Kelly v University of New South Wales - [2022] NSWDC 392 - NSWDC 2022 case summary — Zoe

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Kelly v University of New South Wales

[2022] NSWDC 392

District Court of NSW|2022-08-19

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At a glance

Source facts

Court

District Court of NSW

Decision date

2022-08-19

Catchwords

ss 30

Source

Original judgment source is linked above.

Catchwords

ss 30

Judgment (32 paragraphs)

[1]

Introduction

These are proceedings for defamation commenced by way of a Further Amended Statement of Claim ("FASOC") filed on 24 June 2021.
The plaintiff sues the first defendant ("UNSW") in respect of the publication of a document identified in the FASOC as "file 1" (Exhibit P2), ("the First Matter Complained Of"). The publication was said to be to: 1. Ms Zara Khan on 30 August 2019; and 2. Ms Carolina Ramirez on 10 and 20 September 2019 (see paragraphs 2 and 12 of the FASOC).
The FASOC also refers to the publication of the First Matter Complained Of to Mr Ali Syed on 18 October 2019. However, on the first day of the hearing, the plaintiff confirmed that he did not press that claim.
The plaintiff also sues the second defendant (MSS) in relation to the publication of a document identified in the FASOC as "file 4" (Exhibit P1) on an unspecified dated (see paragraphs 18 and 23 of the FASOC) ("the Second Matter Complained Of").
The parties were in agreement that the Second Matter Complained Of was published by MSS to Mr Karl Natschev, the former Security & Safety Coordinator Estate Management at UNSW on 20 July 2019. This occurred when Mr Barrie Mount, then a security team leader at MSS, sent a copy of the three page incident report (the first page of which is the Second Matter Complained Of) to the email address security.services@unsw.edu.au (see paragraph 7 of MMS's Defence).
The defendants have served separate Defences to the claim. Both defendants plead substantive defences of qualified privilege at common law, and pursuant to s 30 of the Defamation Act 2005 (NSW) ("the Act"). The defendants have also pleaded defences of triviality pursuant to s 33 of the Act.

[7]

Publication of the Second Matter Complained Of

The Second Matter Complained Of is a printed copy of the first page of an incident report prepared by Ms Annette Kemp and Mr Barrie Mount. It records an incident which occurred at the library on the UNSW campus and an allegation that the plaintiff had assaulted a former female student on campus (Exhibit P1). Exhibit P5 is a complete copy of the three page incident report.
Ms Kemp was at the material time, a Security Officer - Concierge at UNSW (see Statement of Ms Kemp at paragraph 1, Exhibit D1). Mr Mount was a Control Room Operator and was, at the material time, an MSS Team Leader (see Statement of Mr Mount at paragraph 1, Exhibit D2 and T 13, lines 22 and 28).
The incident report was prepared collaboratively by Ms Kemp and Mr Mount (see Statement of Ms Kemp at paragraphs 8-14, Statement of Mr Mount at paragraphs 17-28, and T 13 line 16; T 14 lines 15-32).
A copy of the incident report was sent by Mr Mount to Mr Natschev by email to the email address security.services@unsw.edu.au on 20 July 2019 (see Statement of Mr Mount at paragraph 28). This is the publication in respect of which the plaintiff sues MSS.
It was common ground in the proceedings that the First Matter Complained Of was accessed and updated by Ms Khan on 30 August 2019 and by Ms Ramirez on 10 and 20 September 2019.
The alleged first publication of the First Matter Complained Of to Ms Khan on 30 August 2019, in my view, was in fact no relevant publication at all. I take this view as publication is necessarily a bilateral act, where harm to reputation is caused by a publisher making defamatory matter available for comprehension by a third party. In Dow Jones & Co Inc v Gutnick (2022) 210 CLR 575, the High Court (Gleeson CH, McHugh, Gummow and Hayne JJ) said at [26]-[27]: "26. Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act - in which the publisher makes it available and a third party has it available for his or her comprehension. 27. The bilateral nature of publication underpins the long‑established common law rule that every communication of defamatory matter founds a separate cause of action. That rule has found reflection from time to time in various ways in State legislation and it would be a large step now to depart from it."
In my view, in circumstances where Ms Khan accessed and updated an entry from the CMS, that she herself had created on 22 July 2019 (see Statement of Julia Lines at paragraphs 41 - 43) there is no actionable publication in respect of the alleged publication of the First Matter Complained Of to Ms Khan (30 August 2019 Publication). Accordingly the plaintiff's claim in respect of that alleged publication must be dismissed.
UNSW accepts however that there was a relevant publication to Ms Ramirez.

