Section 33 Defamation Act 2005 (NSW)
171Section 33 provides:
"33 Defence of triviality
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."
172The provision "unlikely to sustain any harm" is different to the formulation "not likely to suffer harm" contained in s 13 Defamation Act 1974 (NSW), which provided:
"13 Unlikelihood of harm
It is a defence that the circumstances of the publication of the matter complained of were such that the person defamed was not likely to suffer harm."
173The defence of unlikelihood of harm is unique to Australia. As the NSW Law Reform Commission's 1971 Report (which led to the enactment of the 1974 legislation containing s 13), the defence had been available, for slander only, since 1847, "to meet the hard conditions of pioneer days": Lang v Willis (1934) 52 CLR 637 at 650 per Rich J. Rich J noted that the jury could take into account the occasion of publication, such as the heat of a family squabble, or a quarrel in a shearing shed. Evatt J added that the jury could consider "all the aspects of the occasion in question, and they are not debarred from considering the circumstances leading up to and surrounding the particular occasion" (at 650). McTiernan J added that the fact that the statements were "untrue in some respects", or even malicious, was irrelevant (at 683).
174The defence may arise in circumstances such as the following:
(a)The extent of publication is limited. In Morosi v Mirror Newspapers Limited [1977] 1 NSWLR 749 at 800) the defence was described as "particularly applicable" where there is a publication of an informal nature of a trivial imputation.
(b)The knowledge and characteristics of the readers of the publication, who already know the plaintiff and the events in question, which means they are able to make their own judgment: Perkins v Aboriginal Land Council (Supreme Court of NSW, Badgery-Parker J, 15 August 1999) at p. 27; Chappell v Mirror Newspapers Limited (1984) Aust Torts Rep 80-691 at 68,948; Morosi at 800). In particular, where the recipients of the publication have a close relationship, such as the relationship between a company and its directors, "the defence of unlikelihood of harm (s 13) will succeed": State Bank of NSW v Currabubula Holdings Pty Ltd & Anor (2001) NSWCA 47 at 114 per Giles JA. This is why it is important for the plaintiff to be able to define all recipients of the libel, as Badgery-Parker J pointed out in Perkins at 27.
(c)Where the "quality of the publication" can be considered "in respect of its proneness to cause harm" (Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 86,947-86,948). This enquiry is directed to the moment of publication. Actionability does not depend upon an enquiry as to what thereafter happens, and in particular as to whether or not harm in fact resulted from the publication.
(d)Where the imputations are of a lesser seriousness. However, it has been considered to be potentially available to imputations of thieving (King & Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305), promiscuity (Morosi v Mirror Newspapers Ltd), racism (Chappell v Mirror Newspapers Ltd) or indeed any imputation which would otherwise satisfy the criteria set out in (a) to (c) above.
175This brings me to the question of the applicable test for s 33. Mr Evatt submitted that the difference between ss 33 and 13 of the repealed legislation picks up the language of Mahoney JA in King & Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305.
176Mahoney JA's enunciation of this principle was endorsed in Skalkos v Assaf [2002] NSWCA 14 at [73]. Mason P, dismissing the appeal, concurred with the trial judge, who had "pointed out that the test identified by Mahoney JA in King & Mergen Holdings Pty Ltd v McKenzie (at 309) was that the defendant bore the significant burden of negativing not merely that there would be great or substantial harm but that there be "harm" at all." However, in Jones v Sutton (2004) 61 NSWLR 614, King & Mergen Holdings Pty Ltd v McKenzie, supra, was distinguished on the basis firstly that it was obiter (at 620), and secondly that Mahoney JA meant that "what had to be negatived was that there was "likely to be harm at all"" (at 620). Jones v Sutton, rather than King & Mergen Holdings Pty Ltd v McKenzie, supra, is now generally cited as the correct test to apply.
177However, the plaintiff's written submissions (paragraphs 45-48) now take issue with the applicability of Jones v Sutton, supra, on the basis that the formula in s 33 picks up the language of Mahoney JA. It is submitted that s 33 required that "the plaintiff was unlikely to sustain any harm" (written submissions, paragraph 46). Mr Evatt submits that the interpretation given to the defence of triviality by Mahoney JA has been preserved by this changed wording in s 33.
