matter (cause of action) of which the plaintiff complains, that is to say all of the plaintiff's stings." This means that the substantial truth of the contextual imputations must be sufficiently serious and comprehensive to render any remaining unproven imputations incapable of causing further reputational harm.

Assessing Further Harm: Facts Not Just Imputations

One of the most significant aspects of the contextual truth defence concerns how courts assess whether residual imputations cause "further harm" to reputation. The Full Court's decision in Seven Network (Operations) Limited v Greiss [2024] FCAFC 162 recently clarified this issue, confirming the approach established in John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; (2001) 53 NSWLR 541.

In Blake, Spigelman CJ observed that section 16(2)(c) of the predecessor Defamation Act 1974 (NSW) does not focus attention on a contextual imputation as such, but on the proposition that such an imputation is a "matter of substantial truth." The Court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation, rather than on the terms of the contextual imputation itself. This approach was confirmed to apply equally to the current section 26 in Greiss.

As Applegarth J noted in Nationwide News Pty Ltd v Weatherup [2017] QCA 70; [2018] 1 Qd R 19 at [46], "The requirement to prove no further harm to the plaintiff's reputation focuses on the facts, matters and circumstances which establish the substantial truth of the contextual imputations. This reflects the language of the section."

Substantial Truth and the Sting of the Libel

When establishing contextual imputations as substantially true, defendants must prove every material part of an imputation is true, with the defence concerned with meeting the sting of the defamation, as confirmed in Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232 at [138]. A "material part" is any detail which alters or aggravates the character of the imputations, as established in Rofe v Smith's Newspapers Ltd (1924) 25 SR (NSW) 4 at 22.

The classic statement of principle comes from Lord Shaw of Dunfermline in Sutherland v Stopes [1925] AC 47 at 78-79, who explained that the plea of justification "must not be considered in a meticulous sense" and that "all that was required to affirm that plea was that the jury should be satisfied that the sting of the libel or, if there were more than one, the stings of the libel should be made out."

The Character as Criminal Example

The contextual truth defence's operation can be illustrated through cases involving imputations about criminal character. In State of New South Wales v Wraydeh [2019] NSWCA 192, discussed in Al Muderis v Nine Network Australia Pty Ltd [2025] FCA 909, the State pleaded contextual truth relying on an imputation that "the plaintiff is a criminal," seeking to prove this through evidence of prior criminal convictions unrelated to the events giving rise to the proceedings.

The Court of Appeal's analysis highlighted that whether a person should be characterised in the present tense as "a criminal" is not answered determinatively by establishing past criminal offences. As McCallum JA observed, this "ignores the possibility of change and rehabilitation" and "not every prior conviction would be regarded as necessarily warranting that label." Simpson AJA similarly questioned whether "a person convicted of shoplifting at age 18 [should] forever be branded 'a criminal'."

Strategic Considerations for Defendants

The contextual truth defence offers defendants significant strategic advantages, particularly following the 2021 amendments. Defendants can now rely on the plaintiff's own pleaded imputations as contextual imputations if they can prove them substantially true. This allows defendants to effectively use the plaintiff's case against them, proving some of the plaintiff's imputations to neutralise the sting of those they cannot prove.

The defence is particularly powerful where publications convey imputations involving general charges about a person's character or conduct. Where such general charges are made, defendants are entitled to give particulars demonstrating their truth by reference to a wide variety of matters not confined to facts in the article, as established in Maisel v Financial Times Limited (1915) 112 LT 953.

Practical Application

The application of the contextual truth defence in Al Muderis v Nine Network Australia Pty Ltd [2025] FCA 909 provides instructive guidance on how the defence operates in practice. The respondents' strategic approach, as articulated at [224], was to rely on all imputations to which they had pleaded a justification defence as contextual imputations, including those the Court ultimately found were not conveyed by the publications.

The Imputations at Issue

The Court found at [8] that while certain imputations were not conveyed (including the "Disputed Imputations" at [10.1]-[10.6], [13.2], [13.6], [13.20], [16.4], [16.8], [16.13], [16.15], [16.20], [16.23], [16.27], [16.29] and [16.30]), the remaining imputations that were conveyed provided sufficient basis for the contextual truth defence. Significantly, at [219], the Court accepted that many of the applicant's pleaded imputations involved "general charges" capable of being justified by reference to facts not stated in the publications.

These general charges included serious professional allegations such as:

• Imputation [10.1]: "negligently operated on his patients"

• Imputation [10.2]: "deliberately misled his patients about his surgical abilities"

• Imputation [13.4]: "prioritises money over his patients' care"

• Imputation [13.14]: "runs his surgical practice as a numbers game"

• Imputation [13.18]: "exploited vulnerable patients"

• Imputation [16.1]: "is a callous surgeon who routinely left patients to rot"

• Imputation [16.2]: "routinely negligently failed to provide after surgery care"

• Imputation [16.25]: "negligent in his selection of patients"

• Imputation [16.26]: "habitually failed to explain risks and complications"

The Respondents' Strategic Approach

As the Court noted at [224], the respondents articulated their position clearly: they contended that ordinary reasonable readers and viewers would understand references to "surgery" and like terms as extending to all aspects of Dr Al Muderis's surgical practice, not merely performance "in the operating theatre." This broader interpretation encompassed "pre-operative considerations and consultations and post-operative care, including patient selection, disclosure of risks, misleading patients, making false promises, abandoning patients and negligent post-surgery care."

The respondents submitted at [224] that so long as these broader imputations were conveyed, they were "permitted to rely on them as contextual imputations for the purposes of s 26." This strategic framing allowed them to marshal evidence about the full spectrum of Dr Al Muderis's professional conduct, not just his technical surgical skills.

Establishing Substantial Truth Through Multiple Incidents

In applying the principle from Maisel v Financial Times Limited (1915) 112 LT 953, referenced at [219], the Court accepted that the respondents could justify general charges by reference to "a wide variety of matters which are not confined to the facts in the article." This meant the respondents could present evidence of multiple patient experiences beyond those specifically mentioned in the Four Corners broadcast and articles.

The Court's approach at [226] followed the established principle from John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; (2001) 53 NSWLR 541 at [61] and Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555 at [2602], weighing the particulars and evidence relied upon in support of the substantial truth of the contextual imputations.

The "Swamping" Effect

The respondents' submission at [224] exemplified the strategic power of the contextual truth defence: they argued that the "Disputed Imputations in this broader sense, together with the other imputations which are the subject of the contextual truth defence... are substantially true and that, taken together, the substantial truth of the contextual imputations swamps the defamatory effect of any residual imputations which the Court may find have not been proven to be true."

The Court ultimately accepted this argument, finding at [8(3)] that "the respondents have established the defence of contextual truth under s 26 of the Defamation Act in relation to the Publications in which imputations are conveyed." This finding meant that even though not all 75 pleaded imputations were proven or even conveyed, the substantial truth of the contextual imputations that were established was sufficient to defeat the entire claim.

Key Takeaway for Practitioners

The case demonstrates that defendants need not prove every imputation complained of by a plaintiff. Where defendants can establish the substantial truth of sufficiently serious contextual imputations about professional misconduct - particularly those involving systematic patterns of behaviour rather than isolated incidents - these may neutralise the sting of any unproven imputations. The defence is particularly powerful where, as at [219], the plaintiff has pleaded imputations as general charges, opening the door for defendants to lead wide-ranging evidence of conduct beyond that specifically referenced in the publication.

Conclusion

The contextual truth defence represents a powerful tool in defamation proceedings, allowing defendants to defeat claims by establishing that the substantial truth of certain imputations renders any remaining defamatory material incapable of causing further reputational harm. The recent authorities, particularly Al Muderis v Nine Network Australia Pty Ltd [2025] FCA 909 and Seven Network (Operations) Limited v Greiss [2024] FCAFC 162, confirm that courts will focus on the underlying facts establishing the truth of contextual imputations rather than merely comparing imputations in the abstract. For practitioners, understanding this defence's operation is essential for both prosecuting and defending defamation claims in Western Australia and throughout the uniform defamation law jurisdictions.

Understanding Excluded Corporations in Australian Defamation Law

Introduction: The Deep Cycle Systems Case

A Queensland District Court decision has provided valuable guidance on what constitutes an "excluded corporation" under Australian defamation law. In Deep Cycle Systems Pty Ltd v Fischer [2025] QDC 25, a lithium battery manufacturer sued for defamation over publications made between August and December 2023. The defendant successfully applied for a separate determination of whether the plaintiff was an excluded corporation under section 9 of the Defamation Act 2005 (Qld). The court ultimately found that the plaintiff failed to establish it was an excluded corporation, meaning it could not maintain its defamation action.

The Statutory Framework

Under section 9(1) of the Defamation Act 2005, a corporation has no cause of action for defamation in relation to the publication of defamatory matter unless it was an "excluded corporation" at the time of publication. This provision exists across all Australian jurisdictions as part of the uniform defamation legislation.

To qualify as an excluded corporation under section 9(2), a corporation must satisfy two requirements:

1. It employs fewer than 10 persons; and

2. It is not an associated entity of another corporation.

Both elements must be established on the balance of probabilities at the time of the relevant publications.

The Employee Test: A Broader Definition

The definition of "employee" in section 9(6) extends beyond traditional common law employment concepts. As noted in Aaren Pty Ltd trading as Price Beat Travel v Arya [2020] NSWDC 657, following observations in Born Brands Pty Ltd v Nine Network Australia Pty Ltd (2014) 88 NSWLR 421, the relationship between the corporation and its employees need not be direct.

In Deep Cycle Systems, the court considered various categories of workers:

• Direct employees under contract

• Freelance engineers

• Family members working voluntarily

• Dealers and distributors

• Potential overseas workers

The court found that dealers who could be terminated for failing to meet "minimum dealer requirements" fell within the broad definition of employees. However, mere volunteers, such as family members working without payment, were not considered employees.

The Associated Entity Test

The second limb requires corporations to prove they are not an "associated entity" of another corporation. This term takes its meaning from section 50AAA of the Corporations Act 2001 (Cth).

Under section 50AAA(7), the test is satisfied where:

• A third entity controls both the principal and the associate; and

• The operations, resources or affairs of the principal and the associate are both material to the third entity.

The Materiality and Nexus Requirement

Following Fair Work Ombudsman v Priority Matters Pty Ltd & Anor [2016] FCCA 1474, there must be a nexus between the associated entities in their respective operations, resources or affairs that are jointly material to the third entity. It is not sufficient that each entity is separately material to the controlling entity.

"Material" is understood to mean "of substantial import or much consequence" or "important or having an important effect." The determination of materiality depends on issues of fact and degree.

Key Indicators of Association

In Deep Cycle Systems, the court found the corporations were associated entities based on several factors:

1. Shared financial resources: Use of a single credit card for both companies' expenses with only annual reconciliation

2. Inter-company loans: Significant loans between the entities and to the controlling director

3. Shared physical assets: Vehicles and equipment used by both companies

4. Cross-promotional activities: Use of one company's marketing channels to advertise the other's products

5. Financial interdependency: Movement of money between entities suggesting joint income generation

The court emphasized that while separate business operations and accounting systems are relevant, they do not necessarily prevent a finding of association where other factors demonstrate material interdependency.