[9]

Meaning

As to the issue of meaning, the plaintiff pleaded that the First Matter Complained Of conveyed an imputation that "the Plaintiff had assaulted a female student on campus" (FASOC at paragraph 8).
The plaintiff alleges that the Second Matter Complained Of conveyed an imputation that the "Plaintiff had criminally assaulted a female student".
The defendants conceded that if the Court determines that the First and Second Matters Complained Of conveyed the pleaded imputations, then such imputations are defamatory.
The principles to be applied in determining whether a publication conveyed particular defamatory imputations are well established and have been considered in such cases as Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 at [63]-[73], Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [70]-[85], Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 at [14]-[27], Trkulja v Google LLC (2018) 263 CLR 149 and V'landys v Australian Broadcasting Corporation (No 3) [2021] FCA 500 at [41]-[55].
The question of whether the pleaded imputations were in fact conveyed is a question of fact (Rush at [72]) on which the plaintiff bears the onus of proof, on the balance of probabilities. The relevant question is whether the publication would have conveyed the alleged meanings to an ordinary reasonable person.
Where, as here, the publications are in writing, the question is what the words used would have conveyed to the ordinary reasonable reader. The Court is required to assume the role, of the ordinary reasonable reader (Rush at [74]).
The authorities ascribe the ordinary reasonable reader with certain character traits, qualities and characteristics. The ordinary reasonable reader is variously said to be of fair to average intelligence, experience and education. They are also taken to be fair-minded and neither perverse, morbid nor suspicious of mind, not "avid for scandal" (Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506, citing Lewis v Daily Telegraph Ltd [1964] AC 234 at 260; see also Rush at [75]).
Relevantly for the present purposes, in determining whether the pleaded imputations are conveyed, the relevant publication has to be read as a whole. Each alleged defamatory imputation must be considered in the context of the entire publication.

[13]

The Applicable Legal Principles

There was no dispute between the parties as to the applicable legal principles.
The common law recognises that communications are protected where a person has a legal, social or moral interest or duty to make a statement on an occasion, and the recipient has a corresponding interest of duty to receive it: Adams v Ward [1971] AC 309 at [334].
In Toogood v Spyring (1834) 1 Cr M & R 181 at 193; 149 ER 1044 at 1050, Parke B said: "In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified privilege defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits."
This explanation of an occasion of qualified privilege was approved by the majority of the High Court in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 at [9]. As the High Court noted in that case, reciprocity of duty or interest is essential: at [9], citing Adams v Ward at 334.
In Wraydeh v Fairfax Media Publications Pty Ltd; Wraydeh v Nationwide News Pty Ltd [2021] NSWCA 153, Simpson AJA observed at [38] that the principles on which a defence of qualified privilege at common law are founded based on the passage above from Toogood, have been stated on numerous occasions.
At [39], her Honour summarised the position as follows: "39. A successful defence of qualified privilege at common law depends upon satisfaction of three conditions, as stated by Heydon J in Aktas at [55] (in dissent on the application of the principles): that the communication was published on a privileged occasion; that the communication was related to the occasion; that there was no malice in the publication. The defence will be established by satisfaction of the first and second of these, the onus of proving which lies on the defendant, but will be defeated if the plaintiff proves that publication of the communication was actuated by malice."
It can be seen therefore that the establishment of the defence involves a two step process.

