Fair Comment in Defamation Law: Understanding the Key Principles

Fair comment is an important defence in defamation cases that serves to protect freedom of speech, allowing people to express their honest opinions on matters of public interest. In this article, we will discuss the key principles of fair comment in defamation law, using the case of Cook v Flaherty [2021] SASC 73 as a reference.

Fair Comment vs. Fact

According to Pryke v Advertiser Newspapers Ltd, a statement can only be considered comment if the facts it is based on are stated or indicated with sufficient clarity. As explained in Channel Seven Adelaide Pty Ltd v Manock, fair comment protects even obstinate, foolish, or offensive statements of opinion, provided certain conditions are met. The key distinction is between comments (such as opinions, inferences, or evaluations) and statements of fact, which affects the viability of the defence.

The Conventional Case of Fair Comment

In Pervan v North Queensland Newspaper Co Ltd, McHugh J described the conventional case of fair comment as one where the basis of the comment appears in the publication, and the reader is able to judge whether the facts justify the comments. The defence is concerned with comments based on facts, and the truth of those facts will affect the viability of the defence.

The Kemsley Situation

The Kemsley situation, as explained in Cook v Flaherty [2021] SASC 73, refers to a type of fair comment where certain forms of conduct are of such a nature as to invite comment. In these cases, it is not necessary for the reader, viewer, or listener to be in a position to form their own opinion, as long as the statements are presented as comments and not as facts.

Notorious Facts

In order for a comment to be considered fair, the facts it is based on must be true or published under privilege. While the facts do not necessarily have to be stated explicitly in the publication, they can be referred to or be considered "notorious," meaning they are well-known or easily ascertainable matters in the public arena.

Fairness and Accuracy

As mentioned in Cook v Flaherty [2021] SASC 73, fairness requires that the comment or opinion be based on facts that are true or published under privilege. Inaccurate or false facts will render a comment unfair, and therefore, not protected by the fair comment defence.

Key Take-Aways

• In summary, the fair comment defence in defamation law is an important aspect of protecting freedom of speech, allowing individuals to express their honest opinions on matters of public interest.

• The key principles of fair comment involve distinguishing between comments and statements of fact, the truth of the underlying facts, and the fairness and accuracy of the comment.

The Role of Mode of Publication in Determining Meaning in Defamation Cases

In defamation law, the mode of publication plays a crucial role in determining what meaning was conveyed to the ordinary reasonable viewer or reader.

This blog post discusses the significance of mode of publication in defamation cases and will refer to relevant case law, including the recent decision in Nassif v Seven Network (Operations) Ltd [2021] FCA 1286.

Mode of Publication

As established in V’landys v ABC, the mode of publication can be a relevant consideration in determining what was conveyed to the ordinary reasonable viewer or reader. This is particularly applicable in cases where the publication is in electronic form, such as television broadcasts.

In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, the court noted that the mode or manner of publication is a material matter in determining what imputation is capable of being conveyed. The ordinary reasonable reader is more likely to read a book with greater care than they would a newspaper. Likewise, they may not devote the same level of concentration to every part of a television or radio program as they would to a written article.

However, as noted in V’landys v ABC, television broadcasts are not as transient as they once were, as they are generally made available over the internet and can be replayed. Still, the nature of the medium, including sounds, images, and manner of speech, is relevant in determining what meanings are carried by the publication.

Defamatory Meaning

The principles for determining defamatory meaning have been summarised in several judgments, such as Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 and Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652.

The applicant bears the onus on the balance of probabilities that the alleged defamatory meanings or imputations were conveyed by the publication in question.

The relevant question is whether the publication would have conveyed the alleged meanings to an ordinary reasonable person.

This hypothetical individual is assumed to be fair-minded and neither perverse, morbid nor suspicious of mind. They are not a lawyer who examines the publication overzealously but rather someone who views the publication casually and is prone to a degree of "loose thinking."

Each alleged defamatory imputation has to be considered in the context of the entire publication. Striking words or images may stay with the viewer or reader and give them a predisposition or impression that influences all that follows, as stated in V’landys v ABC.

Key Take-Aways

• In defamation cases, the mode of publication plays a significant role in determining what meaning was conveyed to the ordinary reasonable viewer or reader.

• Electronic forms of publication, such as television broadcasts, may involve particular considerations.