Practical Implications

For corporations contemplating defamation proceedings, establishing excluded corporation status requires careful attention to:

1. Accurate employee counting: Include all workers falling within the expanded definition, including contractors, dealers, and others under the corporation's direction or control

2. Documentary evidence: Maintain clear records of employment arrangements and corporate structures

3. Financial separation: Ensure genuine independence between related entities, particularly in financial dealings

4. Credibility: The court will carefully scrutinize evidence, particularly where witnesses have made admittedly false statements about business arrangements

Conclusion

The Deep Cycle Systems decision reinforces that the excluded corporation provisions are interpreted strictly. Corporations must satisfy both limbs of the test with credible evidence. The broad definition of "employee" and the practical approach to determining "associated entity" status mean that many corporations that might consider themselves small or independent may still be unable to sue for defamation.

Legal practitioners should carefully assess their corporate clients' structures and operations before commencing defamation proceedings, as failure to establish excluded corporation status will result in the proceedings being dismissed, potentially with adverse costs consequences.

Offers to Make Amends in Defamation Law: Key Considerations for Publishers

Introduction

The Queensland Supreme Court decision in McVicker v Nine Digital Pty Ltd [2025] QSC 110 provides valuable guidance on the operation of offers to make amends under defamation legislation. In this case, Mr McVicker sued Nine Digital over three articles published on the 9Finance and A Current Affair websites concerning the collapse of online travel agency Bestjet. Nine Digital successfully defended the claim by establishing it had carried out the terms of an accepted offer to make amends, thereby engaging the statutory bar under section 17(1) of the Defamation Act 2005 (Qld). The dispute centered on whether Nine Digital had properly published the agreed correction on its websites, with the Court ultimately finding in the publisher's favor.

The Statutory Framework

Under Division 1 of Part 3 of the Defamation Act 2005, publishers have an opportunity to resolve defamation claims through the offer to make amends procedure. Section 14 provides that a publisher may make an offer to make amends in response to a concerns notice, while section 15 sets out the requirements for such offers.

Critically, section 17(1) provides that if a publisher carries out the terms of an accepted offer to make amends (including payment of any compensation), the aggrieved person cannot assert, continue or enforce an action for defamation in relation to the matter in question. This creates a complete defense to the defamation claim, even if the offer was limited to particular defamatory imputations.

Key Elements of an Effective Offer

An offer to make amends typically includes:

1. Removal of the offending material - The publisher agrees to remove the allegedly defamatory content from its platforms

2. Publication of a correction or apology - A written correction must be published in terms agreed between the parties

3. Payment of legal costs - The publisher must pay the aggrieved person's reasonably incurred legal costs

4. Notification to third parties - If the material was given to others, the publisher must inform them it may be defamatory

Construction of Agreements Formed by Acceptance

When disputes arise about whether a publisher has carried out the terms of an accepted offer, courts apply ordinary principles of contractual construction. As confirmed in McVicker v Nine Digital Pty Ltd [2025] QSC 110, agreements formed by acceptance of offers to make amends are construed objectively by reference to text, context and purpose, following the approach in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37.

The New South Wales Court of Appeal decision in Nationwide News Pty Ltd v Vass (2018) 98 NSWLR 672; [2018] NSWCA 259 established that while ordinary contractual principles apply to construction, the formation of such agreements is governed by the statutory regime rather than general contract law.

Publication Requirements: "Websites" vs "Homepages"

A crucial issue in McVicker v Nine Digital Pty Ltd [2025] QSC 110 was the interpretation of an agreement to publish a correction "on the 9Finance and A Current Affair websites." The plaintiff argued this required publication on the homepages or with equal prominence to the original articles.

The Court rejected this argument, finding:

• The parties had a clear understanding of the distinction between websites and homepages, as evidenced by their correspondence

• The agreed correction was published at unique URLs on both websites, with links appearing on the homepages for at least 24 hours

• This mirrored how the original articles were published

• There was no requirement for "equal prominence" beyond what was expressly agreed

Avoiding the Pitfalls: Lessons from Hafertepen

The Federal Court decision in Hafertepen v Network Ten Pty Ltd [2020] FCA 1456 provides a cautionary tale. In that case, the agreed clarification was published in an obscure location on the "terms of use" page at the bottom of the website. The Court found this did not satisfy the publisher's obligations.

Publishers should ensure corrections are:

• Published in accessible locations on their websites

• Available for the agreed duration

• Not hidden in obscure or difficult-to-find pages

• Accompanied by appropriate links where agreed

The Importance of Clear Drafting

The McVicker case demonstrates the critical importance of precise language when negotiating offers to make amends. Publishers and complainants should:

• Clearly specify where corrections will be published (homepage, website, or both)

• Define the duration of publication

• Agree on the exact wording of corrections

• Consider whether links or tiles will be used and for how long

• Document all agreed terms in writing

Practical Considerations

When making or responding to offers to make amends, parties should:

1. Act promptly - Strict time limits apply under section 14

2. Be specific - Vague terms lead to disputes

3. Consider prominence - While "equal prominence" may not be implied, parties can expressly agree to specific prominence requirements

4. Document compliance - Publishers should maintain evidence of publication, including screenshots and viewership data

5. Communicate clearly - Distinguish between websites, homepages, and other digital platforms

The Objective Framework

As emphasized in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; [1982] HCA 24, courts look to the objective framework of facts within which agreements come into existence. In the digital context, this includes understanding how content is typically published and accessed on websites, the usual duration of homepage prominence, and the technical distinctions between different parts of websites.

Conclusion

The offer to make amends procedure provides a valuable mechanism for resolving defamation disputes without litigation. However, as McVicker v Nine Digital Pty Ltd [2025] QSC 110 demonstrates, the success of this mechanism depends on clear communication, precise drafting, and proper implementation of agreed terms. Publishers who carefully document their compliance with accepted offers can rely on the strong statutory defense provided by section 17(1). Conversely, complainants should ensure their expectations are clearly expressed and agreed in writing before accepting offers. With proper attention to detail, the offer to make amends procedure can achieve its purpose of facilitating early resolution of defamation claims.

Malice in Defamation: When Improper Purpose Defeats Privilege

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:

1. Malice is not punitive: Courts cannot increase damages simply to punish a malicious defendant

2. Focus on actual harm: The relevant inquiry is whether the defendant's malice caused additional harm to the plaintiff

3. 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:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

The Sufficient Connection Test in Qualified Privilege: When Defamatory Statements Are Germane to the Protected Occasion

Introduction: The Slater v Ecosol Case

The decision in Slater v Ecosol Pty Ltd [2025] SASCA 78 provides guidance on when defamatory statements are sufficiently connected to an occasion of qualified privilege.

The case involved a dispute over the proposed sale of a stormwater treatment manufacturing business. Mr Slater, a shareholder, opposed the sale to management (through Urban Asset Solutions Pty Ltd) and communicated his concerns to fellow shareholders. In response, the company's chairman, Mr Smith, sent letters to shareholders that included statements Mr Slater claimed were defamatory – including imputations that he had lied to shareholders and was improperly motivated. While the trial judge found the statements were defamatory, the defence of qualified privilege succeeded because the statements were sufficiently connected to the privileged occasion of communicating with shareholders about the proposed transaction.

The Broad Approach to Connection

The law takes a deliberately broad view of what constitutes a sufficient connection to a privileged occasion. As the Court in Slater v Ecosol emphasised, statements need not be central to the topic or contribute positively to the discussion to attract protection. Drawing on the High Court's guidance in Cush v Dillon (2011) 243 CLR 298, the Court confirmed that "no narrow view should be taken of the pursuit of a duty or interest in what was said."

This broad approach reflects the underlying rationale of qualified privilege – that in certain circumstances, a plaintiff's right to protect their reputation must yield to the public interest in free communication on matters of legitimate concern (Roberts v Bass (2002) 212 CLR 1; Stone v Moore (2016) 125 SASR 81).

Key Principles from the Authorities

Relevance and Germaneness

The fundamental test is whether the defamatory matter is "relevant" or "germane" to the privileged occasion. In Adam v Ward [1917] AC 309, various formulations were used:

• Matter that is "not relevant and pertinent" to the occasion

• Something "beyond what was germane and reasonably appropriate to the occasion"

• Matter "quite unconnected with and irrelevant to the main statement"

• Matter "not in any reasonable sense germane" to what was being conveyed

As Cush v Dillon clarified, these different formulations should not be read as imposing varying levels of stringency – the key point is that the law does not require a narrow view of relevance.

Errors and Inaccuracies Don't Break the Connection

Importantly, the fact that a statement is wrong, defamatory, or even excessive does not automatically mean it lacks sufficient connection. In Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366, an error in identifying the party subject to court findings did not sever the connection to the privileged occasion. Similarly, in Cush v Dillon, referring to a rumour as fact (when discussing governance concerns) maintained the requisite connection.

The Distinction Between Excessive and Extraneous

There is a crucial distinction between statements that are excessive yet within the privileged occasion, and statements that exceed the occasion by being irrelevant (Marshall v Megna [2013] NSWCA 30). As Stone v Moore explained, the focus is on the topic in respect of which the relevant duty or interest exists, not the precise words spoken. Even strident, incorrect or extravagant language can be protected if it relates to the privileged topic.

Self-Defence and Rebuttal

The authorities recognise that "great latitude" must be allowed to persons defending themselves against attacks (Penton v Calwell (1945) 70 CLR 219; Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251). This principle was relevant in Slater v Ecosol, where the company's responses to Mr Slater's criticisms were held to be sufficiently connected to the privileged occasion.

Practical Examples: When Connection May Be Lost

Example 1: The Board Meeting Discussion

At a company board meeting convened to discuss the annual budget, a director raises concerns about proposed cost-cutting measures. During the discussion, she states: "The CFO's budget projections are as reliable as his taste in music – I saw him at that terrible boy band concert last week with someone who definitely wasn't his wife."

While criticising the CFO's budget projections would be germane to the occasion, the gratuitous comments about his musical preferences and personal life would likely not be sufficiently connected. These statements are "quite unconnected with and irrelevant" (Adam v Ward) to the budgetary discussion that creates the privileged occasion.

Example 2: The Workplace Safety Report

A workplace safety officer sends a report to management about safety breaches in the warehouse. The report includes: "John Smith has repeatedly operated the forklift at dangerous speeds in the loading bay. This doesn't surprise me given that he was convicted of drink driving last year and his ex-wife told me he's a compulsive gambler who owes money all over town. Someone with such poor judgment in their personal life obviously can't be trusted with workplace safety."

