Two Decisions, One Principle: How Pentelow and Birketu Together Reshape Law Firm Litigation Strategy

Introduction

The landscape of costs recovery in Australian litigation has undergone a significant transformation with two landmark High Court decisions: Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333 and Birketu Pty Ltd v Atanaskovic [2025] HCA 2. Together, these decisions establish a coherent framework based on the principle of equality before the law, while maintaining important distinctions that have practical implications for law firms engaged in litigation. This article examines how these decisions collectively reshape the ability of legal practitioners to recover costs when representing themselves or their firms, and the practical implications for litigation strategy.

Background: Bell Lawyers v Pentelow

In Bell Lawyers v Pentelow, the High Court abolished the so-called "Chorley exception" to the general rule that self-represented litigants cannot recover professional costs. This long-standing exception had permitted self-represented solicitors, uniquely among all professions, to recover costs for their own time spent in litigation.

The High Court held that the Chorley exception was an "affront to the fundamental value of equality of all persons before the law" and thus had no place in the common law of Australia. However, the Court made clear that its decision did not disturb the "well-established understanding" that where an in-house solicitor appears in proceedings to represent their employer, the employer remains entitled to recover costs.

The decision left open a critical question: could a law firm recover costs for work done by its employed solicitors (as distinct from partners) when the firm itself was a party to the proceedings?

Facts of Birketu v Atanaskovic

The Birketu case directly addressed this unresolved question. Atanaskovic Hartnell, an unincorporated legal practice, had commenced proceedings in the Supreme Court of New South Wales against former clients Birketu Pty Ltd and WIN Corporation Pty Ltd to recover legal fees. Mr. Atanaskovic, a partner of the firm, was the solicitor on the record throughout.

The firm was successful in the litigation, and Hammerschlag J ordered that Birketu pay Atanaskovic Hartnell's costs. When Atanaskovic Hartnell sought to recover costs, it claimed $305,463 for professional fees for work done by its employed solicitors, while making no claim for work done by Mr. Atanaskovic or any other partner.

Birketu objected, arguing that following Bell Lawyers, the firm could not recover costs for work done by its own employed solicitors. This question proceeded through the courts, with Brereton JA at first instance ruling that the firm could not recover such costs, the Court of Appeal (by majority) overturning that decision, and finally the High Court dismissing Birketu's appeal, thereby affirming the Court of Appeal's decision and allowing recovery of costs for employed solicitors.

Legal Reasoning in Birketu

The High Court's decision featured both majority and minority opinions.

The majority (Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ) held that "an order for costs in favour of an unincorporated law firm entitles the firm to obtain recompense for legal work performed by an employed solicitor of the firm." They reasoned that the general common law principle applies to a litigant solicitor or unincorporated law firm in the same way as it applies to other litigants. Like any other litigant, the solicitor or firm cannot obtain recompense for their own legal work. But also like any other litigant, the solicitor or firm can obtain recompense for legal work done by their employees.

The majority distinguished this situation from the Chorley exception by emphasising that the expenses of salaries and overheads associated with having legal work done by employees constitute professional legal costs actually incurred by the solicitor or firm. The recompense is to the solicitor or firm for professional legal costs thereby actually incurred.

Justice Steward dissented, arguing that allowing recovery would "make a mockery of what was decided in Bell Lawyers, and would, in substance, resurrect the Chorley exception." He reasoned that when employed solicitors work under the supervision of a firm, that is the work of the firm itself. The time of employed solicitors is the firm's time, and when those solicitors work on the firm's own litigation, the firm loses the value of those hours which might otherwise have been profitably utilised for clients.

Justice Jagot also wrote separately, siding with Justice Steward's position.

Quantification of Recoverable Costs

The High Court in Birketu provided important guidance on the quantification of recoverable costs for employed solicitors. The Court addressed this in paragraphs 31-36 of the judgment, under the heading "Quantification."

The majority noted that concerns about law firms potentially profiting from litigation through employed solicitors relate not to "the availability of such recompense by way of an order for costs but to its quantification by way of assessment" (para 31). This is an important distinction—the principle of recoverability is separate from the method of quantification.

The Court explained the traditional approach in paragraph 33:

"The plurality in Bell Lawyers noted that 'the traditional approach has been to award costs on a basis comparable to the costs which would have been incurred and allowed ... had an independent solicitor been engaged' on the 'assumption', or more accurately the 'sensible and reasonable presumption', that application of the approach will not ordinarily result in an employer-litigant obtaining more than an indemnity for expenses actually incurred."

Critically, paragraph 34 establishes that this presumption is rebuttable:

"The presumption on which the traditional approach is founded has never been treated as more than a presumption of fact, it being open to an objecting party to show that application of the approach in a particular case would in fact result in the employer-litigant receiving more than an indemnity for expenses actually incurred."

The Court further noted in paragraph 35 that in assessment proceedings, while an assessor might investigate whether the principle of indemnity would be infringed, "this task is not one which should be undertaken without a good and sufficient cause." The mere fact that costs are being sought for work done by employed solicitors of a litigant law firm is not sufficient to trigger such an investigation.

The judgment also mentioned in paragraph 36 that there might be an alternative approach involving a different conception of "indemnity" which could affect quantification differently, though this was not fully developed as it wasn't necessary for resolving the case.

The Combined Impact of Both Decisions

Read together, Bell Lawyers and Birketu establish a framework for costs recovery that can be summarised as follows:

1. The general rule is that self-represented litigants cannot recover professional costs for their own time spent in litigation.

2. This rule applies equally to solicitors and law firms that represent themselves (the Chorley exception is abolished).

3. A law firm can recover costs for work done by its employed solicitors when the firm is a party to the proceedings.

4. The "in-house solicitor rule" remains intact: when a government department, corporation, or other entity is represented by its employed solicitor, that entity can recover costs.

5. In quantifying recoverable costs, courts will generally use the traditional approach of comparing the costs to those that would have been incurred had an independent solicitor been engaged, but this is subject to the presumption not resulting in the litigant obtaining more than an indemnity.

This framework has significant implications for litigation strategy for law firms that become involved in litigation themselves.

A Worked Example

Consider a hypothetical scenario from a former client's perspective:

Acme Corporation is sued by its former solicitors, Smith & Jones LLP, for unpaid fees totalling $500,000. Smith & Jones succeeds in the litigation, with Ms. Smith (a partner) acting as the solicitor on the record and the firm's employed solicitors performing most of the legal work. The court orders Acme to pay Smith & Jones' costs.

Smith & Jones submits a bill claiming $140,000 for work done by its employed solicitors, calculated at rates comparable to what would have been charged by independent solicitors. Acme, hoping to reduce this amount, considers challenging the quantification.

Following Birketu, Acme understands that while Smith & Jones can recover costs for work done by employed solicitors, the High Court emphasised that these costs should represent a true indemnity. Importantly, the Court noted (at paragraph 35) that although a costs assessor might investigate whether the principle of indemnity is being infringed, "this task is not one which should be undertaken without a good and sufficient cause." The mere fact that costs are being sought for work done by employed solicitors is not sufficient to trigger such an investigation.

To challenge the quantification of costs, Acme faces a multi-step task to establish that the assessment should be limited to a true indemnity rather than market rates:

Step 1: Understand what constitutes a "true indemnity"
A true indemnity in this context means the actual expense incurred by Smith & Jones in having employed solicitors work on the litigation. This comprises primarily:

• Salary costs: The portion of the employed solicitors' annual salaries attributable to the time spent on this matter (e.g., if a solicitor earning $60,000 annually spent 10% of their working time on the matter, the salary component would be $6,000)

• Overheads: The additional costs necessarily incurred in employing the solicitors, including office space, equipment, administrative support, professional indemnity insurance, and other practice costs that would not have been incurred but for the employment of these solicitors

• Opportunity costs: Though more controversial, potentially the value of other billable work the employed solicitors could have undertaken for paying clients during the time spent on this litigation. Arguments for including opportunity costs suggest they represent real economic loss to the firm and are consistent with the High Court's recognition in Birketu that firms incur actual costs when deploying employed solicitors on their own litigation. Arguments against contend that opportunity costs are speculative, difficult to quantify, and their inclusion might reintroduce the profit element that Bell Lawyers sought to eliminate from self-representation.

Step 2: Establish a prima facie case of "good and sufficient cause"
Acme must identify specific grounds suggesting that Smith & Jones' claimed costs substantially exceed a true indemnity. This requires more than mere assertion—Acme needs evidence suggesting a significant disparity.

Step 3: Gather available evidence
Without access to internal firm records, Acme must rely on indirect evidence such as market knowledge, prior dealings with Smith & Jones, and expert testimony about typical employment costs for comparable firms.

The critical challenge for Acme is meeting the threshold of "good and sufficient cause" with limited information, as the High Court has intentionally set a high bar to avoid routine investigations into firms' internal cost structures.

As a former client with limited insight into Smith & Jones' internal operations, Acme considers what might constitute "good and sufficient cause" and what evidence it could realistically obtain:

1. Evidence of profitability disparity: Acme could argue that allowing recovery at standard market rates would provide Smith & Jones with a significant profit rather than mere indemnity:

   • Publicly available financial information showing the firm's profit margin and ratio of revenue to salary costs

   • Evidence that the firm's business model relies on large markups between employed solicitor costs and billing rates

   • Comparison between the firm's published charge-out rates to clients (which include profit components) and the rates claimed in costs recovery

2. Alternative fee arrangements and discounting practices: Acme could demonstrate:

   • That Smith & Jones routinely offers substantial discounts from their standard rates to clients

   • Evidence the firm uses fixed fee arrangements that effectively discount hourly rates

   • Marketing materials where the firm promotes itself as cost-effective or offering competitive rates

3. Internal versus external rate disparities: Acme could seek to establish:

   • Different rates being charged to different clients for identical work by the same employed solicitors

   • Evidence from recruitment advertisements showing salary ranges that, even with overhead allocations, would result in costs substantially below claimed rates

4. Historical client relationship evidence: Acme could leverage its former relationship:

   • Prior invoices showing the firm's actual billing rates for the same employed solicitors

   • Records of fee discussions where the firm provided cost estimates at rates lower than now claimed

   • Evidence of how the firm described its fee structure during the client relationship

   • Contemporaneous records of which employed solicitors worked on Acme matters and their experience levels

5. Firm structure and staffing patterns: Acme could argue:

   • The firm's high leverage ratio (number of employed solicitors per partner) indicates a business model reliant on marking up junior solicitor time

   • That work claimed at senior solicitor rates was likely performed by junior staff under limited supervision

   • The firm has re-graded fee earners as more senior for costs recovery than how they were presented to clients

The key for Acme is establishing that quantification based on standard market rates would amount to providing Smith & Jones with a profit rather than a true indemnity for costs actually incurred. This aligns with the High Court's emphasis in Birketu that costs awards should provide indemnity for expenses actually incurred by the law firm, not a vehicle for profit from self-representation.

If Acme succeeds in establishing "good and sufficient cause," the costs assessor might then investigate whether the claimed $140,000 genuinely represents an indemnity for costs incurred by Smith & Jones. The costs assessor could potentially reduce the recoverable amount to more closely reflect the firm's actual expenditure on employed solicitors for the litigation.

However, without establishing such "good and sufficient cause," Acme would likely be required to pay costs based on the traditional approach—what would have been incurred had independent solicitors been engaged—even if this exceeds Smith & Jones' actual employment costs.

Key Takeaways

1. Partner/employee distinction matters: Law firms cannot recover costs for work done by partners representing the firm, but can recover costs for work done by their employed solicitors.

2. Quantification follows indemnity principle: The principle of indemnity governs quantification, with a rebuttable presumption that costs comparable to engaging independent solicitors is appropriate.

3. Burden on objecting party: The burden is on the objecting party to demonstrate that the assessed costs would exceed a true indemnity, and costs assessors should not investigate this issue without good cause.

4. Structure enables strategic choices: Different structural arrangements for legal representation provide strategic options for law firms involved in litigation, particularly regarding the allocation of work between partners and employed solicitors.

5. Balance of principles retained: The decisions balance the principle of equality before the law with the principle that costs orders should provide indemnity for expenses actually incurred.

Conclusion

The combined effect of Bell Lawyers and Birketu represents a nuanced approach to costs recovery for legal practitioners. While abolishing the special privilege that solicitors historically enjoyed to recover costs for their own time, the High Court has maintained the principle that litigants—including law firms—should be indemnified for actual expenses incurred, including those relating to employed solicitors.

For law firms, these decisions require thoughtful consideration of how to structure their representation when they themselves are parties to proceedings. While the costs associated with partner time remain non-recoverable, the ability to recover costs for employed solicitors provides significant strategic flexibility.

The decisions also highlight the importance of proper cost recording and allocation, as challenges to quantification may arise where the assessed amount would exceed a true indemnity. Law firms should ensure they maintain clear records that demonstrate the actual costs incurred through the deployment of employed solicitors on their own litigation matters.

The Judicial Reluctance to Engage in Hypothetical Merits Assessment for Costs Determination: An Examination of Lygina and the Ex parte Lai Qin Principles

Introduction

In litigation that concludes without a trial on the merits, the question of costs allocation frequently emerges as a contentious issue. The courts have consistently demonstrated reluctance to engage in hypothetical assessments of how a matter might have been determined had it proceeded to trial. This principle, articulated in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 ("Ex parte Lai Qin"), has been reaffirmed and applied in the recent decision of Lygina v Lawley Legal [2025] WASC 68. This article examines the tension between the presumption that successful parties should receive costs and the judicial reluctance to conduct hypothetical merits assessments when proceedings conclude without substantive adjudication.

