Malice and the Defence of Qualified Privilege in Defamation Law

Defamation law is a complex area, and one aspect that is particularly challenging is the concept of malice in the context of the defence of qualified privilege.

In a recent case, Kalil v Eppinga [2023] NSWDC 107, the court considered the principles of malice in relation to qualified privilege.

This blog post provides a general overview of malice in defamation law, drawing on the principles discussed in the case.

Principles of Malice

Malice involves the maker of the imputation being actuated by an improper purpose or motive; that is to say one that is foreign to the duty or interest that protects the making of the statement (Roberts v Bass (2002) 212 CLR 1, per Gaudron, McHugh and Gummow JJ at [75]).

The applicable principles can be summarized as follows:

1. To prove malice, the party alleging it must establish that the publication was actuated by malice, and that the improper motive was the dominant reason for the publication (Roberts v Bass at [75]–[76], [104]).

2. Proof of knowledge of falsity by the publisher is almost invariably conclusive proof of malice, as is proof of sheer recklessness amounting to wilful blindness (Roberts v Bass at [77], [84]).

3. Mere proof of ill-will, prejudice, bias, recklessness, lack of belief in truth, or improper motive is not sufficient to establish malice (Roberts v Bass at [76]). Mere lack of belief is not to be treated as equivalent to knowledge of falsity (Roberts v Bass at [87]).

4. Honesty of purpose is presumed in favour of a defendant, and it is for the plaintiff to prove that the defendant did not use the occasion honestly (Roberts v Bass at [96]). The plaintiff has the onus of proving that the defendant acted dishonestly (Roberts v Bass at [97]).

In KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden 101 NSWLR 729, the court provided further guidance on malice in the context of qualified privilege, emphasizing that a plaintiff has a heavy onus to discharge to establish malice and that malice is a serious matter (KSMC Holdings at [59]–[61]).

Case Analysis: Kalil v Eppinga

In Kalil v Eppinga, the court considered whether the plaintiff, Dr. Kalil, acted with malice when he made allegations against the defendant, Ms. Eppinga. The court found that Dr. Kalil did not give evidence, but his honesty of purpose was presumed, and it was for Ms. Eppinga to establish malice (Kalil v Eppinga at [37], [38]).

The court examined evidence of Dr. Kalil's state of mind, including a witness statement given to the police, where he stated that he saw Ms. Eppinga holding medication and thought she was about to steal it (Kalil v Eppinga at [40]). The court found that Dr. Kalil's allegation of attempted theft was neither knowingly false nor the view of someone who was wilfully blind (Kalil v Eppinga at [41]).

The court also considered the evidence of Ms. Eather, Dr. Kalil's veterinary nurse, who supported the conclusion that Dr. Kalil had a basis to believe that Ms. Eppinga was attempting to steal the medication (Kalil v Eppinga at [43]). The court ultimately concluded that Ms. Eppinga had not discharged her heavy on us to establish malice to the required Briginshaw v Briginshaw standard (Kalil v Eppinga at [47]).

The court also examined the conflict in evidence between Ms. Eppinga and Ms. Eather on the "Central Issue" of whether Ms. Eppinga was holding medication and attempting to steal it. While Ms. Eppinga denied the allegations, Ms. Eather's testimony supported Dr. Kalil's claims (Kalil v Eppinga at [49]-[52]).

Additionally, the court considered "Sub Issues" related to the dispute between the two accounts, including whether Ms. Eppinga yelled racial abuse at Dr. Kalil as she left the Hospital and whether Dr. Kalil touched Ms. Eppinga as she left the Hospital (Kalil v Eppinga at [52]-[53]). The court's evaluation of these conflicting accounts played a role in determining the credibility of the witnesses and the issue of malice.

Key take-aways

• The case of Kalil v Eppinga provides valuable insights into the principles of malice in the context of qualified privilege in defamation law.

• Establishing malice is a serious matter, and the party alleging malice must prove that an improper motive existed and that it was the dominant reason for the publication.

• Honesty of purpose is presumed in favour of a defendant, and the plaintiff has the burden to prove that the defendant acted dishonestly.

Understanding Common Law Qualified Privilege: An overview from Palmer v McGowan

Defamation lawyers frequently encounter the defence of common law qualified privilege.

This blog post provides an overview of the defence, drawing on the case of Palmer v McGowan (No 5) [2022] FCA 893, and other relevant authorities.

