Defending a Defamation Claim in Queensland

Defending a defamation claim relies on several legislative defences and other common law defences to defamation.

Defamation is the publication of a false factual statement which harms the reputation of a person or small business.  This statement is published with either negligence or malice and without lawful excuse.

There are essentially three (3) requirements which must be met to bring a defamation claim, they are:

1. 1. There was a publication; and
   2. The publication named a person (or small business) personally (or strong implication); and
   3. The publication was defamatory.

The publication is defamatory if it:

1. Injures the reputation of the person by exposing that person to hatred, contempt, ridicule, or being though less of; and/or
2. Lowers the person’s estimation in the eyes of right-thinking, or reasonable members of the society generally; and/or
3. Put’s the person in the position of being shunned and avoided.

A claim for defamation is quite easily made out in most cases, but success largely depends on several available defences open to a defendant.

In this article our defamation lawyers will explain those defences.

Defending a Defamation Claim in Queensland is complicated and subject to both statutory defences and common law defences.  Contact our defamation lawyers today.

Defending a Defamation Claim

The Defamation Act 2005 (Qld) (“Defamation Act”) contains a number of defences to defamation.

These defences are:

1. The Defence of justification
2. The Defence of contextual truth
3. The Defence of absolute privilege
4. The Defence for publication of public documents
5. The Defences of fair report of proceedings of public concern
6. The Defence of qualified privilege
7. The Defences of honest opinion
8. The Defence of innocent dissemination
9. The Defence of triviality

There are also some common law defences to defamation.

Justification

Section 25 of the Defamation Act says:

It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

So, if the imputations contained in the publication are substantially true, then this is a complete defence to a defamation claim.  But what does “substantially true” mean?

Schedule 5 of the Defamation Act defines “substantially true” to mean:

“substantially true” means true in substance or not materially different from the truth.

In Wash Investments Pty Ltd & Ors v SCK Properties Pty Ltd & Ors [2016] QDC 77, Ryrie DCJ said:

For the ‘justification’ defence to apply, a party must prove that what he has published is substantially true.  The concept of “being substantially true” denotes “not materially different”.  Further, use of the word ‘substantial’ suggests that if the publication is mostly true, then this may well be enough to raise this defence.

So, the definitions and the case law state that the defamatory imputations must be mostly true, mostly true in substance, essentially true, or mostly true.  It does not have to be 100% true.

In Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201 Flanagan J said:

To succeed in a plea of truth, the defendant must prove that the imputations are true in substance or not materially different from the truth. What must be proved to be true is every material part of the imputation relied upon by the plaintiffs; errors in detail are tolerated.

If the defamatory publication is a statement of fact, the defendant bears the onus in proving that the statement is true.

If the defamatory a statement of opinion, the defendant bears the onus in proving that the statement of opinion is correct.

Click here for a deep dive into – Defence of Justification in Defamation Claims

Another defence to a defamation claim is the defence of contextual truth.

Contextual Truth

Section 26 of the Defamation Act says:

It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, 1 or more other imputations (“contextual imputations”) that are substantially true; and

(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

Like the defence of justification at section 25, the defence of contextual truth also relies on the substantial truth of one (1) or more of the imputations.

However, section 26(b) imports a further limb, in that if a publication contains a number of different defamatory imputations, some being true, and some not true, then if the untruthful imputations do no further damage to the reputation of the defamed person, then this is the contextual truth defence.

In Nationwide News Pty Ltd v Weatherup [2017] QCA 70, Applegarth J (with Fraser JA and Douglas J agreeing) provides a detailed analysis of this defence at [44] to [58] and say:

The defence of contextual truth exists to permit a defendant to prove that the substantial truth of more serious contextual imputations resulted in no further harm being done to the plaintiff’s reputation by the imputations upon which the plaintiff succeeds. It addresses a defect in the common law.  The rationale for the section is to deny a plaintiff an entitlement to recover damages where the plaintiff has selected, and succeeded in establishing, a less serious imputation than the more serious imputation which the defendant selects and is able to prove are substantially true. In such a case, the defendant’s justification of the more serious imputation may establish that the plaintiff’s reputation was not actually harmed, as the plaintiff alleges, by the less serious imputation.

This means that the defendant must prove that the truthful contextual imputations are clearly more serious than the unproven truthful imputations, thereby causing no further harm.