The Lygina Decision: Facts and Context

In Lygina v Lawley Legal [2025] WASC 68, the plaintiff, Ms. Lygina, a former client of the defendant law firm, commenced proceedings in June 2022 seeking orders under s 288(2) of the Legal Profession Act 2008 (WA) to set aside costs agreements and requiring Lawley Legal to re-issue bills based on the relevant costs scale. Ms. Lygina's statement of claim alleged various failures by Lawley Legal to comply with obligations under the Legal Profession Act.

Significantly, Lawley Legal did not file a defence. Instead, on 10 November 2022, Registrar Whitbread made orders setting aside the costs agreements and requiring Lawley Legal to re-issue bills drawn on the relevant costs scale. These orders were made in terms proposed by Lawley Legal, which notably did not admit the allegations made in the statement of claim.

After securing these substantive orders, Ms. Lygina sought costs on an indemnity basis, arguing that the defendant's non-compliance with cost disclosure obligations was severe, that Lawley Legal had maintained an untenable defence, and that its conduct fell below professional standards.

Justice Palmer was therefore confronted with a costs application following proceedings that concluded without trial by virtue of the defendant effectively capitulating to the primary relief sought, while expressly not admitting the factual allegations that would ordinarily justify such relief.

The Ex parte Lai Qin Principles and Their Application in Lygina

In Ex parte Lai Qin, McHugh J articulated the fundamental challenge in determining costs where proceedings have been resolved without trial:

"When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order."

McHugh J distinguished between two categories of cases:

1. Cases where "one party, after litigating for some time, effectively surrenders to the other"; and

2. Cases where "some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs."

Justice Palmer in Lygina determined that the case fell into the first category, finding that "Lawley Legal's decision to agree to the substantive orders sought by Ms. Lygina involved a capitulation by Lawley Legal that establishes that Ms. Lygina was the successful party in these proceedings."

However, Justice Palmer declined to order indemnity costs, stating:

"Determination of whether Lawley Legal engaged in 'severe' non-compliance with its obligations, could not defend the proceedings because of that non-compliance, or engaged in unprofessional conduct as claimed by Ms. Lygina, would require the determination of the principal disputed matters of fact in these proceedings. I am not satisfied that it would be possible to properly determine these matters on the basis of the evidence presently available to the court."

Justice Palmer relied upon Basten JA's observation in Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 that an order for costs should only be made "where that judgement is manifest by reference to known circumstances, not in dispute between the parties. If the question cannot be answered without reviewing large swathes of evidence and resolving, on a tentative basis, disputed questions of fact, the task should not be embarked upon."

The Tension: Success Without Trial vs. Avoiding Hypothetical Adjudication

The Lygina decision exemplifies the tension courts face: on one hand, recognising that a party who secures the relief sought should ordinarily receive costs; on the other hand, refusing to engage in what would amount to a "trial on the papers" solely for costs purposes.

Justice Palmer resolved this tension by:

1. Determining that Ms. Lygina was the successful party based on Lawley Legal's capitulation to the primary relief sought;

2. Ordering costs on a party/party basis, reflecting her success; but

3. Rejecting indemnity costs, which would have required judicial determination of disputed factual matters central to the substantive case.

This approach honours both the principle that successful parties should receive costs and the principle that courts should not conduct hypothetical merit assessments of untried cases.

A Worked Example: Application of the Principles

Consider a hypothetical scenario involving Smith v Jones Professional Services:

Smith is employed by Jones Professional Services as an accountant. Their employment agreement contains a restraint of trade clause. When Smith subsequently leaves Jones and begins servicing former clients, Jones commences proceedings alleging breach of the restraint clause and seeking an injunction and damages.

After discovery reveals potentially problematic drafting in the restraint clause, Jones agrees to consent orders discontinuing the proceedings, with the orders expressly stating that Jones does not admit any of Smith's defences or counterclaims.

Smith then seeks indemnity costs, arguing that:

1. Jones knew the restraint was unenforceable when proceedings commenced;

2. Jones engaged in intimidatory conduct; and

3. Jones deliberately pursued unmeritorious litigation for an improper purpose.

Applying the Lygina principles, the court would likely:

1. Identify that Jones' agreement to discontinue constituted a capitulation, making Smith the successful party;

2. Award Smith costs on a party/party basis reflecting this success; but

3. Decline to award indemnity costs, as determining whether Jones knew the restraint was unenforceable or had improper purposes would require the very trial the consent orders avoided.

Key Takeaways

1. Capitulation vs. Settlement Distinction: Courts distinguish between a party's capitulation (which will normally result in costs following the event) and settlement due to supervening circumstances (which may result in no order as to costs).

2. Evidence Required for Indemnity Costs: Mere allegations of unreasonable conduct, improper purpose, or untenable defence will not suffice for indemnity costs if these allegations remain untested and disputed. Courts will not conduct a "hypothetical trial" solely for costs purposes.

3. Strategic Implications for Consent Orders: Parties agreeing to consent orders should carefully consider the costs implications. A non-admission clause will not shield a party from ordinary costs if the court characterises the consent as effective capitulation.

4. Threshold for Determining "Special Circumstances": Courts require clear, undisputed evidence of "special or unusual features" to award indemnity costs in matters resolved without trial. This evidence must be "manifest by reference to known circumstances, not in dispute."

5. Documentation of Conduct: Parties seeking indemnity costs should document the opposing party's conduct contemporaneously and seek to have unreasonable conduct acknowledged in correspondence or court proceedings, rather than relying solely on contested allegations.

Conclusion

The Lygina decision reinforces the courts' adherence to the Ex parte Lai Qin principles, demonstrating judicial reluctance to engage in hypothetical merits assessments solely for costs determination. While courts will identify "successful parties" based on practical outcomes (including capitulation through consent orders), they will not delve into contested factual matrices to determine whether conduct warrants special costs orders unless those facts are manifest and undisputed.

This approach balances efficiency with fairness: successful parties receive their costs without courts having to conduct "paper trials" of factual disputes that the parties themselves chose not to litigate to conclusion. Practitioners should therefore be mindful that while non-admission clauses in consent orders may protect against substantive liability findings, they will not shield a capitulating party from normal costs consequences.

Malice in Defamation: Meaning, Role, and Proof in Western Australian Law

1. Introduction

Significance of Malice

The concept of 'malice' occupies a pivotal position within Australian defamation law. While not an element of the cause of action itself, malice becomes critically relevant when a defendant seeks to rely upon certain defences, most notably qualified privilege (both statutory and common law) and honest opinion (or its common law precursor, fair comment). Proof that a defamatory publication was actuated by malice—essentially, made with an improper motive or state of mind—can negate these defences, stripping the defendant of legal protection that might otherwise be available (Roberts v Bass (2002) 212 CLR 1 at [62]-[65] per Gaudron, McHugh and Gummow JJ).

Purpose and Scope

This section provides guidance on the definition, role, proof, and procedural handling of malice in defamation proceedings. It focuses on the application of malice under the Defamation Act 2005 (WA) ('the Act') and the relevant common law principles preserved by the Act. The aim is to offer practical assistance, grounded in established jurisprudence, particularly from the High Court of Australia and relevant appellate courts, with specific reference to Western Australian provisions and case law where feasible.

Structure Overview

This analysis will proceed by:

• Defining malice as understood in Australian common law, which informs its application under the Act.

• Explaining the specific role of malice in defeating the statutory defences of qualified privilege (s 30) and honest opinion (s 31) under the WA Act, as well as analogous common law defences.

• Detailing the requirements for pleading and proving malice, including the burden and standard of proof, and the types of evidence typically relied upon.

• Illustrating the principles through analysis of key case law examples where malice was successfully or unsuccessfully argued.

• Providing practical guidance, including considerations for assessing evidence and directing juries on the issue of malice.

Context: Balancing Interests

Defamation law operates at the intersection of competing fundamental values: the right of an individual to protection of their reputation and the right to freedom of expression, particularly concerning matters of public interest (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 568). The defences available in defamation, and the concept of malice which qualifies some of those defences, represent mechanisms by which the law attempts to strike a balance between these competing interests. Malice serves as a threshold, ensuring that defences designed to protect legitimate communication are not abused for improper ends.

2. Defining Malice in Australian Defamation Law

Common Law Foundation

The Defamation Act 2005 (WA), consistent with uniform defamation legislation across Australia, does not provide a statutory definition of 'malice.' Section 6(2) of the Act expressly states that the Act does not affect the operation of the general law in relation to the tort of defamation except to the extent the Act provides otherwise. Consequently, the meaning of malice, particularly where it is relevant to defeating statutory defences like qualified privilege under section 30(4), is derived from established common law principles. The general law continues to apply to determine whether a publication was actuated by malice when such a finding may defeat a defence.

Core Concepts: Improper Purpose

At its core, malice in defamation law signifies the misuse of an occasion or defence for an improper purpose. Where a defence like qualified privilege exists, it is granted by law to serve a particular public or private interest (e.g., the performance of a duty, the protection of a common interest). Malice arises when the defendant uses that occasion not for its intended purpose, but for some ulterior or foreign motive (Roberts v Bass (2002) 212 CLR 1 at [75]-[76] per Gaudron, McHugh and Gummow JJ).

The seminal articulation of this principle comes from Lord Diplock in Horrocks v Lowe [1975] AC 135 at 149, who stated that qualified privilege is lost if the defendant "misused the occasion for some purpose other than that for which the privilege is accorded by the law." The privilege attaches to the occasion, but it can be defeated if the defendant abuses that occasion. Examples of such improper purposes include publishing out of personal spite, ill will, vindictiveness, or a desire to injure the plaintiff that is unconnected to the duty or interest protected by the privilege (Horrocks v Lowe [1975] AC 135 at 149).

The legal definition of malice thus focuses sharply on the defendant's subjective dominant purpose at the time of publication. This makes it distinct from objective assessments of reasonableness or negligence, although such factors can be relevant evidence from which the subjective purpose might be inferred (Roberts v Bass (2002) 212 CLR 1 at [75]-[76]). This subjective focus is critical: proving, for instance, that a defendant's conduct was objectively unreasonable for the purposes of establishing statutory qualified privilege under section 30(1)(c) of the WA Act is a different exercise from proving the subjective improper purpose required for malice under section 30(4).

The 'Dominant Purpose' Test

Crucially, for malice to be established, the plaintiff must prove that the improper purpose was the dominant or actuating motive for the publication (Roberts v Bass (2002) 212 CLR 1 at [76]). As the High Court affirmed, malice requires proof that the improper motive was the substantial or driving reason for the publication. The mere co-existence of some ill will or secondary improper motive alongside a genuine and dominant proper purpose (i.e., fulfilling the duty or protecting the interest relevant to the privilege) is generally insufficient to establish malice (Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 50-51). The improper purpose must be the primary driver.

Knowledge of Falsity and Reckless Indifference

A defendant's state of mind regarding the truth or falsity of the defamatory matter is highly relevant to determining their purpose.

• Knowledge of Falsity: Publishing defamatory matter knowing it to be false is generally regarded as almost conclusive evidence of malice (Horrocks v Lowe [1975] AC 135 at 150). If a defendant knowingly publishes falsehoods, it is difficult to conceive that they are acting for a purpose protected by the law; such conduct inherently points to an improper motive.

• Reckless Indifference: Publishing defamatory matter with reckless indifference as to its truth or falsity—that is, publishing without caring whether it is true or false—is treated by the law as equivalent to knowledge of falsity (Horrocks v Lowe [1975] AC 135 at 150). Such recklessness demonstrates a lack of honest belief and is strong evidence from which malice (an improper dominant purpose) can be inferred.

While knowledge of falsity or recklessness are often described as forms of malice, it is perhaps more accurate to understand them as powerful evidence from which the core element of malice—the improper dominant purpose—can be inferred. As discussed in Roberts v Bass (2002) 212 CLR 1 at [78], the absence of a positive, honest belief in the truth of the statement is a significant factor pointing towards potential malice, but it is the underlying improper purpose, often evidenced by such recklessness or knowledge, that constitutes malice itself. This suggests a potential two-stage analysis for the fact-finder: first, assessing the defendant's state of knowledge or belief (e.g., knew it was false, was reckless, honestly believed it true), and second, inferring whether this state of mind, combined with other evidence, reveals a dominant purpose foreign to the privilege.

Distinguishing Malice from Other Conduct

It is essential to distinguish malice from other states of mind or conduct that do not necessarily defeat a defence:

• Carelessness or Negligence: Malice is not established by mere carelessness, negligence, impulsiveness, irrationality, prejudice, drawing conclusions from insufficient evidence, or failing to verify facts, unless such conduct is so gross as to warrant an inference of reckless indifference to the truth (Horrocks v Lowe [1975] AC 135 at 150). As established in Horrocks v Lowe, honest belief, even if formed carelessly or based on prejudice, can negate malice if the occasion was used for its proper purpose.

• Strong Language: The use of strong, vehement, or exaggerated language does not, in itself, constitute malice (Horrocks v Lowe [1975] AC 135 at 151). Particularly in contexts such as political debate or a response to an attack, a degree of latitude is allowed. However, language that is utterly disproportionate to the facts or the occasion can be evidence from which an inference of malice might be drawn (Adam v Ward [1917] AC 309 at 339 per Lord Atkinson).

• Honest Belief: A genuine, positive belief in the truth of the defamatory statement is generally inconsistent with malice, even if that belief is mistaken, prejudiced, or unreasonable, provided the dominant purpose of the publication was proper to the occasion (Horrocks v Lowe [1975] AC 135 at 150). However, the High Court in Roberts v Bass indicated that the absence of an honest belief, while not malice per se, is significant evidence pointing towards it ((2002) 212 CLR 1 at [78]).