The Starting Point: Toogood v Spyring

The origins of the common law defense of qualified privilege can be traced back to the foundational case of Toogood v Spyring (1834) 1 Cr M & R 181; (1834) 149 ER 1044 (at 1049-1050).

In general, the law assumes that the publication of false and harmful statements is malicious.

However, if an individual makes a statement in good faith while fulfilling a public or private duty, or while managing their affairs in which they have an interest, the circumstances may prevent the assumption of malice and offer a qualified defense.

Reciprocity of Duty and Interest

Reciprocity of duty and interest is the hallmark of the common law defence, as highlighted in Cush v Dillon [2011] HCA 30; (2011) 243 CLR 298 (at 305 [11] per French CJ, Crennan and Kiefel JJ).

To succeed in this defence, a publisher must be under a legal or moral duty to disclose the information, or the disclosure must be necessary in the furtherance or protection of legitimate interests of the publisher.

Reciprocally, the interest of the recipient in having information on the subject matter must be of a tangible nature that it is expedient to protect it for the common convenience and welfare of society.

Applicability of the Defence to Large Audiences

The requirement of reciprocity generally precludes the applicability of the defence to large audiences, such as those reached by mass media publications.

As held in Lange, at common law, a claim of qualified privilege will generally fail where a publication is made to a large audience because the publisher cannot establish that it was using the occasion honestly and without malice for the purpose of publishing the defamatory matter to all of the recipients.

Conditions for a Successful Defence

A successful defence of qualified privilege at common law depends upon satisfaction of three conditions, as stated by Heydon J in Aktas v Westpac Banking Corporation Ltd [2010] HCA 25; (2010) 241 CLR 79 (at 96–97 [55]):

1. The communication was published on a privileged occasion.

2. The communication was related to the occasion.

3. There was no malice in the publication.

Applying these principles, it is often difficult to establish a privileged occasion when the publications are made to a wide audience, such as in the case of Palmer v McGowan.

Key take-aways

• In summary, the defence of common law qualified privilege is a complex and nuanced area of defamation law.

• The requirement of reciprocity of duty and interest, as well as the applicability of the defence to large audiences, are key factors to consider when evaluating the prospects of successfully invoking this defence.

Cases mentioned in this blog post:

• Palmer v McGowan (No 5) [2022] FCA 893

• Aktas v Westpac Banking Corporation Ltd [2010] HCA 25; (2010) 241 CLR 79

• Cush v Dillon [2011] HCA 30; (2011) 243 CLR 298

• Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

• Toogood v Spyring (1834) 1 Cr M & R 181; (1834) 149 ER 1044

Understanding Sterilisation Procedures and Best Interests in Guardianship Matters

Sterilisation is a significant and often irreversible medical procedure that can have life-altering consequences for the person involved.

In guardianship matters, it is crucial to ensure that any decision to authorise a sterilisation procedure is made in the best interests of the person concerned.

In this blog post, I examine the factors that are relevant in determining whether a sterilisation procedure is in a person's best interests, with reference to the Western Australian case of EW v CD [2021] WASAT 111 and the Guardianship and Administration Act 1990 (WA) (the GA Act).

Statutory Framework

The GA Act governs the authority of guardians in relation to medical treatment for represented persons, including sterilisation procedures (s 13).

Guardians may be authorised to make decisions on behalf of a represented person regarding medical treatment, but the GA Act specifically prohibits a guardian from consenting to the sterilisation of a represented person except in accordance with Division 3 of Part 5 of the Act (s 13).

Importantly, the GA Act does not define the term "sterilisation" but does provide a definition for "procedure for the sterilisation" (s 15).

The GA Act strictly regulates the circumstances in which the sterilisation of a represented person may take place, including requiring the consent of both the guardian and the Tribunal, and ensuring that all rights of appeal have been exhausted (s 17).

Best Interests

The key consideration in determining whether a sterilisation procedure is appropriate is whether it is in the person's best interests (s 22).

The GA Act does not provide a specific definition of "best interests", but s 51(2) offers guidance on how a guardian should act in the best interests of a represented person, including considerations such as community participation, self-care, protection from neglect or abuse, and the maintenance of supportive relationships and cultural environments.

In the case of EW v CD [2021] WASAT 111, the Tribunal considered the principles set out in Re Jane, which identified nine factors relevant to determining whether a sterilisation procedure was in the best interests of a person (para 25).

