MAKEIG v DERWENT [2000] NSWCA 136

MAKEIG v DERWENT [2000] NSWCA 136

The trial judge erred in law by applying a test of reasonableness to the common law defence of qualified privilege. Reasonableness is only required in the expanded privilege at law outlined in Lange, not for common law privilege. There is nothing inherently inconsistent in separate findings as to malice for different defamatory imputations in the same document; the causes of action are based on each imputation.

Jurisdiction
Australia
Judgment Date
02 June 2000
Procedural Posture
Appeal / Court of Appeal Decision After District Court Judgment
Outcome
Appeal allowed with costs; cross appeal dismissed with costs; order for $70,000 damages vacated; District Court to determine common law privilege and, if necessary, damages for imputation (a); other orders as specified.
Legal Topics
['qualified Privilege' 'malice' 'reasonableness' 'publication to Voters' 'defamation Act 1974 (nsw) S22']
['defamation'] ['qualified Privilege' 'malice' 'reasonableness' 'publication to Voters' 'defamation Act 1974 (nsw) S22']

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Procedural Posture

Appeal / Court of Appeal Decision After District Court Judgment

Legal Issues

  1. 1 ['Whether the trial judge erred by applying a reasonableness requirement to the common law defence of qualified privilege' 'Whether the alleged defamatory imputation (e) was published with malice' 'Whether publication was excessive so as to defeat qualified privilege' 'Whether the trial judge erred in finding different motives for separate imputations in the same publication']

Ratio Decidendi

The trial judge erred in law by applying a test of reasonableness to the common law defence of qualified privilege. Reasonableness is only required in the expanded privilege at law outlined in Lange, not for common law privilege. There is nothing inherently inconsistent in separate findings as to malice for different defamatory imputations in the same document; the causes of action are based on each imputation.

Court Disposition

Appeal allowed with costs; cross appeal dismissed with costs; order for $70,000 damages vacated; District Court to determine common law privilege and, if necessary, damages for imputation (a); other orders as specified.

Orders

  • ['Appeal allowed with costs.' 'Leave to file cross appeal granted; cross appeal dismissed with costs.' 'Order of trial judge entering $70,000 verdict for Plaintiff vacated.' "Order that Defendant pay Plaintiff's costs before the trial judge affirmed." 'Proceeding remitted to District Court to determine if imputation...