• Political Motive: In the context of political communication, particularly during election campaigns, an intention to cause political damage to an opponent does not, by itself, constitute an improper motive amounting to malice (Roberts v Bass (2002) 212 CLR 1 at [104]-[105]). This principle reflects the constitutional protection afforded to political communication following Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

3. The Role of Malice in Defeating Defences

General Principle

The rationale for malice defeating defences like qualified privilege and honest opinion lies in the purpose of these defences. They are designed to protect communications made in good faith for legitimate societal or individual purposes (e.g., fulfilling a duty, sharing information on matters of common interest, expressing genuine opinions on public matters). Proof of malice demonstrates that the defendant has abused the protection afforded by the defence, using the occasion or the expression of opinion as a pretext for pursuing an improper objective, such as venting personal spite or knowingly spreading falsehoods (Roberts v Bass (2002) 212 CLR 1 at [62]-[65]).

Statutory Qualified Privilege (s 30 Defamation Act 2005 (WA))

Section 30 of the Act provides a statutory defence of qualified privilege. To establish this defence, the defendant must prove:

• The recipient had an interest or apparent interest (defined in s 30(2)) in having information on some subject (s 30(1)(a)).

• The matter was published to the recipient in the course of giving information on that subject (s 30(1)(b)).

• The conduct of the defendant in publishing the matter was reasonable in the circumstances (s 30(1)(c)). Section 30(3) lists non-exhaustive factors a court may consider in assessing reasonableness, such as the seriousness of the imputation, steps taken to verify, whether the plaintiff's side was sought, and the public interest nature of the matter (Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354).

However, section 30(4) explicitly states: "For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice."

The requirement of 'reasonable conduct' in s 30(1)(c) and the 'malice' defeater in s 30(4) are distinct concepts. A defendant's conduct might be found unreasonable based on the objective factors in s 30(3) (e.g., failing to verify information adequately) without necessarily rising to the level of subjective malice (Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31 at [33]). Conversely, while less likely, it is theoretically possible for conduct to appear reasonable on its face but still be driven by a dominant improper motive (malice). In practice, however, factors strongly indicating malice, such as knowledge of falsity or reckless indifference, would almost certainly render the publishing conduct unreasonable under s 30(1)(c).

This structure creates a potential two-stage inquiry for statutory qualified privilege. The defendant must first satisfy the court that their conduct was objectively reasonable. Even if they succeed, the plaintiff has a second opportunity to defeat the defence by proving subjective malice. This contrasts with traditional common law qualified privilege, which primarily required the defendant to establish the privileged occasion (duty/interest reciprocity), immediately shifting the onus to the plaintiff to prove malice without a separate 'reasonableness' hurdle for the defendant (Roberts v Bass (2002) 212 CLR 1). Consequently, the statutory defence under section 30 may, in some circumstances, offer less robust protection to publishers than its common law counterpart, a point noted by the High Court in Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79.

Honest Opinion (s 31 Defamation Act 2005 (WA))

Section 31 provides a defence for the publication of honest opinion. The core elements require the defendant to prove:

• The matter was an expression of opinion rather than a statement of fact (s 31(1)(a)).

• The opinion related to a matter of public interest (s 31(1)(b)).

• The opinion was based on proper material, meaning material that is substantially true, or published on an occasion of absolute or qualified privilege, or protected by other specified defences (ss 31(5), 31(6)) (Fairfax Media Publications Pty Ltd v Voller (2021) 271 CLR 34).

The defence applies to opinions expressed by the defendant personally (s 31(1)), an employee or agent (s 31(2)), or a third-party commentator whose opinion the defendant publishes (s 31(3)).

The defence under section 31 is defeated if the plaintiff proves the specific state of mind set out in section 31(4). This subsection provides that the defence fails if the plaintiff proves that:

• (For the defendant's own opinion under s 31(1)): "the opinion was not honestly held by the defendant at the time the defamatory matter was published" (s 31(4)(a)).

• (For an employee/agent's opinion under s 31(2)): "the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published" (s 31(4)(b)).

• (For a commentator's opinion under s 31(3)): "the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published" (s 31(4)(c)).

While section 31(4) uses the phrase "not honestly held" rather than "actuated by malice," the concepts are functionally very similar in this context (Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at [3] per Gleeson CJ). Proving that an opinion was not genuinely held by the person expressing it effectively establishes an improper purpose—the defence is intended to protect genuine expressions of opinion, not statements dishonestly presented as opinion. The focus is squarely on the subjective belief (or lack thereof) of the relevant opinion holder at the time of publication.

The distinct terminology used in the Act—"actuated by malice" for qualified privilege (s 30(4)) versus "opinion was not honestly held" for honest opinion (s 31(4))—is noteworthy. While both require proof of an improper subjective state, this linguistic variation might influence how arguments are framed. For section 30, arguments might encompass a broader range of improper motives potentially extraneous to the truth of the statement itself. For section 31, the argument is more tightly focused on whether the opinion expressed was genuinely believed by the relevant person.

Common Law Defences

Section 24 of the Act preserves defences available under the general law, except to the extent the Act provides otherwise. Malice remains relevant to defeating key common law defences:

• Common Law Qualified Privilege: This defence arises in situations involving a reciprocity of duty and interest between publisher and recipient, or where a statement is made in reply to an attack (Toogood v Spyring (1834) 1 CM & R 181; 149 ER 1044). It is defeated if the plaintiff proves the publication was actuated by malice, understood as an improper or foreign purpose, applying the principles from Horrocks and Roberts (Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366).

• Common Law Fair Comment: This defence protects expressions of opinion on matters of public interest based on true facts (Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 743). It is defeated by proof of malice, typically established by showing the comment did not represent the defendant's genuine opinion or was motivated by an improper purpose (London Artists Ltd v Littler [1969] 2 QB 375 at 392-393). While largely superseded by the statutory defence in s 31, the common law defence remains available (Manock v Channel Seven Adelaide Pty Ltd [2006] SASC 192).

4. Proving Malice

Burden and Standard of Proof

The legal burden of proving that a publication was actuated by malice rests squarely and solely on the plaintiff (Horrocks v Lowe [1975] AC 135 at 149-150). Once the defendant establishes the factual basis for a defence capable of being defeated by malice (e.g., the existence of a privileged occasion or the elements of honest opinion), the onus shifts to the plaintiff to prove, on the balance of probabilities, that the defendant acted with the requisite malice (Roberts v Bass (2002) 212 CLR 1 at [76]). The evidence adduced by the plaintiff must be "credible, substantial evidence and not a surmise or a minimal amount of evidence" sufficient to support a positive finding of malice (Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51).

Pleading Requirements

A plaintiff who intends to allege malice to defeat a defence must plead it specifically. It is not sufficient merely to deny the defence in the statement of claim or rely on an implied joinder of issue. Malice must be raised affirmatively in a Reply to the defendant's Defence (Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at 203).

Furthermore, the pleading must contain full particulars of the facts, matters, and circumstances relied upon by the plaintiff to establish the allegation of malice (Bailey v Australian Broadcasting Corporation [1995] Aust Torts Reports ¶81-336). General allegations or boilerplate assertions of malice are insufficient and liable to be struck out. In Western Australia, Order 20, rule 13(1) of the Rules of the Supreme Court 1971 (WA) requires that particulars be given of any pleading alleging a condition of mind, such as malice. Order 20, rule 8 also requires specific pleading of matters which might otherwise take the opposing party by surprise.

The requirement for detailed particulars is not merely procedural; it serves a crucial function in defining the scope of the factual dispute regarding the defendant's state of mind. It compels the plaintiff to articulate the specific basis for the malice allegation at an early stage, enabling the defendant to understand the case they must meet and preventing trial by ambush (Bailey v Australian Broadcasting Corporation [1995] Aust Torts Reports ¶81-336). The plaintiff will generally be confined at trial to proving malice based on the particulars pleaded.

Evidence of Malice

Since malice pertains to the defendant's subjective state of mind or dominant purpose, direct evidence is often unavailable. Consequently, malice must usually be inferred from circumstantial evidence (Roberts v Bass (2002) 212 CLR 1 at [79]). This evidence can be broadly categorised as intrinsic (arising from the publication itself) and extrinsic (arising from circumstances outside the publication).

• Intrinsic Evidence:

  • Language: The tone and terms of the publication. Language that is excessive, vitriolic, sensationalised, or clearly disproportionate to the facts or the occasion may suggest an improper motive (Horrocks v Lowe [1975] AC 135 at 151). However, caution is required, as strong or prejudiced language alone does not equate to malice, especially in certain contexts (Adam v Ward [1917] AC 309 at 339-340).

  • Mode and Extent of Publication: Publishing the defamatory matter more widely than the privileged occasion warrants can indicate malice (Roberts v Bass (2002) 212 CLR 1 at [104]). For example, broadcasting allegations to the public when the duty/interest relationship only exists with a specific individual.

  • Inclusion of Irrelevant Matter: Including defamatory statements that are clearly irrelevant to the purpose of the privileged occasion may suggest the occasion is being used as a cloak for malice (Adam v Ward [1917] AC 309 at 334).

  • Lack of Factual Basis: A complete absence of any foundation for the defamatory statement within the publication itself might support an inference of recklessness or improper motive (Webb v Bloch (1928) 41 CLR 331 at 363-364).

  • Internal Evidence of Falsity: The publication itself might contain information known to the defendant that contradicts the defamatory imputation (Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 at 461).

• Extrinsic Evidence:

  • Defendant's Knowledge or Belief: Evidence that the defendant knew the statement was false, or had no positive belief in its truth, or was recklessly indifferent (Horrocks v Lowe [1975] AC 135 at 150).

  • Defendant's Conduct: Evidence of prior hostility, arguments, disputes, threats, or expressions of ill will between the defendant and the plaintiff can indicate an underlying improper motive (Thomas v Mowbray [1935] 2 KB 113 at 120).

  • Sources and Verification: Evidence that the defendant relied on sources known to be unreliable, deliberately avoided obvious sources of information, or failed to make reasonable inquiries or attempts to verify the defamatory allegations, particularly when serious and easily checkable, can point to reckless indifference (Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 51-52 per Brennan J).

  • Response to Contradiction/Apology: Evidence that the defendant refused to listen to or publish an explanation or contradiction offered by the plaintiff, or unreasonably refused to apologise or retract the statement after its falsity was demonstrated, can be relevant (Wakley v Cooke (1849) 4 Ex 511 at 515-516; 154 ER 1315 at 1317).

  • Repetition: Unjustified repetition of the defamatory statement, especially after its falsity has been pointed out, may indicate malice (Clark v Molyneux (1877) 3 QBD 237 at 247).

  • Evidence of Plan or Conspiracy: Evidence showing the publication was part of a deliberate plan or conspiracy to injure the plaintiff (Angel v H H Bushell & Co Ltd (1968) 1 QB 813 at 831-832).

  • Attempts to Mislead or Conceal: Evidence that the defendant attempted to mislead the court or conceal relevant facts about their state of mind or sources (Gouldsmith v Carruthers (1798) 1 Camp 121; 170 ER 906).

Inferring Malice

The task for the court or jury is to consider the whole of the evidence—both intrinsic and extrinsic—and determine whether, on the balance of probabilities, it supports an inference that the defendant's dominant purpose in publishing the defamatory matter was improper and foreign to the occasion or defence relied upon (Roberts v Bass (2002) 212 CLR 1 at [75]-[79]). The inference drawn must be a reasonable and definite one based on the evidence, not mere speculation or conjecture (Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51-52).

The inherent difficulty in proving a subjective state of mind means that establishing malice can be challenging for plaintiffs (Horrocks v Lowe [1975] AC 135 at 149-151). The reliance on circumstantial evidence and inference makes the assessment highly fact-sensitive and potentially less predictable than proving objective elements.

5. Case Law Illustrations (Worked Examples)

Examining specific cases helps illustrate how the principles of malice are applied in practice.

Malice Established

• Roberts v Bass (2002) 212 CLR 1 (Regarding Appellant Roberts):

  • Facts: During a South Australian election campaign, Mr Roberts authorised the publication of three documents targeting the incumbent, Mr Bass. These included a mocking postcard implying a taxpayer-funded holiday, a pamphlet containing a forged Ansett Frequent Flyer statement suggesting misuse of travel entitlements, and a 'how-to-vote' card with various untrue allegations concerning Mr Bass's policies and activities (e.g., junkets, secret hospital deals, gun rights stance).

  • Finding on Malice (Roberts): Although the High Court majority ultimately allowed Roberts' appeal based on the application of Lange privilege principles, the lower courts and dissenting/concurring judgments in the High Court provide insight into evidence supporting malice. The trial judge found Roberts' dominant purpose went beyond mere political damage to intending to lower Bass's reputation generally, and that he published allegations recklessly, without caring if they were true (Roberts v Bass (2002) 212 CLR 1 at [39]-[42] per Gleeson CJ). The use of a forged document was particularly indicative of an improper motive. Gleeson CJ and Hayne J in the High Court found Roberts acted with malice due to recklessness regarding truth or falsity ((2002) 212 CLR 1 at [216]-[219] per Hayne J). Callinan J also found recklessness ((2002) 212 CLR 1 at [248]).

  • Relevance: This case demonstrates how actions like forgery and the dissemination of serious allegations known to be untrue or made with reckless indifference can constitute strong evidence of malice, potentially overcoming the latitude given to political speech. It underscores the fact-intensive nature of the inquiry into the publisher's dominant motive.

• Smith v Stevens [2022] WASC 116 (Western Australia):

  • Facts: A director (Stevens) of a WA Aboriginal Corporation emailed a document containing defamatory allegations (mismanagement, dishonesty, breach of duty) about two fellow directors (Smith, Camille) to the other board members.

