Rader v Haines

1. [1]

   MACFARLAN JA: I agree with Brereton JA.

2. [2]

   BRERETON JA: On 13 February 2020 the present appellant Mr Damian Rader instituted proceedings in the District Court against the respondents Mr and Mrs Haines, who are the parents of Mr Rader’s estranged wife Karen, and their company, for damages for defamation arising out of an email sent by the Haines to Mr Rader’s parents (“the Raders”) in England in February 2019. [1] On 17 November 2021, Gibson DCJ, in a thorough and comprehensive judgment which was delivered with admirable expedition within about six weeks after it was reserved, gave judgment for the defendants. [2] Mr Rader appeals to this Court purportedly as of right, but in response to a late objection to competency also filed, with the leave of the Court, an application for leave to appeal if it be required.

The matter complained of and the imputations

1. [3]

   The matter complained of is an email sent by Mr and Mrs Haines, using their company’s email address, on 16 February 2019 at 10:07pm (AEDT) to Mr Rader’s parents in the United Kingdom, where it was received at 11:07am (GMT). Subject to the substitution of pseudonyms, the email was as follows (the grandchildren being referred to as “X” and “Y”):

2. [4]

   Mr Rader pleaded that the matter complained of conveyed imputations that he:

3. [5]

   Because the email was received and read in England, it was common ground that the substantive law of England was applicable. [3] Her Honour found that all the alleged imputations other than (b) and (i) were conveyed. No question arises concerning (i) which was an alternative, but Mr Rader complains that her Honour erred in failing to find that imputation (b) was conveyed. However, her Honour’s judgment rested on two main foundations: the first was that Mr Rader failed to discharge the onus of proving that the publication of the imputations caused or was likely to cause serious harm to his reputation, for the purposes of s 1 of the Defamation Act 2013 (UK) (“the UK Act”); and the second was that the publication occurred on an occasion of qualified privilege at common law and was not actuated by malice. Her Honour contingently assessed damages at $15,000.

4. [6]

   The notice of appeal contained 13 grounds. However, at the hearing of the appeal, the appellant did not press Grounds 1 (which attacked the pseudonym order), or 2 and 3 (which included complaints of actual and apprehended bias on the part of the trial judge), and it is therefore unnecessary to consider them. Nor did he press Ground 10 (which complained that her Honour erred in failing to draw an adverse inference from the fact that the Haines did not give evidence), nor Ground 13 (which complained that her Honour erred in finding that there was no conduct that warranted an award of aggravated damages). Ground 12 (which complains about her Honour’s contingent assessment of damages) need be addressed only if the appeal succeeds on the question of liability. The remaining issues may conveniently be addressed, to the extent that it is necessary to do so, under the headings of “Serious Harm” and “Qualified Privilege”.

Serious harm

1. [7]

   Section 1 of the UK Act relevantly provides:

2. [8]

   Although it does not apply in the present case, a similar but not identical provision now appears in the uniform Australian Acts. Since 1 July 2021, s 10A of the Defamation Act 2005 (NSW) now provides:

3. [9]

   Two grounds of appeal fall to be considered preliminary to addressing the appellant’s attack on her Honour’s conclusion that Mr Rader had failed to discharge the onus of demonstrating serious harm, because if successful they might affect the assessment of the harm.

4. [10]

   The appellant contends that the trial judge erred in finding that imputation (b) – that the appellant is a thief – was not conveyed. In declining to find that imputation (b) was conveyed by the matter complained of, her Honour said: [4]

5. [11]

   The appellant submits that as imputation (a) (that the appellant stole his ex-partner’s car) was found to be conveyed, it should follow that imputation (b) (that he is a thief) was also conveyed, and that the reasoning in the passage set out above erroneously assumes that to amount to an imputation that someone is “a thief” requires that it be suggested that they have stolen on multiple occasions.