[16]

UNSW Submissions in Relation to Common Law Qualified Privilege

UNSW submitted that the First Matters Complained Of were published on clear occasions of common law qualified privilege. It did so for the following reasons.
As to the First Matter Complained Of UNSW submitted that: 1. At all material times, it was required to comply with the University of New South Wales Act 1989 (NSW) (UNSW Act). The UNSW Act required compliance which included the development of governance, procedural rules, admission policies, financial arrangements and quality assurance processes. These were to be underpinned by the values and goals set out in s 6 of the UNSW Act, and they were to be sufficient to ensure the integrity of the University's academic programs: s 6(2)(g) of the UNSW Act. 2. UNSW's compliance with the UNSW Act was supported by the Student Code, with which all enrolled students at UNSW are required to comply (see Statement of Julia Lines at paragraphs 6-8 (CB131)). 3. Allegations of breaches of the Student Code or complaints of student misconduct were dealt with pursuant to the Student Misconduct Procedure (Misconduct Procedure): (see Statement of Julia Lines at paragraphs 9-10 (CB 132). A copy of the Misconduct Procedure is to be found at CB139-162). 4. The SCIU is responsible for the oversight of matters arising under the Misconduct Procedure. The unit undertakes and coordinates investigations into alleged student misconduct, and provides advice and guidance to students and staff (see Statement of Julia Lines at paragraphs 11-13 (CB132)). 5. Allegations of serious misconduct involving, among other things, behaviour in breach of the Student Code, including behaviour causing any person to fear for their personal safety, are referred to the Director UNSW Conduct & Integrity, who then appoints an investigating officer or instructs the SCIU to investigate the matter (see Statement of Julia Lines at paragraphs 26-27 (CB134); see also paragraphs 6.1 and 6.2 of the Misconduct Procedure at CB148 and Appendix B at CB159). The procedure for investigating and determining an allegation of serious misconduct is set out in section 7 of the Misconduct Procedure (see Statement of Julia Lines at paragraph 28; CB134 and CB148). 6. Section 12 of the Misconduct Procedure sets out the first defendant's record keeping obligations and provides among other things that: 1. notes and documentation must be kept at all stages of an investigation, including records of meetings, discussions, appeal hearings and actions proposed or taken, and 2. all records and notes produced and documents considered in handling an investigation must be stored on an appropriate confidential file (Investigation Records) (see Statement of Julia Lines at paragraph 30; CB134-135 and CB152). 1. The process for lodging an appeal against any determination of misconduct is set out in section 8 of the Misconduct Procedure (see Statement of Julia Lines at paragraph 29; CB134 and CB150). 2. In the circumstances, the publication of the First Matter Complained Of to Ms Khan on 30 August 2019 was clearly made by Ms Khan in pursuance of her duty as a Student Misconduct Coordinator with the SCIU to manage and coordinate investigations into student misconduct allegations, and in particular by providing efficient, up-to-date and accurate document management, collection of information and record keeping (see Statement of Julia Lines at paragraph 19 and 20; CB133 and CB163-166 (and in particular the third dot point at CB 164)). 3. The subject matter of the First Matter Complained was an allegation that the plaintiff had engaged in serious misconduct in breach of the Student Code by assaulting someone on campus. This was a topic of "special and reciprocal interest" to UNSW and both Ms Khan and Ms Ramirez. 4. There was a common or reciprocal interest between UNSW and Ms Khan in her having access to the First Matter Complained Of (and indeed the entirety of the case file she had created on 2 July 2019 (see Statement of Julia Lines at paragraphs 41-43). There was the same interest in accessing and updating the case file relating to the misconduct allegation made against the plaintiff, after the outcome had been determined. This was undertaken in the exercise of her role a Student Misconduct Coordinator with the SCIU, and pursuant to the UNSW's obligation to maintain Investigation Records. UNSW submitted that clause 12.3 of the Misconduct Procedure requires that when the determination supports the allegations, the details should be added to the Student Misconduct Register: see CB152. UNSW contended that to manage complaints under the Misconduct Procedure was part of its overall compliance obligations, pursuant to the UNSW Act. 5. The statements in the First Matter Complained Of were connected or relevant to the privileged occasion because they concerned the very conduct of the plaintiff that was the subject of investigation by the SCIU as to whether the plaintiff had breached the Student Code (see Statement of Julia Lines at paragraphs 40-46). Ms Khan was responsible for coordinating this activity. 6. Similarly, the publication of the First Matter Complained Of to Ms Ramirez on 10 and 20 September 2019 was made in pursuance of Ms Ramirez' duties as the Executive Officer to the Deputy Vice-Chancellor, Academic, at UNSW. These duties included the supervision and coordination of appeals in relation to misconduct determinations in accordance with the Misconduct Procedure (see Statement of Julia Lines at paragraphs 47 and 48; CB137). Ms Ramirez was the person who was assigned to supervise and coordinate the plaintiff's appeal against the misconduct determination. 7. There was a common or reciprocal interest between UNSW and Ms Ramirez in her having access to the First Matter Complained Of for substantially the same reasons referred to in subparagraph (j) above in respect of Ms Khan; UNSW contended that this involved Ms Ramirez accessing and updating the case file relating to the misconduct allegation made against Mr Kelly as part of the management of the appeal, in order to update the case file once the appeal had been determined and not upheld by Professor Merlin Crosley (the Deputy Vice-Chancellor, Academic) on 20 September 2019. This was conduct undertaken pursuant to the UNSW's obligation to maintain Investigation Records and manage appeals under the Misconduct Procedure and as part of its overall compliance with the UNSW Act. 8. Finally UNSW submitted that the statements in the First Matter Complained Of were connected or relevant to the privileged occasion as they concerned the conduct of the plaintiff, and the determination of the investigation by the SCIU that was the subject of the plaintiff's appeal. UNSW submitted, having regard to the fact that appeals may only be lodged on the grounds of lack of procedural fairness (see clause 8.1.1. of the Misconduct Procedure at CB150) it was also relevant for Ms Ramirez to access the entirety of the case file relating to the misconduct allegation made against Mr Kelly which contains correspondence and other documents relating to the way in which the SCIU investigated the allegations (see Statement of Julia Lines at paragraphs 31-36; CB135).