  • Finding of Malice: The WA Supreme Court found that although the communication occurred on an occasion of qualified privilege (directors sharing a common interest in corporate governance), the defence under both common law and s 30 of the Act was defeated because Stevens was actuated by malice (Smith v Stevens [2022] WASC 116 at [328]-[334]). Key evidence supporting this finding included: (1) Stevens' own admission that he prepared the document partly out of a desire to retaliate against perceived attacks from Camille; (2) Stevens' failure to make sufficient inquiries to verify many of the serious allegations, indicating recklessness as to their truth; and (3) Stevens' poor attendance at board meetings, which undermined his claim to be acting solely out of genuine concern for the Corporation's governance.

  • Relevance: This WA authority provides a clear example of how extrinsic evidence (admission of retaliatory motive, poor attendance) combined with intrinsic factors (unverified serious allegations) can establish a dominant improper purpose (malice), thereby defeating qualified privilege even where a legitimate common interest exists between publisher and recipient.

Malice Not Established / Defence Upheld

• Roberts v Bass (2002) 212 CLR 1 (Regarding Appellant Case):

  • Facts: The second appellant, Mr Case, distributed the 'Orange Pamphlet' (the how-to-vote card containing untrue statements about Bass) at a polling booth for several hours on election day. The pamphlet had been prepared and authorised by Mr Roberts.

  • Finding on Malice (Case): The High Court majority held that malice had not been established against Mr Case (Roberts v Bass (2002) 212 CLR 1 at [80]-[82]). Although the material was defamatory and published on a privileged occasion (political communication), the evidence did not demonstrate that Case himself possessed an improper motive. He was merely distributing material prepared by Roberts, and there was insufficient evidence to show he shared Roberts' recklessness or improper purpose, or that he acted for any dominant purpose other than participating in the election campaign.

  • Relevance: This illustrates the important principle that malice must generally be proven against each individual joint publisher (unless vicarious liability applies) (Egger v Viscount Chelmsford [1965] 1 QB 248 at 263). The malice of the author (Roberts) was not automatically imputed to the distributor (Case). It also reinforces that a motive to participate in political campaigning, even if aimed at damaging an opponent, is not, in itself, malice.

• Aktas v Westpac Banking Corporation (2010) 241 CLR 79:

  • Facts: A bank mistakenly applied a court order to the wrong account, leading it to dishonour cheques drawn on that account with the notation "Refer to drawer," which was held to be defamatory.

  • Finding on Malice: The court held that the bank's communication ("Refer to drawer") was made on an occasion of qualified privilege (a communication made in the conduct of its affairs where its interest was concerned). Crucially, the court found that the bank's mistake in applying the order did not, by itself, constitute malice or destroy the privilege. The plaintiff needed to prove actual malice—an improper motive beyond the error—on the part of the bank, which was not established on the facts.

  • Relevance: This case reinforces that negligence or error, even if leading to a defamatory publication on a privileged occasion, does not automatically equate to malice. Malice requires proof of a specific, subjective improper state of mind, such as knowledge of falsity, reckless indifference, or an intention to injure, separate from the mere fact of the mistake (Horrocks v Lowe [1975] AC 135 at 149).

Comparing these cases underscores that findings of malice turn heavily on the specific evidence available regarding the defendant's state of mind and dominant motive at the time of publication. General ill will or the publication of defamatory material on a privileged occasion is insufficient; the plaintiff must adduce specific evidence, whether intrinsic or extrinsic, pointing clearly to an improper purpose that actuated that particular defendant's publication.

6. Practical Guidance (WA Focus)

Assessing Evidence of Malice

Judicial officers and practitioners assessing potential malice should consider:

• Cumulative Effect: Evaluate the combined weight of all evidence suggesting malice. Individual pieces might be weak, but together they may paint a compelling picture of improper motive (Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51).

• Context: The context of the publication is crucial. Greater latitude may be afforded to political speech or statements made in reply to attack compared to unsolicited private communications (Roberts v Bass (2002) 212 CLR 1 at [104]-[105]).

• Failure to Apologise/Retract: While relevant extrinsic evidence, a refusal to apologise or retract should be assessed cautiously, considering the reasons given (if any) and the overall circumstances. It is not determinative of malice (Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 515-516).

• Verification Efforts: Close attention should be paid to the nature of the allegations, the defendant's sources, and the steps taken (or not taken) to verify the information, particularly in relation to the factors listed for reasonableness under s 30(3) of the WA Act. A cavalier approach to truth-checking serious allegations can support an inference of reckless indifference (Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 51-52 per Brennan J).

Pleading and Particulars

Practitioners must ensure malice is pleaded in a Reply with full and precise particulars, complying with Order 20, rules 8 and 13 of the Rules of the Supreme Court 1971 (WA). Failure to do so risks the pleading being struck out or the plaintiff being unable to lead evidence on malice at trial. Defendants should scrutinise the particulars provided and consider seeking further and better particulars if they are inadequate (Bailey v Australian Broadcasting Corporation [1995] Aust Torts Reports ¶81-336).

Guidance on Judicial Directions to Juries on Malice (WA Context)

Given that section 21 of the Defamation Act 2005 (WA) permits parties to elect for trial by jury on liability issues (including malice), clear and accurate judicial directions are paramount in Western Australia. Section 22 outlines the respective roles of the judicial officer and jury.

• Threshold Question for Judge: The trial judge must first determine if there is any evidence adduced by the plaintiff that is reasonably capable of supporting a finding of malice. If there is no such evidence, the issue of malice should be withdrawn from the jury, and the defence (if otherwise established) will succeed (Adam v Ward [1917] AC 309 at 348 per Lord Sumner).

• Content of Jury Directions: Where there is sufficient evidence, the judge's directions on malice should cover the following points:

  1. Identify the specific defence(s) raised (e.g., statutory qualified privilege under s 30, honest opinion under s 31) to which malice is relevant.

  2. Explain that if the jury finds the elements of the defence established by the defendant, the defence succeeds unless the plaintiff proves malice (or lack of honest belief for s 31) (Horrocks v Lowe [1975] AC 135 at 149).

  3. Clearly state that the burden of proving malice rests solely on the plaintiff (Horrocks v Lowe [1975] AC 135 at 149).

  4. Explain the standard of proof: the plaintiff must prove malice on the balance of probabilities (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171).

  5. Define malice: the use of the occasion for a dominant purpose or motive foreign to the purpose for which the law grants the protection (e.g., spite, ill will, intention to injure unrelated to the duty/interest) (Roberts v Bass (2002) 212 CLR 1 at [75]-[76]).

  6. Explain the relevance of the defendant's state of mind regarding truth: publishing knowing the matter is false, or with reckless indifference to its truth or falsity (not caring if it is true or false), is strong evidence from which malice may be inferred (Horrocks v Lowe [1975] AC 135 at 150).

  7. Distinguish malice from conduct that does not constitute malice: mere carelessness, error, negligence, impulsiveness, prejudice, irrationality, or strong language, unless these factors demonstrate reckless indifference or an improper dominant purpose (Horrocks v Lowe [1975] AC 135 at 150-151).

  8. For the s 31 honest opinion defence, direct the jury specifically on the test in s 31(4): whether the plaintiff has proved, on the balance of probabilities, that the opinion was not honestly held by the relevant person (defendant, employee/agent, or commentator, as applicable) (Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at [3] per Gleeson CJ).

  9. Instruct the jury to consider all the relevant evidence, both intrinsic (e.g., language of the publication) and extrinsic (e.g., defendant's conduct, knowledge, inquiries), in deciding whether malice has been proven (Roberts v Bass (2002) 212 CLR 1 at [78]-[79]).

  10. If there are multiple defendants, direct the jury that malice must be considered and proven individually against each defendant against whom it is alleged (unless vicarious liability is applicable) (Egger v Viscount Chelmsford [1965] 1 QB 248 at 263). Reference should be made to the specific WA Act sections (ss 21, 22, 30(4), 31(4)).

The availability of jury trials for liability in WA places a significant onus on judges to ensure these complex concepts are conveyed accurately and understandably to lay jurors (Abram v Channon [1934] WAR 90 at 92-93). The nuances differentiating malice from carelessness, recklessness as evidence versus malice itself, and the specific test for honest opinion require careful formulation.

Furthermore, the principle that malice must be proven individually against joint publishers carries significant practical weight in multi-defendant cases common in media litigation (e.g., involving author, editor, and publishing company) (Egger v Viscount Chelmsford [1965] 1 QB 248 at 263). Pleadings, evidence, and jury directions must meticulously differentiate between defendants, as a finding of malice against one does not automatically defeat the defence for others who lacked the requisite improper state of mind (absent vicarious liability).

Summary Disposal

While malice is typically a question of fact best determined at trial after hearing all the evidence (Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51), a defendant faced with a Reply pleading malice may consider a strike out application if the particulars pleaded are manifestly insufficient to support a finding of malice. However, courts are generally cautious about determining issues involving state of mind summarily (Spencer v Commonwealth of Australia (2010) 241 CLR 118).

7. Conclusion

Malice remains a crucial, albeit complex, concept in Western Australian defamation law. Defined by common law principles focusing on the defendant's dominant improper purpose at the time of publication, it serves as a vital control mechanism, ensuring that defences designed to protect freedom of expression and facilitate necessary communications are not abused. Proof of malice, which rests entirely with the plaintiff, can defeat the significant defences of statutory qualified privilege (s 30) and honest opinion (s 31), as well as their common law counterparts.

Establishing malice requires more than demonstrating error, carelessness, or strong language; it necessitates credible, substantial evidence, often circumstantial, pointing to a subjective state of mind involving knowledge of falsity, reckless indifference to the truth, or a dominant motive foreign to the purpose of the defence, such as personal spite or vindictiveness. The case law, including decisions like Horrocks v Lowe, Roberts v Bass, and the WA case Smith v Stevens, provides essential guidance on the types of conduct and evidence from which malice may be inferred.

For judges and practitioners in Western Australia, a thorough understanding of the common law definition of malice, its specific application under sections 30(4) and 31(4) of the Defamation Act 2005 (WA), the strict pleading requirements, the burden and standard of proof, and the nuances of directing juries on this issue is indispensable for the proper conduct and determination of defamation proceedings. Ultimately, the careful application of the principles surrounding malice helps maintain the delicate balance between protecting individual reputation and safeguarding freedom of speech within the state.

Injurious Falsehood: Proof of Actual Damage

I. Introduction: The Tort of Injurious Falsehood

A. Definition and Essential Elements in Australia

Injurious falsehood, alternatively termed malicious falsehood, is an action established at common law. It serves to protect plaintiffs against provable economic loss resulting from false and malicious statements made by a defendant concerning the plaintiff's business, property, or goods. This focus on economic or commercial interests distinguishes it fundamentally from defamation, which primarily protects personal reputation.

The essential elements of the tort of injurious falsehood in Australia were authoritatively stated by Gummow J in the High Court decision of Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388, drawing upon established common law principles. To succeed, a plaintiff must establish the following four elements:

1. A false statement of or concerning the plaintiff's goods or business.

2. Publication of that statement by the defendant to a third person.

3. Malice on the part of the defendant.

4. Proof by the plaintiff of actual damage suffered as a direct and natural result of the statement. (Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at [9])

Crucially, the plaintiff bears the onus of proving each of these elements, including the falsity of the statement, the existence of malice, and the occurrence of actual damage. This contrasts sharply with defamation, where damage to reputation is often presumed (subject to applicable statutory thresholds such as 'serious harm'), and the falsity of the defamatory statement is presumed unless the defendant proves otherwise through the defence of justification.

The considerable burden placed on the plaintiff, particularly the requirements to prove malice and actual damage, contributes to injurious falsehood being a less frequently litigated cause of action compared to defamation. Nevertheless, its significance has arguably increased following the introduction of uniform defamation legislation across Australia (see, for example, the Defamation Act 2005 (WA)). Section 9 of this legislation restricts the ability of most corporations, particularly those trading for profit or employing 10 or more persons, to sue for defamation. Consequently, for such corporations seeking redress for malicious falsehoods causing economic harm, injurious falsehood often represents the primary, if not the only, available cause of action.

The tort directly addresses the harm—economic loss stemming from malicious lies about a business or its offerings—that these corporations may suffer. Furthermore, unlike defamation, claims in injurious falsehood are not constrained by the 'single meaning' rule, potentially allowing for greater flexibility in pleading the harmful implications of a statement. Thus, despite the acknowledged difficulties in proof, injurious falsehood occupies a necessary space in the legal landscape, providing a remedy tailored to the protection of commercial interests against specific forms of malicious attack.

B. Distinguishing Injurious Falsehood from Defamation (Focus on Malice and Damage)

While both torts involve harm arising from published statements, the distinctions between injurious falsehood and defamation are critical.

Malice: Malice is an essential ingredient of injurious falsehood. It signifies more than mere negligence or carelessness; it requires proof that the defendant published the falsehood with an improper motive, such as an intent to injure the plaintiff without just cause or excuse. Malice can be established by showing the defendant knew the statement was false, acted with reckless indifference as to its truth or falsity (amounting to willful blindness), or was actuated by some dishonest or improper purpose. An honest belief in the truth of the statement, even if negligently formed, will generally negate malice (Seafolly Pty Ltd v Madden [2012] FCA 1346). In contrast, malice is generally not required to establish liability in defamation, although it may defeat certain defenses (like qualified privilege or honest opinion) and can be relevant to the assessment of aggravated damages.