6. [12]

   Although a publication concerning a specific instance may be capable of supporting a general imputation, it does not necessarily do so; “close and careful attention to the specific circumstances with a view to determining whether the specific conduct alleged in a particular case, unlike specific incidents alleged in other cases, can support a general imputation” is required. [5] As Emmett JA (with whom McColl JA and Leeming JA agreed) said in Fairfax Media Publications Ltd v King: [6]

7. [13]

   The answer depends, at least to some extent, on whether it can be said that the conduct is imputed as being characteristic or definitive of the plaintiff. As the example given by Emmett JA of “a murderer” indicates, it is not invariably necessary that there be a suggestion of repeated behaviour before the epithet arises. But I do not accept that an assertion that a person has once, in the course of a matrimonial dispute, taken possession of a car registered in his or her spouse’s name, conveys that the person is “a thief”. Her Honour adopted the approach endorsed by the authorities and was right to find that the generic imputation was not conveyed.

8. [14]

   In any event, it matters not, because although imputation (b) was found not to have been conveyed, her Honour when considering the issues of serious harm and qualified privilege proceeded on the basis that it was: [7]

9. [15]

   Accordingly, although in my judgment Ground 5 fails, even if it were to succeed, it would not affect the basis of the judgment.

10. [16]

    The appellant contends that the trial judge failed to find that each of the imputations pleaded was defamatory of the plaintiff. It is submitted that her Honour did not make any express determination as to whether the imputations found were defamatory, and that it is not clear whether her Honour turned her mind to the issue. It is said that, no concession having been made by the respondents to the effect that, if their publications conveyed the meanings pleaded, they were defamatory, her Honour was required to address the question of whether the imputations were defamatory. [8] It was submitted that this was a discrete question from that of serious harm; that an express finding should have been made that the imputations were defamatory; and that if her Honour had undertaken the task of expressly addressing whether each imputation was defamatory, this would have resulted in a “very different” approach being taken to the question of serious harm.

11. [17]

    The approach for which this submission contends is irreconcilable with the words of s 1 of the UK Act, according to which a statement is not defamatory unless its publication causes or is likely to cause serious harm to reputation. Under s 1, whether or not serious harm is occasioned is part of the exercise of finding an imputation to be defamatory, and not a separate inquiry as the appellant contends. In this respect, the provision differs from the new NSW provision (s 10A), which makes “serious harm” an additional element of the cause of action, and it may well be that the position under the NSW provision is otherwise. However, it would be wrong, under s 1, to find a publication defamatory before being satisfied that it occasioned serious harm to reputation. There was no error on the part of her Honour in this respect.

12. [18]

    The appellant contends that her Honour erred in determining that the appellant had failed to discharge the onus of proof of demonstrating serious harm to his reputation.

13. [19]

    Section 1 of the UK Act says that before a statement is defamatory it must have caused or be likely to cause “serious harm to the reputation of the claimant.” This requirement concerns the seriousness of the harm to reputation, not of the imputation. This distinction has been recognised in the leading English cases, in which it has been held that the application of the test is to be determined by reference to the actual facts about the impact of the imputation, and not just the meaning of the words; although the meaning is necessarily part of the impact, because all else being equal a grave imputation will cause more harm than a trivial one, it is only part of the equation, because the gravest imputation will cause no harm if it has no impact. In Lachaux v Independent Print Ltd, [9] Lord Sumption JSC (with whom Lord Kerr of Tonaghmore, Lord Wilson, Lord Hodge and Lord Briggs JJSC agreed), said:

14. [20]

    As his Lordship explained, this view is reinforced by the terms of s 1(2), which is concerned with defamation of a corporation:

15. [21]

    Thus his Lordship concluded (emphasis added):

16. [22]

    Applying these principles to the facts of that case, his Lordship endorsed as relevant considerations the meaning of the words and the gravity of the imputations they conveyed, the situation of the plaintiff, the circumstances including the scale of the publication, and the inherent probabilities including the likelihood that it had come to the attention of others who knew or would come to know the plaintiff (emphasis added):

17. [23]

    In this State, Lachaux was applied by Sackar J in the context of the new s 10A in Newman v Whittington [10] to hold that its effect was that a plaintiff must prove serious harm as a fact in every case.

