When Security for Costs May Be Ordered in an Appeal

In a recent decision of the Western Australia Supreme Court, Cheng v Lam [2023] WASCA 65, the Court provided a useful summary of the factors to consider when deciding whether to order security for costs in an appeal.

This blog post will discuss these principles and examine how they were applied in the Cheng v Lam case.

The Principles

According to the Court in Cheng v Lam, the power to order security for costs is exercised to serve the interests of justice.

While the discretion to order security is unfettered, it must be exercised judicially, and 'special circumstances' do not need to be shown before an order for security for costs is made against an appellant [29].

An appellant's inability to satisfy a costs order should the appeal fail is generally a significant factor in favor of an order for security for costs. However, if the respondent has caused the appellant's impecuniosity, that may be a relevant countervailing factor [30].

Impecuniosity alone is not generally the sole ground for making an order for security. Even where the appellant is impecunious, the interests of justice may properly be served by not making such an order. Where security is ordered against an impecunious appellant, the amount ordered should not be greater than necessary [30].

Other relevant factors generally include the appellant's prospects of success, whether the appellant would be shut out of the appeal if security for costs were ordered, and whether there has been any delay in the respondent filing the application for security for costs [31].

Additionally, an appellant's non-compliance with earlier costs orders in favor of the respondent, at least to the extent that the non-compliance is not adequately explained, is also a relevant consideration [32].

Cheng v Lam

In Cheng v Lam, the Court found that it was in the interests of justice to grant the application for security for costs, considering several factors.

Some of these factors included the appeal's preliminary prospects of success, the fact that ordering security would not shut out the appellant from the appeal, and the appellant's consistent failure to pay costs orders against her in related litigation [32-35].

Furthermore, the Court considered the appellant's lack of material assets apart from her share in partnership assets, the disputed entitlement to certain funds, and the late filing of the application for security for costs [36-38].

Finally, the Court found that the amount sought for security was reasonable in the circumstances, although they rounded it down to $13,000 and did not provide a liberty to apply to increase the amount of security during the appeal [39].

Key take-aways

• The principles outlined in Cheng v Lam provide a useful starting point for lawyers to understand when security for costs may be ordered in an appeal.

• It is crucial to keep in mind that the interests of justice must always be the guiding principle when exercising discretion to order security for costs.

The Fundamental Obligation to Present Only Necessary Evidence to the Court

In the practice of law, it is essential for legal practitioners to present only the necessary evidence to the Court, allowing the issue(s) at hand to be determined efficiently and effectively. However, some cases demonstrate a failure to adhere to this fundamental obligation, resulting in the Court being burdened with excessive and irrelevant material.

This blog post discusses the importance of presenting only the necessary evidence and highlights the consequences of failing to do so, drawing on the recent decision in Bevan v Bingham & Ors [2023] NSWSC 19.

The Importance of Presenting Necessary Evidence

As established in Bevan v Bingham, there is a fundamental obligation upon all legal practitioners to carefully consider and identify the evidence necessary to put before the Court to allow the issue(s) to be determined.

Failure to do so not only burdens the Court with unnecessary material, but also increases the costs incurred by all parties involved, as legal representatives are obliged to read through all the material presented.

In the case of Bevan v Bingham, the plaintiff's solicitor failed to discharge this obligation, resulting in the Court being presented with an excessive amount of material, much of which was ultimately deemed irrelevant.

The costs incurred in preparing and reviewing such material were significant, and, ironically, this occurred in a case concerning costs owed to a legal practitioner.

The Consequences of Failing to Present Only Necessary Evidence

The practice of presenting excessive and irrelevant material to the Court is not only unacceptable but can also lead to significant consequences for those involved.

As noted in Bevan v Bingham, one appropriate sanction in cases of excess is an order that no costs be recoverable from the losing party in respect of the excess and that no costs be recoverable by the solicitor from the client for the excessive copying.

In order to avoid such consequences, it is essential for legal practitioners to exercise clinical legal judgment and take responsibility for selecting the material to be presented to the Court.

This will not only ensure a more efficient and effective determination of the issues at hand but also help control the costs incurred by all parties.