Damage: This is the central focus of this article. Injurious falsehood is actionable only upon proof of actual damage, meaning quantifiable economic or pecuniary loss. The damage is the "gist of the action" (Ratcliffe v Evans [1892] 2 QB 524). Defamation, historically, is actionable per se (without proof of damage), as harm to reputation is presumed upon publication of defamatory matter. However, this common law position has been modified in jurisdictions that have adopted a 'serious harm' threshold as an element of the cause of action for defamation.

Falsity: In injurious falsehood, the plaintiff must plead and prove that the defendant's statement was false. In defamation, the law presumes the defamatory statement is false; the burden falls on the defendant to prove the truth of the imputation(s) via the defense of justification.

Standing (Corporations): As noted earlier, corporations that are precluded from suing in defamation by statute (typically for-profit corporations or those with 10 or more employees) may still bring an action for injurious falsehood if they can prove the requisite elements, including actual damage.

Limitation Period: The limitation period for injurious falsehood, as an action on the case, is generally six years. This contrasts with the shorter one-year limitation period (subject to potential extension) applicable to defamation actions under the uniform Defamation Acts.

II. The Requirement of Actual Damage

A. Nature of 'Actual Damage': Provable Economic Loss

The cornerstone of a successful claim in injurious falsehood is the proof of "actual damage." This term signifies demonstrable financial or pecuniary loss suffered by the plaintiff as a consequence of the defendant's malicious falsehood. As Bowen LJ stated in the seminal case of Ratcliffe v Evans [1892] 2 QB 524, actual damage is the very "gist of the action."

The loss must be capable of estimation in monetary terms. Unlike defamation, where damages can compensate for intangible harm like hurt feelings or damage to personal standing, injurious falsehood does not provide a remedy for mere injury to feelings or reputation in the absence of consequent economic loss.

Historically, there was some ambiguity regarding the scope of recoverable damage, with references sometimes made to "special damage." "Special damage" in tort law often carries a specific meaning, referring to pecuniary losses that have accrued up to the date of trial and which must be specifically pleaded and proved with particularity. However, the High Court's formulation in Palmer Bruyn, employing the term "actual damage" (Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at [9]), suggests a broader compass consistent with the language in Ratcliffe. It indicates that the tort compensates for the full measure of the economic detriment flowing as a natural and probable consequence of the falsehood, encompassing not only past losses but also provable future economic losses. This aligns the assessment of damages in injurious falsehood more closely with general tort principles, which aim to compensate the plaintiff for all foreseeable consequences of the wrongful act, subject to the specific rules of causation and remoteness applicable to intentional torts. Therefore, plaintiffs are entitled to claim for demonstrable ongoing business detriment or the loss of future commercial opportunities directly caused by the defendant's malicious statement, provided such losses can be adequately proven.

B. Onus and Standard of Proof

The plaintiff carries the legal burden of proving, on the balance of probabilities, both the existence of actual damage and the causal link between that damage and the defendant's malicious publication.

The standard of proof required was articulated in Ratcliffe v Evans [1892] 2 QB 524 at 533: "As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable having regard to the circumstances and to the nature of the acts themselves by which the damage is done." This requires plaintiffs to present the best evidence reasonably available to demonstrate their loss. While absolute mathematical precision may not always be attainable, particularly when proving a general loss of business, a plaintiff must provide sufficient evidence to allow the court to quantify the loss with a reasonable degree of confidence.

This evidentiary requirement represents a significant practical hurdle for plaintiffs. Proving that a specific, quantifiable economic loss was directly caused by the defendant's statement, rather than by other market forces, competitor actions, or internal business factors, can be exceptionally challenging. The difficulty lies in isolating the impact of the falsehood amidst the complexities of commerce. This often necessitates sophisticated analysis, potentially involving forensic accountants or market experts, to dissect financial data, model counterfactual scenarios ('but for' the falsehood), and attribute loss specifically to the defendant's conduct. The failure to adduce "concrete evidence" demonstrating both the fact of damage and its causal connection to the defendant's statement was fatal to the plaintiff's claim in Seafolly Pty Ltd v Madden [2012] FCA 1346, highlighting the critical importance and difficulty of meeting this evidentiary burden. This inherent difficulty is a primary reason why injurious falsehood is considered a challenging and relatively infrequently pursued action.

C. Exception: Injunctive Relief and Probable Damage

An important qualification to the requirement of proving suffered actual damage arises in the context of injunctive relief. Where a plaintiff acts promptly to seek an interlocutory injunction to restrain the publication or further publication of an injurious falsehood, and the injunction is granted, the claim may potentially be maintained even if quantifiable damage has not yet fully accrued.

In Mahon v Mach 1 Financial Services Pty Ltd (No 2) [2013] NSWSC 10, the Supreme Court of New South Wales held that injurious falsehood could be maintained without proof of actual damage where an early interlocutory injunction had prevented the very damage that might otherwise have ensued. In such circumstances, when deciding whether to grant interlocutory relief (and potentially final relief if damage was imminent but averted), the court may focus on whether actual damage is the reasonably probable consequence of the defendant's publication if allowed to continue unrestrained. This provides a crucial mechanism for preventative justice, allowing courts to intervene before the full economic harm materializes, a particularly relevant consideration given the speed and reach with which falsehoods can spread in the digital age.

III. Types of Recoverable Actual Damage

Actual damage in injurious falsehood can manifest in several forms. The key is that the loss must be economic or pecuniary in nature and causally linked to the defendant's statement.

A. Loss of Identifiable Customers or Sales

The most direct and often easiest form of actual damage to prove is the loss of specific, identifiable custom or transactions. This occurs where the plaintiff can point to particular customers who ceased dealing with the plaintiff, or specific contracts or sales that were lost, directly because of the defendant's falsehood.

Evidence to support such a claim typically involves:

• Testimony from the former customer(s) confirming that they withdrew their custom or cancelled an order due to the defendant's statement.

• Documentary evidence, such as emails or letters from customers explicitly referencing the falsehood as the reason for terminating a relationship or cancelling a contract.

• Business records (e.g., order books, client lists) demonstrating the cessation of business from specific sources immediately following the publication of the falsehood.

Worked Example: A defendant maliciously and falsely publishes that a specific batch of the plaintiff baker's bread contained glass shards. The plaintiff can prove actual damage by adducing evidence from a regular wholesale customer (e.g., a local café) who provides testimony and confirms in writing that they cancelled their standing order for that batch and subsequent orders due to safety concerns arising directly from reading the defendant's publication. The value of the cancelled orders constitutes provable actual damage.

B. General Loss of Business or Custom

1. The Principle in Ratcliffe v Evans [1892] 2 QB 524

Not all damage resulting from an injurious falsehood can be traced to specific lost customers. Where the falsehood is of a nature "calculated in the ordinary course of things to produce, and where they do produce, actual damage" in the form of a general decline in business, the law permits recovery for this general loss. The landmark decision in Ratcliffe established that in such circumstances, evidence of a general diminution of business is admissible and sufficient to prove actual damage, without the plaintiff needing to identify and call every customer who was deterred.

This principle applies particularly where the falsehood is likely to deter potential customers generally, rather than specific individuals known to the plaintiff. Examples include falsely stating that a business has ceased trading (as in Ratcliffe itself), disparaging the quality or safety of goods sold widely to the public, or impugning the title to property offered for general sale.

2. Evidentiary Requirements for Proving General Loss

While Ratcliffe provides flexibility, proving a general loss of business still requires rigorous evidence demonstrating both a decline in trade following the publication and a causal connection between the decline and the defendant's falsehood. Simply showing a downturn after the publication is insufficient; the plaintiff must provide evidence supporting the inference that the falsehood was, on the balance of probabilities, a material cause of that downturn.

Evidence commonly adduced includes:

• Financial Records: Detailed financial statements (profit and loss, balance sheets), sales reports, customer data, budgets, and forecasts, comparing the period after the publication with historical performance, industry benchmarks, or prior projections.

• Operational Data: Evidence of reduced customer inquiries, website traffic, footfall (for physical businesses), or order volumes.

• Market Analysis: Evidence comparing the plaintiff's business performance against relevant market trends or competitor performance to demonstrate that the plaintiff's decline is anomalous and likely attributable to the falsehood rather than general market conditions.

• Expert Evidence: Reports from forensic accountants or economists are often crucial. Experts can analyze complex financial data, perform statistical analyses, model the likely performance of the business 'but for' the falsehood, discount for other contributing factors (e.g., economic climate, competition, internal issues), and provide a quantified estimate of the loss attributable to the falsehood.

• Evidence of Impact: Surveys, evidence of negative online sentiment, or increased customer complaints referencing the falsehood can help establish the connection.

The plaintiff must satisfy the court that the general loss claimed is a natural and probable consequence of the defendant's statement and not primarily due to other unrelated factors.

The principle established in Ratcliffe remains vital, acknowledging the difficulty of tracing every lost sale when a falsehood has a widespread impact. However, the methods available for proving such loss have evolved significantly since 1892. While Ratcliffe allows proof of general loss, contemporary practice demands that plaintiffs utilize available data and analytical tools to provide the court with the most robust and particular evidence reasonably possible. Modern courts, accustomed to sophisticated financial analysis in commercial litigation, will likely expect more than a simple 'before and after' comparison of turnover, particularly where other factors could plausibly explain a decline. Failure to provide persuasive evidence linking the general decline specifically to the falsehood, potentially through expert analysis ruling out alternative causes, risks the claim failing for lack of proof of damage, as underscored by the outcome in Seafolly. The standard remains one of reasonable particularity, but what is considered 'reasonable' evolves with the available means of proof.

Worked Example: A defendant competitor maliciously publishes false technical specifications suggesting the plaintiff's widely sold electronic component is unreliable under certain conditions. The plaintiff cannot identify every potential customer deterred but provides: (i) Verified sales data showing a significant and sustained drop in sales volume commencing shortly after the publication, contrasting sharply with prior stable sales and the positive performance of competitors selling similar components. (ii) A detailed forensic accounting report analyzing the sales data, market conditions, and the plaintiff's marketing efforts, concluding that, after accounting for other variables, the publication caused a specific percentage drop in sales volume, and quantifying the resulting lost profit. (iii) Evidence from distributors reporting increased customer concerns about reliability following the publication. This collective evidence could satisfy the court of a general loss of business caused by the falsehood, consistent with Ratcliffe.

C. Expenses Reasonably Incurred in Counteracting the Falsehood

A plaintiff may recover as actual damage the reasonable expenses they have incurred in taking steps to counteract the negative effects of the defendant's injurious falsehood. This head of damage recognizes that mitigating the harm caused by a malicious publication often requires proactive expenditure.

Examples of potentially recoverable expenses include:

• Costs associated with corrective advertising campaigns.

• Fees paid to public relations consultants to manage the fallout from the falsehood.

• Costs of communicating directly with customers, suppliers, or distributors to reassure them and correct the false information.

• Expenses related to obtaining independent verification or reports to refute the falsehood (e.g., safety audits, technical assessments).

To be recoverable, the expenditure must satisfy several criteria:

1. It must have been actually incurred.

2. It must have been incurred as a direct consequence of the defendant's falsehood.

3. It must have been a reasonable and proportionate response to the publication and its likely impact.

Evidence required would typically include invoices, receipts, contracts for services, and potentially expert opinion on the reasonableness and necessity of the expenditure in the circumstances.

Worked Example: Following a defendant's malicious and false publication questioning the structural integrity of the plaintiff developer's new apartment building, the plaintiff commissions an urgent independent engineering report to verify the building's safety. The plaintiff then distributes a summary of the positive report to all potential purchasers and existing contract holders and places advertisements in local media highlighting the findings. The documented costs of the engineering report and the reasonable costs of the targeted communications and advertising aimed at counteracting the specific falsehood are potentially recoverable as actual damage.

IV. Causation: Linking the Falsehood to the Loss

A. Establishing the Causal Nexus

Proof of actual damage alone is insufficient; the plaintiff must also establish a causal link between the damage suffered and the defendant's tortious conduct – specifically, the malicious publication of the falsehood. The court must be satisfied, on the balance of probabilities, that the defendant's statement was a material cause of the plaintiff's loss. A mere temporal correlation – loss occurring after publication – does not automatically equate to causation.

B. The 'Natural and Probable Consequence' Test

The test for remoteness of damage in injurious falsehood requires the plaintiff to show that the actual damage suffered was the "direct and natural result" or the "natural and probable consequence" of the defendant's publication. This principle, affirmed by Gummow J in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at [9], citing Ratcliffe, governs the extent of loss for which the defendant will be held liable. As injurious falsehood is an intentional tort (requiring malice), this test may permit recovery for consequences that might be considered too remote under the 'reasonable foreseeability' test typically applied in negligence actions. The focus is on the consequences naturally flowing from the intentional wrongdoing.

C. Analysis of Causation in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388

The High Court's decision in Palmer Bruyn provides critical guidance on causation in injurious falsehood. The appellant (Palmer Bruyn, a surveyor) suffered the loss of a retainer with McDonald's after a newspaper published an article reporting on a "bogus letter." This letter, containing false statements about the appellant, had been created and initially published maliciously by the respondent (Parsons) to a small group, intending ridicule.

The central issue was whether the appellant's loss (the termination of the McDonald's contract) was caused by Parsons' original malicious publication of the forged letter. The High Court (by majority) held that it was not. The Court found that the damage resulted from the publication of the newspaper report, which was a separate act by a third party and differed in its nature and impact from Parsons' initial, limited publication. Parsons was not legally responsible for the newspaper's republication. Therefore, the necessary causal connection between Parsons' actionable publication (the initial limited one) and the damage suffered was broken.