While the observations about John Smith's forklift operation would be germane to the privileged occasion, the gratuitous references to his criminal history and alleged gambling problems bear no reasonable connection to workplace safety concerns. Following Guise v Kouvelis (1947) 74 CLR 102, such comments would be "so foreign to the occasion that they must be held to be extraneous or irrelevant."

The Position of Directors and Fiduciaries

The Slater v Ecosol decision also clarifies that a person's position or duties (such as being a director or fiduciary) does not narrow the scope of privileged occasion or impose additional constraints on what can be said. The Court rejected arguments that directors must confine themselves to statements that "contribute to" or "assist" debate. As long as the statements relate to the privileged topic in the broad sense recognised by the authorities, they remain protected even if they are attacks on character or motivation.

Practical Checklist: Assessing Whether Statements Are Germane

When advising on whether defamatory statements are sufficiently connected to a privileged occasion, practitioners should work through the following comprehensive checklist:

1. Identify the Privileged Occasion

• What is the precise nature of the duty or interest that creates the privilege?

  • Is it a legal duty, moral duty, or social duty?

  • Is it a public interest or private interest?

  • Who are the relevant parties to the privileged communication?

• What is the scope of the subject matter covered by the privilege?

  • Define the topic broadly rather than narrowly

  • Consider all aspects reasonably connected to the main subject

  • Remember that tangential matters may still be included

2. Analyse the Context of the Communication

• What prompted the communication?

  • Was it in response to an attack or criticism? (Remember the "great latitude" principle)

  • Was it initiated by the publisher or reactive?

  • What was the timeline of communications?

• What was the publisher's role or position?

  • While position doesn't narrow the privilege, it provides context

  • Consider whether the publisher had authority to speak on the matter

  • Note any special knowledge or expertise relevant to the topic

3. Examine the Defamatory Statements

• How do the statements relate to the privileged topic?

  • Do they directly address the subject matter?

  • Are they examples or illustrations of points about the topic?

  • Do they provide context or background to the main issue?

• If the statements attack character or motivation:

  • Is the person's character relevant to their role in the privileged matter?

  • Do the attacks relate to their conduct concerning the privileged topic?

  • Are they responding to attacks made by that person?

4. Apply the Legal Tests

• The "Adam v Ward" formulations - are the statements:

  • "Relevant and pertinent" to the discharge of duty or protection of interest?

  • Within what is "germane and reasonably appropriate to the occasion"?

  • Not "quite unconnected with and irrelevant to the main statement"?

  • Not matter that is "not in any reasonable sense germane"?

• The "Guise v Kouvelis" test:

  • Are the words "so foreign to the occasion that they must be held to be extraneous or irrelevant"?

5. Consider Common Scenarios

• If the statements contain errors or are false:

  • Remember this doesn't automatically break the connection (Bashford)

  • Focus on subject matter, not accuracy

• If the statements are excessive or extravagant:

  • Distinguish between excessive language about the relevant topic (likely protected)

  • Versus statements about extraneous matters (not protected)

• If the statements seem unhelpful or unconstructive:

  • The law doesn't require statements to advance debate positively

  • Even counterproductive statements can be germane

6. Red Flags - Factors Suggesting Lack of Connection

• Purely personal attacks unrelated to the privileged matter

  • References to unrelated personal relationships

  • Attacks on characteristics irrelevant to the topic

  • Historical grievances with no bearing on current matter

• Subject matter from entirely different spheres

  • Professional criticism veering into unrelated personal life

  • Business discussions including irrelevant social commentary

  • Official communications containing private vendettas

• Timing disconnects

  • References to events far removed in time with no logical connection

  • Dragging in historical matters not relevant to current issue

7. Special Considerations

• For company/shareholder communications:

  • Broad scope for discussing company affairs, transactions, and governance

  • Criticism of directors/management conduct generally germane

  • Shareholder activism and opposition typically within scope

• For employment references:

  • Focus on work performance and conduct

  • Personal life only relevant if impacts work capacity

• For public interest communications:

  • Wider scope for discussion of public figures

  • Context of public debate allows broader range of comment

8. Document Your Analysis

• Create a clear record showing:

  • The identified privileged occasion and its scope

  • How each defamatory statement relates to that occasion

  • Any statements that may fall outside protection

  • The authorities supporting your conclusions

9. Borderline Cases

• When connection is arguable:

  • Remember the broad approach mandated by Cush v Dillon

  • Consider whether a reasonable person would see some relationship to the topic

  • If genuinely borderline, the broad approach suggests inclusion

• Mixed communications:

  • Separate germane from non-germane portions

  • Privilege protects the connected statements even if others are not protected

10. Final Review Questions

• Have I taken too narrow a view of the privileged occasion?

• Have I focused on the topic rather than the specific words used?

• Would excluding these statements unduly restrict free communication on the privileged matter?

• Is there any reasonable argument connecting the statements to the privileged topic?

This checklist should be applied flexibly, remembering that the law favours protection of free communication on matters of legitimate interest. When in doubt, the authorities suggest taking a broad rather than narrow approach to connection.

Conclusion

The sufficient connection test in qualified privilege requires courts to take a broad, practical approach. Defamatory statements will be protected if they are relevant and germane to the privileged occasion, even if they are wrong, excessive, or unhelpful to constructive debate. Only statements that are truly extraneous or irrelevant to the privileged topic will fall outside protection. For practitioners, this means carefully identifying the scope of the privileged occasion and assessing whether impugned statements relate to that topic, however tangentially. The law's broad approach reflects the importance placed on protecting free communication on matters of legitimate interest, even when that communication is robust, mistaken, or defamatory.

Suppression Orders in Defamation Cases: Balancing Open Justice with the Protection of Minor Witnesses

Introduction: The Kerry Case

A decision of the NSW Supreme Court in Kerry v The New South Wales Ice Skating Association Inc [2025] NSWSC 833 provides important guidance on when courts will grant suppression orders to protect the identities of minors and alleged victims of sexual misconduct in defamation proceedings. The case involved an Australian Olympian and coach who sued for defamation after the defendant published a note to its members about sanctions imposed by the US Centre for SafeSport. The sanctions related to findings of sexual misconduct involving two individuals: a 17-year-old in California (where the age of consent is 18) and a 14-year-old in Queensland. The Court granted suppression orders protecting both individuals' identities, despite the plaintiff's opposition.

The Principle of Open Justice

The starting point for any discussion of suppression orders is the fundamental principle of open justice. As Rothman J noted in Kerry, the primary objective of the administration of justice is to safeguard the public interest in open justice, which is "generally, fundamental to the proper administration of justice and to the democratic nature of society."

However, this principle is not absolute. The Court of Criminal Appeal in R v Kwok & Ors [2005] NSWCCA 245 recognised two distinct classes of exception:

1. Exceptions based on general considerations relating to the administration of justice

2. Exceptions where specific considerations concerning a specific witness or person affect the administration of justice

Special Considerations for Sexual Offence Victims

Courts have long recognised that victims of sexual offences, particularly minors, warrant special protection. In Kwok, the Court of Criminal Appeal explained that there are "recognised categories in which the publication of names may, as a matter of necessity, be prohibited," including victims of sexual offences alongside informers and victims of blackmail.

The rationale is compelling. As the Court observed in Kwok:

• Publication of victims' identities can further the criminal activity of perpetrators[^1]

• It inhibits victims from giving evidence and reporting crimes

• Child victims particularly face difficulties reporting abuse when publicity becomes a detriment to their mental health

[^1]: This principle recognises that perpetrators may use the threat of public exposure as a tool of control over their victims. In cases involving blackmail or sexual offences, the fear of public identification can prevent victims from reporting crimes or cooperating with authorities, thereby allowing perpetrators to continue their criminal conduct. As noted in Kwok, this creates a parallel with blackmail cases where "the publication of their identity will further the criminal activity of the perpetrators and inhibit further victims from giving evidence and reporting crime."

Legislative Protections for Child Victims

The Kerry case highlighted how each Australian state and territory has enacted specific protections for child victims of sexual offences. In Queensland, the Child Protection Act 1999 makes it a criminal offence to publish identifying information about a "relevant person" - defined as a child in relation to whom an offence was committed or alleged to have been committed. Section 194 provides for significant penalties: up to 100 penalty units or 2 years imprisonment for individuals.

This legislative framework reflects society's recognition that child victims of abuse are often traumatised by the conduct itself, and that public identification represents "an aggravating feature of the trauma and damage that occurs as a consequence of that abuse."

The Test for Suppression Orders

When determining whether to grant suppression orders, courts apply the test of "necessity" - but this doesn't mean "essential." As the High Court clarified in Pelechowski v The Registrar, Court of Appeal (1998) 198 CLR 435, necessary in this context means orders that are "reasonably required" or "legally ancillary" to the accomplishment of justice. The term is "subjected to the touchstone of reasonableness."

In the defamation context, courts will consider whether suppression orders are necessary to:

• Prevent prejudice to the proper administration of justice[1]

• Protect the safety of persons

• Serve the public interest

Practical Implications for Defamation Proceedings

The Kerry decision demonstrates that suppression orders in defamation cases:

• Do not prevent the examination of the court's jurisdiction or inhibit public scrutiny of judgments

• Can be limited to protecting specific identities while maintaining transparency of proceedings

• Create confidence in victims to give evidence openly without fear of exposure

• Encourage other victims to come forward

Importantly, mere embarrassment is insufficient to warrant suppression. As Rothman J noted, "Each criminal charge creates embarrassment." The court requires evidence of genuine harm or impediment to justice.

Balancing Competing Interests

Courts must carefully balance the public interest in open justice against other compelling interests. In Kerry, the Court found that protecting the identities of alleged sexual misconduct victims - particularly the 14-year-old - significantly outweighed the public interest in full disclosure of names.

This balancing exercise recognises that suppression orders can actually serve the administration of justice by:

• Ensuring witnesses feel safe to give evidence

• Maintaining public confidence in the justice system's ability to protect vulnerable witnesses

• Preventing further trauma to victims who have already suffered harm

Conclusion

The Kerry decision reinforces that while open justice remains the cornerstone of our legal system, courts retain discretion to make limited suppression orders where necessary to protect vulnerable witnesses and ensure the proper administration of justice. For practitioners in defamation matters involving allegations of sexual misconduct or minor witnesses, early consideration should be given to whether suppression orders may be appropriate. The key is demonstrating not just potential embarrassment or discomfort, but genuine necessity based on harm prevention and the broader interests of justice.

When seeking such orders, practitioners should be prepared to provide concrete evidence of potential harm and frame their applications within the established categories recognised by the courts. The burden remains on the applicant to satisfy the court of necessity, but where minor victims of alleged sexual offences are involved, courts will give serious consideration to protective orders that maintain the substance of open justice while shielding vulnerable individuals from unnecessary harm.

Footnote:

1. This principle recognises that perpetrators may use the threat of public exposure as a tool of control over their victims. In cases involving blackmail or sexual offences, the fear of public identification can prevent victims from reporting crimes or cooperating with authorities, thereby allowing perpetrators to continue their criminal conduct. As noted in Kwok, this creates a parallel with blackmail cases where "the publication of their identity will further the criminal activity of the perpetrators and inhibit further victims from giving evidence and reporting crime."