Understanding the Grapevine Effect in Defamation Cases

Defamation cases can be complex, as the extent of the damage to the plaintiff's reputation is not always easily quantifiable.

One concept that often arises in these cases is the 'grapevine effect', which acknowledges the potential for defamatory material to spread beyond its original publication through various channels, leading to potentially far-reaching consequences.

In this blog post, I explore the grapevine effect in defamation cases, with a focus on how it can impact damage assessments and the role of social media in its proliferation.

The Grapevine Effect in Defamation

In the case of Brose v Baluskas & Ors (No 6) [2020] QDC 15, the court explained the grapevine effect as "the realistic recognition by the law that, by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published" (Wagner, 269).

This effect can have a significant impact on the plaintiff's reputation, even if the original publication reached a relatively small audience.

The Grapevine Effect and Social Media

The proliferation of social media has made it even easier for defamatory material to spread through the grapevine effect. With just a few clicks or taps on a mobile device, users can share posts that contain defamatory content, potentially reaching a much wider audience than the original publication.

However, it is important to note that the grapevine effect does not automatically arise in all cases involving social media. As noted in Mickle v Farley [2013] NSWDC 295, there must be some evidentiary basis pointing to the grapevine effect's existence before it can be taken into account for the assessment of damages.

Determining the Grapevine Effect's Impact

Assessing the grapevine effect's impact on damages can be challenging, as it is often difficult to determine the true extent of the defamatory material's dissemination. Courts must consider both the initial publication and any subsequent republications or media coverage to gauge the extent of the plaintiff's reputation damage.

In some cases, as seen in Brose v Baluskas & Ors (No 6), the media coverage of defamation proceedings can contribute to the grapevine effect, potentially exacerbating the plaintiff's reputational harm.

In assessing damages, courts also need to consider the need for vindication of the plaintiff's reputation. The sum awarded for vindication must be "at least the minimum necessary to signal to the public the vindication of the [plaintiff’s] reputation and sufficient to convince a person to whom the publication was made or to whom it has spread along the grapevine of 'the baselessness of the charge'" (Brose v Baluskas & Ors (No 6), [457]).

Key Take-Aways

• The grapevine effect is an important factor to consider in defamation cases, as it can significantly impact the extent of damage to the plaintiff's reputation.

• With the rise of social media, the grapevine effect has become even more potent, making it crucial for courts to carefully assess its role in each case.

Revoking an Enduring Power of Attorney in Western Australia: Mental Capacity

Enduring Powers of Attorney (EPA) serve as an essential legal document that enable a person (the donor) to appoint one or more individuals (the attorney(s)) to manage their financial affairs in the event of incapacity.

However, there are situations where the donor might want to revoke the EPA, either due to a change in circumstances or for other reasons.

In this blog post, I discuss the mental capacity required to revoke an EPA in Western Australia, using the KRL [2010] WASAT 187 decision as a reference.

Mental Capacity and the Revocation of an EPA

To revoke an EPA, the donor must possess the mental capacity to understand the nature and consequences of their decision. According to the High Court of Australia in Gibbons v Wright (1954) 91 CLR 423, the capacity to understand the nature of a transaction is determined by whether the person can comprehend the transaction when it is explained to them. In the context of revoking an EPA, the donor must understand the authority given to their attorney(s) and the consequences of taking away that authority.

In KRL [2010] WASAT 187, an elderly woman with cognitive impairment revoked her EPA, which had been operating to meet her need for financial management. However, the question of whether she was competent to make the revocation was raised by the appointed administrator. The tribunal examined whether the woman understood the nature and consequences of her decision, taking into consideration the evidence provided by her friend who had assisted her with the revocation process.

Presumption of Capacity and Guardianship and Administration Act

Under the Guardianship and Administration Act 1990 (WA) (GA Act), there is a presumption of capacity for individuals, meaning that a person is presumed capable of making reasonable decisions about their person and their estate until proven otherwise. This presumption mirrors the common law principle that a person is presumed to be capable of executing a document.

In KRL [2010] WASAT 187, the tribunal applied the principles of the GA Act and the general law to determine the woman's capacity to revoke her EPA. Although there were doubts about her understanding of the nature and consequences of her decision, the tribunal did not have the power to declare the validity or invalidity of the revocation under the GA Act.