[17]

MSS Submissions on Common Law Qualified Privilege

As to the Second Matter Complained Of, MSS submitted: 1. MSS had a contract with UNSW to provide security services at its campuses in Sydney. Ms Kemp and Mr Mount were employed to provide security services pursuant to that contract (see Statement of Ms Kemp at paragraph 2; CB107; and Statement of Mr Mount at paragraph 2; CB 124). 2. The way in which incidents are reported by MSS security officers to UNSW is prescribed in UNSW's Standard Operating Procedure (SOP) (see Statement of Ms Kemp at paragraphs 7 and 8; CB107; and CB113-122, and Statement of Mr Mount at paragraph 9; CB125). Pursuant to the reporting procedure set out in the SOP: 1. an incident can be reported in four ways one of which is by email (see Statement of Ms Kemp at paragraph 9, CB108 and CB113); 2. an initial two page hard copy incident report form is completed by hand (by the complainant, the relevant security officers, or a combination of both) and then the report is entered into a computer based system by the security officer (called "Report Exec"): Statement of Ms Kemp at paragraphs 6-8, CB108; CB115-117; and Statement of Barrie Mount at paragraph 10 (CB125)); 3. once the incident report is entered into Report Exec, the actions to be taken as set out in the reporting procedure provides for the control room to add any supporting information, such as CCTV, for the Team Leader to review the report and make any changes and then for the report to be emailed to the Estate Management (EM) Security Services at UNSW (see Statement of Ms Kemp at paragraph 8, CB108-109; CB118-119; and Statement of Mr Mount at paragraphs 10-16); and 4. the final report is sent to EM Security Services at UNSW by email to security.services@unsw.edu.au and UNSW Security personnel then deal with the matter in such manner un such manner as they consider necessary (see Statement of Mr Mount at paragraphs 13-16). 1. The incident report, of which the Second Matter Complained Of was part, was prepared by Ms Kemp in conjunction with the complainant and Mr Mount. Ms Kemp took details from the complainant, prepared the incident report on the basis of the information she was provided by her and entered it into Report Exec. She then informed Mr Mount of the alleged incident (see Statement of Ms Kemp at paragraphs 8-14, CB 109-110). Mr Mount had attended the aftermath of the incident in the library. He reviewed the information that Ms Kemp had entered into Report Exec, made some corrections and amendments and submitted to UNSW security personnel by email to the security services email address (see Statement of Mr Mount at paragraphs 17-29). 2. MSS contended that in the circumstances, the publication of the Second Matter Complained Of by Mr Mount to Mr Natschev, (the former Security & Safety Coordinator Estate Management at UNSW), by email on 20 July 2019 was clearly made in pursuance of his duties as MSS Team Leader at UNSW (see Statement of Mr Mount at paragraphs 7-8, CB124-125 and CB128-129), and in accordance with the reporting procedure set out in the SOP. It was part of MSS's contractual obligation to the UNSW in providing security services at its campuses in Sydney. 3. The subject matter of the Second Matter Complained Of was an allegation that the plaintiff had assaulted someone on campus. This was a topic of "special and reciprocal interest" to MSS (Mr Mount) and UNSW (Mr Natschev). 4. There was a common or reciprocal interest between Mr Mount on behalf of MSS and Mr Natschev on behalf of UNSW in Mr Natschev being provided with the Second Matter Complained Of (as well as the rest of the incident report). This communication was undertaken for the purposes of informing UNSW (and more specifically those responsible for security and safety on campus) about an alleged incident at the UNSW campus. 5. The statements and information contained in the security report (including in the Second Matter Complained Of) were connected or relevant to the privileged occasion because they contained the details of the alleged incident.