Key take-aways

• It is crucial for legal practitioners to adhere to the fundamental obligation of presenting only the necessary evidence to the Court.

• Failing to do so can result in significant consequences, such as increased costs and potential sanctions.

• By exercising clinical legal judgment and taking responsibility for selecting the material presented to the Court, legal practitioners can contribute to a more efficient and effective determination of the issues at hand, ultimately benefiting all parties involved.

The Importance of Providing Costs Updates: A Lesson for Lawyers

As a costs lawyer in Western Australia, I have observed numerous instances where lawyers have failed to provide their clients with updated costs estimates.

This failure can lead to a lack of transparency, frustration, and disputes between lawyers and their clients.

One recent case from New South Wales, Bevan v Bingham & Ors [2023] NSWSC 19, provides a useful illustration of the importance of providing costs updates.

In this case, a barrister (the plaintiff) was retained by a solicitor (the first defendant) to represent the second defendant in proceedings related to the Bankruptcy Act 1966 (Cth).

The plaintiff entered into a costs agreement with the first defendant, in accordance with section 180(1)(c) of the Legal Profession Uniform Law (NSW) (LPUL).

The plaintiff provided an initial costs estimate of $60,000 (although the agreement's breakdown actually totalled $56,000) for the anticipated work.

However, the plaintiff ultimately billed the first defendant a total of $349,360, without providing any ongoing updates of his estimated costs.

The court found that the plaintiff's failure to provide these updates constituted a contravention of the prescribed disclosure obligations under the LPUL.

According to section 178(a) of the LPUL, a costs agreement is void if a law practice contravenes the prescribed disclosure obligations.

The court determined that the plaintiff's agreement was void due to the failure to provide updated costs estimates.

This conclusion was consistent with the objectives of the LPUL, which include empowering clients to make informed choices about the legal services they access and the costs involved.

The Bevan case highlights the importance of lawyers providing regular costs updates to their clients.

Failing to do so not only contravenes the LPUL but also undermines the ability of clients to make informed decisions about their legal representation.

As this case demonstrates, the consequences of not providing costs updates can be severe, including the voiding of a costs agreement and potential disputes with clients.

In light of this case, it is essential for lawyers to ensure that they maintain open and transparent communication with their clients regarding costs.

This includes providing regular updates on costs estimates and promptly informing clients of any changes that may affect the overall costs of their legal representation.

By doing so, lawyers can help to foster trust, avoid disputes, and ensure that their clients are well-informed and confident in their decision-making.

The Intricacies of the "Reply to Attack" Defence in Defamation Law

Defamation law is a complex area that seeks to balance the freedom of expression with the protection of an individual's reputation.

One defence often invoked in defamation cases is the "reply to attack" defence, which arises from the common law principle of qualified privilege.

This blog post explores the "reply to attack" defence and its key aspects, with reference to the recent Australian Federal Court decision of Palmer v McGowan (No 5) [2022] FCA 893.

1. The Essence of the Defence:

The "reply to attack" defence is a species of common law qualified privilege that applies when a defendant responds to a public attack on their reputation or conduct by the plaintiff (or an interest the defendant is entitled to protect).

The essence of the defence lies in the presence of a sufficient connection between the defamatory matter and the privileged occasion (Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366).

The public's interest in hearing the response of the target to public criticisms is the basis for this privilege (Gould v Jordan (No 2) [2021] FCA 1289).

2. The Attack and the Response:

For the defence to operate, there must have first been an attack on the defendant (Gould v Jordan).

The response must be commensurate with the attack, but the law gives the defendant some latitude. As Dixon J explained in Penton v Calwell (1945) 70 CLR 219, the purpose of the privilege is to allow the defendant to freely submit their answer or counter-attack to the public to whom the plaintiff has appealed or attacked the defendant.

3. Proportionality and Malice:

Any question of proportionality arises not on the issue of whether an occasion of privilege exists, but rather at a later stage of the enquiry, namely whether the defendant was actuated by malice (Penton v Caldwell; Loveday v Sun Newspapers Ltd (1938) 59 CLR 503).