18. [24]

    That the section requires that attention be directed to the impact of the imputation which depends on a combination of the inherent tendency of the words and their actual impact on the recipients, and that a grave allegation may not occasion serious harm if the audience is small or do not believe it, was recognised by Richard Spearman QC, sitting as a Deputy Judge of the Queens Bench Division, in Parris v Ajayi (emphasis added): [11]

19. [25]

    These considerations are redolent of those identified by this Court as relevant to the defence of “Unlikelihood of harm” formerly provided by s 13 of the Defamation Act 1974 (NSW) and subsequently s 33 of the Defamation Act 2005 (NSW). Section 13 of the Defamation Act 1974 provided a defence of “Unlikelihood of harm” where “the circumstances of the publication of the matter complained of were such that the person defamed was not likely to suffer harm.” In Jones v Sutton, [12] this Court held that the test to be applied was whether, in the circumstances of the publication, the plaintiff was not likely to suffer harm, which required proof of the absence of a real chance or possibility of harm, and that it was not confined to publication involving trivial matters or content. [13] With reference to the judgment of Badgery-Parker J in Perkins v New South Wales Aboriginal Land Council, [14] Beazley JA, with whom Santow JA and Stein AJA agreed, explained that publications of serious defamatory content could still be made in circumstances in which the person was not likely to suffer harm, so as to engage s 13, and that this might well be so in circumstances where the publication was to a small number of persons well acquainted with the plaintiff and able themselves to make a judgment of their own knowledge as to the likelihood that there was any substance in the imputation conveyed (emphasis added): [15]

20. [26]

    In Jones v Sutton it was also held that injury to feelings was not “harm” of the kind contemplated by s 13, which was confined to injury to reputation. [16] The same applies in respect of the “harm to reputation” referred to in s 1 of the UK Act. In Monroe v Hopkins, [17] Warby J said:

21. [27]

    Courts appear so far to have avoided endeavouring to explain the word “serious”. Indeed, it has been said that “serious” is an ordinary word in common usage. [18] But in my view there is utility in giving some further explanation of its content. It is used in the sense third mentioned in the Oxford Dictionary definition, namely “significant or worrying because of possible danger or risk; not slight or negligible”, for which the example given is “she escaped serious injury”, and the synonyms include “severe” and “grave”. In Lachaux, whereas the Court of Appeal had considered that the new statutory test was the same as the common law “tendency to cause substantial harm” test, in Thornton v Telegraph Media Group, [19] albeit raised to the level of “serious harm”, the Supreme Court confirmed that it “raises the threshold of seriousness above that envisaged in Jameel (Yousef) and Thornton”. [20] At least, this shows that “serious” involves more than merely “substantial”. In Monroe v Hopkins, Warby J concluded that “whilst the claimant may not have proved that her reputation suffered gravely, I am satisfied that she has established that the publications complained of caused serious harm to her reputation and met the threshold set by s 1 of the 2013 Act”. [21] In my opinion, “serious” harm sits on the spectrum above “substantial” but below “grave”. Importantly, there can be harm which, though substantial, does not reach the level of serious harm.

22. [28]

    The authorities to which reference has been made found the following propositions in respect of s 1 of the UK Act:

    1. (1)

       In order to succeed, a plaintiff must satisfy the threshold of showing that the publication has caused or is likely to cause serious harm to his or her reputation.

    2. (2)

       “Serious” harm involves harm that is more than merely substantial, though it need not be grave.

    3. (3)

       The requirement for serious harm to reputation is concerned with actual or likely reputational damage – that is, the impact of the imputation, in all the circumstances, on the plaintiff’s reputation – arising from a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. It is not satisfied by the gravity of the imputation alone. Nor is it satisfied by injury to feelings, however great. Relevant factors include the meaning of the words, the extent of the publication, the nature of the recipients and their relationship with the plaintiff, and whether they believe the imputations.

    4. (4)

       A grave imputation may not result in serious harm, typically where the publication is to a small number of persons well acquainted with the plaintiff who are not disposed to believe it, and any impact of the imputation on the plaintiff’s reputation is transitory or ephemeral.