The significance of Palmer Bruyn lies in its emphasis on linking the proven damage directly to the specific publication for which the defendant is legally responsible and which constitutes the tort. The 'natural and probable consequence' test must be applied to that specific tortious act. Subsequent republications or actions by third parties, even if foreseeable in a general sense, may constitute intervening acts (novus actus interveniens) that sever the chain of causation leading back to the defendant's original malicious statement, unless the defendant intended or authorized the republication, or it was the natural and probable result of the original publication in circumstances where the third party was likely to repeat it. This requires careful identification of the precise tortious publication relied upon by the plaintiff and rigorous proof that the claimed loss flowed naturally and probably from that specific publication.

D. Difficulties in Proving Causation: Seafolly Pty Ltd v Madden [2012] FCA 1346

The practical challenge of establishing causation is well illustrated by the Seafolly case. Ms Madden published statements on Facebook and via email falsely alleging that Seafolly, a swimwear company, had copied her designs. Seafolly brought proceedings alleging, among other things, injurious falsehood.

Despite findings that Madden's statements were false and arguably made with reckless indifference amounting to malice, the injurious falsehood claim ultimately failed. The primary reason for the dismissal was Seafolly's inability to adduce sufficient "concrete evidence" to prove, on the balance of probabilities, that Madden's specific statements had actually caused it to suffer quantifiable economic loss.

Seafolly underscores the difficulty plaintiffs face in isolating the impact of specific statements (particularly those made online) within a dynamic commercial environment. Proving that a decline in sales, or loss of specific opportunities, was directly attributable to the defendant's falsehood, rather than myriad other factors like competition, changing trends, pricing, or general market conditions, requires persuasive and specific evidence that was found lacking in that case.

V. Quantification of Damages and Evidentiary Matters

A. Principles of Assessment

Once liability is established (including proof of actual damage caused by the falsehood), the court must quantify the damages award. The fundamental principle is compensatory: damages aim to restore the plaintiff, so far as money can, to the economic position they would have occupied had the tortious publication not occurred. This involves assessing the monetary value of the actual economic loss proven to have been caused by the falsehood.

Unlike general damages in defamation, which are awarded 'at large' to compensate for presumed reputational harm and associated distress, damages in injurious falsehood are tied to the specific or general economic loss demonstrated by the evidence.

Because injurious falsehood requires proof of malice as an element of the tort itself, the defendant's state of mind is already central to liability. While the primary focus of damages is compensation for economic loss, the intentional nature of the tort means that aggravated damages (compensating for additional injury or distress caused by the manner of the defendant's conduct) and exemplary or punitive damages (intended to punish the defendant and deter similar conduct) may potentially be available in appropriate, egregious cases. This contrasts with the position under the uniform defamation legislation, which typically caps damages for non-economic loss and often prohibits or restricts awards of exemplary damages.

B. Methods of Quantification

Several methods may be employed, often with the assistance of expert evidence, to quantify the plaintiff's economic loss:

• Lost Profits Calculation: This involves estimating the revenue lost due to sales diverted or prevented by the falsehood, and then deducting the expenses that were saved as a result of not making those sales (e.g., variable costs of goods sold, potentially some saved fixed costs if operations were significantly curtailed). Projecting the 'but for' revenue scenario often involves analyzing historical trends, budgets, and market conditions.

• Market Share Analysis: This method compares the plaintiff's actual market share after the publication with the share it likely would have held 'but for' the falsehood. Expert analysis may be needed to attribute changes in market share specifically to the defendant's conduct, accounting for broader market dynamics.

• Business Valuation Diminution: In cases where the falsehood has caused long-term damage to the plaintiff's business or goodwill, damages may be assessed based on the reduction in the overall capital value of the business. This typically requires expert valuation evidence comparing the business's value before and after the impact of the falsehood.

• Specific Costs: Quantifying the actual, reasonable, and necessary expenses incurred in counteracting the falsehood (as discussed in Part III.C) by summing the relevant documented expenditures.

The appropriate method(s) will depend on the nature of the plaintiff's business, the type of loss suffered, and the available evidence.

C. Types of Evidence Required

Robust evidence is essential for both proving the fact of damage and supporting its quantification. Key categories include:

• Financial Records: Comprehensive and reliable accounting records are fundamental. This includes profit and loss statements, balance sheets, detailed sales data (by product, region, customer, etc.), customer relationship management (CRM) data, budgets, and financial forecasts. These establish baseline performance and demonstrate any post-publication changes.

• Expert Evidence: Forensic accountants are frequently engaged to analyze financial records, apply quantification methodologies (like lost profits calculations), assess causation by isolating the falsehood's impact, and prepare expert reports for the court. Market analysts or industry experts can provide crucial context regarding market conditions, competition, and the likely impact of the falsehood within the specific industry.

• Witness Testimony: Evidence from company management regarding business operations, strategy, and the observed impact of the falsehood. Testimony from specific lost customers (if applicable). Evidence from expert witnesses.

• Supporting Documentation: Copies of lost contracts or orders, correspondence from customers or suppliers referencing the falsehood, invoices and receipts for counteracting expenses, marketing plans, and business records generally.

• Market Data: Independent industry reports, competitor performance data, market research, and analysis of online sentiment or media coverage related to the falsehood can help contextualize the plaintiff's performance and support causation arguments.

VI. Conclusion

The tort of injurious falsehood serves a distinct and important function in protecting economic and commercial interests from harm caused by malicious, false statements. It requires the plaintiff to discharge a significant evidentiary burden, proving not only the falsity of the statement and the defendant's malice, but also that the statement caused actual, quantifiable economic loss.

Actual damage is the cornerstone of the action, encompassing provable pecuniary detriment, including general loss of business and reasonable counteracting expenses. While the principle from Ratcliffe v Evans allows for proof of general loss without identifying specific lost customers, demonstrating causation and quantifying such loss requires robust evidence, often involving detailed financial analysis and expert testimony. The High Court's decision in Palmer Bruyn & Parker Pty Ltd v Parsons highlights the critical need to establish a direct causal link between the specific publication attributable to the defendant and the loss claimed. The potential availability of injunctive relief based on probable damage offers a crucial preventative remedy.

Despite the challenges inherent in proving malice and actual damage, injurious falsehood remains a vital cause of action, particularly for corporations limited in their ability to sue for defamation. It provides a necessary, albeit demanding, pathway for redress against intentional and damaging falsehoods targeting commercial activities.

Proving Publication in Social Media Defamation: Lessons from Munro v Wheeler

Introduction

The recent decision of Munro v Wheeler (No 3) [2025] NSWDC 3 highlights the fundamental challenges that can arise in proving publication in defamation cases, particularly those involving social media.

The case involved two plaintiffs (a veterinarian and her friend) who sued two defendants (a dog owner and a "pet detective") over Facebook posts alleging they had stolen a puppy named Teddy.

The plaintiffs claimed they merely found the wandering puppy and were trying to help, while the defendants posted material suggesting more nefarious motives.

Despite the considerable volume of material before the court, the plaintiffs' claim failed at the critical first hurdle—proving that the allegedly defamatory material was actually published in the form claimed.

The Fundamental Requirement of Publication

Publication is an essential element of any defamation action. It requires more than just showing that defamatory words were made available—it requires proof that at least one third party actually downloaded and comprehended the material.

As Justice Gibson noted in Munro v Wheeler:

"The plaintiffs must establish that the matters complained of were read by a person who downloaded the matter complained of, not merely a part of it." (at [123]). (NOTE: However, contrast this with a finding of a platform of facts from which it could be inferred publication had occurred).

The bilateral nature of publication was emphasized in the defendants' pleadings, which acknowledged that they had "made available for publication" the material, but did not admit that any third party had actually read the entire publications as pleaded. Making material available is only "the first step of a two-step process" (at [143]). Without evidence that someone actually downloaded and read the publication in the form alleged, the publication element failed.

Special Challenges of Social Media Publications

Social media platforms present unique challenges for proving publication in defamation cases. Unlike traditional media with fixed content, social media is characterized by:

1. Fluidity and impermanence: Posts and comments appear and disappear, making reconstruction difficult.

2. Non-sequential reading: Users rarely read entire threads in the exact order presented.

3. Personalization: What appears on one user's feed may differ from another's due to algorithms and privacy settings.

4. Post-publication editing: Content can be modified after initial publication.

5. Variable presentation: Different devices and settings may display content differently.

As noted in the English case Stocker v Stocker [2020] AC 593, social media is consumed differently from traditional publications. Courts must adapt to the "conversational and impressionistic" nature of social media, where readers:

"...do not pore over the literal meaning of each word or the grammar of each phrase or sentence... they scroll through messages relatively quickly and move on." (cited in Bazzi v Dutton (2022) 289 FCR 1 at [29])

The Perils of "Constructed" Publications

Munro v Wheeler demonstrates a common mistake in social media defamation cases—suing on artificially constructed compilations rather than actual publications. The plaintiffs presented two exhibits (A and B) comprising 70 and 40 pages respectively of hundreds of screenshots, often out of chronological order, with multiple copies and poor quality reproduction.

Justice Gibson observed that these exhibits were not documents "anyone ever published on Facebook, but a collection of hundreds of screen shots, out of chronological order and consisting of multiple copies" (at [66]). The problem was compounded when witnesses called to establish publication had seen a different 43-page version, not the exhibits claimed to be the defamatory publications.

This approach mirrors the problems encountered in The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2022] NSWCA 1, where the plaintiffs similarly failed to establish that the artificial constructions they sued upon had ever been downloaded in that form.

Identifying the Publication with Precision

Courts have long emphasized the need to precisely identify what constitutes the defamatory publication. As Justice Bromwich explained in Hayson v Nationwide News Pty Ltd [2019] FCA 81:

"The plaintiff must identify the matter complained of in the precise form which is alleged to be defamatory of them, and... prove publication... in that form." (cited in Munro v Wheeler at [136])

This principle is even more important in the digital context, where evidence must establish both the content of the publication and that it was downloaded in substantially the same form as alleged. In Poland v Fairfax Digital Australia & New Zealand Pty Ltd [2023] WASC 383, Justice Tottle emphasized that plaintiffs must prove the complete publication was downloaded, not merely parts of it.

Fatal or Material Variance

When significant differences exist between what was allegedly published and what can be proven, courts may dismiss claims on that basis alone. This concept was historically known as "fatal variance" in English decisions (see Gatley on Libel and Slander, 12th ed, [32.15]).

While the NSW Court of Appeal in Brien v Mrad [2020] NSWCA 259 rejected this concept as overly rigid, Justice Gibson observed that where there is a "material" difference between the document alleged to have been published and what was actually published, this can be fatal to the claim.

The Queensland Court of Appeal recently addressed this issue in Surie v MacDonald [2024] QCA 254, where minor differences between an email and a letter did not amount to a material variance. By contrast, in Munro v Wheeler, the differences were so substantial that no publication could be established.

Practical Advice for Practitioners

Given the challenges highlighted in Munro v Wheeler, practitioners handling social media defamation cases should consider the following:

1. Capture accurate evidence promptly: Social media content can vanish or change rapidly. Secure proper forensic captures of the exact publication as soon as possible.

2. Sue on actual publications: Avoid constructing artificial compilations. Instead, identify discrete posts or clearly defined threads that represent actual publications.

3. Establish downloading evidence: Ensure witnesses can testify to downloading and reading the specific publications sued upon, not merely similar or partial content.

4. Be precise about imputations: Clearly identify which parts of the publication give rise to each imputation, particularly when dealing with lengthy social media threads.

5. Consider liability alternatives: In appropriate cases, consider suing on republications or pursuing alternative claims like injurious falsehood or misleading conduct.

Conclusion

Munro v Wheeler serves as a stark reminder of the fundamental importance of establishing publication in defamation actions. As Justice Gibson noted, even where serious allegations about plaintiffs were demonstrably made, failure to properly identify and prove publication of the matter complained of can be fatal to a claim.

The case highlights that while the principles underlying defamation law remain consistent, proving publication in the digital age requires careful attention to the unique characteristics of online communication. Practitioners must adapt their approach to ensure that what is pleaded reflects what actually appeared on screen and what was actually downloaded by third parties.

The "Apparent Relevance" Test: Accessing Documents by Subpoena in Defamation Cases

Introduction

A recent defamation case from the New South Wales District Court has provided guidance on when a party can access documents via subpoena in defamation proceedings. In O'Shanassy v Turland (No 3) [2025] NSWDC 27, the Court dealt with an application to set aside a subpoena issued to Westpac Bank seeking financial records of companies associated with the plaintiff. The defendant had sought banking records to support a justification defense. Justice Gibson rejected the plaintiff's application to set aside the subpoena, holding that the documents met the "apparent relevance" test for legitimate forensic purpose.

The "Apparent Relevance" Test for Subpoenas

When a party seeks to access documents via subpoena in defamation proceedings, the documents must satisfy what is known as the "apparent relevance" test. As explained in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [65], a subpoena is justified as having a legitimate forensic purpose if the documents sought are "apparently relevant" to an issue in the proceedings.

The Court in Blacktown explained that this test is satisfied if it can be seen that the documents sought will "materially assist on an identified issue" or if there is a "reasonable basis beyond speculation" that the documents will assist. Importantly, if the material assistance will benefit the party that issued the subpoena, the prospect of the forensic purpose being impugned as illegitimate is "virtually non-existent."

Documents Need Not Be Directly Admissible

Documents sought by subpoena need not be directly admissible as evidence. As noted in Maddison v Goldrick, documents subpoenaed for the purposes of cross-examining a witness are considered documents required for the purposes of evidence. This extends to cross-examination on issues of credit, as highlighted in cases such as Brand, Norris v Kandiah [2007] NSWSC 1296, and Liristis v Gadelrabb [2009] NSWSC 441.