4. Ripostes and Qualified Privilege:

In some instances, a defendant's reply may be considered a riposte, which is a response to an allegedly defamatory retort that was made in response to an earlier alleged defamatory attack.

The law generally does not extend qualified privilege to ripostes (Kennett v Farmer [1988] VR 991), as granting an initial defamer a right of reply would defeat the policy upon which the privilege is founded.

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

In the case of Palmer v McGowan (No 5) [2022] FCA 893, the judge thoroughly analyzed the "reply to attack" defense that was invoked by Mr. Palmer.

The judge first considered the legal principles surrounding the defense and then applied these principles to the facts of the case to determine whether the defense was available to Mr. Palmer.

The judge began by examining the relevant principles that underpin the "reply to attack" defence.

In applying these principles to the case, the judge closely scrutinsed the various "attacks" made by Mr. McGowan that Mr. Palmer claimed entitled him to the defence.

After assessing the evidence and arguments presented by both parties, the judge identified three main reasons for the ultimate unavailability of the defence to Mr. Palmer.

First, the judge noted that almost all of the alleged attacks by Mr. McGowan had already been responded to by Mr. Palmer before the relevant Cross-Claim Matters occurred. This led the judge to conclude that the Cross-Claim Matters were not sufficiently connected to any attack by Mr. McGowan, which is a crucial element of the "reply to attack" defense.

Secondly, as a result of this lack of connection, the judge determined that the Cross-Claim Matters were, in essence, separate attacks that did not qualify for the protection of the "reply to attack" defense.

Lastly, the judge also discussed the concept of "ripostes" in the context of the "reply to attack" defense. A riposte refers to a response to an allegedly defamatory retort that itself was made in response to an earlier alleged defamatory attack. The judge clarified that the law does not grant protection to such ripostes under the "reply to attack" defense.

Key take-aways

• The "reply to attack" defence in defamation cases is an intricate area of law that requires a careful analysis of the relationship between the initial attack, the defendant's response, and the presence of any ripostes.

• The case of Palmer v McGowan (No 5) [2022] FCA 893 provides valuable insight into the application of this defence and the factors that courts may consider when determining whether the defence is available to a defendant in a defamation claim.

Can the Tribunal Grant an Administrator the Power to Make a Binding Death Benefit Nomination (BDBN)?

As a guardianship lawyer in Western Australia, I often receive questions regarding the powers and functions of administrators.

One issue that arises is whether a tribunal has the power to grant an administrator the authority to make a binding death benefit nomination (BDBN).

In this blog post, I explore this question, drawing on the decision in SM [2019] WASAT 22 and relevant legislation.

Background:

In the SM case, an individual (SM) was injured in a motor vehicle accident and later received compensation of $5,745,933, held in trust by Australian Executor Trustees Limited (AET).

The tribunal appointed AET as the administrator of SM's estate with the sole function to pay a portion of the funds into superannuation for the benefit of SM.

AET sought an additional function to make and renew BDBNs for any superannuation fund of which SM was a member.

Relevant Legislation:

The Guardianship and Administration Act 1990 (WA) (the Act) governs the powers and functions of administrators. Section 69(2) of the Act permits an administrator to do only those things necessary for the performance of the functions invested in him or her.

Analysis:

The purpose of an administration order is for the conservation of a person's estate during their lifetime for their own advantage and benefit, but does not extend to the conservation and preservation of their estate after death, when the person has ceased to have any needs [89].

A BDBN is solely for the purpose of enabling transmission on a person's death of their superannuation benefit [90]. An administrator's authority ends upon a person's death [91], as does their duty and obligation to the person subject to the administration order.

In the SM case, the Tribunal found that making a BDBN is not for the purpose of carrying out an administrator's purpose, namely the conservation of the estate of a person under an administration order for their own advantage and benefit [92].

Consequently, the Tribunal concluded that it does not have the power to grant the additional function of making a BDBN to a limited or plenary administrator.

Conclusion:

• Based on the SM [2019] WASAT 22 decision and the Guardianship and Administration Act 1990 (WA), it appears that a tribunal does not have the power to grant an administrator the authority to make a BDBN.