The Role of the State Administrative Tribunal

The State Administrative Tribunal (SAT) in Western Australia has powers under the GA Act and the State Administrative Tribunal Act 2004 (WA) to deal with guardianship and administration matters. However, the GA Act does not grant the SAT declaratory powers in respect of the validity or invalidity of an EPA or the revocation of one. In cases where the validity of an EPA or its revocation is in question, the matter may be brought before the Supreme Court.

Key Take-Aways

• Revoking an EPA in Western Australia requires the donor to possess the mental capacity to understand the nature and consequences of their decision.

• While the GA Act provides a presumption of capacity, the question of whether a person is competent to revoke an EPA may still be raised in some situations.

• The SAT does not have the power to declare the validity or invalidity of an EPA or its revocation; such matters may be addressed by the Supreme Court.

• When seeking to revoke an EPA, it is wise to consult with a qualified guardianship lawyer to ensure that the legal requirements are met and the donor's intentions are carried out as intended.

Understanding the Extent to which a Guardian or Administrator is Entitled to See the Represented Person's Will in Guardianship Matters under the GA Act

In the world of guardianship and administration law, one important question often arises: to what extent is a guardian or administrator under the Guardianship and Administration Act (GA Act) entitled to see the represented person's will?

This blog post provides an overview of this subject, relying on the decision in MT [2018] WASAT 80 as a reference point.

The MT Case and Relevant Legislation

In MT [2018] WASAT 80, the question of whether a guardian or administrator should have access to the represented person's will was discussed. The Tribunal, in this case, held that it was not necessary to view the will of the represented person (MT) to determine the application for the appointment of an administrator of MT's estate in her lifetime (para 49). This was because the Tribunal's role was to determine whether MT needed an administrator for her estate, and the terms of her will were not relevant to this question (para 50).

However, the Tribunal acknowledged that the terms of a will may be relevant to the question of who may be appointed as an administrator (para 51). For example, the appointment of an executor in an unrevoked will may provide guidance to the Tribunal as to the wishes of a proposed represented person for the appointment of an administrator.

Access to the Represented Person's Will

Under the GA Act, the Public Advocate has functions to advance the best interests of the represented person at hearings, to present any relevant information to the Tribunal, and to report on any investigation referred (GA Act s 97(1)(b)(i)(ii)(iii)).

In MT, the Tribunal accepted the evidence of the Public Advocate's investigator, who gathered MT's views and wishes without requiring access to her will (para 48).

In some circumstances, access to the represented person's will may assist the administrator in clarifying the extent of the estate or determining whether further orders might be sought by the administrator for preserving the tenure or devolution of the represented person's property (para 65).

In MT, the Tribunal ordered that a copy of the will should be provided to the Public Trustee if it was in the possession of AT, one of the parties in the case (para 3).

The Importance of Best Interests

In deciding on the appointment of an administrator, the Tribunal's primary obligation is to act in the best interests of the represented person (para 63).

While the Tribunal must ascertain the wishes of the represented person, it must weigh these wishes against factors such as the complexity of the circumstances, the conflict between family members, and the expertise and neutrality of the proposed administrator.

Key Take-Aways

• In summary, under the GA Act, a guardian or administrator is not automatically entitled to see the represented person's will.

• The terms of the will may be relevant to determining who should be appointed as an administrator, but the focus should be on the best interests of the represented person.

• Access to the will may be granted in some cases to assist the administrator in fulfilling their duties, but this will depend on the specific circumstances of each case.

The Tribunal's Role in Preserving Testamentary Intentions in Guardianship Matters

In guardianship matters, the issue of preserving a represented person's testamentary intentions as reflected in their Will can be quite complex.

A decision by the State Administrative Tribunal of Western Australia, JEB [2016] WASAT 65, sheds light on the role of the Tribunal in such cases, particularly when it comes to making directions regarding the way funds are held by administrators.

In this blog post, I delve into the key aspects of the JEB case and examine the Tribunal's approach in balancing the best interests of the represented person while preserving their testamentary wishes.

Case Summary: JEB [2016] WASAT 65

In JEB [2016] WASAT 65, the Public Trustee sought the removal of the existing family member joint administrators and also certain directions as to the way in which funds from the sale of certain assets of the estate should be held. Assets specifically gifted by the represented person in her Will had been sold by the administrators who were unaware of the existence of the Will. The Public Trustee was the executor of the Will.