Common Objections to Subpoenas in Defamation Cases

There are several common objections to subpoenas in defamation cases, all of which were addressed in O'Shanassy v Turland (No 3):

1. Lack of written evidence: In defamation cases, oral evidence is the general starting position unless parties apply for statements or affidavits. As noted in Martrat Pty Limited trading as Huxley Hill and Associates v Murphy [2020] NSWDC 1, requirements for written statements typically do not apply to defamation actions.

2. Inadequate particulars: Some plaintiffs argue that subpoenas should be rejected if the defendant has not provided sufficiently detailed particulars of justification. However, as explained in Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331, the requirement for particulars with "precision as in an indictment" is about specificity rather than the amount of information provided.

3. Timing of information: A common objection is that defendants can only rely on information in their possession at the time the defence was delivered. However, the Full Court in Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632; [2019] FCAFC 125 clarified that proof of a justification defence "may be augmented after invoking processes of discovery and production of documents by subpoena."

4. Non-parties to litigation: The fact that a subpoena seeks documents from entities not party to the litigation is irrelevant, provided there is a connection to an issue in the proceedings.

Augmentation of Truth Particulars

A key principle emerging from recent cases is that truth particulars in defamation cases need not be "frozen in time." As Kenneth Martin J stated in Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347, "an augmentation to particulars is a common scenario in commercial litigation, even in defamation actions. It simply means that as more precise information comes to hand, the precision of the particulars is magnified."

This principle recognizes that justification is the "keystone of freedom of speech" and highlights the importance of maintaining public confidence in the legal system, as noted in Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98.

Relevance Beyond the Particulars

Documents sought by subpoena might be relevant to issues beyond the particulars of justification. For example, in O'Shanassy v Turland (No 3), the Court noted that documents were relevant to the plaintiff's plea that knowledge of the falsity of imputations aggravated his hurt to feelings. As pointed out in Della Bosca v Arena [1999] NSWSC 1057, such a plea "raises an 'issue' in the proceedings" that may require production of documents.

Conclusion

The "apparent relevance" test provides a relatively low threshold for accessing documents by subpoena in defamation proceedings. While fishing expeditions remain impermissible, courts generally allow access where there is a reasonable basis to believe the documents will assist on an identified issue or in cross-examination.

Concerns Notices in Defamation Law: Understanding the New Requirements

Introduction: Recent Case Highlights Importance of Valid Concerns Notices

A recent decision from the Supreme Court of Victoria has underscored the critical importance of properly drafted concerns notices in defamation proceedings. In Reiter v News Corp Australia Pty Ltd & Anor [2025] VSC 54, the plaintiff commenced proceedings against News Corp Australia and journalist Mark Murray over an article published in the Geelong Advertiser. The article, titled "Melbourne professor details bizarre encounter with serial Geelong impersonator Kurt Reiter," contained allegations that the plaintiff had been posing as a lawyer and claiming to work for high-profile musicians. The plaintiff claimed this publication damaged his reputation; however, his case was dismissed for failing to comply with the mandatory concerns notice requirements under the Victorian Defamation Act.

The Role of Concerns Notices in Modern Defamation Law

The 2021 amendments to the Defamation Act 2005 (Vic) introduced a mandatory concerns notice procedure. Similar reforms have been implemented in most Australian jurisdictions (though not yet in Western Australia at the time of writing). These amendments represent a significant shift in defamation practice, designed to promote early resolution of disputes and reduce the burden on courts.

Under the reformed legislation, before commencing defamation proceedings, plaintiffs must:

1. Issue a valid concerns notice to the publisher

2. Clearly identify the alleged defamatory imputations

3. Specify the serious harm allegedly caused or likely to be caused

4. Allow a statutory period for the publisher to make an offer of amends

The concerns notice regime serves two key purposes, as noted in Georges v Georges; Georges v Georges [2022] NSWDC 558:

1. To provide publishers with sufficient information to make a reasonable offer of amends before proceedings commence

2. To encourage potential plaintiffs to consider whether they have suffered serious harm to their reputation that meets the threshold for a defamation action

What Makes a Valid Concerns Notice?

Section 12A of the Defamation Act sets out several essential requirements for a valid concerns notice:

1. It must be in writing

2. It must specify where the matter complained of can be accessed

3. It must inform the publisher of the defamatory imputations that the aggrieved person considers are or may be carried by the matter

4. It must inform the publisher of the serious harm the aggrieved person considers has been caused or is likely to be caused

5. It must attach a copy of the matter complained of, if practicable

Importantly, a document filed to commence defamation proceedings cannot be used as a concerns notice.

The Level of Detail Required

Courts have taken varied approaches to the level of specificity required in concerns notices. As discussed in Reiter, some cases have held that bare assertions of damage are insufficient and that specificity closer to pleading standards is necessary (Teh v Woodworth [2022] NSWDC 411; M1 v R1 [2022] NSWDC 409; Hoser v Herald and Weekly Times Pty Limited & Anor [2022] VCC 2213).

In Hoser, Clayton J stated that adequate precision is needed to ensure neither the defendants nor the Court are required to "perform some mental gymnastics" to understand the alleged defamatory imputations.

However, in Cooper v Nine Entertainment Co Pty Ltd (2023) 169 ACSR 584, McElwaine J adopted a more flexible approach, stating that imputations "are not required to be expressed in explicit language" and that the aggrieved person's obligation is to do "the best that can reasonably be done" in the circumstances.

Consequences of Non-Compliance

The consequences of failing to comply with the concerns notice requirements are severe. In Reiter, the Court found that the plaintiff's proceeding was an abuse of process and dismissed it under r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

Non-compliance with section 12B of the Defamation Act can have substantive implications for publishers, as it denies them the opportunity to:

1. Obtain further particulars of the alleged harm

2. Make an offer of amends

3. Potentially rely on the substantive defense provided in section 18

As stated in Reiter, "the commencement of a defamation proceeding which is not permitted by s 12B has the potential to bring the administration of justice into disrepute."

The Waiting Period

Even with a valid concerns notice, plaintiffs must wait 28 days after giving the notice before commencing proceedings, unless the court grants leave. This statutory period is designed to give publishers time to consider and potentially make an offer of amends.

In limited circumstances, a court may grant leave for earlier commencement of proceedings if:

• Waiting would contravene the limitation period, or

• It is "just and reasonable" to do so

Practical Tips for Drafting a Valid Concerns Notice (not yet applicable in WA)

Drawing from the Reiter decision and other cases, here are some practical tips for drafting a valid concerns notice:

1. Clearly identify each allegedly defamatory imputation in specific terms

2. Provide detailed particulars of how the publication has caused or is likely to cause serious harm to reputation

3. Establish a causal link between the publication and the alleged serious harm

4. Attach a copy of the matter complained of

5. Ensure the notice is provided to the correct parties

6. Wait the full 28-day period before commencing proceedings

Conclusion

The concerns notice regime represents a significant procedural hurdle for plaintiffs in defamation proceedings, but one with important policy objectives. By forcing parties to clarify issues and explore settlement options before litigation, these provisions aim to reduce unnecessary court proceedings and promote earlier resolution of disputes.

Publishers who receive concerns notices should consider them carefully and seek legal advice about available options, including making offers of amends. Potential plaintiffs should ensure they comply meticulously with the procedural requirements to avoid having their proceedings dismissed as an abuse of process.

As Reiter v News Corp Australia Pty Ltd & Anor [2025] VSC 54 demonstrates, courts are taking these requirements seriously, and failure to comply can be fatal to a defamation claim before it even properly begins.

Understanding Imputations in Defamation Law: Lessons from Li v Liao

Introduction

The recent Supreme Court of New South Wales decision in Li v Liao [2025] NSWSC 168 provides valuable clarification on the proper pleading of imputations in defamation proceedings. The case involved Xiaolu Li (also referred to as Belinda Li in the judgment), a licensed builder in NSW, and several companies associated with her business. The first plaintiff and the defendant were partners in a joint venture residential development in Carlingford, NSW, and were already involved in Federal Court proceedings related to this development. The plaintiffs alleged they were defamed through an oral conversation between the defendant and others, as well as through a letter sent to a director of a company that had contracted to invest in another development project. The alleged imputations included serious claims of embezzlement, corruption, fraudulent invoicing, and other improper business practices. Justice Rothman ultimately struck out the Statement of Claim but granted the plaintiffs leave to file an amended Statement of Claim to address the deficiencies identified.

What is an Imputation?

An imputation is central to defamation law but is often misunderstood by practitioners and clients alike. In defamation proceedings, there's a crucial distinction between the "defamatory matter" (the published material itself) and the "imputations" that arise from it.

The High Court in Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 defined an imputation as being "properly used with reference to any act or condition asserted of or attributed to a person." This definition has stood the test of time and continues to be applied by Australian courts.

As explained by Samuels JA in Petritsis v Hellenic Herald (1978) 2 NSWLR 174 at 189:

"Section 9(1) distinguishes between a defamatory imputation and the matter by means of the publication of which the defamatory imputation is conveyed. There is no reason to suppose that the word 'imputation' is used in any sense different from its ordinary meaning. Hence it means 'the action of imputing or charging; the fact of being charged with a crime, fault, etc.'; in short, an accusation or charge."

His Honour further clarified that the "matter" is the material which conveys the imputation, or within which the imputation is embedded, or from which the imputation may be inferred.

Imputations vs. Published Material

A common error in defamation pleadings is failing to distinguish between the published material and the imputations that arise from it. The imputation is not simply a repetition of what was said or written, but rather the defamatory meaning that arises from the material.

As Justice Rothman noted in Li v Liao [2025] NSWSC 168 at [31]-[32]:

"The imputation may and usually does arise by inference, either a false innuendo or true innuendo, from the statement. The difficulty with the practice, which I do not here criticise, and which is permissible, is that it elides the 'matter' and the 'imputation'."

In Whelan v John Fairfax & Sons (1988) 12 NSWLR 148 at 154, Hunt J emphasized:

"It has always been made quite clear that the plaintiff's pleaded imputation must identify the meaning for which he contends rather than merely the words by which that meaning is said to have been conveyed. Words are but instruments which are used to express or convey their author's meaning. Outside of legal documents, however, words are often imprecise instruments for that purpose. A defamatory imputation is very rarely stated expressly; rather, it is more usually implied or to be inferred. The charge against the plaintiff is often to be read only between the lines..."

This distinction becomes particularly important in cases like Li v Liao, where some alleged "imputations" were found to be merely restatements of the published material rather than proper imputations arising from it.

Pleading Imputations Properly

In Li v Liao, Justice Rothman emphasized that imputations must be pleaded as substantive paragraphs in the Statement of Claim, not merely as particulars. Under the Uniform Civil Procedure Rules (UCPR) r 14.30(2), a Statement of Claim must "specify" each imputation on which the plaintiff relies, allege that the imputation was defamatory, and allege that the publication has caused or is likely to cause serious harm.

Justice Rothman explained at [94]-[96]:

"In the context of the operation of the Defamation Act 2005, particularly since the inclusions of ss 12A and 12B, and the restrictions on that which may be pleaded as an imputation to that which has been the subject of particulars in the Concerns Notice, it would seem that a harmonious reading of the provisions, bearing in mind the need to facilitate a just, quick and cheap resolution of the real issues between the parties, is that each imputation needs to be the subject of a pleading and not merely a particular."

His Honour further stated that each imputation is a "material fact" giving rise to liability, and specificity is required in a manner that cannot be altered without leave or argument.

Concerns Notices and "Substantially the Same" Imputations

The 2020 amendments to the NSW Defamation Act introduced sections 12A and 12B, which require a Concerns Notice to be served before defamation proceedings can be commenced. Importantly, section 12B(1)(b) stipulates that the imputations to be relied on in proceedings must have been particularized in the Concerns Notice.

However, section 12B(2)(b) permits reliance on "imputations that are substantially the same as those particularised in a concerns notice." In Li v Liao, Justice Rothman considered when imputations will be "substantially the same."

For example, His Honour compared an imputation that the plaintiff "embezzled" money with an imputation in the Concerns Notice that the plaintiff "misappropriated" money. At [52], Justice Rothman concluded:

"Because the ordinary reasonable reader may reasonably infer that an allegation of misappropriation includes fraud, an allegation that a person has misappropriated funds for their own benefit is not substantially different from an allegation that a person embezzled funds. No substantial difference arises as a result of that aspect of the imputation."

However, when examining other imputations, Justice Rothman found substantial differences. For instance, at paragraphs [58]-[60], His Honour found that an imputation that "The development properties that [the plaintiff] constructs all have massive issues and you can't buy them" was substantially different from the Concerns Notice imputation that "there is not a single developer who has worked with [the plaintiff] that is not suing her in Court."

When Will Imputations Be Struck Out?

The test for striking out imputations is stringent. As the High Court noted in Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; [2005] HCA 52 at [6]:

"Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out."

Justice Rothman emphasized at [99]-[102] that imputations will only be struck out if, acting reasonably, no factfinder could conclude that a pleaded imputation arises from the material published. A judge's personal view about whether an imputation arises is not determinative unless the judge concludes that no reasonable factfinder could find the imputation.

For instance, in Li v Liao, Justice Rothman struck out imputation 13.7 (that the plaintiff "lies to investors to induce them to invest money in property development projects in which she is involved") because the passage relied upon by the plaintiff did not support this imputation. The only reference to untruths was an allegation that the plaintiff would say "black is white," which His Honour found insufficient to support the specific imputation pleaded.