178Other judges have taken this approach. In Papaconstuntinos v Holmes a Court [2009] NSWSC 903 at [105], McCallum J adopted this interpretation of s 33, stating that "the defence requires the defendant to show not merely that there is unlikely to be great or substantial harm but that there is unlikely to be any harm at all: King & Mergen Holdings Pty Ltd v McKenzie, supra, at 309G per Mahoney JA." While this decision was set aside on other grounds, the correctness of her Honour's reasoning on s 33 was not the subject of any scrutiny or comment either in the NSW Court of Appeal or in the High Court. Accordingly, the approach taken by McCallum J, which restores the approach taken by Mahoney JA in King & Mergen Holdings Pty Ltd v McKenzie, supra, is the correct approach.
179The next point Mr Evatt makes is, however, controversial. He goes on to submit that the word "any" must include upset and hurt to feelings, which distinguishes this new section from the exclusion of these items in paragraph 38 of Jones v Sutton.
180There is a helpful discussion of this issue in Szanto v Melville [2011] VSC 574 at [157]-[164]. In those proceedings, the difference in wording between s 13 of the repealed legislation and s 33 of the Act was not drawn to the attention of the trial judge, and the attack made on whether "any harm" included "injury to feelings" was brought upon a different basis. Kaye J, noting the apparent inconsistency between Jones v Sutton and the concept of "any harm" excluding injury to feelings, in the context of the desirability of consistency in the construction of the uniform defamation legislation (at [163]) ultimately did not express a concluded view, on the basis that, if the word "harm" was confined to damage to reputation, nevertheless the defendant would not make out the defence under s 33 (at [164]).
181I accept Mr Evatt's submission that the change of wording means that I should adopt the process of analysis used by McCallum J in Papaconstuntinos v Holmes a Court, supra. I note that the word "harm" as used in ss 34 and 36 appears to encompass both injury to reputation and injury to feelings; the word "harm" is used in both the repealed and the current legislation. However, I consider I am bound by the statement of Beazley JA in Jones v Sutton (2004) 61 NSWLR 614; [2004] NSWCA 439 at [38] that whether or not a person's feelings were hurt was "not relevant to s 13", because it is a matter for damages. This is notwithstanding the fact that in both the repealed legislation and the Act the wording for the defence of contextual truth specifically refers to defamatory imputations which do not further "harm the reputation" of, as opposed to "harm", the plaintiff. Kaye J noted in Szanto v Melville (at [163]) that it is clear the New South Wales Court of Appeal in Jones v Sutton regarded the word "harm" as confined to injury to reputation. It was a problem about which Kaye J, noting the attractive submissions to the contrary, ultimately did not express a concluded view.
182As was the case for Kaye J, ultimately it is not necessary for me to express a concluded view as to whether the submissions made by Mr Evatt at paragraphs 45-46 are correct because, on the evidence before me, I am satisfied that the plaintiff suffered neither "harm" to reputation nor hurt to feelings.
183I am satisfied that the plaintiff did not suffer harm to reputation because of the very unusual circumstances of the publication, namely an email from an employer to all of his employees about all of their conduct in relation to the taking of holiday and sick leave and coming to work late. In addition, I am satisfied that she did not suffer hurt to feelings as claimed.
184In relation to hurt to feelings, it is open to a trial judge, for the reasons explained in Jones v Sutton (No. 2) [2005] NSWCA 203, to make findings about the degree of hurt to feelings on a credit basis and in relation to damages. The unsatisfactory evidence of the plaintiff about when she first learned of the matter complained of, and my rejection of her evidence of telling Mr Erbas about it, are set out in full above. This was a finding I made in relation to damages issues. However, if applied to the findings necessary for the s 33 defence, this would mean that I am satisfied that the plaintiff did not suffer any upset and hurt to feelings, which means that she did not suffer "any harm" of any kind in relation to s 33.
185In relation to harm to the plaintiff's reputation, if this email was seen by the 20 co-workers of the plaintiff, all of whom I have found knew the reasons for the plaintiff's absence from work, I am satisfied that this is one of those rare cases where the plaintiff would not suffer any harm at all. If the email was seen by all the persons to whom the plaintiff showed it (the "republication" claim), this would make no difference.
186In Currabubula Giles J noted the close relationship between a company and its director; in Jones v Amalgamated Television Services Pty Ltd at 366E - G Hunt J noted academic discussion as to whether inter-company publications are publications at all. Inter-office emails of this kind, where the parties know the full background and the issues involved (and may themselves be included amongst those under criticism) are the kind of publication which should benefit from this defence. I accept the defendants' submission as to relevance of such matters, as discussed in Perkins v New South Wales Aboriginal Land Council (Supreme Court of New South Wales, Badgery-Parker J, 15 August 1997). This defence is accordingly made out.