For example, in Brose v Baluskas & Ors (No 6) [2020] QDC 15 the second defendant relied on two contextual imputations, being:

1. First, that the plaintiff has had numerous complaints made about her by parents; and

2. Secondly, that parents of children at the school have confronted her on the way she would handle situations regarding their child.

The Plaintiff admitted the first imputation.  It was true, she did have numerous complaints made about her by parents.

However, the Court found that it was not unusual for a teacher to have a complaint made about them, especially a teacher with 19 years’ experience, and therefore not defamatory.  The Court then said:

It follows that these defamatory imputations must cause “further harm” as is contemplated by s26 (b) of the Defamation Act than the “no harm to reputation” arising from my finding that the truthful contextual imputations are not defamatory … It follows and I find that the second defendant’s defence of Contextual Truth is not made out.

In Mizikovsky v Queensland Television Ltd & Ors (No 3) [2011] QSC 375 Dalton J posed a number of questions to the jury.  These questions are important to think about when attempting to use the defence of contextual truth, they are:

1. Whether or not the contextual imputations were conveyed by the [publication]; and

2. Whether, if the contextual imputations were conveyed, they were substantially true; and

3. Having regard to all the contextual imputations you have found to be substantially true was any further damage done to the plaintiff’s reputation by broadcasting any of the imputations?

If you can answer these questions correctly, then it is possible to use this defence when defending a defamation claim.

Another defence is the defence of absolute privilege.

Absolute Privilege

Section 27(1) of the Defamation Act says:

It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.

Absolute privilege is a complete defence to a claim in defamation (subject to the raising of malice).

Absolute privilege means if the defamatory imputation is published:

1. During the proceedings of a parliamentary body; and/or
2. During the proceedings of an Australian court or Australian tribunal; and/or
3. In another Australian jurisdiction.

We will explain these in more detail below.

Published during the Proceedings of a Parliamentary Body

Schedule 5 of the Defamation Act defines Parliamentary Body to mean:

“parliamentary body” means—

(a) a parliament or legislature of any country; or

(b) a house of a parliament or legislature of any country; or

(c) a committee of a parliament or legislature of any country; or

(d) a committee of a house or houses of a parliament or legislature of any country.

Section 27(2)(a) of the Defamation Act then says:

(a) the matter is published in the course of the proceedings of a parliamentary body, including (but not limited to)—

(i) the publication of a document by order, or under the authority, of the body; and

(ii) the publication of the debates and proceedings of the body by or under the authority of the body or any law; and

(iii) the publication of matter while giving evidence before the body; and

(iv) the publication of matter while presenting or submitting a document to the body.

This is self-explanatory.  Essentially any defamatory imputation published in the parliament or legislature of any country, is covered by absolute privilege.

This is subject to the defendant raising the defence of malice (see below).

Published during the Proceedings of an Australian Court or Australian Tribunal

Schedule 5 of the Defamation Act defines Australian court to mean:

“Australian court” means any court established by or under a law of an Australian jurisdiction (including a court conducting committal proceedings for an indictable offence).

Schedule 5 of the Defamation Act defines Australian tribunal to mean:

“Australian tribunal” means any tribunal (other than a court) established by or under a law of an Australian jurisdiction that has the power to take evidence from witnesses before it on oath or affirmation (including a Royal Commission or other special commission of inquiry).

Section 27(2)(b) of the Defamation Act says:

(b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to)—

(i) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process); and

(ii) the publication of matter while giving evidence before the court or tribunal; and

(iii) the publication of matter in any judgment, order or other determination of the court or tribunal

So, the publication of any Court documents, statements made while giving evidence, or the publication of any judgment or order of the Court – are all covered by absolute privilege.

In Mann v O’Neill [1997] HCA 28 the High Court of Australia said:

It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. It extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings. It is said that it extends to any document published on an “occasion properly incidental [to judicial proceedings], and necessary for [them]” … It is also settled law that absolute privilege attaches to statements made in the course of quasi-judicial proceedings, ie proceedings of tribunals recognised by law and which act “in a manner similar to that in which a Court of justice acts”.