The Tribunal appointed the Public Trustee as plenary administrator and made the directions sought by the Public Trustee regarding the separation of the proceeds of sale from the balance of the estate and their quarantining from use in inter vivos expenditure until the balance of the represented person's funds were depleted.

The Tribunal found that affordable actions taken to maximize the chances that a represented person's testamentary wishes as reflected in a Will are able to be carried out constitutes acting in their best interests, even if it represents a financial cost to their estate inter vivos, and that it is a matter of balance for the administrator to determine depending upon the circumstances of the person and their estate.

Relevant Case Law

The Public Trustee relied on the case of Re Hartigan; ex parte The Public Trustee in the State of Western Australia (unreported, Supreme Court of Western Australia, 9 December 1997, Library No. 970736) (Re Hartigan) to support the proposition that if real estate is sold by an administrator and the testator is not capable of changing his or her will, then the gift of real estate is not automatically adeemed. The devisee is instead entitled, at face value, to the proceeds of sale. Re Hartigan followed a case of Re Viertel [1997] 1 Qd R 110 (Re Viertel).

However, there was some disagreement in the case law as to whether the principles in Re Hartigan still apply and, if so, how. The Tribunal referred to Simpson v Cunning [2011] VSC 466 (Simpson) and RL v NSW Trustee and Guardian [2012] NSWCA 39 (RL) as cases expressing doubts about the state of the law and calling for legislative intervention.

Legislative Provisions

The Guardianship and Administration Act 1986 (Vic) contained provisions addressing ademption of property when there was an administrator appointed under that Act. However, there was no similar provision covering when there was an enduring power of attorney.

The Guardianship and Administration Act 2000 (Qld) allowed the Supreme Court of Queensland to award compensation for loss of benefits in an adult's estate due to a sale or other dealing with the adult's property by an administrator, but there was no such provision in the GA Act.

Tribunal's Findings

The Tribunal in JEB [2016] WASAT 65 was satisfied that the represented person was a person for whom orders could and should be made. The Tribunal appointed the Public Trustee as the administrator of last resort and made the directions sought by the Public Trustee regarding the handling of the proceeds from the sale of the specifically gifted assets.

In making its decision, the Tribunal acknowledged the complexities and uncertainties in the current state of the law regarding ademption of specifically gifted assets when they are sold by an administrator. Despite the doubts expressed in cases like Simpson and RL, the Tribunal found that the principles in Re Hartigan and Re Viertel were applicable in the present case. Thus, the devisee was entitled to the proceeds of sale for the gifted assets.

The Tribunal emphasized that while the best interests of the represented person should be the primary concern of an administrator, preserving the person's testamentary intentions was also an important consideration. The Tribunal recognized that ensuring the represented person's wishes were upheld may sometimes come at a cost to their estate during their lifetime. However, the Tribunal held that it was a matter of balance and that affordable actions taken to maximize the chances of fulfilling the person's testamentary wishes were in their best interests.

Key Take-Aways

• The JEB [2016] WASAT 65 case highlights the Tribunal's role in guardianship matters, where preserving testamentary intentions is a key concern.

• The decision provides valuable insight into how the Tribunal may approach such cases, balancing the best interests of the represented person and their testamentary wishes, even when the law is unclear.

• The case also serves as a reminder of the importance of legislative intervention to provide clearer guidance for administrators and the courts when dealing with ademption of specifically gifted assets. In the absence of clear legislative provisions, the Tribunal's approach in JEB [2016] WASAT 65 provides a valuable example of how the courts may navigate the complexities and uncertainties in the current state of the law.

Section 85 Applications under the Guardianship and Administration Act - A Closer Look

Guardianship lawyers in Western Australia are often faced with complex cases involving the welfare and best interests of vulnerable individuals.

One aspect of guardianship law that may arise is an application made pursuant to section 85 of the Guardianship and Administration Act 1990 (WA) (GA Act).

This blog post provides an overview of section 85 applications, focusing on the grounds for review, the relevant legislative provisions, and some key considerations based on a recent decision by the State Administrative Tribunal (SAT) in NE [2023] WASAT 30.