• This is because the primary purpose of an administrator is to manage the person's estate during their lifetime, and their authority does not extend beyond the person's death.

Factors Relevant to Determining Whether a Person with a Mental Disability is Unable to Make Reasonable Judgments in Respect of Their Estate

When determining whether an individual with a mental disability is unable to make reasonable judgments in respect of matters relating to their estate, the Guardianship and Administration Act 1990 (WA) ("GA Act") sets out specific criteria that must be satisfied.

This blog post discusses these factors, drawing from the case Re RK [2021] WASAT 13, and examines how they can be applied in practice.

1. The Mental Disability Requirement

Section 64(1)(a) of the GA Act requires that a person be "unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate".

This means that the person must have a mental disability, and their inability to make reasonable judgments must arise because of that mental disability.

In Re RK, the Tribunal found that RK had a mental disability, and that this was the cause of his inability to make reasonable judgments in respect of his estate.

2. Subjective and Objective Tests

The application of Section 64(1)(a) involves both subjective and objective tests.

The subjective test requires assessing the person's ability to make reasonable judgments in relation to their actual estate.

The objective test, on the other hand, considers whether the person has the ability to engage in the mental reasoning required to make such judgments.

3. Factors Affecting a Person's Ability to Make Reasonable Judgments

A person's ability to make reasonable judgments in respect of their estate may depend on a variety of factors, such as their health and mental health.

Ultimately, an individual must have the intellectual ability necessary to make decisions related to their estate.

This includes the ability to:

- Understand the need for and sources of income

- Comprehend the value of income relative to expenditures

- Identify and calculate necessary expenditures for daily living and long-term financial objectives

- Devise a budget to live within their means

- Assess the financial implications of various decisions and contracts

- Organize their affairs to meet debts as they fall due

- Identify and implement problem-solving strategies for resolving unexpected financial issues

4. Estate Definition

In the context of the GA Act, a person's "estate" refers to the aggregate of their property, assets, and liabilities.

This encompasses the entirety of their real and personal property and all financial affairs.

5. Causation

The phrase "by reason of" in Section 64(1)(a) of the GA Act implies a relationship of cause and effect between a mental disability and a person's inability to make reasonable judgments in respect of their estate.

In Re RK, the Tribunal found that RK's mental disability was the cause of his inability to make reasonable judgments, although he was still able to make occasional decisions regarding simple discretionary expenditure.

Key take-away

• When assessing whether a person with a mental disability is unable to make reasonable judgments in respect of their estate, it is crucial to consider the relevant factors as set out in the GA Act and case law such as Re RK.

Striking the Balance: Defamation and Multiple Meanings in Court

Defamation law exists to protect individuals from false statements that harm their reputation, while also respecting freedom of expression.

A key challenge for courts when handling defamation cases is determining the meaning of allegedly defamatory statements. This is particularly difficult when a statement is capable of conveying multiple meanings.

In this blog post, I explore the approach courts take in such situations, drawing on the case of Duma v Fairfax Media Publications Pty Limited (No 3) [2023] FCA 47 and other relevant case law.

Finding the Meaning

In Duma, the respondents argued that the court should find "an approximate centre-point in the range of possible meanings" or the single meaning that is "the (or a) dominant one" when determining the meaning of a potentially defamatory statement.

This approach, they argued, would protect the balance between freedom of expression and protection of reputation by shifting "the preferred meaning to the middle ground" (Duma, [51]).

However, the court rejected this argument, stating that it confuses the characteristics of the reasonable reader with the approach to determining meaning.

Instead, the court emphasized that its task is to determine "the single meaning" of the allegedly defamatory material (Duma, [52]).

The Reasonable Reader and Determining Meaning

The court in Duma highlighted the distinction between the characteristics of the hypothetical reasonable reader and the meaning of the words in question. While the reasonable reader is described as a person "who does not, and should not, select one bad meaning where other non-defamatory meanings are available" (Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at [14]), this does not equate to a prescription for how the court should attribute meanings to potentially defamatory words (Duma, [53]).