[20]

Statutory Qualified Privilege

The defendants also relied upon the statutory defence of qualified privilege under s 30 of the Act. Sections 30(1) and 30(2) of the Act provide: "30 Defence of qualified privilege for provision of certain information (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. (2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest."
Section 30(3) of the Act then goes on to set out a list of non-mandatory, and non-exclusive matters, that a court may take into account in determining whether the conduct of a defendant in publishing is reasonable in the circumstances, for the purposes of subsection (1).
It can be seen that in broad terms, the statutory defence substitutes reasonableness in the circumstances, for the duty or interest which the common law principles of privilege require to be established.
As to the question of whether the recipients of the First and Second Matters Complained Of had an interest or apparent interest in recovering information on the subjects of those documents, the defendants relied upon their submissions in respect of common law qualified privilege. They contended that the courts have placed a wider construction on the words "an interest" in s 30 of the Act, than is accorded to the concept of "interest" for the purposes of the common law qualified privilege. (They accepted however that the claimed interest must not be vague or insubstantial: see Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 at [104] per Hodgson JA).

[21]

UNSW Submissions on Statutory Qualified Privilege

UNSW submitted that its conduct in publishing the First Matter Complained Of was reasonable in the circumstances for at least the following reasons: 1. the subject matter of the First Matter Complained Of related to matters of public interest. That interest included: 1. the conduct of a student enrolled at UNSW, 2. an allegation made against that student of having assaulted someone on campus in breach of the Student Code, 3. the status and progress of an investigation into the alleged breach of the code, 4. the determination of that investigation, and 5. the status and progress and ultimate determination of an appeal lodged by the plaintiff in respect of the determination of the investigation; 1. the First Matter Complained Of related to the public functions or activities of members of the SCIU and the Deputy Vice-Chancellor, Academic, in considering and determining an alleged breach of the Student Code and subsequent appeal; 2. the First Matter Complained Of distinguished between allegations and proven facts. It was headed "Allegation: UNSW Allegations Form" and recorded a description of the relevant allegation. The determination of the investigation into whether the relevant conduct constituted a breach of the Student Code was recorded as having been substantiated; 3. it was in the public interest, in the circumstances, for the First Matter Complained Of to be published expeditiously as part of an investigation into the alleged breach of the Student Code and the appeal against the determination of that investigation; 4. the language used in the First Matter Complained Of was fair for the reasons set out at (c) above, and the extent of publication was fair and reasonable, it only being accessible to those persons in the SCIU who had an interest in the outcome of the investigation (see Statement of Julia Lines at paragraphs 37-39, CB135-136); and 5. the First Matter Complained Of was otherwise part of a case file used by the SCIU to conduct its investigation, which was the role and function of the SCIU (see Statement of Julia Lines at paragraphs 11-12, CB132). Although the First Matter Complained Of itself was not provided to the plaintiff because it was an internal record of the SCIU, he was given an opportunity to respond to the allegations under investigation, and as part of his appeal. The outcome of that investigation was fairly and accurately recorded in the First Matter Complained Of in recording that the allegations had been substantiated. 6. UNSW also relied upon: 1. the Notice of allegation of serious student misconduct having been provided to the plaintiff on or about 24 July 2019 and setting out the details of the alleged breach of the Student Code at CB51-54 (Exhibit P5); and 2. the Report of investigation of allegation of serious misconduct at CB47-50 and in particular the investigator's record of the plaintiff's response to the allegations at CB 47-49.