These factors include:

1. The possibility of the person becoming pregnant;

2. The potential for trauma or psychological damage from pregnancy or sterilisation;

3. The likelihood of voluntary sexual activity or rape;

4. The person's ability to understand reproduction or contraception and the likely permanence of that inability;

5. The feasibility of less drastic means of contraception;

6. The advisability of sterilisation at the time of the application rather than in the future;

7. The person's ability to care for a child;

8. The potential for medical or scientific advances that may improve the person's condition or offer less drastic sterilisation procedures; and

9. Evidence that the proponents of sterilisation are genuinely seeking the best interests of the person, rather than their own or the public's convenience.

Key take-aways

• In guardianship matters, the decision to authorise a sterilisation procedure must always be made with the best interests of the person in mind.

• A careful and thorough consideration of the relevant factors outlined in Re Jane, as well as the specific circumstances of the individual case, is crucial in determining whether a sterilisation procedure is in a person's best interests.

• Guardians should always be mindful of these factors and the strict regulatory requirements under the GA Act when considering sterilisation procedures for represented persons.

Understanding Breaches of Undertakings in Guardianship Matters

In guardianship matters, undertakings are solemn promises made to the court or tribunal that can have serious consequences if breached.

A recent decision in Western Australia highlights the importance of understanding the implications of such undertakings and the potential consequences for parties involved in these matters.

In this blog post, I discuss the significance of undertakings, particularly in guardianship matters, and provide insights into the consequences of breaching them.

The Importance of Undertakings in Guardianship Matters

Undertakings play a crucial role in legal proceedings, particularly in guardianship matters.

They serve as a means to ensure that parties act in the best interests of the person under guardianship and comply with the directions of the court or tribunal.

When an undertaking is given, it is expected that the party providing it fully understands the gravity of their commitment and the possible consequences of breaching it.

Breaching Undertakings and Contempt of Court

In the case of Dc [2021] WASAT 130, it was held that the conduct of both the father and the son was capable of constituting contempt of the Supreme Court.

This decision was based on the fact that the father had given an undertaking not to sell or otherwise deal with a particular property, and yet, he permitted the transfer of the property to his son, effectively breaching the undertaking (Dc [2021] WASAT 130, [26]-[28]).

Furthermore, the son was found to have aided and abetted his father's breach of the undertaking, which in itself constituted contempt (Dc [2021] WASAT 130, [29]-[35]).

It is essential to understand that aiding and abetting a contempt constitutes a contempt in its own right, regardless of whether the individual was directly bound by the injunction or undertaking (Seaward v Paterson, cited in Dc [2021] WASAT 130, [30]-[31]).

In this case, the Tribunal was satisfied on the balance of probabilities that the conduct of both the father and the son was capable of constituting contempt of the Supreme Court (Dc [2021] WASAT 130, [26], [29]).

Consequently, the Tribunal reported the alleged contempts to the Supreme Court for further action (Dc [2021] WASAT 130, [38]).

Key Takeaways

• The decision in Dc [2021] WASAT 130 serves as a reminder that undertakings given in guardianship matters are not to be taken lightly.

• Breaching an undertaking can have severe consequences, including being held in contempt of court. It is crucial for all parties involved in a guardianship matter to understand the undertakings they provide and their obligations under the relevant legislation, such as the State Administrative Tribunal Act 2004 (WA).

If you have any concerns or questions about your obligations in a guardianship matter, it is advisable to seek professional legal advice from a qualified guardianship lawyer.

I can guide you through the process and help you navigate the complexities of guardianship law to ensure that you fulfil your legal obligations and act in the best interests of the person under guardianship.

You can contact me here.

Rebutting the Presumption of Capacity in Guardianship Matters

As a guardianship lawyer in Western Australia, I often receive questions about the concept of capacity and the process of proving that an individual lacks decision-making capacity in guardianship and administration matters.

In this blog post, I will explore the statutory presumption of capacity, and what is necessary to rebut this presumption in light of the decision in MH [2022] WASAT 74.

Statutory Presumption of Capacity

The Guardianship and Administration Act (the GA Act) establishes a fundamental principle: the statutory presumption of capacity.

This presumption serves to protect individuals who are the subject of proceedings under the GA Act from having their decision-making capacity removed and a substitute decision-maker appointed for them without clear and cogent evidence.

As stated in MH [2022] WASAT 74 at [130], the statutory presumption of capacity is the starting point in any application under the GA Act where the decision-making capacity of a person is in issue.

It is important to note that a person who is the subject of an application for guardianship or administration orders does not need to prove that they have decision-making capacity.

The Tribunal starts from the position that the person has capacity (by virtue of the statutory presumption).

