Defamation – Stone v Moore – By Ashley Files

[2016] SASCFC 60

This was an appeal to the Full Court of the Supreme Court from a District Court decision in a defamation action.

 The trial judge found that defamatory oral statements made by the defendant about the plaintiff (his estranged sister) to other family members were protected by the defence of qualified privilege.  The trial judge also found that defamatory statements made by the defendant about the plaintiff in an email were substantially true, thus the defence of justification was made out.

The plaintiff appealed.  Doyle J (with whom Kourakis CJ and Stanley J agreed) allowed the appeal, in respect of the email statements.  His Honour held that three of the defamatory imputations in the email were not proven to be true, thus were not justified.  The Court awarded the modest amount of $2,000.00 in damages to the appellant.

Doyle J, when at the Bar, was a specialist in defamation law.  In this decision, his Honour considers both the common law defence and the statutory defence of qualified privilege.  His Honour sets out what needs to be proved to make out the defence, at common law and under statute.  The decision is especially interesting because of its context, i.e. family relationships.

His Honour agreed with the trial judge that the oral statements were made on an occasion of qualified privilege.  Thus, qualified privilege can arise between family members, discussing family matters; the relevant reciprocity of duty (to inform) and interest (in receiving the information) can exist in that context.  His Honour also discussed the test for malice and how malice may be proved (but was not in this case) to rebut the qualified privilege defence.

Ashley Files
2 June 2016

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