Schlaepfer v Australian Securities & Investments Commission [2021] NSWCA 129

Schlaepfer v Australian Securities & Investments Commission [2021] NSWCA 129

The core ratio is that while the appellant, Mr Schlaepfer, was defamed by ASIC's communications regarding suspected market manipulation, and certain imputations and innuendoes were conveyed and proved, the communications were made on an occasion of qualified privilege at common law, and the defence was not defeated by malice. However, the statutory defence of qualified privilege under s 30 of the Defamation Act failed due to lack of reasonableness, specifically the failure to give the appellant an opportunity to respond before publication. The justification defence failed as the evidence did not establish, to the necessary standard, that Select Vantage or Merlito engaged in market...

Parties
Appellant: Daniel Schlaepfer; First Respondent: Australian Securities & Investments Commission; Second Respondent: Greg Yanco
Jurisdiction
Australia
Judgment Date
30 June 2021
Procedural Posture
Civil / Appeal
Outcome
Appeal dismissed; orders as to costs varied
Legal Topics
Slander, Market Manipulation, Layering, Qualified Privilege, Justification (defamation), Evidence and Expert Evidence, Identification in Defamation, Imputations and Innuendos, Publication of Slander
Defamation Financial Services Corporations Law Slander Market Manipulation Layering Qualified Privilege Justification (defamation) +4 more

Case Brief

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Parties

Daniel Schlaepfer

Appellant

Australian Securities & Investments Commission

First Respondent

Greg Yanco

Second Respondent

Procedural Posture

Civil / Appeal

Legal Issues

  1. 1 Whether slander as pleaded was proved by reference to contemporaneous records
  2. 2 Whether appellant was identified by the matters complained of
  3. 3 Whether pleaded imputations and true innuendoes were conveyed

Ratio Decidendi

The core ratio is that while the appellant, Mr Schlaepfer, was defamed by ASIC's communications regarding suspected market manipulation, and certain imputations and innuendoes were conveyed and proved, the communications were made on an occasion of qualified privilege at common law, and the defence was not defeated by malice. However, the statutory defence of qualified privilege under s 30 of the Defamation Act failed due to lack of reasonableness, specifically the failure to give the appellant an opportunity to respond before publication. The justification defence failed as the evidence did not establish, to the necessary standard, that Select Vantage or Merlito engaged in market...

Court Disposition

Appeal dismissed; orders as to costs varied

Orders

  • Primary judge's order as to costs vacated
  • Appeal otherwise dismissed