Section 85: Circumstances for Review of Guardianship or Administration Orders

Section 85 of the GA Act outlines the circumstances in which the SAT is required to review a guardianship or administration order.

A review may be initiated by any person and must be carried out as soon as practicable after the application for review is made (s 85(2), (3)).

The SAT is required to review an order if a guardian or administrator:

a) dies;

b) wishes to be discharged;

c) has been guilty of neglect, misconduct, or default that renders them unfit to continue in their role;

d) appears to be incapable due to mental or physical incapacity;

e) is a bankrupt or under insolvency laws; or

f) being a corporate trustee, has ceased business, begun winding up, or is under official management or receivership.

In NE [2023] WASAT 30, the applicants sought a review of the administration order under s 85(1)(c), claiming that the Public Trustee had engaged in neglect or misconduct that rendered them unfit to continue as administrator.

Key Issues Raised in the Section 85 Application

Three key issues were raised in the application for review in NE:

1. The alleged failure of the Public Trustee to comply with obligations under s 47 of the Public Trustee Act 1941 (PT Act) regarding providing information and documents to the applicants (referred to as the "agency issue");

2. The issue of a letter of demand to the former partner of NE; and

3. The alleged failure of the Public Trustee to comply with obligations under s 70 of the GA Act, which requires acting in the best interests of NE, including consulting with her or members of her family before agreeing to consent orders in the Family Court.

The SAT's Approach to Section 85 Reviews

The SAT's approach to section 85 reviews was discussed in RK [2022] WASAT 112, where the Full Tribunal noted that the SAT is not responsible for reviewing the merits of individual decisions made by a guardian or administrator, as reasonable minds may differ on their merits.

The guardian or administrator's obligation is to act in the best interests of the represented person.

Consequently, a review under section 85(1)(c) is confined to cases of serious neglect, misconduct, or default that render the guardian or administrator unfit to continue in their role.

Outcome in NE [2023] WASAT 30

In NE, the State Administrative Tribunal (SAT) carefully examined the allegations made by the applicants under section 85(1)(c) of the GA Act, which centred on the Public Trustee's exercise of decision-making authority and judgment in their role as administrator.

Regarding the first issue (the agency issue), the applicants argued that the Public Trustee failed to provide necessary information and documents relevant to Family Court proceedings, as required under section 47 of the Public Trustee Act 1941 (PT Act).

The SAT considered the evidence presented, including the fact that the Tribunal had authorized disclosure by the Public Trustee to the applicants in October 2021. Despite this, the applicants claimed that they had not been informed of the progress of the divorce application or any financial settlement made for NE. The SAT, however, found that there was no clear evidence of neglect or misconduct by the Public Trustee in relation to this issue.

In relation to the second issue, the issuance of a letter of demand to NE's former partner, the applicants did not provide sufficient evidence or arguments to demonstrate that the Public Trustee's actions amounted to neglect, misconduct, or default that would render them unfit to continue as an administrator.

Concerning the third issue, the applicants alleged that the Public Trustee failed to act in NE's best interests by not consulting her or her family members before agreeing to consent orders in the Family Court, as required under section 70 of the GA Act. The SAT considered the conflicting evidence on this point, including communication with family members within the limitations of various restrictions operating in the case. The Tribunal ultimately determined that the matters raised by the applicants did not support a finding of neglect, misconduct, or default on the part of the Public Trustee.

Given the careful analysis of the issues raised by the applicants and the evidence presented, the SAT concluded that the applicants failed to demonstrate that the Public Trustee had engaged in serious neglect, misconduct, or default as required under section 85(1)(c) of the GA Act.

As a result, the Tribunal dismissed the application for review, allowing the Public Trustee to continue in their role as administrator.

This outcome in NE [2023] WASAT 30 highlights the importance of presenting compelling evidence and well-reasoned arguments in support of a section 85 application.

When Does an Enduring Power of Guardianship Become Valid in Western Australia?

In this blog post, I explain the process and requirements surrounding the validity of an enduring power of guardianship (EPG) in Western Australia, using the recent case BJT [2022] WASAT 73 as a reference.

Background of the Case

The BJT case involves a 70-year-old man with dementia whose family members had differing opinions on how best to support him.

The case led to applications under the GA Act by BJT's wife, PMT, to the Tribunal in late January 2022.