In Rufus v Elliott [2015] EWCA Civ 121, Sharp LJ clarified that the court is not required to select a non-defamatory meaning simply because it is available. Instead, the touchstone remains what the ordinary reasonable reader would consider the words to mean (Duma, [54]).

This approach was endorsed by the Supreme Court of the United Kingdom in Stocker v Stocker [2020] AC 593. Lord Kerr stated that the court is not obliged to select a non-defamatory meaning among a range of meanings simply because it is possible to do so. The ordinary reasonable reader's understanding remains the central consideration (Duma, [54]).

The Australian Approach

The law in Australia is consistent with the reasoning in Rufus and Stocker. In cases such as Armstrong v McIntosh (No 4) [2020] WASC 31, Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68, and Bazzi v Dutton [2022] FCAFC 84, Australian courts have similarly rejected the idea that they must select a non-defamatory meaning where one is available.

The focus remains on the ordinary reasonable person's understanding (Duma, [55]).

Key take-aways

• In defamation cases where multiple meanings are possible, courts must determine the single meaning of the allegedly defamatory material.

• The ordinary reasonable reader's understanding serves as the touchstone for this determination. Courts are not required to select a non-defamatory meaning simply because it is available.

• By focusing on the ordinary reasonable reader, courts can strike a balance between freedom of expression and protection of reputation in defamation cases.

Default Judgments in Defamation Cases: Insights from the Federal Court of Australia

A recent case, Musicki v De Tonnerre [2023] FCA 222, provides insight on the topic of how the Federal Court of Australia deals with defamation cases that are not defended.

This blog post discusses the key points from the case and the principles that guide the court's decision-making process in defamation cases involving default judgments.

Background

In Musicki v De Tonnerre, the applicant sought judgment in her favour due to the respondent's failure to appear or file a defence as ordered by the court.

The case involved a defamatory Google review about the applicant's surgical practice, which was later revealed to be posted by a former medical student of the applicant.

The respondent was found to be in default and the court decided to give judgment in favour of the applicant, limited to the defamation action.

Relevant Principles

The Federal Court Rules 2011 (Cth) outline the circumstances in which a party is considered to be in default and the potential orders that the court can make in such situations.

The court's power to give summary judgment against a defaulting party is discretionary and should be exercised cautiously.

In Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606, the court outlined the principles to be followed when considering default judgments. The court must be satisfied that the applicant is entitled to the relief claimed in the statement of claim. This requirement means that the court must be satisfied that "on the face of the statement of claim" the applicant is entitled to the relief sought.

Applying the Principles

In Musicki v De Tonnerre, the court found the respondent to be in default due to their failure to file a notice of address for service, a defence in accordance with the Federal Court Rules, and a defence in compliance with the court's orders.

The court determined that there was no basis to assume the respondent's non-compliance was accidental or justifiable.

The court then considered whether the applicant had proven her defamation claim.

It was satisfied that the respondent had published the defamatory Google review and that it contained the imputations pleaded by the applicant.

The court also found that the applicant had suffered damage to her reputation.

Key take-aways

• Musicki v De Tonnerre demonstrates the Federal Court of Australia's approach to default judgments in defamation cases.

• The court exercises its discretion cautiously and carefully considers whether the applicant has proven their claim.

• In cases where a respondent is found to be in default, the court may grant judgment in favour of the applicant, as demonstrated in this case.

A Closer Look at Section 40 of the Defamation Act 2005 (WA): Costs in Defamation Cases

In this blog post, I examine Section 40 of the Defamation Act 2005 (WA), which deals with the awarding of costs in defamation cases in Western Australia.

I discuss the specific provisions of Section 40 and illustrate how it interacts with general costs principles, as highlighted in the decision of Rayney v Reynolds [No 4] [2022] WASC 360 (S).

Section 40 of the Defamation Act 2005 (WA)

Section 40 of the Defamation Act 2005 (WA) outlines the considerations for courts when awarding costs in defamation proceedings.

It consists of 3 subsections:

1. Subsection (1) requires the court to consider:

(a) the way in which the parties conducted their cases, including any misuse of a party’s superior financial position to hinder the early resolution of the proceedings; and

(b) any other matters that the court considers relevant.