[22]

MSS Submissions on Statutory Qualified Privilege

MSS in turn submitted that its conduct in publishing the Second Matter Complained Of was reasonable in the circumstances for the following reasons: 1. the subject matter of the Second Matter Complained Of related to matters of public interest, being an incident at the Sydney campus involving a woman and the plaintiff and allegations that the woman felt threated by the plaintiff and that he had assaulted her; 2. the Second Matter Complained Of related to the performance of the public functions or activities of MSS in providing security services to UNSW; 3. the Second Matter Complained Of distinguished between allegations and proven facts. MSS said that it was apparent from the Second Matter Complained Of that it was recording an incident that had occurred and unproven allegations by the woman involved; 4. it was in the public interest in the circumstances for the Second Matter Complained Of to be published to UNSW expeditiously as the relevant incident involved allegations of an assault on campus; 5. the Second Matter Complained Of was fair in terms of the language used, which recorded that the matters referred to in the incident report related to allegations made by someone. It also submitted that the extent of publication was fair, in that it was only provided to UNSW through the reporting procedure set out in the SOP. Mr Natschev had an obvious interest in receiving information about the incident and the allegations raised in the Second Matter Complained Of; 6. the sources of information in the Second Matter Complained Of were reliable and sources of integrity, being Ms Kemp and Mr Mount who recorded the complaint's account of what had occurred after speaking to the complainant (see Statement of Ms Kemp at paragraphs 8-14, CB109-110) and by speaking to the plaintiff and the relevant security officer involved in the incident (see Statement of Mr Mount at paragraphs 17-28, CB126-127); and 7. the nature of the business environment in which MSS operated was the provision of security guard services, responsible for (among other things) responding to incidents and emergencies and administrative duties, including incident reporting.

[23]

The Relevant Principles

In Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 at [108]-[116], Wigney J provided a helpful analysis of the principles emerging from the authorities on the issue of reasonableness. Lee J in Palmer v McGowan (No 5) [2022] FCA 893 summarised those principles at [184] as follows: "184. As to the meaning of reasonableness in this context, the principles emerging from the cases were recently summarised by Wigney J in Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 (at [109]-[116]) and affirmed in Fairfax Media Publications Pty Ltd v Chau [2020] FCAFC 48 (at [188]-[193] per Besanko, Bromwich and Wheelahan JJ). The following summary draws upon and supplements the principles canvassed by Wigney J: (1) in most cases, the more serious the imputation that is conveyed, the greater the obligation upon the respondent to ensure its conduct in relation to the publication was reasonable; (2) a respondent who intended to convey an imputation that was in fact conveyed must generally establish that they believed in the truth of that imputation and that the imputation conveyed was relevant to the subject; (3) the fact that the respondent may not have intended to convey the imputation that was in fact conveyed does not necessarily mean that their conduct in publishing was unreasonable. In such a case, the respondent must generally establish that they believed in the truth of the imputation that they intended to convey, and that their conduct was nevertheless reasonable in relation to the imputation which they did not intend to convey, but which was in fact conveyed. In this regard, it may be relevant to consider whether it was reasonably foreseeable that the publication might convey the unintended imputation and, if so, whether the respondent considered that possibility and took appropriate steps to prevent that imputation being conveyed; (4) the respondent must generally establish that reasonable steps were taken before publishing to ensure that the facts and conclusions stated in the publication were accurate. That generally involves making proper or reasonable inquiries, checking the accuracy and reliability of sources of information and ensuring that the conclusions follow logically, fairly and reasonably from the information. Where serious allegations of fact have been published about a person without the publisher having taken steps to check with the person concerned, it is the publisher (and not the person defamed) who takes the risk that the allegations cannot be justified; (5) a respondent must show that the manner and extent of the publication did not exceed what was reasonably required in the circumstances and each imputation intended to be conveyed was relevant to the subject about which information was published; (6) the respondent must also usually establish that the respondent gave the person defamed an opportunity to make a reasonable response to the defamatory imputation; and (7) the objective truth of the published statements is not relevant to the defence, and does not bear on the s 30(3) factors."
Mr Senior fairly drew my attention to sub-paragraph 6 above as potentially providing the plaintiff with an argument in relation to reasonableness. In my view however, while the defendants did not strictly provide the plaintiff with an opportunity to make a reasonable response to the allegedly defamatory material when it was first produced, the evidence discloses that the UNSW in fact did provide him with an opportunity to respond and put his side of the story in the investigation stage of the breach of the Student Code.
I accept that this is the case, and note that in any event the s 30(3) factors in the Act are not mandatory, but rather provide a list of matters to which the Court may have regard.