PMT sought a declaration of incapacity that would bring into force an EPG by which BJT had appointed her as his enduring guardian in November 2021, with his son from his first marriage, DRT, as a substitute.

Relevant Legislation

Sections 110B and 110E of the GA Act outline the basis on which a person may execute an EPG:

- Section 110B states that a person who has reached 18 years of age and has full legal capacity may make an EPG appointing a person as the enduring guardian or two or more persons as joint enduring guardians.

- Section 110E sets out the formal requirements for an EPG, including the need for the document to be signed by the appointor, witnessed by two persons, and signed by the appointees (both the enduring guardian and any substitute enduring guardian) to indicate their acceptance of the appointment.

The BJT Case and Validity of the EPG

In the BJT case, the November 2021 EPG was executed by BJT after a recommendation by a specialist geriatrician.

BJT appointed PMT as his enduring guardian and DRT as the substitute. However, DRT's refusal to sign for acceptance of his role as substitute guardian raised the question of whether this rendered the entire EPG invalid.

The Tribunal’s Analysis

The Tribunal examined the statutory interpretation of s 110E(1)(e) of the GA Act, which stipulates that an EPG is not valid unless signed by each person being appointed as an enduring guardian or substitute enduring guardian, indicating their acceptance of the appointment.

In light of the case, the Tribunal delved into the text, context, and purpose of the provisions to better understand the legislation's intent.

To facilitate interpretation, the Tribunal referred to s 18 of the Interpretation Act 1984 (WA), which emphasizes promoting the purpose or object underlying the written law.

The long title of the GA Act and s 4 of the Act demonstrate a focus on providing decision-making assistance to those in need, offering various means to achieve this, and preserving freedom of decision and action wherever possible. This approach aligns with the least restrictive principle in s 4(4) and s 4(6) of the GA Act.

In assessing the meaning of a provision, the Tribunal also considered extrinsic material, such as the second reading speech for the GA Act. The speech highlights the Act's aims to allow individuals with competence to function independently and protect civil liberties through the right of appeal when guardianship or administration orders are made. This further demonstrates the emphasis on freedom of decision and action within the GA Act.

The Tribunal concluded that a rigid literalist interpretation of s 110E(1)(e) would be inconsistent with the GA Act's overall purpose, which focuses on preserving an individual's freedom of decision and action.

A strict interpretation could potentially undermine the Act's objectives by giving a substitute guardian the power to invalidate the entire EPG by simply refusing to sign their acceptance.

Instead, the Tribunal favored a construction that aligns with the context and purpose of the GA Act. They determined that s 110E(1)(e) requires a person to sign their acceptance to bring their own appointment into force, but the absence of a signature from a substitute guardian does not invalidate other parts of the EPG, such as the appointment of the enduring guardian. The substitute guardian's decision not to sign only affects their own appointment, which only comes into effect under specified circumstances.

Based on this analysis, the Tribunal found the November 2021 EPG to be valid, as the refusal of the substitute guardian to sign did not render the entire document invalid.

The appointment of the enduring guardian, PMT, was not affected, and it remained possible for the substitute guardian to sign the document and accept their appointment until the EPG is revoked.

The Tribunal's Decision

The Tribunal determined that the preferable construction of s 110E(1)(e) is one that recognizes the donor's competent appointment of the enduring guardian, even if the proposed substitute guardian does not sign to accept their appointment.

In the BJT case, this meant that PMT's appointment as the enduring guardian was considered valid, despite DRT's refusal to sign for acceptance of his role as substitute guardian.

Key Take-Aways

• In summary, the BJT case provides an insightful example of the considerations involved in determining the validity of an EPG under the GA Act.

• Based on this decision, a substitute guardian does not have the power to invalidate the entire EPG by simply refusing to sign their acceptance.

Coaching of Subjects and In Camera Evidence in Guardianship Matters: A Look at K [2018] WASAT 96

Guardianship law is a complex area of practice that deals with the appointment of individuals or organisations to make decisions on behalf of a person who is unable to make decisions for themselves due to a mental disability.

In this blog post, I discuss the coaching of subjects of applications, as well as evidence being given in camera by subjects in guardianship matters, drawing on the decision in K [2018] WASAT 96.