23. [29]

    The following conclusions of the trial judge accord with those propositions:

    1. (1)

       Section 1 introduced a “new threshold of serious harm which did not previously exist”, and “Claimants therefore need to establish that serious harm has been caused or is likely to be caused as a fact”; [22]

    2. (2)

       “More than the mere inherent tendency of the words is required, even where the words amount to a grave allegation against the plaintiff, and special emphasis is to be placed on the circumstances and extent of publication”; [23]

    3. (3)

       “Serious harm should not be conflated with hurt to feelings. However distraught the plaintiff may have been, this personal hurt is not evidence of harm to reputation because harm depends upon ‘a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated’”; [24] and

    4. (4)

       “findings of serious harm should be based on the circumstances and extent of publication, whether the publication was likely to have come to the attention of others at the time or in the future and the gravity of the imputations. The meaning of the words, the situation of the plaintiff, the circumstances of publication and the inherent probabilities are also relevant”. [25]

24. [30]

    The appellant submitted that her Honour wrongly measured the harm as at the time when proceedings were instituted, and so disregarded harm at an earlier time, thus erroneously applying a “permanent harm” rather than a “serious harm” test. Particular reference was made to the following passage, which occurs at the outset of her Honour’s evaluation of the harm: [26]

25. [31]

    Her Honour had also earlier observed that the level of harm was not to be determined solely at the time of publication, before commenting that harm “arguably cannot be said to be serious” if it has dissipated after a short period of time. [27]

26. [32]

    I accept that there may be serious harm without permanent harm. It is not at all inconceivable that grave reputational harm could be occasioned for a time, yet the plaintiff’s reputation restored even before proceedings are commenced. However, there is nothing to indicate that her Honour applied a test of “permanent” harm, nor disregarded harm which occurred before the institution of proceedings. Her Honour referred to the harm which had occurred at and near the time of publication, and did not disregard it on the basis that it was not continuing when proceedings were instituted, but rightly held that its short duration was relevant to whether it could be said to be “serious” (emphasis added):

27. [33]

    The trial judge was thus plainly conscious of the gravity of the imputations but rightly recognised that this was only one factor. Her Honour did not treat the absence of any continuing harm when proceedings were instituted as conclusive, but proceeded to evaluate the harm on which the plaintiff relied, all of which preceded the institution of proceedings:

28. [34]

    In that passage, her Honour considered harm which had occurred before the institution of proceedings, although it was not continuing. Evaluation of the extent of the harm necessarily involved consideration of the period over which it was incurred. Reputational harm that endures for a substantial period is self-evidently more likely to be serious than harm that is ephemeral. Her Honour did not treat the absence of ongoing or permanent harm as conclusive, but the circumstance that any harm to the plaintiff’s reputation was transitory if not ephemeral was necessarily relevant to whether it could be said that it amounted to “serious harm”.

29. [35]

    The appellant contends that in concluding that no serious harm was proven, the trial judge had regard to two irrelevant factors: his delay in commencing the proceedings, and his not earlier raising his complaint about the email with the Haines.

30. [36]

    The plaintiff served a “Concerns Notice” only two hours before instituting proceedings, twelve months after the publication. He raised no complaint in earlier communications between the parties. Her Honour observed:

31. [37]

    The appellant says there was no evidence that, had he raised his complaint earlier or informally, the Haines would have apologised or taken any other mitigatory action, and that he gave evidence of his valid personal reasons for delaying the commencement of the proceedings.

32. [38]

    Although expressed as a complaint of “irrelevant considerations”, this is in reality no more than an aspect of the attack on the ultimate finding that serious harm was not established, and on an appeal by way of rehearing the appellant’s task is not so much to show that her Honour had regard to an irrelevant consideration, as to satisfy this Court that, contrary to the trial judge’s finding, the evidence established serious harm. Even if her Honour had regard to an irrelevant consideration, it does not follow that the ultimate conclusion that serious harm was not established was wrong.