Permissible Variants in Defamation Pleadings: A Practitioner's Guide to Mond v The Age Company Pty Limited

1. Introduction

The decision in Mond v The Age Company Pty Limited [2025] FCA 442 provides significant guidance on the boundaries of permissible variants in defamation pleadings. Wheelahan J's judgment clarifies when courts may find defamatory meanings within the scope of pleaded imputations, even where those meanings differ from the precise formulations advanced by plaintiffs. This decision has substantial implications for how practitioners frame imputations and conduct defamation proceedings.

The case demonstrates the tension between procedural fairness to defendants and the substantive rights of plaintiffs to vindicate their reputations. Understanding the principles articulated in Mond is essential for practitioners advising clients on both sides of defamation disputes.

2. Background of Relevant Preceding Case Law

2.1 The Foundation: Chakravarti v Advertiser Newspapers

The High Court in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 established fundamental principles regarding the boundaries of pleaded meanings in defamation cases. At [21]-[22], Brennan CJ and McHugh J held that a plaintiff's case may extend to meanings that are:

• Comprehended in the pleaded meaning

• Less injurious than the pleaded meaning

• A mere shade or nuance of the pleaded meaning

However, their Honours emphasised at [19] that a plaintiff cannot seek a verdict on a meaning so different from that pleaded that the defendant would have been entitled to plead different issues, adduce different evidence, or conduct the case on a different basis.

2.2 The Modern Framework: ABC v Chau Chak Wing

The Full Federal Court in Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632 clarified the application of Chakravarti principles. At [33], the Court confirmed that plaintiffs may allege multiple distinct defamatory imputations and may plead imputations in the alternative.

Significantly, the Court in ABC v Wing at [87] recognised that plaintiffs are entitled to seek vindication on specific points through their pleaded imputations. This reinforces the role of pleadings in defining the territory for dispute.

2.3 Hore-Lacy Meanings

David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; 1 VR 667 established that defendants may plead alternative meanings to support positive defences. These "Hore-Lacy meanings" allow defendants to advance defences to meanings they contend are permissible variants of the plaintiff's imputations.

3. Facts of Mond v The Age Company

3.1 The Parties and Context

David Mond served as president of the Caulfield Hebrew Congregation from September 2018 to October 2021 (at [13]). The respondents comprised The Age Company Pty Ltd, Fairfax Media Publications Pty Ltd, and journalists Stephen Brook and Samantha Hutchinson (at [2]).

3.2 The Publications

Seven articles were published in The Age's "CBD" column between May 2021 and February 2022:

1. 5 May 2021 articles: Reported controversy over Mr Mond agreeing to host Jonathan Pollard, a convicted spy, at a Jerusalem Day event (at [4], [25])

2. 13 December 2021 articles: Referenced the earlier controversy and reported on the board's apology to Adam Slonim following Mr Mond's critical email about him (at [4], [29])

3. 18 February 2022 articles: Claimed divisions at the synagogue persisted and attendance at Rabbi Rabin's inauguration was low (at [4], [31])

3.3 The Pleaded Imputations

Mr Mond pleaded complex, rolled-up imputations. For the 13 December 2021 articles, these included (at [118]):

• That he was "so lacking in judgment that he recklessly and autocratically decided to host a speech by a convicted spy at CHC without consultation"

• That his "previous actions have inflicted lingering damage on CHC"

• That he "compounded the damage" by his "lack of consultation" and by sending an email that "forced the Board to issue an extraordinary apology"

3.4 The Respondents' Alternative Meanings

The respondents pleaded Hore-Lacy meanings including (at [120]):

• That Mr Mond "agreed to host an address by a person who was convicted of spying for Israel without appropriately consulting the Senior Rabbi"

• That he "had damaged the standing of the Caulfield Shule by sending an ill-considered and defamatory email"

4. The Court's Determinations on Specific Imputations

4.1 The 5 May 2021 Articles

The Court's treatment of the first publications demonstrates the importance of precision in identifying defamatory stings.

Plaintiff's pleaded imputations (at [93]):

• Mr Mond was "so lacking in judgment that he recklessly agreed to host a convicted spy at an important event for Melbourne's Orthodox Jewish community without appropriate consultation"

• Mr Mond was "a disruptive person who has caused uproar within the Orthodox Jewish community"

The Court's findings (at [101]-[105]): Wheelahan J held that these imputations were not conveyed. The critical finding was that the articles contained no suggestion about whether consultation was required, expected, or had occurred. The judge stated at [102]: "the article says nothing about whether consultation was required, or expected, or took place."

The Court found that while the articles conveyed the existence of controversy and implied questions about judgment, they did not support the specific elements of the pleaded imputations regarding lack of consultation or the applicant being a "disruptive person."

Significance: The plaintiff failed entirely on these articles because the pleaded imputations contained necessary elements not supported by the publications.

4.2 The 13 December 2021 Articles

These articles produced mixed results, demonstrating how courts parse complex imputations.

Imputation 11(a) - "so lacking in judgment that he recklessly and autocratically decided to host a speech by a convicted spy at CHC without consultation" (at [118]):

• Finding: Partially upheld in a lesser form (at [130])

• Reasoning: The "extravagant adverbs 'recklessly and autocratically'" were not conveyed, but the articles did convey that Mr Mond decided to host the speech without consulting Rabbi Genende when he should have

• Key passage: "The ordinary reasonable reader would understand the articles as conveying that the applicant thereby caused the 'rift'"

Imputation 11(c) - "Mr Mond's previous actions have inflicted lingering damage on CHC":

• Finding: Upheld (at [131])

• Reasoning: The reference to "previous actions" encompassed both the lack of consultation and the August email to members

Imputation 11(d) - Mr Mond "compounded the damage" by lack of consultation and by sending an email that "forced the Board to issue an extraordinary apology":

• Finding: Substance conveyed (at [132])

Imputation 11(e) - "so lacking in judgment due to his reckless and autocratic personality that his wrongful conduct on multiple occasions has created a mess at CHC":

• Finding: Not conveyed (at [133])

• Reasoning: Essential elements including "reckless and autocratic personality" were not established

4.3 The 18 February 2022 Articles

The Court's analysis of the final articles shows how repetition of false claims across publications affects findings.

Imputation 13(a) - "created bad times at CHC through his wrongful conduct by hosting a speech by a convicted spy without appropriate consultation":

• Finding: Substance conveyed (at [152])

• Reasoning: Despite the "elusive term" of "wrongful conduct," the articles implied the applicant's failure to consult was wrong

Imputation 13(e) - "compounded the damage he has inflicted on CHC by hosting a speech by a convicted spy without appropriate consultation by a further incident" involving the Slonim email:

• Finding: Substance conveyed (at [153])

• Reasoning: The articles stepped through episodes conveying that Mr Mond compounded damage from the rift with further conduct

Imputation 13(f) - "the divisions Mr Mond has created within CHC... have been so serious that they have not yet been able to be remedied":

• Finding: Conveyed (at [155])

• Reasoning: References to "bad times" and "divisions at the synagogue still exist" supported this meaning

5. Analysis of the Court's Reasoning

5.1 The Framework for Permissible Variants

Wheelahan J articulated key principles at [79]-[82]:

1. The cause of action is publication of matter, not imputations: Under s 8 of the Defamation Act 2005 (Vic), publication gives rise to a single cause of action even if multiple defamatory imputations are conveyed.

2. Pleadings shape but do not rigidly confine the issues: While an applicant's case is shaped by pleaded meanings, it may extend to permissible variants.

3. Procedural fairness is paramount: Courts will not allow applicants to succeed on meanings so different from those pleaded that defendants would have conducted their case differently.

4.2 Application to Specific Imputations

The Court's treatment of Mr Mond's imputation 11(a) illustrates the analysis (at [129]-[130]):

Pleaded imputation: Mr Mond was "so lacking in judgment that he recklessly and autocratically decided to host a speech by a convicted spy at CHC without consultation"

Finding: While the "extravagant adverbs 'recklessly and autocratically'" were not conveyed, a lesser defamatory meaning was established - that Mr Mond decided to host the speech without consulting Rabbi Genende when he should have.

This demonstrates how courts may strip away hyperbolic elements while finding the essential sting remains.

4.3 The Role of Defendants' Alternative Meanings

Wheelahan J held at [87] that where defendants plead Hore-Lacy meanings as permissible variants of plaintiffs' imputations, these may constitute meanings on which plaintiffs are entitled to succeed. This is because defendants' alternative meanings are premised on being bound up with plaintiffs' imputations.

However, the Court emphasised three qualifications at [88]:

1. Where plaintiffs expressly or impliedly exclude meanings other than those strictly pleaded

2. Where imputations contain necessary elements whose absence materially changes the case

3. Where accepting variants of defendants' alternative meanings would constitute "variants on variants"

5. Quantification and Assessment of Damages

5.1 The Serious Harm Threshold

For publications after 1 July 2021, s 10A of the Defamation Act requires proof of serious harm to reputation. The Court's analysis at [406]-[412] demonstrates:

• Each defamatory matter must independently satisfy the serious harm element

• Harm from different publications cannot be aggregated unless they constitute the same matter

• Inference of serious harm may arise from extent of publication and importance of the reputational aspect affected

5.2 Damages Assessment

The Court awarded $120,000 in damages (at [530]), considering:

Mitigating factors:

• One sting (regarding the email about Mr Slonim) was substantially true (at [441])

• The defamatory meanings sat "in the lower end of the spectrum of seriousness" (at [410])

Aggravating factors:

• The false claim about failing to consult was repeated across multiple articles

• The articles targeted Mr Mond personally in a mocking tone (at [483])

6. Worked Example: Practical Application

6.1 From the Plaintiff's Perspective

Scenario: A company CEO is accused in a newspaper article of "corruptly and dishonestly manipulating financial records to deceive shareholders"

Pleading strategy:

1. Primary imputation: The CEO corruptly and dishonestly manipulated financial records

2. Alternative imputation: The CEO engaged in financial misconduct

3. Further alternative: The CEO mismanaged company finances

At trial: If evidence shows financial irregularities but not corruption, the plaintiff may succeed on the lesser variant of financial misconduct, provided it remains within the pleaded case's boundaries.

6.2 From the Defendant's Perspective

Defence strategy:

1. Deny all imputations

2. Plead Hore-Lacy alternative: "The CEO made accounting errors that required correction"

3. Advance justification defence to this lesser meaning

Advantage: By pleading the alternative meaning, the defendant shapes the permissible variants available to the plaintiff while positioning defences to those variants.