Assessing the Genuine Wishes and Views of Subjects in Guardianship Matters

The case of K [2018] WASAT 96 underscores the significance of accurately evaluating the genuine wishes and views of subjects in guardianship matters. In this instance, K provided in camera evidence to the Tribunal on two separate occasions, during which her expressed views were notably contradictory.

This discrepancy in K's testimony illustrates the challenge of ensuring that the views expressed by a subject are authentically their own and not unduly influenced by other parties.

The Tribunal in K [2018] WASAT 96 ultimately determined that K's views conveyed at Hearing 2 were more likely to have been 'coached' by her father or articulated by K as a consequence of being exposed solely to her father's perspectives and influence (paragraphs 88-90).

The Role of In Camera Evidence

Giving evidence in camera allows the subject of an application to provide evidence to the Tribunal without the presence of other parties.

In the case of K [2018] WASAT 96, this process was used at both Hearing 1 and Hearing 2. Allowing subjects to give evidence in camera can help to ensure that their testimony is not influenced by external factors or other parties, ensuring that the Tribunal can accurately assess their true wishes and views.

Legislation in Guardianship Matters

The Guardianship and Administration Act 1990 (WA) provides the framework for guardianship and administration orders in Western Australia. In the case of K [2018] WASAT 96, the Tribunal accepted and found that K continues to be a person for whom guardianship and administration orders can and should be made due to her diagnoses, which constitute mental disability (paragraph 22).

Section 51(2) of the Act requires the Tribunal to consider various factors in making decisions regarding guardianship and administration orders, including the wishes and views of the person, their best interests, and their relationships with others involved in their care.

Key Take-Aways

• The case of K [2018] WASAT 96 serves as a reminder of the importance of properly assessing the wishes and views of subjects in guardianship matters, as well as the potential for coaching to occur.

• It also highlights the role of in camera evidence in ensuring that a subject's testimony is not influenced by external factors or other parties.

Understanding Imputations in Defamation Law

Imputations play a crucial role in defamation cases, as they help identify the defamatory meaning or meanings conveyed by the published material.

This blog post discusses the significance of pleading imputations in defamation cases, the role of context in determining their meaning, and the importance of ensuring that imputations are sufficiently precise and unambiguous.

Imputations under the Uniform Defamation Legislation

The significance of pleading imputations has evolved under the uniform defamation legislation. Previously, under the Defamation Act 1974 (NSW), each imputation constituted a separate cause of action, as seen in Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174. However, under the current legislation, there is a single cause of action for the publication of defamatory material, even if multiple imputations are conveyed.

Pleading imputations serves several purposes, including identifying the scope of inquiry for trial and allowing defendants to raise defences, including statutory defences under sections 25 and 26 of the Defamation Act, which are responsive to imputations (Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125).

The Role of Context in Determining Imputations

The context of the published material is crucial in determining the meaning of a pleaded imputation.

According to Mason P in Greek Herald Pty Ltd v Nikopoulos (2002) 54 NSWLR 165, imputations should not be considered in isolation, but rather, in relation to the subject matter of the publication.

Context may clarify or intensify the "sting" of an imputation, or conversely, it may weaken it (Greek Herald Pty Ltd v Nikopoulos at [20]–[22]).

However, it is important to note that context cannot be used to change the meaning of an imputation that has been clearly chosen by the pleader (Charan v Nationwide News Pty Ltd [2019] VSCA 36 at [140]).

The Importance of Precision and Unambiguity

Imputations should be sufficiently precise and unambiguous to enable a fair trial.

Ambiguity in imputations may need to be resolved as an interlocutory issue before or during the trial (Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125 at [171]).

The trier of fact, whether a judge or a jury, should not have to resolve any ambiguity in the pleaded imputations, as their task is to determine the meaning of the published material rather than the meaning of the parties' pleadings (Singleton v Ffrench; Greek Herald Pty Ltd v Nikopoulos at [24]; Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362 at [68]; Fenn v Australian Broadcasting Corporation at [47]).

Key Take-Aways

• Imputations are central to defamation cases, as they help define the defamatory meaning or meanings conveyed by the published material.

• When pleading imputations, it is important to consider the context in which they appear and to ensure that they are sufficiently precise and unambiguous.

• By doing so, parties can streamline the litigation process and enable a fair and efficient trial.