Kalil v Eppinga [2023] NSWDC 107

Kalil v Eppinga [2023] NSWDC 107

The cross claimant did not discharge her onus of proving, to the required standard, that the cross defendants were actuated by malice. Ex C10 and Ms Eather's accepted evidence established that Dr Kalil thought Ms Eppinga was attempting to steal drugs and that she had a drug in her hand. The Court preferred Ms Eather's evidence over Ms Eppinga's, found no Jones v Dunkel inference was available against Dr Kalil, and held that the cross claimant failed to defeat the accepted defence of qualified privilege as a reply to an attack.

Jurisdiction
Australia
Judgment Date
21 April 2023
Procedural Posture
Defamation Cross Claim in Civil Proceedings / Principal Judgment After Hearing
Outcome
Judgment and verdict for the cross defendants against the cross claimant, with costs to follow the event subject to the costs notification procedure.
Legal Topics
['qualified Privilege' 'reply to an Attack' 'malice' 'publication' 'defamatory Imputations' 'jones V Dunkel Inference']
['defamation' 'civil Procedure' 'evidence'] ['qualified Privilege' 'reply to an Attack' 'malice' 'publication' 'defamatory Imputations' 'jones V Dunkel Inference']

Case Brief

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Procedural Posture

Defamation Cross Claim in Civil Proceedings / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Matter Complained Of conveyed pleaded defamatory imputations about the cross claimant.' 'Whether publication of the Matter Complained Of was established and its extent.' "Whether the cross defendants' publication was protected by qualified privilege as a reply to an attack." 'Whether the cross claimant proved malice sufficient to defeat qualified privilege.' 'Whether an inference should be drawn against Dr Kalil under Jones v Dunkel because he did not give evidence.']

Ratio Decidendi

The cross claimant did not discharge her onus of proving, to the required standard, that the cross defendants were actuated by malice. Ex C10 and Ms Eather's accepted evidence established that Dr Kalil thought Ms Eppinga was attempting to steal drugs and that she had a drug in her hand. The Court preferred Ms Eather's evidence over Ms Eppinga's, found no Jones v Dunkel inference was available against Dr Kalil, and held that the cross claimant failed to defeat the accepted defence of qualified privilege as a reply to an attack.

Court Disposition

Judgment and verdict for the cross defendants against the cross claimant, with costs to follow the event subject to the costs notification procedure.

Orders

  • ['Judgment and verdict for the cross defendants against the cross claimant.' 'That any party wishing to be heard on the issue of costs notify my associate of the fact on or before noon on 26 April 2023.' 'That in the event of Notification, the notifying party shall file and serve any evidence and submissions on or...