7. Step-by-Step Guidance for Practitioners

7.1 For Plaintiff's Counsel

1. Draft imputations at multiple levels: Include primary and alternative formulations capturing different degrees of seriousness

2. Avoid unnecessary hyperbole: Extravagant language risks the court finding no imputation was conveyed

3. Consider defendants' likely alternatives: Anticipate Hore-Lacy meanings and ensure your alternatives encompass them

4. Preserve flexibility: Avoid language that locks you into single interpretations

7.2 For Defendant's Counsel

1. Analyse the boundaries: Identify what variants might fall within plaintiff's pleadings

2. Plead strategic alternatives: Use Hore-Lacy meanings to define the playing field

3. Focus defences appropriately: Target defences to both pleaded and variant meanings

4. Document the basis for meanings: Ensure evidence supports any alternative meanings advanced

8. Evidence and Arguments for Each Side

8.1 Plaintiff's Evidence and Arguments

Evidence to lead:

• Extent of publication and readership data

• Impact on specific reputational interests

• Evidence negativing any truth in extravagant elements

Arguments to advance:

• Natural progression from greater to lesser meanings

• Defendants' alternatives confirm variants are within pleaded case

• Procedural fairness not compromised as defendants addressed these meanings

8.2 Defendant's Evidence and Arguments

Evidence to lead:

• Factual basis supporting alternative meanings

• Context showing why lesser meanings are appropriate

• Evidence of plaintiff's prior conduct relevant to mitigation

Arguments to advance:

• Plaintiff's imputations contain essential elements not established

• Accepting variants would require different defence evidence

• Alternative meanings are maximum extent of liability

9. Key Takeaways for Legal Practice

1. Precision in pleading remains crucial: While variants are permissible, poorly drafted imputations risk complete failure

2. Strategic use of alternatives: Both sides should utilise alternative formulations to shape the boundaries of dispute

3. Evidence must address variants: Parties cannot assume courts will only consider precise pleaded meanings

4. Procedural fairness governs: Courts will not permit variants that would have changed how defendants conducted their case

5. Hyperbole is dangerous: Extravagant language in imputations risks defeating the entire claim

10. Conclusion: Broader Significance

Mond v The Age Company reinforces that defamation pleadings require careful strategic consideration. The decision confirms that while courts retain flexibility to find meanings within the boundaries of pleaded cases, this flexibility has defined limits.

The judgment provides clarity on how Hore-Lacy alternatives interact with plaintiffs' imputations, confirming that defendants' alternatives may inadvertently expand the meanings available to plaintiffs. This creates tactical considerations for both sides in framing their cases.

Most significantly, Mond demonstrates that successful defamation litigation requires more than identifying defamatory publications. It demands precise articulation of meanings that capture the essential sting while maintaining sufficient breadth to encompass likely findings. Practitioners who master these principles will better serve their clients' interests, whether seeking vindication or defending freedom of expression.

The decision ultimately strikes a balance between allowing plaintiffs reasonable latitude in seeking vindication and protecting defendants from unfair procedural prejudice. This balance reflects the fundamental tension in defamation law between protecting reputation and preserving open discourse - a tension that careful pleading can help resolve.

Roberts-Smith v Fairfax Media Publications Pty Limited (Appeal) [2025] FCAFC 67: A Comprehensive Analysis of the Standard of Proof for Serious Civil Allegations

1. Introduction: The Enduring Significance of Briginshaw in Contemporary Civil Litigation

The Full Court's decision in Roberts-Smith v Fairfax Media Publications Pty Limited (Appeal) [2025] FCAFC 67 represents a watershed moment in the application of the standard of proof to grave civil allegations. This case provides essential guidance on how courts approach allegations of criminal conduct within civil proceedings, particularly where such allegations involve matters of profound public interest and severe reputational consequences.

The decision's significance extends beyond defamation law, offering critical insights into:

• The practical application of s 140(2) of the Evidence Act 1995 (Cth)

• The contemporary relevance of Briginshaw v Briginshaw (1938) 60 CLR 336

• The interplay between the presumption of innocence and civil burden of proof

• The assessment of evidence quality when determining serious allegations

This analysis examines how the Court navigated the delicate balance between maintaining the civil standard of proof whilst ensuring appropriate rigour when adjudicating allegations of war crimes—arguably among the most serious allegations possible in civil proceedings.

2. The Evolution of Legal Principles: From Briginshaw to Section 140

2.1 The Foundation: Briginshaw v Briginshaw

The High Court's decision in Briginshaw v Briginshaw (1938) 60 CLR 336 established the fundamental principle that whilst the civil standard remains the balance of probabilities, the degree of satisfaction required varies with the gravity of the allegation. Dixon J articulated this principle at 361-362:

"The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found... reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved."

This formulation introduced three critical considerations:

1. The seriousness of the allegation made

2. The inherent unlikelihood of an occurrence

3. The gravity of the consequences flowing from a finding

2.2 Subsequent Development

The principle evolved through several key decisions:

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449: The High Court confirmed that "clear, or cogent or strict proof is necessary where so serious a matter as fraud is to be found" (at 450). This decision emphasised that the quality of evidence, not merely its quantity, determines whether the requisite satisfaction is achieved.

Qantas Airways Limited v Gama (2008) 167 FCR 537: The Full Federal Court clarified that Briginshaw does not create a third standard of proof but rather informs the application of the existing civil standard (at [139]).

2.3 Statutory Codification: Section 140

The Evidence Act 1995 (Cth) codified these principles:

140 Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged.

This provision explicitly requires courts to consider the gravity of allegations when determining whether the balance of probabilities is satisfied, effectively incorporating the Briginshaw principle into statute.

3. The Roberts-Smith Litigation: Factual Matrix and Procedural History

3.1 The Parties and Claims

Appellant: Ben Roberts-Smith VC, MG, a decorated former member of the Special Air Service Regiment (SASR), recipient of the Victoria Cross and Medal for Gallantry.

Respondents: Fairfax Media Publications Pty Limited, The Age Company Pty Ltd, The Sydney Morning Herald, and journalists Nick McKenzie, Chris Masters, and David Wroe.

3.2 The Publications and Imputations

The proceedings arose from articles published in June 2018 alleging various acts of misconduct during the appellant's service in Afghanistan. The defamatory imputations, as found by the primary judge, included that the appellant:

1. Whiskey 108 (2009): Murdered an unarmed Afghan civilian by kicking him off a cliff and procuring soldiers to shoot him (J[5])

2. Darwan (2012): Murdered an unarmed Afghan by machine gun fire (J[6])

3. Chinartu (2012): Committed murder by pressuring a subordinate soldier to execute an elderly, unarmed Afghan (J[7])

4. Engaged in domestic violence against his mistress (J[8])

5. Bullied and threatened fellow soldiers (J[9])

3.3 The Defence of Truth

The respondents pleaded substantial truth under s 25 of the Defamation Act 2005 (NSW), contending that the imputations conveyed by the articles were substantially true (J[1]). This defence required them to prove, on the balance of probabilities, that the appellant had committed the alleged acts.

3.4 The Primary Judgment

Following a 110-day trial involving 44 witnesses (J[32]), Besanko J delivered judgment on 1 June 2023. His Honour found:

• The articles conveyed defamatory imputations about the appellant

• The defence of substantial truth succeeded for the murder allegations at Whiskey 108, Darwan, and Chinartu

• The defence failed for certain other imputations, including allegations concerning missions at Fasil and allegations of domestic violence

Critically, the primary judge made express findings that:

• At Whiskey 108: EKIA56 was executed by Person 4 on the appellant's direction, and EKIA57 was murdered by the appellant with machine gun fire (J[5])

• At Darwan: The appellant murdered Ali Jan with machine gun fire (J[6])

• At Chinartu: The appellant directed Person 4 to execute an elderly, unarmed Afghan (J[7])

3.5 The Appeal

The appellant advanced 41 grounds of appeal (J[13]), including challenges to:

• The application of s 140 and Briginshaw principles (Ground 19)

• Specific factual findings regarding each incident

• The primary judge's assessment of witness credibility

• The admission and use of tendency evidence

4. The Court's Analysis: Applying Briginshaw in Practice

4.1 The Standard Articulated

The Full Court (Allsop CJ, Besanko and Lee JJ) began by reaffirming fundamental principles:

1. The standard remains civil: Despite the criminal nature of the allegations, "the standard of proof is the balance of probabilities, not the criminal standard" (J[16])

2. No intermediate standard exists: There is "no shifting standard of proof" or "third standard" between civil and criminal (J[17])

3. Quality of evidence varies: The Briginshaw principle affects "the strength or cogency of the evidence necessary to establish a fact on the balance of probabilities" (J[18])

4.2 The Primary Judge's Approach

The Court found that Besanko J had correctly applied these principles:

"The primary judge discussed the law at some length... He repeatedly reminded himself of those principles. We are satisfied that the primary judge was acutely conscious of the seriousness of the findings the respondents called upon him to make and of the necessity that he be reasonably satisfied that the imputations were substantially true without resorting to inexact proofs, indefinite testimony or indirect inferences." (J[23])

4.3 Practical Application to Evidence

The Court identified several examples demonstrating the primary judge's rigorous approach:

Fasil Mission: Despite evidence from an SASR member about misconduct, the primary judge declined to find this imputation true because identification evidence was not "sufficiently clear and cogent" (J[24]-[25])

Person 17 Assault: Evidence of an alleged assault was rejected as insufficiently reliable given the gravity of the allegation (J[26])

Reliance on Eyewitness Testimony: Where findings were made, they were "largely relied on eyewitness accounts" rather than inference or speculation (J[23])

4.4 The Presumption of Innocence

The Court addressed the appellant's argument regarding the presumption of innocence:

1. The presumption operates as a factor influencing the required cogency of evidence (J[19])

2. The primary judge explicitly considered this presumption (J[23], citing J[114] of the primary judgment)

3. The presumption does not create a different standard but informs the assessment of whether evidence is sufficiently cogent

4.5 Credibility Findings and Appellate Restraint

The Court emphasised the "natural limitations" on appellate review of credibility findings (J[32]), particularly where:

• The trial extended over 110 days

• The primary judge observed 44 witnesses

• Credibility assessments were central to the factual findings

• The appellant's credibility was comprehensively rejected

5. Quantification and Assessment: The Judicial Calculus

5.1 The Nature of Assessment

The assessment required under s 140 and Briginshaw is not mathematical but qualitative. The Court explicitly noted that the primary judge "did not engage in any mechanical comparison of probabilities divorced from a belief in the occurrence or existence of the matters in dispute" (J[24]).

5.2 Factors in the Assessment Matrix

The following factors influence the required cogency of evidence:

A. Intrinsic Factors

1. Gravity of Allegation: Murder allegations require the highest degree of cogency

2. Consequences: Reputational destruction, criminal investigation, loss of honours

3. Inherent Probability: Courts must consider whether the alleged conduct is inherently unlikely

B. Evidence Quality Indicators

1. Directness: Eyewitness testimony preferred over circumstantial evidence

2. Consistency: Internal consistency and consistency with objective facts

3. Corroboration: Multiple independent sources strengthening the evidence

4. Contemporaneity: Evidence closer in time to events generally more reliable

5. Credibility: Honesty and reliability of witnesses

C. Contextual Considerations

1. Documentary Support: Contemporaneous documents enhancing reliability

2. Motive to Fabricate: Absence of apparent bias or interest

3. Opportunity to Observe: Witness proximity and capacity to perceive events

5.3 The Sliding Scale in Practice

The required cogency operates on a sliding scale that increases with the severity of the allegation. Understanding this progression helps practitioners calibrate their evidence gathering and assessment strategies.