In the case of Harvey v Henzell & Ors [2015] QDC 132 the plaintiff tried to sue the defendants for defamatory comments they allegedly made to a psychologist who prepared a report in the course of Family Court proceedings.  Samios DCJ said:

I am satisfied on the evidence before me that the statements made by the defendants to Ms Rzoska are protected by the defence of absolute privilege. The words “in the course of the proceedings of an Australian court” that appear in subparagraph (b) of subsection (2) of section 27 can be given a broad meaning. These statements made to Ms Rzoska I find were made in the course of the proceedings. In addition, they could also be protected as being in the document that was created by Ms Rzoska under section 27, subsection (2), paragraph (b)(i) of the Act.

The claim and statement of claim were struck out.

The Plaintiff sought leave to appeal in Harvey v Henzell & Ors [2015] QCA 261 but leave to appeal was refused.

In Wagner & Ors v Pascoe [2019] QDC 68, Devereaux SC DCJ discussed the liability of witnesses giving evidence before the court or tribunal in relation to claims for defamation.  Referring to a number of cases, His Honour referring to Cabassi v Vila [1940] HCA 41 said:

Public policy and the safe administration of justice require that witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint, excepting that imposed by the penalty for perjury … It is clear law that a witness cannot be sued in a civil action in respect of anything which he has said in the course of his examination in the witness box … If there is anything as to which the authority is overwhelming it is that a witness is privileged to the extent of what he says in the course of his examination.

Another defence is the defence of the publication of public documents.

Publication of Public Documents

Section 28 of the Defamation Act says:

It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in—

(a) a public document or a fair copy of a public document; or

(b) a fair summary of, or a fair extract from, a public document.

A public document is defined as documents issued by governments, court judgments, parliamentary reports, or legislation, or it was published honestly for the information of the public or the advancement of education.

There is a more complete definition contained at 28(4) of the Defamation Act.

The public document must be “issued” by the allowable persons.  In Belbin & Ors v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 the defendant tried to defend the defamation proceedings by saying that the publication was issued as a public document.  Kaye J said:

Clearly, a document may be kept without being published; conversely, a document may be published without being kept. Similarly, the verb “issue” and the verb “publish” are not synonymous. Not every document published by a government, or by an officer, employee or agency of the government, would, per se, be issued by the government (or by the officer, employee or agency of the government). Conversely, while a document issued by the government may thereby be published by the government, it does not follow that each document, issued by a government (or an officer, employee or agency of the government), is thereby “published” as that word is understood in defamation law.

In that case Kaye J found that the publication had not been “issued”, and therefore the did not consider that the publication was “issued” by him for the purposes of s 28(4)(d) of the Act.

Further, the public document must provide information for the public, not for a specific class of persons.  Again, when discussing this, Kaye J said:

Section 28(4)(e) provides that a “public document” means any record or other document “open to inspection by the public” that is kept by an Australian jurisdiction, an Australian statutory authority, an Australian court, or under legislation of an Australian jurisdiction. In that context, the phrase “the public” clearly means the people or the community as a whole, as distinct from a closed confined class of the community.

Another defence to defamation is the defence of fair reporting.

Defending a Defamation Claim in Queensland is complicated and subject to both statutory defences and common law defences.  Contact our defamation lawyers today.

Fair Report of Proceedings of Public Concern

Section 29(1) of the Defamation Act says:

It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.

Section 29(4) defines a proceeding of public concern to mean reports of proceedings in courts of law, proceedings in parliament, proceedings of certain statutory bodies and boards of inquiry and proceedings of public meetings (amongst others).

The relevant legal principals in relation to the fair report defence have been found in the case law.

In Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 the Court found that in certain circumstances that errors may be permitted.  They said:

The report need not be verbatim, but to be privileged it must accurately express what took place. Errors may occur; but if they are such as not substantially to alter the impression that the reader would have received had he been present at the trial, the protection is not lost.

In Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37 the High Court said that:

It is well settled that to be fair and accurate, a report need not be a complete report of the proceedings in question. Nor need it be accurate in every respect. It must, however, be substantially accurate. And the question whether it is substantially accurate is a question of fact.

Further, it is not a fair report just because it repeats information obtained from the proceeding of public concern.  In Rogers v Nationwide News Pty Ltd [2003] HCA 52 the High Court of Australia said:

Matter does not constitute a report of proceedings merely because it repeats information obtained from those proceedings … The importance of attribution, and the making of what purports to be a report of proceedings, as distinct from the mere repetition.  The requirement of attribution does not necessarily require direct quotation and acknowledgment; but it must appear that the published matter bears the character of a report of the proceedings in question. It is not enough that the proceedings are a source of information, or the subject of an expression of opinion.

In Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58, the Court said:

A fair report is a substantially accurate summary of the proceedings, neither more nor less. The question is not whether it is fair or unfair to any particular person; the question is whether it substantially records what was said and done.

There is no clear definition of to publish “honestly for the information of the public”.  However, it seems clear on the authorities that a report should be a fair account of the proceedings.

Another defence to a defamation claim is the defence of qualified privilege.

Qualified Privilege

Section 30(1) of the Defamation Act says:

(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the “recipient”) if the defendant proves that –

(a) the recipient has an interest or apparent interest in having information on some subject; and

(b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and

(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.

It is a defence if the defamatory imputations were published someone with a legal, moral, or social duty to make the imputations, and the person who received the imputations had a duty to receive it.

There is an extensive list of matters the Court must take into consideration from 30(3)(a) to 30(3)(j) but essentially the conduct of the defendant in publishing the matter must be reasonable in the circumstances.

There are essential differences between the defences of absolute and qualified privilege.

Absolute privilege only requires evidence that the occasion is privileged and then all communication falls within the defence.

Qualified privilege requires evidence that the occasion was privileged, but it is for the Court to determine if the communication falls within the defence.

In Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 McHugh J said:

In determining the question of privilege, the Court must consider all the circumstances and ask whether this publisher had a duty to publish or an interest in publishing this defamatory communication to this recipient. It does not ask whether the communication is for the common convenience and welfare of society. It does not, for example, ask whether it is for the common convenience and welfare of society to report that an employee has a criminal conviction. Instead, it asks whether this publisher had a duty to inform this recipient that the latter’s employee had been convicted of a particular offence and whether this recipient had an interest in receiving this information. That will depend on all the circumstances of the case. Depending on those circumstances, for example, there may be no corresponding duty and interest where the conviction occurred many years ago or where it could not possibly affect the employment.

There must be a corresponding duty to both give the information that is from someone with a legal, moral, or social duty to send it, and a person who should receive it.

In Grattan v Porter [2016] QDC 202, Robertson DCJ said:

The … defence of qualified privilege … is attracted when the recipients have an interest or an apparent interest in having information on a particular subject; when the offending publication is made in the course of giving relevant information to the recipients; and most importantly when the conduct of the defendant in publishing the matter is reasonable in the circumstances.

In deciding the question of reasonableness, section 30(3) sets out factors to be considered.

When discussing qualified privilege in the context of online reviews, in DG Certifiers Pty Ltd v Hawksworth [2018] QDC 88, Rosengren DCJ discussed whether the reciprocity existed if published to the world at large.  The Court said:

Unlike a talk back radio broadcast, newspaper article, or an online restaurant review to the public at large, the defendant chose the recipients of his reviews. They were directed and intended at persons who may be interested in engaging the building certification services of the plaintiffs. They were on websites where the plaintiffs allowed and in fact invited clients to write reviews of their experiences with the plaintiffs for this intended purpose.

The Court found that when defending a defamation claim, the defamatory imputations were able to qualify for the defence of qualified privilege at common law and statute.

The defence of qualified privilege (common law or statute) can be defeated by malice, see below.

A more in-depth article in relation to the defence of qualified privilege is here –  Defence of Qualified Privilege in Defamation

Another defence is the defence of honest opinion.

Defending a Defamation Claim with Honest Opinion

Section 31(1) of the Defamation Act says:

It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the matter was an expression of opinion of the defendant rather than a statement of fact; and

(b) the opinion related to a matter of public interest; and

(c) the opinion is based on proper material.

So, it is a defence to a defamation claim if the defamatory imputations were expressed as an opinion rather than a fact, and that it is a matter of public interest, and the opinion was based upon proper material which is substantially true or based upon public documents or on material published under the protection of absolute privilege.

The imputation must clearly identify the opinion and must be distinguishable from fact.

In Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60, the High Court discussed the authorities in relation to distinguishing fact from opinion.  Gleeson CJ said:

The law is not primarily concerned to provide redress for those who are the subject of disparaging expressions of opinion, and freedom of opinion is (subject to necessary restrictions) a basic democratic right. It is, however, plain that certain statements which might on their face appear to be expressions of opinion (as where, for example, a person is described as untrustworthy, unprincipled, lascivious or cruel) contain within themselves defamatory suggestions of a factual nature.