33. [39]

    Nonetheless, the absence of any expression of concern about the publication for a year, while far from conclusive, is not irrelevant to whether there has been or is likely to be serious harm. It is capable of supporting reasoning that the appellant was not particularly troubled by it, and did not perceive it to be occasioning ongoing harm. In McCarey v Associated Newspapers Ltd (No 2), [28] Pearson LJ, with whom Diplock LJ and Willmer LJ agreed, accepted that the plaintiff had not acted unreasonably in delaying 11 months before commencing proceedings, but added:

34. [40]

    Further, it does not appear that this consideration was material to her Honour’s decision on serious harm. As set out above, [29] the observations in [149] were immediately followed by the sentence “Fundamentally, however, this is an email sent to the two people who knew the appellant better than anyone…” (emphasis added), which shows what was the real basis of her Honour’s conclusion. In any event, setting the consideration of delay in making any complaint to one side does not result in the appellant establishing serious harm.

35. [41]

    The appellant submits that her Honour erred in finding that there was no “grapevine effect” – that is, evidence that knowledge of the allegations spread beyond the immediate recipients and occasioned harm to his reputation in a wider audience. [30]

36. [42]

    It may be accepted that any “grapevine effect” would be relevant in establishing serious harm. [31]

37. [43]

    There were two categories of recipient to whom the “grapevine” evidence related: (a) mutual friends of the appellant and Karen, who were told by Karen that her parents had sent an email to the Raders to set the record straight, along with the substance of the allegations in it; and (b) friends of the Raders to whom Mrs Rader spoke about the email.

38. [44]

    Her Honour addressed this evidence collectively at [141] and [148], as follows:

39. [45]

    Earlier, her Honour had said:

40. [46]

    As to the first category, the appellant gave evidence that two groups of friends raised the allegations with him over lunch, having apparently been told of them by Karen, who had mentioned the matter in the midst of emotional communications describing the breakdown of the marriage. [32] They all knew that the appellant had been involved in a difficult marriage breakdown and that ADVOs had been obtained. [33] The appellant said in cross-examination “I think they did believe some of what Karen had said that’s why they contacted me”. [34] However, they remained supportive of the appellant. [35]

41. [47]

    The evidence concerning this category was given only by the appellant; none of his friends referred to was called as a witness. The appellant’s statement that he thought that these friends believed some of what Karen had said is not evidence that they believed the contents of the email, which they never saw let alone read. Moreover, the appellant’s opinion that others believed any of the allegations is of practically no probative value, in the absence of evidence of what expressions by those others founded that opinion. This is not a matter of credit but a recognition that a witness cannot give evidence of another’s state of mind. Moreover, objectively it is highly improbable that his friends – who were also friends of Karen – would lunch with him, and report to him what Karen had told them, if they believed the allegations to be true. The probabilities are that they would be disposed to disbelieve the allegations. Even if what Karen told them is regarded as arising from the publication of the matter complained of and not from a distinct publication by Karen, this does not demonstrate any adverse impact on the appellant’s reputation.

42. [48]

    As to the second category, Mrs Rader gave evidence that she had told a few close friends – only those whom she absolutely trusted and knew would stand by her [36] – and that they did not believe the allegations, and became aware that Mrs Rader remained close to and supported her son: [37]

43. [49]

    Not one of the witnesses who gave evidence of having heard anything of the allegations in the email believed them. Mrs Clayton – the wife of a schoolfriend of the appellant – was told of the allegations in September 2019 by the appellant when he stayed with her in Toronto, Canada. She gave no evidence in chief of any impact of the allegations on her view of him. In cross-examination she said: [38]

44. [50]

    Mrs Brooks, a family friend who knew all the protagonists, was told of the email by Mrs Rader when she visited Australia in late 2019. She too gave no evidence in chief of any impact of the allegations on her view of the appellant. In cross-examination she said: [39]

45. [51]

    Mr Allan was a good friend of the Raders who had come to know the Raders through common service in the RAF. In February or March 2019, Mrs Rader told him that she had received an email from Karen’s parents that alleged that the appellant had been abusive. He continued: [40]

46. [52]

    In cross-examination, he said: [41]

47. [53]

    Mrs Rader’s sister, who also lives in England, was told about the email by Mrs Rader in February or March 2019. She gave no evidence in chief of any impact of the allegations on her view of him. In cross-examination she said: [42]

48. [54]

    The evidence did not establish that anyone, in the small circle who had any knowledge of the email, believed the allegations. Indeed it established that they did not. The so-called “grapevine evidence” was not probative of any reputational harm. The trial judge was right to conclude that there was no evidence that knowledge of the allegations caused reputational damage in an audience wider than the immediate recipients of the email, being the Raders.