At the lower end of the spectrum, minor civil wrongs require only standard civil evidence meeting the basic balance of probabilities test. These might include simple contractual breaches or minor negligence claims where no serious moral culpability is alleged.

Moving up the scale, professional misconduct allegations demand clear and convincing evidence. In the Roberts-Smith case, the bullying allegations against fellow soldiers fell into this category. The evidence needed to be more than merely probable; it needed to be clear and persuasive given the professional consequences such findings would entail.

Fraud and dishonesty allegations require clear, cogent, and strict proof. This elevated standard reflects both the moral opprobrium attached to findings of dishonesty and the severe consequences for professional and personal reputation. In Roberts-Smith, allegations that the appellant gave false evidence to investigations would fall within this category, demanding evidence of particularly high quality.

At the apex of the scale, criminal conduct allegations—particularly serious crimes—require highly cogent and compelling evidence. The murder allegations in Roberts-Smith exemplified this highest category. The evidence needed to be of such quality that it could produce reasonable satisfaction despite the inherent improbability of a decorated soldier committing war crimes and the devastating consequences of such findings.

5.4 Practical Application in Roberts-Smith

The Court's analysis reveals how this assessment operated:

1. Multiple Witnesses: The murder findings relied on testimony from multiple SASR members who were present at the incidents

2. Consistency on Core Facts: Whilst witnesses differed on peripheral details, their accounts were consistent on central allegations

3. Absence of Contamination: The primary judge considered but rejected arguments of collusion or contamination

4. Credibility Differential: The comprehensive rejection of the appellant's credibility contrasted with acceptance of key prosecution witnesses

6. Worked Example: Practical Application in Commercial Fraud Litigation

Consider a civil claim where Company B alleges Company A engaged in systematic fraud through financial statement manipulation, causing $50 million in losses.

6.1 Company B's Perspective (Plaintiff/Alleging Party)

Strategic Considerations:

• Fraud carries severe reputational consequences requiring cogent evidence

• Must overcome inherent improbability of established company committing fraud

• Need evidence of both falsity and intention

Evidence Assembly:

1. Documentary Foundation

   • Forensic accounting analysis showing systematic discrepancies

   • Email communications indicating knowledge of falsity

   • Board minutes revealing awareness of issues

   • Whistleblower statements with contemporaneous notes

2. Witness Evidence

   • Former CFO willing to testify about pressure to manipulate figures

   • Independent auditor identifying red flags ignored by management

   • Multiple employees corroborating culture of deception

3. Pattern Evidence

   • Demonstration of repeated conduct over multiple reporting periods

   • Evidence of cover-up attempts when questions arose

   • Correlation between misstatements and executive bonuses

Argument Structure:

"Whilst we acknowledge fraud is a serious allegation requiring cogent proof, the evidence surpasses this threshold. We present not mere suspicion but a compelling mosaic: forensic analysis revealing systematic manipulation, contemporaneous documents showing intent, and consistent testimony from multiple independent witnesses. This is not inexact proof or indefinite testimony—it is clear, cogent evidence establishing deliberate deception."

Key Submissions on Standard:

• Acknowledge the Briginshaw requirement explicitly

• Demonstrate how evidence meets the "clear and cogent" threshold

• Address each element of fraud with specific, compelling evidence

• Emphasise multiple independent sources of verification

6.2 Company A's Perspective (Defendant/Responding Party)

Strategic Considerations:

• Emphasise gravity of fraud allegation and required proof standard

• Challenge evidence quality rather than quantity

• Provide innocent explanations for suspicious circumstances

Defensive Evidence:

1. Alternative Explanations

   • Expert evidence on accounting judgment legitimacy

   • Industry practice evidence supporting interpretations

   • Documentation of good faith decision-making processes

2. Credibility Challenges

   • Motivation of whistleblowers (dismissed employees)

   • Inconsistencies in witness accounts

   • Lack of contemporaneous complaint

3. Systemic Defences

   • Robust internal controls and audit processes

   • Clean regulatory history

   • Professional advice supporting accounting treatments

Argument Structure:

"The plaintiff bears the burden of proving fraud—an allegation of utmost gravity requiring the clearest and most cogent evidence. What they present falls materially short: disgruntled former employees with axes to grind, accounting disagreements recharacterised as deception, and a presumption of guilt from legitimate business difficulties. The evidence lacks the clarity, cogency and compelling nature required by Briginshaw for such devastating allegations."

Key Submissions on Standard:

• Emphasise that suspicion, however grave, is insufficient

• Highlight gaps, inconsistencies and alternative explanations

• Invoke presumption of innocence as interpretive principle

• Demonstrate failure to meet Briginshaw threshold

7. Practitioner's Guide: Step-by-Step Approach

7.1 Initial Case Assessment

Step 1: Categorise the Allegations

• Identify all serious allegations (criminal conduct, fraud, professional misconduct)

• Assess reputational and legal consequences of adverse findings

• Determine applicable Briginshaw considerations

Step 2: Evidence Audit

• Catalogue available evidence by type and quality

• Assess cogency against Briginshaw requirements

• Identify evidence gaps requiring attention

Step 3: Strategic Planning

• Determine whether evidence meets required threshold

• Identify additional evidence needed

• Consider alternative causes of action with lower thresholds

7.2 Pleading Considerations

For Plaintiffs:

• Plead serious allegations with precision and particularity

• Ensure factual foundation for each element

• Consider whether lesser allegations might achieve client objectives

For Defendants:

• Challenge adequacy of particulars for serious allegations

• Reserve position on standard of proof arguments

• Consider strategic admissions on less serious matters

7.3 Evidence Gathering Phase

Documentary Evidence:

• Prioritise contemporaneous documents

• Seek corroborating documentation

• Preserve metadata and chain of custody

Witness Evidence:

• Identify witnesses with direct knowledge

• Assess credibility and potential bias

• Obtain signed statements early

• Consider expert evidence on industry standards

Strategic Considerations:

• Focus resources on evidence meeting cogency requirements

• Consider cost-benefit of pursuing marginal evidence

• Maintain evidence integrity throughout process

7.4 Pre-Trial Preparation

Witness Preparation:

• Explain significance of serious allegations

• Emphasise importance of clarity and precision

• Address potential credibility challenges

• Prepare for rigorous cross-examination

Expert Evidence:

• Ensure experts understand Briginshaw requirements

• Focus opinions on clear, demonstrable conclusions

• Avoid speculation or equivocation

7.5 Trial Strategy

Opening Submissions:

• Address standard of proof explicitly

• Preview evidence meeting Briginshaw requirements

• Frame case theory consistent with required cogency

Evidence Presentation:

• Lead with strongest, most direct evidence

• Build corroboration systematically

• Address credibility proactively

Cross-Examination:

• Target evidence quality, not just contradictions

• Explore bias and motivation

• Test reliability of observations

• Highlight absence of corroboration

Closing Submissions:

• Synthesise evidence against Briginshaw standard

• Address each serious allegation systematically

• Emphasise cumulative effect of cogent evidence (if plaintiff)

• Highlight evidential deficiencies (if defendant)

8. Evidence and Arguments: Detailed Strategic Analysis

8.1 For Parties Making Serious Allegations

Essential Evidence Components:

1. Primary Evidence

   • Direct witness testimony from participants

   • Contemporaneous documents showing intent

   • Admissions or inconsistent statements

   • Expert analysis of objective facts

2. Corroborative Evidence

   • Multiple independent witnesses

   • Documentary trails supporting testimony

   • Circumstantial evidence forming coherent pattern

   • Post-incident conduct suggesting guilt

3. Credibility Enhancement

   • Evidence of witness independence

   • Absence of motive to fabricate

   • Consistency with objective facts

   • Prior consistent statements

Argument Framework:

• Acknowledge gravity of allegations upfront

• Demonstrate evidence exceeds Briginshaw threshold

• Address each element with specific, cogent proof

• Emphasise multiple sources of verification

• Distinguish from criminal standard whilst meeting civil requirements

8.2 For Parties Defending Serious Allegations

Defensive Evidence Strategy:

1. Direct Contradiction

   • Witness testimony refuting allegations

   • Documentary evidence disproving claims

   • Expert evidence challenging interpretations

   • Alibi or impossibility evidence

2. Credibility Attacks

   • Evidence of bias or motive

   • Prior inconsistent statements

   • Collusion or contamination

   • Memory reliability challenges

3. Alternative Narratives

   • Innocent explanations for suspicious facts

   • Industry practice evidence

   • Contextual evidence changing interpretation

   • Good character evidence (where admissible)

Argument Framework:

• Emphasise exceptional gravity requiring exceptional proof

• Systematically identify evidential deficiencies

• Challenge quality, not just quantity of evidence

• Invoke presumption of innocence

• Demonstrate reasonable alternative explanations

9. Key Practice Points: Lessons from Roberts-Smith

9.1 For Litigation Strategy

1. Evidence Quality Paramount: Multiple weak sources cannot substitute for cogent proof

2. Credibility Crucial: Adverse credibility findings can be case-determinative

3. Details Matter: Minor inconsistencies in serious allegations can be fatal

4. Context Essential: Understanding operational/industry context affects assessment

9.2 For Evidence Management

1. Preserve Contemporaneous Records: These carry exceptional weight

2. Witness Statements Early: Memory degradation affects cogency

3. Expert Evidence Carefully: Must be clear and compelling, not equivocal

4. Corroboration Systematically: Build mutually reinforcing evidence

9.3 For Client Management

1. Realistic Assessment: Clients must understand heightened proof requirements

2. Cost Implications: Proving serious allegations requires substantial resources

3. Risk Analysis: Consider reputational damage even if successful

4. Alternative Strategies: Lesser allegations might achieve objectives

9.4 For Procedural Management

1. Pleadings Precision: Particulars crucial for serious allegations

2. Discovery Breadth: Cast wide net for corroborative evidence

3. Witness Management: Credibility preparation essential

4. Appeal Prospects: Credibility findings create high appellate barrier

10. Conclusion: The Enduring Relevance of Principled Analysis

Roberts-Smith v Fairfax Media Publications Pty Limited (Appeal) demonstrates that the Briginshaw principle remains vital in contemporary litigation. The decision confirms that courts can and will make findings of the most serious nature in civil proceedings where evidence meets the required standard of cogency.