2. Subsection (2) states that, unless the interests of justice require otherwise:

(a) if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff, the court must order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff.

3. Subsection (3) defines "settlement offer" as any offer to settle the proceedings made before the proceedings are determined, including an offer to make amends (whether made before or after the proceedings are commenced) that was a reasonable offer at the time it was made.

This section is meant to promote a "speedy and non-litigious method of resolving disputes and to avoid protracted litigation wherever possible" as identified by McClellan CJ at CL in Davis, which was later cited in Jensen v Nationwide News Pty Ltd [No 13].

Interaction with General Costs Principles

Section 40 operates alongside general costs principles found in s 37 of the Supreme Court Act 1935 (WA), which provides the court with a wide discretion when making orders for costs in proceedings.

This discretion must be exercised judicially and in accordance with established principles to achieve a fair and just outcome for the parties.

While the general rule is that costs should follow the event (meaning the successful party should recover their costs from the opposing party), s 40 of the Defamation Act provides specific guidance for defamation cases, thereby taking priority over the general rules.

Reasonableness of Settlement Offers

As per Section 40(2)(a) of the Defamation Act, the court must assess whether a defendant unreasonably failed to make or agree to a settlement offer proposed by the plaintiff. To determine the reasonableness of a settlement offer, courts may consider factors such as:

1. Whether the offer was a reasonable one at the time it was made.

2. The reasonable predictions about the plaintiff’s prospects of success and quantum.

3. The avoidance of hindsight bias in relation to liability or quantum.

4. Whether the offer reflected a reasonable and realistic assessment of the plaintiff’s prospects of success on liability and the probable quantum of an award in the event of success (Wagner v Nine Network Australia Pty Ltd (No 2)).

Furthermore, the principles of Calderbank v Calderbank may also apply to the assessment of the reasonableness of an offer.

Factors to consider include the stage of the proceeding at which the offer was received, the time allowed to the offeree to consider the offer, the extent of the compromise offered, the offeree’s prospects of success (assessed as at the date of the offer), the clarity with which the terms of the offer were expressed, and whether the offer foreshadowed an application for indemnity costs in the event that the offeree rejected it.

Rayney v Reynolds [No 4] [2022] WASC 360 (S)

In the case of Rayney v Reynolds [No 4] [2022] WASC 360 (S), the Western Australian Supreme Court considered the issue of costs in a defamation proceeding. The court applied Section 40 of the Defamation Act 2005 (WA) and the general costs principles outlined in s 37 of the Supreme Court Act 1935 (WA) to determine the appropriate costs order to be made.

In this case, the plaintiff, Rayney, was successful in his defamation claim and sought an order for costs to be assessed on an indemnity basis. The court, applying the provisions of Section 40(2) of the Defamation Act, was required to consider whether the defendant, Reynolds, unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff.

In doing so, the court examined the reasonableness of the settlement offer relied upon by the plaintiff, which was dated 14 February 2019, and assessed it in accordance with the principles of Calderbank v Calderbank. The court took into account several factors, such as the stage of the proceeding at which the offer was received, the time allowed to the offeree to consider the offer, the extent of the compromise offered, and the offeree's prospects of success, as assessed at the date of the offer.

Ultimately, the court found that the defendant had unreasonably failed to make a settlement offer or agree to the plaintiff's settlement offer. As a result, the court ordered that the costs of the proceedings be assessed on an indemnity basis, in accordance with Section 40(2)(a) of the Defamation Act 2005 (WA). This decision demonstrates the importance of parties in defamation cases taking a reasonable approach to settlement negotiations, as an unreasonable refusal to engage in settlement discussions can lead to significant financial consequences in the form of indemnity costs orders.

Key take-aways

• Section 40 of the Defamation Act 2005 (WA) plays a crucial role in guiding the awarding of costs in defamation cases in Western Australia.

• By considering factors such as the conduct of the parties, the reasonableness of settlement offers, and the interests of justice, the court aims to achieve a fair and just outcome for all parties involved.

• This section is specifically tailored to defamation proceedings and takes priority over general costs principles found in the Supreme Court Act 1935 (WA).

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.