49. [55]

    The appellant impugns the trial judge’s rejection of his contention that, when they received the email, the Raders perceived the Haines as reliable or “trustworthy” people whose opinions on these events would carry weight, fortifying the impact of the imputations. In this respect, her Honour said:

50. [56]

    Later, her Honour concluded:

51. [57]

    The appellant submits that her Honour conflated the appellant’s evidence of what he understood to be his parents’ view of the Haines, with the evidence of his mother Mrs Rader.

52. [58]

    The starting point for consideration of this submission is the obvious – that in the circumstances of an acrimonious marriage breakdown, one party’s parents are inherently likely to be disposed to favour their child’s version and disfavour the other spouse’s account. Secondly, the appellant’s evidence of his observation and understanding of his parents’ attitude to the Haines is indicative that this was no exception. Thirdly, Mrs Rader’s sister gave this evidence: [43]

53. [59]

    It would be extraordinary if the appellant’s aunt knew those matters but his mother did not.

54. [60]

    Fourthly, Mrs Rader had had the appellant and the children stay in her home for some weeks before the matter complained of was sent. [44] After earlier denying it, Mrs Rader conceded that she knew prior to February 2019 of the ADVOs: [45]

55. [61]

    It may well be, as the appellant submits, that the evidence did not directly show the Raders to be aware of the precise content of the ADVO applications, or that there were allegations, by Karen against the appellant, of stalking or violence. But they knew enough to accept that “things were in a very poor state”, and in those circumstances, in my view, the proposition that the Raders in February 2019 regarded the Haines as a trustworthy and reliable source of information about the relationship between their respective children is an improbable one.

56. [62]

    As has been foreshadowed, however, the real question on appeal by way of rehearing is whether this Court is persuaded that, contrary to the trial judge’s finding, the evidence satisfied the “serious harm” threshold.

57. [63]

    On any view of the evidence, the publication was limited to the appellant’s parents, who of all the people in the world best knew him and were best positioned to judge for themselves whether there was substance to the imputations, and whose relationship with him was such as to withstand even the most serious allegations. The publication to them occurred on 16 February 2019, in a context where they already knew about the acrimony and the ADVOs between their son and the Haines’ daughter. On 18 February 2019, they forwarded the email to the appellant, “FYI”. He telephoned them that day, and told them “It’s all lies, mum. I can prove it”. By 19 February, they had received, orally, a sufficiently detailed response from the appellant to be able to put it, point by point, to the Haines. They spoke with the Haines on 20 or 21 February, for about 20 minutes, refuting point by point the allegations in the email, using the information provided to them by the appellant. Although Mrs Rader denied that at that stage she believed her son, she said to the Haines something like, “Well, I’ll believe what Damian says and you’ll believe what Karen says”: [46]

58. [64]

    Later, she gave this evidence: [47]

59. [65]

    Her cross-examination concluded: [48]

60. [66]

    Taking Mrs Rader’s evidence at its very highest, and even if the Raders at first regarded the Haines as a trustworthy and reliable source, any adverse effect of the imputations on the appellant’s reputation with the Raders had dissipated “after quite a few weeks”. Thereafter they had no “lurking doubt”; any disruption of the harmonious relationship between the appellant and his parents had entirely dissipated, within weeks. As has been explained, there was no evidence of reputational harm in any other audience. Such reputational harm as there was was with the appellant’s parents only, and short in duration.

61. [67]

    In concluding that, despite the seriousness of the imputations, a discord in the appellant’s relationship with his parents for some weeks did not amount to “serious harm”, [49] the trial judge was applying her vast experience in this field to a task which Lord Sumption said: [50]

62. [68]

    In my opinion, her Honour’s conclusion that the appellant had failed to satisfy the “serious harm” threshold was correct.