The case establishes several enduring principles:

1. No Sliding Scale of Standards: The civil standard remains constant; only evidence quality requirements vary

2. Gravity Demands Cogency: The more serious the allegation, the more compelling the evidence must be

3. Judicial Method Matters: Courts must explicitly consider gravity when assessing evidence

4. Credibility is Central: In serious matters, credibility findings often determine outcomes

5. Appellate Deference Applies: Factual findings based on credibility assessment face high appellate barriers

For practitioners, Roberts-Smith provides both cautionary lessons and practical guidance. Those making serious allegations must assemble evidence of exceptional quality, whilst those defending such allegations can invoke Briginshaw to challenge evidential sufficiency.

Ultimately, the decision reaffirms that civil justice can address the most serious allegations whilst maintaining principled distinctions between civil and criminal standards. The Briginshaw principle, now embodied in s 140 of the Evidence Act, ensures that grave allegations receive appropriately rigorous scrutiny without abandoning the fundamental civil standard of proof.

This balance—between accessibility of civil justice and protection against unfounded serious allegations—remains essential to the integrity of our civil justice system. Roberts-Smith demonstrates that this balance, whilst delicate, can be maintained through rigorous judicial method and careful attention to evidence quality.

Note: This analysis is based on the reported decision and is intended for educational and professional development purposes. Practitioners should consult primary sources and seek specific advice for particular matters.

The Grapevine Effect in Australian Defamation Law: An Evolving Doctrine and Jurisdictional Differences

Introduction

Defamation law in Australia has long grappled with the challenge of reputational harm spreading beyond the initial publication.

This phenomenon, known as the “grapevine effect”, refers to the way defamatory imputations can be repeated informally, reaching audiences far removed from the original publication.

Recent legal developments — including the introduction of a statutory serious harm threshold in most jurisdictions — have prompted courts to refine how they assess the grapevine effect in proving harm and awarding damages.

This article examines the grapevine effect’s legal significance, the accuracy of recent case law interpretations, and key jurisdictional differences as of May 2025, focusing on how the concept has evolved since its High Court articulation in Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69, the impact of the serious harm requirement (absent in Western Australia), and the courts’ approach to evidence of digital dissemination on social media.

The Grapevine Effect: Concept and Significance

The grapevine effect captures the reality that, once a defamatory statement is released, its “real damage” cannot be precisely measured because the slander or libel may be relayed to others through rumour or gossip. Lord Atkin described this in Ley v Hamilton (1935): "It is impossible to track the scandal, to know what quarters the poison may reach: it is impossible to weigh the compensation which will recompense a person for the pain of a false accusation." In defamation law, this insight justifies robust general damages. Even if a plaintiff cannot identify every person who encountered the slur, the law presumes some wider reputational harm as a natural consequence of the publication. This presumption historically allowed plaintiffs to recover general damages without strict proof of actual loss, on the premise that defamatory “poison” likely spread beyond the initial audience.

The grapevine effect also relates to the vindicatory function of defamation damages. Because it is often impossible for a plaintiff to know who later heard the slur, damages not only compensate for proven harm and personal distress, but also provide solace for unquantifiable future harm and serve to vindicate the plaintiff’s reputation. Courts have emphasised that an award of damages should be sufficient to convince a reasonable observer — even one who learns of the defamatory claim later “through the grapevine” — that the allegation was baseless.

High Court Endorsement in Palmer Bruyn & Parker v Parsons (2001)

The High Court of Australia in Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69 acknowledged the grapevine effect when discussing how damages are assessed in reputation-based torts. Although the case concerned injurious falsehood, the Court’s reasoning drew on defamation principles. Gummow J noted that the “grapevine effect” is a metaphor explaining the breadth of general damages in defamation because one cannot track how far the defamation spreads or what damage ensues. Referencing Ley v Hamilton, his Honour affirmed that general damages are “at large”, covering not only observable harm but also the immeasurable likelihood of further dissemination.

The Serious Harm Threshold and the End of Presumed Damage

In 2021, Australian defamation law entered a new era with the enactment of the Stage 1 Model Defamation Amendment Provisions 2020 in most jurisdictions. A centrepiece of these reforms was the introduction of a “serious harm” element (now s 10A of the Defamation Act 2005 (NSW) and equivalent provisions elsewhere). A plaintiff must now prove that a publication "has caused, or is likely to cause, serious harm" to their reputation. This reform abolishes the old common‑law presumption of damage. Courts look to the United Kingdom’s Lachaux v Independent Print Ltd [2019] UKSC 27 when interpreting the serious harm requirement and insist on concrete evidence of impact.

Grapevine Effect in the Era of Serious Harm: Recent Case Law

Limited Spread: Rader v Haines [2022] NSWCA 198

In Rader v Haines, defamatory allegations were emailed only to the plaintiff’s parents. Having regard to English case law, the New South Wales Court of Appeal held that the serious‑harm threshold was not met. There was no evidence of wider dissemination or any grapevine effect; the limited publication failed to cause serious reputational damage.

Ongoing Social Media Campaign: Martin v Najem [2022] NSWDC 479

By contrast, Martin v Najem concerned a series of defamatory Instagram posts published by a well‑known food blogger. The District Court found that the serious‑harm element was satisfied because the posts were public, widely shared, and repeated. The Court inferred a grapevine effect from the online reach and awarded substantial damages, including aggravated damages and injunctive relief.

Procedural Clarity: Newman v Whittington [2022] NSWSC 249

Newman v Whittington provides guidance on pleading serious harm. The plaintiff’s initial pleading was struck out for failing to articulate specific facts showing serious reputational impact. The decision underscores that plaintiffs must plead particulars such as audience size, republication, or community reaction to rely on the grapevine effect.

Queensland Example: Hockings v Lynch & Adams [2022] QDC 127

Hockings v Lynch & Adams demonstrates a fact‑specific approach to social‑media publication. The Court examined Facebook analytics and evidence of cross‑sharing between groups to determine the extent of the publication. Damages reflected the proven scope of dissemination, distinguishing between posts that went viral and those limited to a narrow audience.

Digital Dissemination: Evidence of Online Reach vs. Potential Reach

Modern defamation claims often involve social media and require proof of actual dissemination. Courts accept analytics data (views, shares, likes), witness evidence of republication, and the nature of the platform in inferring or rejecting a grapevine effect. A mere theoretical potential for worldwide reach is insufficient without supporting evidence of traction.

Jurisdictional Divergence: Western Australia’s Non‑Adoption of Reforms

Western Australia (and the Northern Territory) has not enacted the Stage 1 reforms. Consequently, the serious‑harm threshold does not apply in those jurisdictions, and the common‑law presumption of damage persists. This divergence creates potential forum‑shopping incentives, as illustrated by Bartlett v Roffey [2023] WASC 3. Courts may transfer proceedings to prevent strategic venue choices, but plaintiffs can still benefit from the absence of a serious‑harm threshold in WA.

Conclusion

The grapevine effect remains central to Australian defamation law, explaining why damages are not confined to provable loss. Its role has shifted in jurisdictions with a serious‑harm threshold, where plaintiffs must produce evidence of dissemination to meet the statutory test. In Western Australia, the presumption of damage endures, underscoring significant jurisdictional differences. Practitioners must consider these nuances when advising clients and devising litigation strategies in defamation matters.

Sources

·         Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69 (208 CLR 388).

·         Ley v Hamilton (1935) 153 LT 384 (KB).

·         Defamation Act 2005 (NSW) s 10A; Defamation Act 2005 (WA) (unamended).

·         Newman v Whittington [2022] NSWSC 249.

·         Rader v Haines [2022] NSWCA 198.

·         Martin v Najem [2022] NSWDC 479.

·         Hockings v Lynch & Adams [2022] QDC 127.

·         Bartlett v Roffey [2023] WASC 3.

·         FJ v Siglin (No 2) [2024] WADC 13.

Grapevine Effect in Australian Defamation Law – Case Summaries

Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69

In this High Court decision (which primarily concerned injurious falsehood), the “grapevine effect” was explicitly discussed as a concept in defamation law. Gummow J described the term “grapevine effect” as a metaphor used “to help explain the basis upon which general damages may be recovered in defamation actions”. His Honour quoted Lord Atkin’s famous statement in Ley v Hamilton that in defamation cases it is “impossible to track the scandal, to know what quarters the poison may reach”, emphasising that the real damage to reputation often cannot be precisely measured. In other words, defamatory remarks, once “driven underground,” may resurface and spread beyond the initial publication, which justifies awarding damages at large. This recognition underpins the law’s willingness to presume some level of damage to reputation even without direct evidence of harm in every quarter.

Importantly, Gummow J also cautioned that the grapevine effect is not a legal wild card but an inference drawn from the facts. He noted that the effect “may provide the means by which a Court may conclude that a given result was ‘natural and probable’. However, this will depend upon a variety of factors, such as the nature of the false statement and the circumstances in which it was published.” In short, a court can take likely republication into account when assessing defamation damages, but only if the evidence and context support a finding that further dissemination was the natural and probable consequence of the initial publication. The High Court’s remarks in Palmer Bruyn firmly entrenched the grapevine effect in Australian defamation jurisprudence as a real but fact-dependent phenomenon, rather than a presumption operating in a vacuum.

Newman v Whittington [2022] NSWSC 249

This was one of the first Australian cases to consider the newly introduced “serious harm” threshold in defamation, and Sackar J’s judgment provides a detailed treatment of the grapevine effect in the context of online defamation. His Honour reaffirmed the principle that defamatory communications often spread beyond their original audience, citing with approval the notion that “the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published” and that the “poison” of a libel may extend beyond its initial recipients. The judgment references the High Court’s explanation in Palmer Bruyn and Lord Atkin’s metaphor, making clear that damages must account for the risk that a defamation, once public, can circulate broadly over time. Sackar J noted that defamation damages should contemplate republication because a slander “driven underground [may] emerge from its lurking place at some future date”, encapsulating the grapevine effect’s enduring impact.

In applying these principles, Newman v Whittington illustrates how the grapevine effect can bolster a plaintiff’s case on both serious harm and damages. The defendant’s allegations (posted on Facebook and a blog) were highly serious – accusing the plaintiff of supporting paedophiles and other misconduct – and were made on public platforms. The Court found strong evidence that the defamatory claims had circulated widely, or at least that they were likely to spread, given the public nature of the posts and the incendiary content. Sackar J explicitly allowed for the grapevine effect in the damages assessment, accepting that “by the ordinary function of human nature, the dissemination of defamatory material” would extend beyond the first audience. Even if the precise extent of publication could not be proven, the Court inferred continued circulation and lasting reputational harm. As a result, the plaintiff was found to have suffered (and be likely to suffer) serious harm to her reputation, and the Court awarded substantial general and aggravated damages, taking into account the probable spread of the defamation through the community. In sum, Newman v Whittington confirms that Australian courts will factor in the grapevine effect – supported by evidence or common sense inference – when determining if a defamatory publication has caused “serious harm” and in quantifying damages for reputational injury.