The "Serious Harm" Requirement

The 2020 amendments to the NSW Defamation Act also introduced section 10A, which requires that publication of defamatory matter has caused or is likely to cause "serious harm" to the reputation of the person alleged to be defamed. This element must be properly pleaded and particularized.

In Newman v Whittington [2022] NSWSC 1725 at [27], the court emphasized that the purpose of enacting section 10A was to avoid litigation on minor disputes which do not cause serious harm.

In Li v Liao, Justice Rothman explained at [146]-[149]:

"The purpose of enacting s 10A was to avoid litigation on minor disputes which do not cause serious harm. The incidence of disputes arising as a consequence of social media and the distribution of emails has notoriously led to 'backyard disputes', which impermissibly utilise the resources of the Courts in dealing with matters that ought never be the subject of litigation."

His Honour further noted that while some defamatory material may inherently suggest serious harm (such as allegations of murder or fraud when widely published), in cases with limited publication like Li v Liao, the plaintiff must specifically plead the serious harm suffered and provide particulars.

Injurious Falsehood

Though distinct from defamation, the case also addressed pleading requirements for injurious falsehood. As Justice Rothman noted at [156], this tort has four elements: "a false statement of or concerning the plaintiff's goods or business; publication of that statement by the defendant to a third person; malice on the part of the defendant; and proof by the plaintiff of actual damage suffered as a result of the statement."

These elements were reinforced by the High Court in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at [52] and more recently by the NSW Court of Appeal in Jay v Petrikas [2023] NSWCA 297 at [45].

Conclusion

Li v Liao [2025] NSWSC 168 provides invaluable guidance on the proper pleading of imputations in NSW defamation proceedings. The case emphasizes:

1. The distinction between published material and the imputations that arise from it

2. The requirement for imputations to be pleaded as substantive paragraphs, not merely particularized

3. The interpretation of "substantially the same" imputations in relation to Concerns Notices

4. The high threshold for striking out imputations

5. The necessity of properly pleading "serious harm"

For NSW legal practitioners, the case serves as a reminder of the technical requirements for properly pleading defamation cases, particularly following the significant 2020 amendments to the Defamation Act. Failure to properly plead imputations can result in a Statement of Claim being struck out, causing delay, additional costs, and potential limitations issues for clients.

As Justice Rothman concluded, while striking out a Statement of Claim identifies deficiencies in pleadings, it provides plaintiffs with an opportunity to replead their case to overcome these deficiencies—provided they adhere to the limitations and requirements set out in the NSW Defamation Act and associated case law.

Assessing the Extent of Publication in Defamation Cases: Lessons from Newman v Whittington

Introduction

In the digital age, defamatory content can potentially reach vast audiences across multiple platforms. However, proving the actual extent of publication remains a critical and often challenging element in defamation proceedings. The recent New South Wales Supreme Court decision of Newman v Whittington [2025] NSWSC 275 provides valuable insights into how courts approach this issue. In this case, a family dispute resolution practitioner, Jasmin Newman, successfully sued Adam Whittington for defamatory publications across WordPress, Facebook, and Twitter over a period spanning December 2019 to October 2021. The publications contained extremely serious allegations, including claims that the plaintiff supported paedophiles, had committed fraud, and falsely claimed professional qualifications.

The Relevance of Extent of Publication in Defamation

The extent of publication is a key consideration in assessing damages in defamation cases. As noted in Ali v Nationwide News Pty Ltd [2008] NSWCA 183, damages in defamation serve three overlapping purposes: consolation for personal distress, reparation for harm to reputation, and vindication of the plaintiff's reputation. When determining an appropriate award, courts must consider both the inherent seriousness of the imputations and their reach.

The "grapevine effect" is also relevant - this recognizes that "the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published" (Hoser v Pelley [No 3] [2023] VSCA 257 at [221]; Crampton v Nugawela (1996) 41 NSWLR 176, 194-195). However, while some harm is presumed in defamation, "the extent of that harm is not" (Eppinga v Kalil [2023] NSWCA 287 at [100]).

Challenges in Assessing Online Publications

Newman v Whittington highlights several challenges in assessing the extent of publication in the digital realm:

1. Distinguishing between potential and actual readership: Chen J was careful to distinguish between the potential reach of publications (as indicated by follower counts) and evidence of actual consumption of the content. The court noted that "the number of followers demonstrates the potential 'readership' of each particular 'post'," but was "unable (and unwilling) to make any firm finding about actual 'readership'" (at [164]).

2. Interpreting social media metrics: The case demonstrates the difficulty in interpreting online engagement metrics. For instance: "although there are those number of interactions, it is not known whether one person simultaneously 'liked, commented and shared' this post" (at [160]). Such ambiguities make it challenging to determine precisely how many individuals engaged with defamatory content.

3. Relevance to the plaintiff's community: The court considered whether the defamatory material reached individuals within the plaintiff's professional sphere or community, noting "there was no evidence establishing that anyone within the plaintiff's professional field (or in any area related to, or in any way connected with, it) read any of the defamatory publications" (at [169]).

How Courts Assess Extent of Publication

In Newman v Whittington, Chen J took a nuanced approach to assessing publication extent:

1. Social media interactions: The court examined specific evidence of engagement such as likes, comments, shares, and retweets across different platforms. However, the court was cautious about drawing conclusions about actual readership from these metrics alone.

2. Follower numbers: While acknowledging that follower counts indicate potential reach (some platforms had 19,000-24,000 followers), Chen J recognized that this doesn't necessarily translate to actual readership.

3. Geographic relevance: The court considered whether interactions came from the plaintiff's community or jurisdiction, noting that Australian interactions "were extremely limited and, for many of the matters, there were none" (at [167]).

4. Practical approach: Acknowledging the limitations in the evidence, the court took a pragmatic approach: "the plaintiff has not persuaded me that the 'readership' (that is, the extent of the publication) was most likely anything other than limited, albeit with some – essentially unquantifiable – potential for it to be greater" (at [171]).

Damages and Extent of Publication in Newman v Whittington

Despite finding that the actual readership was likely limited, Chen J awarded Ms. Newman substantial damages of $160,000. This consisted of $150,000 for non-economic loss (including aggravated damages) plus $10,000 in interest. This award reflects several important considerations:

1. Inherent seriousness of imputations: The court found that the imputations (particularly those suggesting the plaintiff supported paedophiles) were "grave or extreme imputations" (at [108]). The seriousness of these allegations appears to have outweighed the relatively limited evidence of wide publication.

2. Prolonged harm: The court noted that the harm was "prolonged and intensified by the absence of any apology by the defendant, that the defamatory matters were never retracted... and have been persisted in during the course of these proceedings" (at [176]). The defendant continued publishing defamatory material about the plaintiff even after proceedings commenced.

3. Grapevine effect: Despite limited evidence of wide publication, the court allowed for the grapevine effect, accepting 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" (at [177]).

The court's substantial damages award, despite limited evidence of widespread publication, suggests that the inherent seriousness of imputations and the defendant's conduct can significantly outweigh limited publication evidence when the defamatory material is particularly egregious.

Practical Implications for Defamation Practitioners

This case offers several practical lessons for defamation practitioners:

1. Evidence of actual readership: Courts want specific evidence about who actually consumed the defamatory material, not just potential reach. Merely establishing follower numbers may be insufficient.

2. Relevant readership: Focus on demonstrating that the defamatory material reached people in the plaintiff's professional or personal community, where reputation damage would be most significant.

3. Interpreting online metrics: Be prepared to explain what social media metrics actually indicate about readership, and acknowledge their limitations as evidence of publication extent.

4. Proportionate approach: Courts recognize the practical difficulties in precisely quantifying online readership. In Newman, Chen J adopted a realistic view that, while actual readership was likely limited, there remained potential for wider dissemination through the "grapevine effect" (Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 at [217]).

5. Remedies beyond damages: The court also granted permanent and mandatory injunctions requiring the defendant to remove all defamatory content from his online platforms and restraining him from publishing similar content in the future. These remedies are particularly important in online defamation cases where the potential for ongoing harm exists.

Conclusion

Newman v Whittington illustrates that while courts acknowledge the potential for wide dissemination of defamatory material online, they require concrete evidence of actual readership when assessing damages. Nevertheless, where imputations are particularly serious and the defendant's conduct is egregious, substantial damages may be awarded even with limited evidence of widespread publication.

For defamation practitioners, this reinforces the need to focus on both the inherent gravity of the defamatory imputations and, where possible, evidence of actual readership within communities that matter to the plaintiff's reputation. As online defamation cases continue to proliferate, the approach to assessing publication extent established in cases like Newman v Whittington will remain crucial to securing appropriate compensation for reputational harm.

Coercive Control and Financial Abuse in Guardianship Applications: Lessons from Recent Case Law

Introduction

In a recent Western Australian State Administrative Tribunal (SAT) decision, CK [2025] WASAT 27, we see important principles regarding capacity, financial abuse, and coercive control in the context of guardianship and administration applications. The case involved a 63-year-old man diagnosed with Autism Spectrum Disorder at age 61, who later developed schizophrenia. Following his mother's sudden death in 2022, CK was found wandering the streets dehydrated and was hospitalized. Originally, the Public Advocate was appointed as his guardian in early 2023. Later that year, CK signed several legal documents including a will, an enduring power of attorney appointing his sister as attorney, and an advance health directive consenting to participate in medical research. When CK was re-admitted to hospital in 2024 with declining mental health, allegations of financial and emotional abuse emerged. The Tribunal ultimately revoked the enduring power of attorney, declared the advance health directive invalid, and appointed the Public Trustee as administrator and the Public Advocate as guardian.

Understanding Coercive Control in Vulnerable Adults

Coercive control is often discussed in the context of intimate partner relationships, but it can manifest in other relationships as well, particularly where there is a power imbalance. In guardianship matters, this can appear in relationships between vulnerable adults and their family members or caregivers.

In the CK case, the Tribunal noted that CK's support coordinator described certain behaviors from his sister that could be interpreted as controlling. The coordinator reported that the sister "aggressively interjected denying [CK] the freedom to participate in the conversation" and showed "confrontational body language" in meetings about CK's care.

It's important to note that in this case, the Tribunal did not find that the sister was deliberately engaging in coercive control, acknowledging that her actions likely stemmed from family communication patterns, grief, and genuine concern for her brother. The Tribunal noted: "I do not accept this as deliberate behaviour on EK's part designed to control and isolate CK."

This nuanced approach reminds us that what may appear as controlling behavior can sometimes be the result of complex family dynamics, particularly when families have established patterns of interaction that may seem problematic to outsiders.

Financial Abuse and Vulnerable Adults

Financial abuse of vulnerable adults is a serious concern in guardianship applications. The CK case highlights several warning signs:

1. Large or frequent cash withdrawals: CK's bank statements showed cash withdrawals totaling $16,260 over five months, with individual withdrawals as high as $3,600.

2. Blurred financial boundaries: The Tribunal observed that there seemed to be no distinction between "CK's money" and "EK's money," with funds being treated as "family money."

3. Lack of repayment arrangements: CK was giving substantial sums to his sister with no expectation of repayment.

4. Decision-making vulnerability: CK's support workers reported that "he will avoid conflict by agreeing with other people and by doing what he is told" and would "put EK's needs before his own needs."

The Tribunal determined that CK was "unable to identify and assess the financial implications of particular items of expenditure or of financial decisions," which made him particularly vulnerable.

Capacity Assessment in Financial Decision-Making

In determining whether a person lacks capacity to make financial decisions, the Tribunal follows principles established in case law. In FY [2019] WASAT 118, the Tribunal outlined what a person must be able to do to make reasonable judgments about their estate, including:

1. Identifying and calculating necessary expenditure for daily living and longer-term financial objectives

2. Devising a budget to live within their means

3. Organizing their affairs to meet debts as they fall due

4. Identifying and assessing financial implications of particular expenditure or decisions

5. Identifying and implementing problem-solving strategies for unexpected financial issues

The CK case demonstrates how these principles apply in practice. The Tribunal found CK lacked capacity because he was unable to fulfill these requirements, noting his ongoing reliance on his sister to pay bills and his inability to identify his own financial needs.

The Validity of Enduring Documents

An important aspect of the CK case concerns the validity of documents signed by persons with questionable capacity. The Tribunal declared CK's advance health directive invalid as he did not understand the nature of the treatment decisions or their consequences—specifically, he had consented to participate in medical research involving placebos but later stated he didn't want that.

Similarly, the enduring power of attorney was revoked because CK lacked the cognitive capacity to make and understand such an appointment. This highlights the importance of proper capacity assessment at the time enduring documents are created.

The Least Restrictive Approach

Western Australian guardianship law emphasizes using the least restrictive option to protect vulnerable adults. The SAT considers three stages of inquiry:

1. Whether the person lacks capacity

2. Whether less restrictive alternatives to formal orders exist

3. Who should be appointed and with what powers

In CK, the Tribunal carefully considered whether informal arrangements or statutory provisions (like s110ZD of the Guardianship and Administration Act 1990 for medical decisions) could meet CK's needs. Only after determining these would be insufficient did the Tribunal appoint formal decision-makers.

Conclusion

The CK case provides valuable insights into how the SAT addresses allegations of financial abuse and coercive control in guardianship matters. It demonstrates the careful balancing act required: protecting vulnerable adults while recognizing family dynamics and applying the least restrictive approach possible.

For practitioners, this case emphasizes the importance of thorough capacity assessment when clients create enduring documents, and the need to be alert to potential financial abuse while avoiding hasty judgments about family relationships.

For families of vulnerable adults, the case highlights the importance of maintaining clear financial boundaries and formal arrangements even when intentions are good, to protect both the vulnerable person and family relationships in the long term.

This blog post is for general information purposes only and does not constitute legal advice.