Rebutting the Presumption of Capacity

In order to rebut the statutory presumption of capacity, clear and cogent evidence is required (MH [2022] WASAT 74 at [131]).

The evidence must be sufficient to satisfy the Tribunal that the person lacks the relevant decision-making capacity.

The standard of proof applied by the Tribunal is the civil standard (balance of probabilities).

However, due to the significant consequences of a finding that a person does not have decision-making capacity, clear and cogent evidence is required to establish the facts on which that conclusion depends.

In the case of MH [2022] WASAT 74, the Tribunal found at [132] that the medical evidence, together with the evidence of other witnesses, was sufficient to displace the presumption in the GA Act that Mrs MH was capable of looking after her own health and safety and making reasonable judgments in respect of matters relating to her person.

Consequently, the Tribunal found that Mrs MH was incapable of looking after her own health and safety and unable to make reasonable judgments in respect of matters relating to her person (at [133]).

This finding led the Tribunal to conclude that Mrs MH was in need of oversight, care, or control in the interests of her own health and safety (at [134]).

Key take-aways

• The statutory presumption of capacity is a fundamental principle under the GA Act, and serves to protect individuals from having their decision-making capacity removed without sufficient evidence.

• To rebut this presumption, clear and cogent evidence must be provided to satisfy the Tribunal that the person lacks decision-making capacity.

• The decision in MH [2022] WASAT 74 serves as a useful illustration of how this process works in practice. I

• If you have any questions or concerns about capacity and guardianship matters, please do not hesitate to contact me.

Understanding the Validity of Advanced Health Directives in Western Australia

Advanced health directives (AHDs) are legal documents that allow individuals to make decisions about their future medical treatment in the event they become unable to communicate their preferences.

AHDs play a significant role in preserving an individual's autonomy and respecting their wishes regarding medical treatment. In this blog post, I discuss the factors that may render an AHD invalid, relying on the recent Western Australian State Administrative Tribunal decision, JH [2022] WASAT 108.

This case provides valuable insight into the criteria that must be met for an AHD to be considered valid.

Factors Affecting the Validity of an AHD

1. Voluntariness

An AHD must be made voluntarily and free from any form of inducement or coercion.

In JH [2022] WASAT 108, the Tribunal found that there was no evidence to suggest that the AHD was made involuntarily or under any form of coercion.

The decision-makers found that Ms JH had discussed her AHD with her family members, and they respected her wishes.

This supports the conclusion that the AHD was made voluntarily.

2. Understanding the Nature of the Treatment Decision and Consequences

An AHD may be considered invalid if the maker did not understand the nature of the treatment decision or the consequences of making such a decision.

In JH [2022] WASAT 108, the Tribunal found that Ms JH understood the nature of the treatment decisions and the consequences of those decisions.

The AHD in question contained simple treatment decisions—refusing consent to be resuscitated or put on life support.

The Tribunal also considered the fact that Ms JH's general practitioner witnessed the AHD, which further supports the conclusion that she understood the nature and consequences of her treatment decisions.

Legislation

In Western Australia, the validity of an AHD is governed by the Guardianship and Administration Act 1990 (WA).

The Act sets out the criteria for creating a valid AHD, including requirements related to voluntariness, understanding the nature and consequences of treatment decisions, and proper witnessing of the document.

Key take-aways

• The case of JH [2022] WASAT 108 provides a useful example of the factors that the Western Australian State Administrative Tribunal considers when determining the validity of an AHD.

• When drafting an AHD, it is important to ensure that the document is made voluntarily and that the individual creating the AHD understands the nature and consequences of the treatment decisions they are making.

• Consulting a guardianship lawyer, like myself, can help ensure that your AHD is legally valid and reflects your wishes for future medical treatment. You can contact me here.

Appointment of an Administrator After a Court Compensation Trust Has Been Established

The appointment of an administrator after a court compensation trust has been established can be a complex process, as illustrated by the case of LS [2019] WASAT 97.

In this blog post, we will discuss the appointment of an administrator after a court compensation trust has been established, using the LS case as an example, while also referencing relevant legislation from the Guardianship and Administration Act 1990 (WA) (GA Act).

Background

In the LS case, a young man sustained a severe brain injury in a motor vehicle accident and later received a settlement of just over $8 million from a personal injuries claim, which was placed in a court compensation trust [1, 5].

A trustee company was appointed as administrator to manage the funds [2, 9]. This appointment was made under the GA Act [3].