Qualified Privilege

1. [69]

   As has been noted, the relevant publication is an email, captioned “Children’s Schooling”, sent by the maternal grandparents of the appellant’s children to the paternal grandparents, ostensibly regarding their mutual grandchildren’s education, but also referring to wider issues pertaining to the breakdown of the relationship between their respective children. Her Honour held the email was published on a “protected occasion” and was therefore entitled to qualified privilege at common law, on the basis that it was a communication regarding family issues in which all the parties had an interest: [51]

2. [70]

   In addition, in addressing the reply of malice, her Honour said:

3. [71]

   The appellant contends that both the holding that the publication was made on a protected occasion and the finding that imputations were relevant and germane to the protected occasion were erroneous (Grounds 7 and 8 respectively).

4. [72]

   The first step in considering whether a defamatory publication is made in circumstances attracting a qualified privilege at common law is to identify the privileged occasion. [52] This requires “close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication”. [53] In this, the “hallmark” of qualified privilege is reciprocity of duty or interest, [54] or a “special and reciprocal interest”. [55]

5. [73]

   In the passage extracted above, [56] in particular at [166], her Honour plainly did this, identifying “a moral, familial and social duty to communicate” between the grandparents where the Haines (affiliated with their daughter) were at odds with their son-in-law the appellant “about access, school fees and the ongoing acrimony between the two parties to the marriage”, while the Raders had an interest in receiving the information “because the subject matter was their grandchildren’s welfare and schooling as well as hearing the different perspective of the defendants …”. The Haines had ceased to have contact with their grandchildren, whom they had previously minded and whose school fees they had paid. There were disputes between them and their daughter on the one hand and the appellant on the other about contact and school fees; and there were allegations and counter-allegations of bad behaviour of various sorts and ADVO applications between their respective children, Karen and the appellant. In other words, the maternal grandparents and paternal grandparents had a special reciprocal interest in the welfare and education of their mutual grandchildren, and also in the relationship between their respective children. It is telling that Mr Caldecott, a witness called by the appellant at trial, gave this evidence: [57]

6. [74]

   In my opinion, it is plain that the occasion of a private communication between two sets of grandparents on issues relating to the education and welfare of their grandchildren and the relationship between their children in the midst of a family breakdown is one which attracts qualified privilege. The appellant submitted that there was no evidence of any prior correspondence between his parents and the respondents regarding the issues of the grandchildren, visitations, school fees, ADVOs, stalking or the appellant’s relationship with his ex-wife. However, the existence of an occasion of qualified privilege does not depend on there having been any prior communication on the topic, and it is irrelevant that the Raders and the Haines had not previously discussed the specific issues referred to in the email; what is important is the reciprocal duty or interest, which may exist, or be brought into existence, without prior communication between the persons involved, because of circumstances which create the shared interest. As it happens, the Raders and the Haines’ were connected on Facebook and had previously stayed with each other and shared meals.

7. [75]

   The occasion so defined is not confined to the education of the grandchildren, but extends to the relationship between the grandparents’ respective children – the parents of their grandchildren. The allegedly defamatory statements were all on the topic of the relationship between the grandparents’ respective children and its breakdown. They were “sufficiently connected to the privileged occasion to attract the defence”. [58]

8. [76]

   Her Honour did not err in identifying and defining the protected occasion, nor in holding that the occasion was one of qualified privilege and that the imputations were relevant to that occasion.

9. [77]

   The trial judge admitted into evidence, as Exhibit 1, a document which purports to state the terms on which the appellant and Karen had agreed to continue to reside under the one roof, and to record the events of and following an altercation and ADVO application, in May 2009, bearing the signature of Karen and countersigned as agreed by another, which the appellant denied was his signature. The document was admitted by the trial judge: [59]

10. [78]

    The appellant complains that the exhibit was erroneously admitted (Ground 11), as its admission assumed that its contents were accurate, authentic and used in the manner suggested, where there was no evidence to that effect and where the appellant disputed its accuracy. However, her Honour used the document only to show what information was available to the Haines when they sent the email. For that purpose its accuracy was not material, and her Honour made no finding as to its accuracy.

