The kids are not all right An update on the operation of serious harm in defamation matters

What you need to know

• On 5 October 2022, the New South Wales Court of Appeal upheld Gibson DCJ's decision at first instance that the appellant had failed to discharge the onus of proof of demonstrating 'serious harm' to his reputation under the Defamation Act 2013 (UK).
• The court also dismissed the appellant's claim that Gibson DCJ erred in upholding the defence of qualified privilege in relation to the publication.
• This decision is one of the few instances where an Australian court has provided consideration of the element of 'serious harm', albeit in relation to the UK laws as that is where publication occurred.

What you need to do

• Be aware that the similar wording between the UK and Australian serious harm provisions will mean that the UK's Lachaux principles considered in this case will be a persuasive source of guidance for future Australian defamation cases, as already demonstrated by Zimmerman v Perkiss [2022] NSWDC 448.

Background 

On 16 February 2019, the respondents, Mr and Mrs Haines (who are the parents of the ex-wife of the appellant), emailed the parents of the appellant (Mr Rader) in England regarding the education of their mutual grandchildren, but also detailing the ongoing deterioration of the relationship between Mr Rader and his ex-wife.

On 17 November 2021, Mr Rader commenced defamation proceedings against Mr and Mrs Haines in the New South Wales District Court.  Mr Radar alleged that the email conveyed various imputations, including that he stole his ex-partner's car, is a thief, stalked his ex-partner and inflicted violence on his ex-partner. 

Significantly, because the publication of the email occurred in England the applicable law for determining liability was the Defamation Act 2013 (UK) (UK Act) and not the Defamation Act 2005 (NSW).

At first instance, Justice Gibson applied the United Kingdom Supreme Court's decision in Lachaux v Independent Print [2019] UKSC 27, to find that Mr Rader failed to discharge the onus of proof of demonstrating serious harm to his reputation on the basis that the publication was limited to the appellant’s parents, who were already aware of the acrimonious relationship between their son and the Haines' daughter.  Despite the seriousness of the allegations, discord in the appellant's relationship with his parents for a short duration did not amount to serious harm. 

The principles established in Lachaux can be summarised as follows:

• serious harm must be established as a fact;
• when determining serious harm, regard must be given to the meaning of the words used in the publication, the impact those words had on those they were communicated to, and the likely future impact of the words;
• serious harm should not be conflated with a plaintiff's hurt feelings;
• the extent of publication and any delay on behalf of the plaintiff in commencing proceedings is relevant to the assessment and determination of serious harm; and
• serious harm is to be assessed from the first evidence of serious harm until its end.  This consideration involves an assessment of whether the harm is present at the commencement of proceedings, at trial as well as the possibility for future harm. 

Her Honour also found that the publication took place on an occasion of qualified privilege and was not motivated by malice.

The appeal

On appeal, Mr Rader argued that Justice Gibson was wrong to conclude that he had failed to discharge the onus of proof of demonstrating serious harm to his reputation and that her Honour erred in upholding the defence of qualified privilege in respect of the publication.

The New South Wales Court of Appeal unanimously upheld Justice Gibson's decision and dismissed the appeal, agreeing with her Honour that Mr Rader failed to satisfy the 'serious harm' threshold under the UK Act.  In doing so, the Court of Appeal made the following propositions in respect of section 1 of the UK Act:

1. It must be shown that the publication has caused, or is likely to cause, serious harm to reputation;
2. Harm that amounts to 'serious harm' is more than merely substantial, though it need not be grave;
3. The requirement for serious harm to one's reputation is concerned with actual or likely reputational damage.  Significantly, it will not be satisfied by the seriousness of the imputation alone nor by injury to feelings.  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; and
4. A grave imputation may not result in serious harm, typically where the publication is to a small number of persons close to the plaintiff who are not disposed to believe it, and any impact of the imputation on the plaintiff’s reputation is transitory, as was the case in these proceedings.

In relation to whether the email was an occasion of publication that attracted qualified privilege, Justice Brereton upheld Justice Gibson's decision and noted that it was plain that an occasion of private communication between two sets of grandparents relating to their mutual grandchildren and the acrimonious relationship between their adult children attracted qualified privilege. 

What happens next?

This decision indicates that Australian courts will look closely to UK authority when applying the new 'serious harm' element enacted by the Model Defamation Amendment Provisions 2020 in future defamation matters where publication occurs in Australia. 

However, it should be taken into account that the Australian 'serious harm' provision may function differently from the UK provisions. In Australia, 'serious harm' must be established as an initial threshold.  In the UK, seeking early determination of 'serious harm' at the interim stage has been unfavourably considered by the courts as the assessment involves consideration from the first evidence of the harm, until its end, including at the time of the trial (Doyle v Smith [2018] EWHC 2935 at [117]-[120]).

On 10 October 2022, in the preliminary issues trial of Zimmerman v Perkiss [2022] NSWDC 448, Gibson DCJ adopted the test for serious harm and the time of assessment of harm as explained in Rader v Haines as statements of principle.

Authors: Lachlan Wright, Senior Associate and Charlotte Reimer, Graduate.