The Need for an Administrator

The appointment of an administrator is essential when a person is deemed unable to make reasonable judgments relating to their estate due to mental disability [13].

In the LS case, the Tribunal found that LS was unable to make reasonable judgments relating to his estate because of his acquired brain injury, and that an administrator was needed [13].

This determination was made subject to the principles set out in s 4 of the GA Act, including the presumption of capacity and the best interests of the person [14].

The Cheyne Decision and Its Impact

The need for the appointment of an administrator in cases like LS's arose from the decision in Perpetual Trustee Company Ltd v Cheyne [2011] WASC 225 (Cheyne) [10].

The Cheyne decision established the following essential elements for such cases [59]:

1. A person is granted an award of damages arising from a personal injury claim.

2. A court compensation trust is created, and a trustee is appointed.

3. The trustee is given the power to apply funds for the maintenance, welfare, advancement, or benefit of the person.

4. If the person is assessed as having total and permanent disability, funds can be transferred to a superannuation fund for tax benefits.

5. Funds in the superannuation fund can be immediately used for the person's needs.

6. Funds can move between the court compensation trust and the superannuation fund.

The Cheyne decision allowed for a practical solution to protect the interests of a person under disability who is subject to a court compensation trust and stands to receive significant financial benefits from the application of those funds to superannuation [62].

Tribunal's Independent Jurisdiction

The Tribunal has independent jurisdiction under the GA Act to appoint an administrator for a person's estate [63].

It must independently find that the person satisfies the requirements of s 64(1) of the GA Act, subject to the principles set out in s 4 [63].

The Tribunal must also be prepared to revoke an existing administration order if the person no longer meets the statutory test for incapacity [65].

Key takeaways

• The appointment of an administrator after a court compensation trust has been established is crucial for protecting the interests of a person under disability.

• The Tribunal has independent jurisdiction under the GA Act to appoint an administrator and must ensure that the person meets the requirements for incapacity.

• The Cheyne decision provided a practical solution for these situations, offering a balance between the need for financial management and the best interests of the person under disability.

Cases referred to in this blog:

• LS [2019] WASAT 97

• Perpetual Trustee Company Ltd v Cheyne [2011] WASC 225

Innocent Dissemination: A Defence in Defamation Law

In defamation law, innocent dissemination serves as a defence for parties who unknowingly distribute defamatory material.

This defence is available to subordinate distributors who can prove that they neither knew nor ought reasonably to have known the material was defamatory and that their lack of knowledge was not due to negligence.

In this blog post, I explore the principles of innocent dissemination as a defence, referencing key cases that have shaped the understanding of this concept in defamation law.

Innocent Dissemination at as a confession and avoidance defence

Innocent dissemination is a common law defence in defamation cases.

This defence operates by acknowledging the facts that establish the legal elements of defamation, but then avoids liability by demonstrating a justification or excuse.

The defence of innocent dissemination is well-established and has been discussed in numerous cases, such as Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574.

Requirements for the Defence

To rely on the defence of innocent dissemination, a distributor must prove three things:

1. They were a subordinate distributor of the defamatory material.

2. They neither knew nor ought reasonably to have known that the material was defamatory.

3. Their lack of knowledge was not due to any negligence on their part.

Innocent Dissemination and Electronic Material

The defence of innocent dissemination has been extended to electronic material, as acknowledged in Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574. This means that distributors of electronic material may also rely on this defence if the circumstances permit.

Key Cases

In the recent decision of Duffy v Google LLC [2023] SASC 13, the defence of innocent dissemination was discussed in relation to the search engine giant, Google. This case relied on earlier decisions, such as Trkulja v Google LLC (2018) 263 CLR 149 and Google LLC v Defteros (2022) 403 ALR 434, which helped shape the understanding of innocent dissemination in the context of online platforms.

Key take-aways

• Innocent dissemination remains a crucial defence in defamation law, particularly as technology continues to advance and the distribution of electronic material becomes more prevalent.

• The defence allows subordinate distributors to avoid liability if they can prove that they neither knew nor ought reasonably to have known that the material they distributed was defamatory, and that their lack of knowledge was not due to negligence.

Cases mentioned in this blog:

• Duffy v Google LLC [2023] SASC 13

• Google LLC v Defteros (2022) 403 ALR 434

• Trkulja v Google LLC (2018) 263 CLR 149

• Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574

Defamation Law and the Defence of Triviality: An Analysis of Turtur AO v Connor [2021] SADC 127

In the world of defamation law, the defence of triviality has become an increasingly important topic as courts grapple with the question of whether or not certain instances of alleged defamation are too insignificant to warrant damages.