In Mizikovsky v Queensland Television Ltd & Ors (No 3) [2011] QSC 375, Dalton J said:

The defendants struggled to isolate parts of the defamatory broadcast which were said to be opinion … the matters put forward by the defendants were so bound up in the statements of fact which surrounded them that they were indistinguishable as comment, particularly having regard to the difficulties of distinguishing between fact and comment in a television broadcast.

The opinion must also be a matter of public interest when defending a defamation claim.

In London Artists Ltd v Littler [1969] 2 All ER 198, Lord Denning MR said:

Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment.

The scope of what is “public interest” is seemingly a broad one.

In Orr v Isles [1965] NSWR 677, Taylor J said:

Matters of public interest, in respect of which the right of comment is given, range over an enormous field … [T]he range commences with affairs of State and finishes with the performance of an amateur theatrical society in the village hall.

In Brose v Baluskas & Ors [2018] QDC 214, Muir DCJ discussed the scope and range of things in the public interest, and said:

The authorities suggest that the scope for a matter to be of public interest is a broad one and the threshold is relatively low. For example, in McEloney v Massey [2015] WADC 126, Schoombee DCJ accepted that the manner in which an accountant provides his services to the public at large is a matter of public interest.  Similarly, in Broadway Approvals Ltd v Odhams Press Ltd (No 2) [1965] 1 WLR 805, the Court held that similar public interest existed in the trade practices of a stamp dealer.

So, if the defamatory material is in the public interest, then it must also be based upon proper material.

Section 30(5) of the Defamation Act defines proper material as:

For the purposes of this section, an opinion is based on “proper material” if it is based on material that—

(a) is substantially true; or

(b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or

(c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.

Section 28 being the defence for publication of public documents; and section 29 being the defence of fair reporting of public proceedings.

We have a very detailed article here – Defence of Honest Opinion in Defamation

Another defence when defending a defamation claim, is the defence of innocent dissemination.

Innocent Dissemination

Section 32(1) of the Defamation Act says:

It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor; and

(b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and

(c) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.

It is a defence to defamation if the material was innocently disseminated by a person who is not the primary distributor, such as a newsagent, bookseller, a librarian, or a wholesaler or retailer of the defamatory matter (amongst others).

In Thompson v Australian Capital Television Pty Ltd [1996] HCA 38, Brennan CJ, Dawson and Toohey JJ said:

it would be more accurate to say that any disseminator of a libel publishes the libel but, if he can establish the defence of innocent dissemination, he will not be responsible for that publication.

The onus is on the defendant to prove the innocence of the dissemination.

The final statutory defence is the defence of triviality.

Defending a Defamation Claim with Triviality

THIS DEFENCE HAS BEEN REPEALED AND REPLACED WITH SECTION 10A. THIS DEFENCE WILL ONLY BE AVAILAVLE IN RELATION TO PUBLICATIONS MADE PRIOR TO 1 JULY 2021.

Section 33 of the Defamation Act says:

It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.

So, when defending a defamation claim, if the alleged imputations are so trivial to sustain any harm.

In Smith v Lucht [2015] QDC 289 the defendant sent an email to one other person calling the Plaintiff (a solicitor) Dennis Denuto from the movie The Castle.  Moynihan QC DCJ said:

I am satisfied that the defendant has proved that, at the time of the publication of the defamatory matter, the circumstances of publication were such that the plaintiff was unlikely to sustain any harm to his reputation as the statements were confined to two members of his family with whom the defendant was in dispute, and they were able to make their own assessment of the imputation. The three statements did not convey any breach of duty, illegal acts or dishonesty on behalf of the plaintiff and they were not made in a form that was intended to be or likely to be published by the defendant beyond Sally and Jarrad.

Mr Smith then appealed to the Queensland Court of Appeal in Smith v Lucht [2016] QCA 267 alleging that the trial judge erred in finding that a defence had been made out under s 33 of the Defamation Act 2005 (Qld).  In the appeal, the Court said:

The proposed appeal against the award of damages does not raise any significant question of principle. Nor does that part of the proposed appeal suggest that there is any promising prospect of Mr Smith establishing that there has been a serious injustice warranting correction. Further, as I have concluded that Mr Smith has not established that the judge was wrong to find the defence of triviality under s 33 made out, it would be futile for this Court to grant leave to appeal on the proposed grounds concerning damages … The appeal is dismissed.