Rader v Haines [2022] NSWCA 198

The New South Wales Court of Appeal in Rader v Haines directly grappled with the grapevine effect in evaluating whether the serious harm threshold was met. This case involved an email containing defamatory accusations sent by a couple to the plaintiff’s parents – a very limited initial publication. The plaintiff argued that the email had nonetheless gravely harmed his reputation. However, the Court (Brereton JA, with Macfarlan JA agreeing) held that the evidence did not establish serious reputational harm, largely because the defamatory material had not spread beyond the original recipients. His Honour noted there was “no evidence presented that [the email] caused reputational harm to the appellant within a broader audience or via the ‘grapevine effect’.” In other words, there was nothing to show that anyone other than the two parent recipients had heard or believed the allegations. The parents’ negative reaction to the email was temporary, and they reconciled with the appellant within weeks, which meant the impact on the plaintiff’s reputation was fleeting and contained.

Rader v Haines makes clear that the grapevine effect is not to be presumed in a vacuum and that the onus is on the plaintiff to prove broader dissemination if it is to be relied upon. Brereton JA outlined factors relevant to “serious harm,” explicitly including whether there is any evidence of a grapevine effect (i.e. the allegations spreading beyond the immediate recipients). In this case, the absence of such evidence was decisive. The Court refused to infer serious harm merely from the gravity of the allegations or the plaintiff’s own feelings; without proof that the defamatory email had percolated through the community or reached others who thought less of the plaintiff, the statutory threshold was not satisfied. Thus, Rader v Haines serves as a cautionary counterpoint – it underscores that while courts recognize the grapevine effect, a plaintiff cannot rely on it unless there is tangible or inferential evidence of republication or rumour. The grapevine effect must be proven or at least plausibly inferred from the circumstances, and if a defamation remains limited to a tiny audience (as here, one’s parents), broad damage to reputation will not be found.

Martin v Najem [2022] NSWDC 479

In Martin v Najem, the District Court (Gibson DCJ) applied the grapevine effect doctrine in a modern social media context. The plaintiff, a prominent food blogger, sued a rival influencer who had published videos on Instagram calling him, among other things, “a paedophile” and “a racist.” Given the plaintiff’s public profile and the nature of the platform, the Court was satisfied that the serious harm element (required under the amended Defamation Act) was met – indeed, this case was noted as the first time an Australian court upheld a plaintiff’s claim under the new serious harm test. A key reason was the extensive dissemination and impact of the defamatory videos. Gibson DCJ found that the extreme gravity of the imputations, the mode and reach of publication, and the ensuing effects on the plaintiff all pointed to significant reputational harm.

Notably, the Court took into account the grapevine effect in reaching that conclusion. Because the defamatory statements were made by a well-known blogger on a public social media account, it was inferred that the allegations would naturally spread beyond the immediate viewers. In fact, there was evidence of substantial publication – for example, the Instagram account had a large follower count and the posts generated considerable attention. Gibson DCJ cited Sackar J’s discussion in Newman v Whittington (paras [30]–[46]) on the typical spread of defamation via the grapevine, underscoring that social media accelerates and amplifies the phenomenon. She observed that the “grapevine effect” was of particular significance in the circumstances of this online feud. In practical terms, this meant the Court was willing to infer that many people in the foodie and social media community would hear of the accusations (even if they did not witness the original posts), compounding the harm to the plaintiff’s reputation. Ultimately, Martin v Najem resulted in a substantial damages award ($300,000 including aggravated damages). The case highlights that when defamatory content is shared on social networks, courts will readily acknowledge the grapevine effect – supported by evidence like follower numbers, reactions, and the plaintiff’s public standing – to find serious harm and to ensure the damages adequately compensate for the likely spread of the false allegations.

Hockings v Lynch & Adams [2022] QDC 127

This Queensland District Court case illustrates a nuanced application of the grapevine effect in the context of Facebook publications. The plaintiff, Ms Hockings, sued the defendants over a series of defamatory posts on social media (Facebook) that had targeted her. In assessing the extent of publication and the appropriate damages, the Court (Porter QC DCJ) was mindful of the grapevine effect and the need to gauge how far the defamatory statements had permeated beyond the original posts. The judgment explicitly noted that the expression “grapevine effect” has long been used to explain how general damages in defamation compensate for unobservable spread of a slur. Echoing the High Court and other authorities, the Court acknowledged that the real harm of defamation often lies in its covert and uncontrolled propagation: the “real damage cannot be ascertained and established” because once a defamatory statement is published, one cannot easily “determine the extent to which the poison may reach.” Accordingly, Hockings v Lynch & Adams reinforced that courts must ensure a damages award is sufficient to vindicate the plaintiff if and when the defamation later “emerges from its lurking place” via the grapevine. As the Court observed, damages should be enough to convince a hypothetical bystander who learns of the slur down the track of its baselessness. This is effectively the vindicatory aspect of defamation damages, tightly linked to the grapevine effect principle.

Crucially, the court did not assume the grapevine effect operated uniformly for every publication – it examined the evidence for each post. In some instances, the plaintiff was able to show that the defamatory posts circulated beyond the originally intended audience, given the size of certain Facebook groups and the overlap of membership between groups. For those occasions, the judge found that publication was broader than the defendants admitted, meaning the grapevine had indeed carried the defamation to additional people. However, in other instances, the posts were seen only by the defendants’ own friends or followers and did not escape into the wider community. In those scenarios, the grapevine effect was minimal or nil. This balanced approach demonstrates that the grapevine effect is a fact-specific inquiry: the Court will infer or allow for reputational spread only to the extent justified by the social networks and circumstances at play. Ultimately, Hockings v Lynch & Adams awarded damages calibrated to the proven reach of the posts – accounting for broader dissemination where evidenced (or reasonably probable) and not speculating beyond that. The case stands as an example of a court carefully dissecting how a defamatory message on Facebook can ripple through shared connections (or, sometimes, remain relatively contained), and tailoring its legal response to those findings.

Dabrowski v Greeuw [2014] WADC 175

Dabrowski v Greeuw is an early Australian example of Facebook defamation and shows the court’s consideration of the grapevine effect in a relatively small-scale publication. The defendant, Ms Greeuw, had posted on her public Facebook page that she had separated from the plaintiff after “18 years of suffering domestic violence and abuse” – a serious allegation of misconduct by the plaintiff (Mr. Dabrowski). The District Court of Western Australia (Bowden DCJ) found this post defamatory and rejected the defence of truth, ultimately awarding the plaintiff $12,500 in general damages. In reaching that modest sum, the Court carefully evaluated the scope of publication and potential republication of the defamatory claim.

Bowden DCJ expressly noted the grapevine effect, observing that a statement on social media can be spread or repeated beyond the initial viewers. He cited the New South Wales case Mickle v Farley (which involved defamatory Facebook and Twitter posts) for the proposition that the “grapevine effect” stemming from the use of Facebook must be considered when assessing damages. The judge acknowledged that the defamatory imputations could have been circulated further by friends-of-friends or gossip – in theory, the grapevine effect “could mean that the defamatory imputations were repeated.” However, the critical finding in this case was that the actual reach of the post was quite limited. The evidence showed only a handful of people had seen the Facebook post (the plaintiff’s brother and a few others, including one person who stumbled upon it while looking up the plaintiff’s profile). There was no proof of any broad republication or that the wider community had learned of the allegations. In fact, the people who saw the post were mostly those in the plaintiff’s and defendant’s circle (and one curious outsider), and there was no indication of the news spreading further through the “grapevine.” Bowden DCJ noted that no special or financial loss was proved and that the remarks were made to a limited audience.

In these circumstances, while the Court conceptually recognized the grapevine effect, it did not significantly inflate the damages on the basis of any hypothetical spread. The judge treated the grapevine effect as a factor that was “properly taken into account in assessing damages”, but ultimately he assessed the harm as relatively contained. The result was a moderate damages award reflecting the injury to the plaintiff’s reputation among those who actually saw the post, without any premium for widespread dissemination (since none was shown). Dabrowski v Greeuw thus underscores that a plaintiff should present evidence of extended publication if they wish to leverage the grapevine effect; absent that, courts will limit damages to the scale of publication that is proven, even on social media.

Wilson v Ferguson [2015] WASC 15

Although Wilson v Ferguson was not a defamation case (it was a breach of confidence case concerning the unlawful sharing of private images on Facebook), the Supreme Court of Western Australia’s discussion is instructive on the grapevine effect’s broader relevance. The plaintiff’s ex-boyfriend had posted intimate photographs of her online out of revenge, and the Court (Mitchell J) was asked to award an injunction and equitable compensation for the distress and harm caused. The plaintiff’s counsel drew an analogy to defamation, arguing that the grapevine effect concept should guide the Court in appreciating how far and fast the humiliation could spread in a workplace and social community.

Mitchell J referred to defamation authorities on the grapevine effect but ultimately to make a cautionary point about evidence. He noted that in defamation cases, courts may take into account the potential republication of a defamatory statement when assessing general damages. Indeed, counsel cited Palmer Bruyn & Parker v Parsons [2001] HCA 69 at [88]–[89] in this regard. However, His Honour clarified that those cases dealt with how a court assesses damages given likely dissemination, and did not override the normal rules of proof. In the context of Wilson v Ferguson, this meant that while the Court was aware that gossip about the leaked photos could circulate (the modern “grapevine”), one still needed proper evidence to prove that such conversations and further publications had in fact occurred. The plaintiff sought to admit hearsay evidence that people at her workplace were talking about the images. Mitchell J refused to allow hearsay under the guise of the grapevine effect, holding that defamation law’s recognition of likely circulation does not make otherwise inadmissible evidence acceptable.

In the end, the Court did infer from admissible evidence that the defendant’s Facebook post was widely discussed among colleagues (the mine-site “Cloudbreak” employees). That inference was based on direct testimony, not just speculation. Mitchell J’s judgment therefore resonates with a key lesson: the grapevine effect can be a double-edged sword. It reminds courts of the real possibility of widespread harm, but it is not a license to dispense with proof. Even outside defamation, the notion that scandal spreads informed the Court’s approach to crafting relief – the judge granted an injunction and awarded ~$48,000 in equitable compensation, effectively acknowledging that the reputational and emotional harm was magnified by the broad dissemination of the private images. However, he grounded his findings in solid evidence of circulation rather than mere assumption. Wilson v Ferguson thus demonstrates the judiciary’s general acceptance of the grapevine effect’s logic (information online tends to diffuse quickly, causing extensive harm), coupled with a insistence on evidence-based reasoning when applying that logic to the facts at hand.

Each of these cases, in its own way, sheds light on how Australian courts handle the grapevine effect. From High Court endorsement of the concept in principle (Palmer Bruyn), to meticulous trial court applications in social media contexts (Newman, Martin, Hockings, Dabrowski), to a cautious evidentiary approach when the concept is invoked (Rader, Wilson), the consistent theme is that while the law recognizes people gossip and defamation can spread like wildfire, the extent of such spread must be proven or reasonably inferred from the circumstances. Courts will neither ignore the grapevine effect when justice requires it, nor will they assume it in the absence of any indicia. This calibrated approach ensures that damages and outcomes in defamation (and analogous actions) remain firmly anchored in the reality of each case.