11. [79]

    In any event, other evidence established that the Haines checked the veracity of the contents of the email with their daughter prior to sending it, by sending a draft to Karen and seeking correction or confirmation of its accuracy. [60]

12. [80]

    The appellant complains that her Honour failed to address specifically the case put in his Amended Reply below, that the respondents were motivated by the dominant improper purposes of turning the appellant’s parents against him, and influencing ongoing Family Court and ADVO proceedings (Ground 9). [61] Her Honour’s summary of the particulars of malice included: [62]

13. [81]

    Her Honour dealt with this particular as follows:

14. [82]

    Thus her Honour directly addressed and rejected the allegation about influencing Family Court and ADVO proceedings, observing that it was misconceived as the Family Law proceedings were not on foot when the email was sent. However, the appellant submits that her Honour failed to deal with the allegation about “turning the appellant’s parents against him”, which he says was crucial to his case on malice.

15. [83]

    It may be that her Honour did not refer specifically to the allegation of “a desire to turn the plaintiff’s parents against him”, but in holding that particular (v) could not succeed in the absence of evidence probative of it, her Honour necessarily rejected the proposition that the respondents were actuated by an improper purpose of turning Mr Rader’s parents against him. It is to be noted that the submission now made that this was crucial to his case on malice is belied by her Honour’s undisputed statements that: [63]

16. [84]

    A judge is not to be expected to deal specifically with every single unelaborated assertion contained in a party’s case. In any event, upon reviewing the evidence on a rehearing, albeit with due deference to her Honour’s position of advantage, I would not conclude that the respondents were actuated either by a desire to influence the Family Court proceedings (which had not yet been commenced), or by a desire “to turn the appellant’s parents against him”. The appellant has pointed to no evidence that they were actuated by such a purpose. The far more probable inference is that their purpose was to draw to the Raders’ attention their concerns about the conduct of their son, both to explain their decision about school fees, and in the hope that doing so might lead to a reduction in the overt conflict between their respective children. Her Honour did not err in rejecting Mr Rader’s assertion of malice.

17. [85]

    It follows that her Honour did not err in upholding the defence of qualified privilege.

Conclusion

1. [86]

   As the claim was rightly dismissed on the dual bases that the appellant had failed to discharge the onus of proof of demonstrating serious harm to his reputation, and that the publication took place on an occasion of qualified privilege and was not actuated by malice, it is unnecessary to address the grounds which impugn the judge’s contingent assessment of damages.

2. [87]

   As has been mentioned, the respondents challenge the competency of the appeal, arguing that leave is required because the matter at issue amounts to no more than $100,000. Her Honour contingently assessed damages at $15,000. The appellant relied on an affidavit of his solicitor which states that in his opinion, the matter at issue amounts to $100,000 or more. [64] The basis of that bare ipse dixit is not disclosed, and as the respondents submit seems “highly improbable”, but it was not challenged by cross-examination. Nonetheless it is difficult to see how, given the limited nature of the publication, an award of damages in excess of $100,000 could ever realistically have been contemplated.

3. [88]

   Although I incline to the view that leave to appeal was required, it is unnecessary to resolve this issue. The challenge to competency was a late one. Because the July 2021 amendments to the Defamation Act 2005 (NSW) introduce an equivalent “serious harm” test as that which is in issue in the appeal, the appeal involves a question of principle of some general importance. I would grant leave to appeal, if it be required.

4. [89]

   In my opinion, therefore, leave to appeal if required should be granted, but the appeal should be dismissed, with costs.

5. [90]

   BASTEN AJA: I agree with the orders proposed by Brereton JA. With one minor reservation, I also agree with his reasons.

6. [91]

   The reservation relates to the exegesis on the meaning of “serious” in s 1 of the Defamation Act 2013 (UK). There is a risk in seeking synonyms, which may later be treated as valid replacements for the ordinary English word adopted by the Parliament. There is also a risk in seeking to place the term on a scale, between other terms of equal imprecision. The critical concept is “serious harm to the reputation of the claimant”; it is that to which the court is required to attend by reference to the evidence of a range of matters. Analysis of individual component words is apt to distract from that inherently impressionistic exercise.