What sustaining harm meant in this context was also discussed in this appeal.

In Jones v Sutton [2004] NSWCA 439 the Court found that hurt feelings were not “harm” because that was a matter for damages so that the word “harm” was confined to injury to reputation.

As well as the statutory defences, there are also a number of common law defences to defamation.

Defending a Defamation Claim – Common Law Defences

Section 6(2) of the Defamation Act says:

This Act does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication).

Further, section 24(1) of the Defamation Act says:

A defence under this division is additional to any other defence or exclusion of liability available to the defendant apart from this Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability.

So, the defamation contemplates the common law defences and does not exclude them.

When defending a defamation claim, common law defences to defamation include the following:

1. The “Polly Peck” defence; and/or
2. The common law defence of qualified privilege; and/or
3. The defence of fair comment; and/or
4. The defence of unintentional defamation.

We will explain these in more detail below.

Defending a Defamation Claim with The “Polly Peck” Defence

When defending a defamation claim, the Polly Peck defence is named after Polly Peck (Holdings) Plc v Trelford [1986] QB 1000.

The Polly Peck defence essentially allows the defendant to plead alternative imputations that differ in substance to the imputations pleaded by the plaintiff.  The defendant can then seek to justify the new imputations instead of the plaintiff’s pleaded imputations.

The Courts have ruled that the Polly Peck defence was not available in Queensland.  In Robinson v Laws & Anor [2001] QCA 122, the Court said:

As pointed out by the Chief Justice, Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519 at 526 ff considered Polly Peck and concluded that the principle established therein was contrary to the basic rules of common law pleading and ought not be approved and applied in Australia.

Although may still be available in other states.

There is also a common law defence of qualified privilege.

Common Law Defence of Qualified Privilege

When defending a defamation claim, this is very similar to the statutory defence.

At common law, the defence of qualified privilege is available if the defamatory statement is made in the performance of a moral, legal, social duty or interest, and this publication is made to another person having a reciprocal duty accept it.

An example is that of an employer providing a reference for an employee.  The employer has an interest to provide it and the person requesting the reference has an interest in receiving it.

The question of whether a defamatory publication has been made on an occasion of qualified privilege at common law is a question for the trial judge.

There is also a common law defence of Fair Comment.

Defending a Defamation Claim with Fair Comment

There are three (3) essential elements which must be established by the defendant to prove the defence of fair comment, they are:

1. The defamatory imputation must be a comment; and
2. The defamatory imputation must be on a matter in the public interest; and
3. The defamatory imputation must be fair.

The only difference is the comment being fair.

Defending a Defamation Claim with Unintentional Defamation

Unintentional defamation is similar to Innocent Dissemination.

The defendant will need to prove that the defamation was unintentional.

An eligible defence to a defamation claim can by defeated if the plaintiff can show that the defamatory publication was made by malice.

We will explain below.

Malice or Ill Will

Section 24 of the Defamation Act says:

If a defence under this division to the publication of defamatory matter may be defeated by proof that the publication was actuated by malice, the general law applies in defamation proceedings in which the defence is raised to determine whether a particular publication of matter was actuated by malice.

In Gardiner v John Fairfax & Sons Pty Ltd [1942] NSWStRp 16, Jordan CJ addressed the issue in the following terms:

To establish malice, it is necessary to adduce evidence that the comment was designed to serve some other purpose than that of expressing the commentator’s real opinion, for example, that of satisfying a private grudge against the person attacked. But this evidence is not supplied by the mere fact that the defendant has expressed himself in ironical, bitter or even extravagant language. A critic is entitled to dip his pen in gall for the purpose of legitimate criticism; and no one need be mealy-mouthed in denouncing what he regards as twaddle, daub or discord. English literature would be poorer if Macaulay had not been stirred to wrath by the verses of Mr Robert Montgomery.

Defending a Defamation Claim in Queensland

If you have been served with a defamation claim, then you need to act quickly.

Defending a Defamation Claim in Queensland is complicated and subject to both statutory defences and common law defences.  Contact our defamation lawyers today.