This blog post will provide a brief overview of the defence of triviality, with a focus on the case of Turtur AO v Connor [2021] SADC 127, and the relevant sections and cases that have contributed to the interpretation of this defence.

Section 33 of the Defamation Act 2005 (WA) establishes the defence of triviality, stating that it is a defence to the publication of defamatory matter if the defendant proves that the circumstances of the publication were such that the plaintiff was unlikely to sustain any harm.

This section mirrors similar provisions found in other Defamation Acts in other states and territories.

However, there is conflicting authority on the meaning of the words used in these sections.

The conflict lies in the interpretation of the phrase "any harm."

In Jones v Sutton (2004) 61 NSWLR 614, the court held that "not likely to cause harm" did not mean more probable than not, but required the absence of a real chance or possibility of harm. The debate continues on whether "any harm" refers solely to "harm to reputation" or whether it extends to "injury to feelings."

This issue remains unresolved.

In Turtur AO v Connor [2021] SADC 127, the Applicant argued for the broader interpretation of "any harm," including injury to feelings, citing that damages for defamation were awarded "because of" injury to reputation, not "for" damage to reputation.

The Respondent, on the other hand, submitted that the appropriate interpretation was the narrower one adopted by the majority of the Queensland Court of Appeal in Smith v Lucht [2016] QCA 267, confining "any harm" to reputational harm and not extending it to loss of feelings.

Ultimately, whether the defence of triviality is successful will depend on the circumstances of the publication and the potential harm it may cause.

Factors such as the extent of the publication, the reactions of others to the publication, and any evidence of damage to reputation may all be considered when determining if the defence applies.

Key take-aways

• In conclusion, the defence of triviality remains an important aspect of defamation law, with courts continuing to wrestle with the appropriate interpretation of "any harm."

• The case of Turtur AO v Connor [2021] SADC 127 serves as a prime example of this ongoing debate, and it will be interesting to see how future cases contribute to the development of this defence.

Cases referenced in this blog post:

• Turtur AO v Connor [2021] SADC 127

• Smith v Lucht [2016] QCA 267

• Jones v Sutton (2004) 61 NSWLR 614

When Should a Certificate for Senior Counsel Rates Be Issued in Defamation Cases?

In defamation cases, the issue of whether a certificate should be issued by a judge to render the unsuccessful party liable for the successful party's costs at senior counsel rates is an important topic of discussion.

The case of Turtur Ao v Connor (No 2) [2021] SADC 151 provides valuable insights into the factors considered by the court when deciding whether to issue such a certificate.

The Test for Certifying an Action Fit for Senior Counsel

The test for determining whether an action should be certified fit for senior counsel was laid down by King CJ in Beasley v Marshall (No 3).

The test revolves around the question of whether a reasonable litigant, at the proper time for the delivery of briefs, would consider it necessary or at least prudent to brief Queen's Counsel / Senior Counsel for the adequate presentation of their case.

Factors for Issuing a Certificate

The court, in Turtur Ao v Connor (No 2), discussed several factors that might be relevant when deciding to certify an action fit for senior counsel. These factors include:

1. The difficulty of the case

2. The complexity of the issues of fact or law

3. Any demands which the case makes for the exercise of special professional skills

The court in Turtur Ao v Connor (No 2) ultimately declined to certify the action fit for senior counsel.

The judge found that the case was not of sufficient complexity to justify the briefing of senior counsel, as there were few witnesses called, and the issues were clearly defined.

Furthermore, the judge noted that the applicant's decision to retain senior counsel might have been prompted by his standing within the community and his concern at the publicity the action was likely to receive.

The court also considered that the respondent had not pleaded the defense of justification or contextual truth, which, if they had been pleaded, might have warranted the retention of senior counsel.

The judge acknowledged that the difference in the parties' respective positions before the trial was modest, and the costs incurred to retain senior counsel likely exceeded that difference.

Key take-aways

• In determining whether to issue a certificate for senior counsel rates, the court considers factors such as the difficulty and complexity of the case, as well as the need for special professional skills.

• It is crucial for legal practitioners to keep these factors in mind when deciding whether to engage senior counsel in a defamation case.

Cases mentioned in this blog post:

• Turtur Ao v Connor (No 2) [2021] SADC 151

• Beasley v Marshall (No 3) (1986) 41 SASR 321