[27]

The Relevant Principles

The statutory defence of triviality was considered by the Victorian Court of Appeal in Barrow v Bolt [2015] VSCA 107. The Court outlined the fundamental principles concerning s 33 of the Act in the following terms at [34]-[38] per Kaye JA (cited with approval in Defteros v Google LLC [2021] VSCA 167 at [251]: "34. First, the inquiry, whether the publication was likely to cause harm to the applicant, is directed to the time of publication. The issue, at that time, concerns '… the quality of the publication in respect of its proneness to cause harm.' 35. Secondly, the focus of the inquiry is on the 'circumstances of the publication'. The critical test is whether those circumstances were such, at the time of publication, that it was unlikely that the applicant would suffer harm. The circumstances include (inter alia) the content of the publication, the extent of the publication, the nature of the recipients and their relationship with the applicant. However, the phrase 'circumstances of the publication' is not sufficiently wide to encompass the previous bad reputation of a plaintiff. 36. Thirdly, the phrase 'unlikely to sustain any harm' does not mean that it is sufficient for the defendant to establish that it is 'more probable than not' that the plaintiff will not suffer harm. Rather, the defendant must demonstrate that there is 'the absence of a real chance', or the 'absence of a real possibility', of harm. 37. Fourthly, the defendant is required to establish that, at the time of publication, the circumstances were such that the plaintiff was unlikely to suffer 'any' harm. Accordingly, the onus, on the defendant, to prove that matter, is high. 38. Fifthly, the defence, provided by s 33, applies to the publication of 'defamatory matter'. Thus, s 33 provides a defence where matter, that has been published, is defamatory of the plaintiff. In order to be defamatory, the matter must tend to lower the reputation of the plaintiff in the eyes of ordinary reasonable members of the community. Thus, s 33 contemplates a case in which, notwithstanding that a publication about a plaintiff is defamatory in that sense, nevertheless the 'circumstances of publication' were such that the plaintiff was unlikely to sustain any harm as a result." (Citations omitted)
There was no dispute between the parties as to these principles.

[28]

The Defendant's Submissions

The defendants relied upon the following matters in support of their submission that the circumstances of publication of the First and/or Second Matters Complained Of were such that the plaintiff was unlikely to sustain any harm: 1. the First Matter Complained Of was published at best to two people (though on my reasoning there was in fact only one publication, that is to say to Ms Ramirez); 2. the Second Matter Complained Of was published to just one person - Mr Natchev; 3. the publications to Ms Khan and Ms Ramirez were made in the course of them undertaking administrative tasks as part of the management and coordination of the investigation and appeal. These activities were concerned with the misconduct allegations made against the plaintiff, as part of the first defendant's obligations to maintain Investigation Records. The First Matter Complained Of recorded a description of the conduct said to have been engaged in by the plaintiff which constituted a breach of the Student Code and the amendments made to the case file by Ms Khan and Ms Ramirez merely reflected or recorded the progress of the investigation and appeal; 4. access to the CMS where the First Matter Complained Of was stored is highly restricted, and accessible only by members of the SCIU, the Director UNSW Conduct and Integrity and anyone given permission for the purposes of administering the CMS and procedures applicable to student conduct matters. An example of such a person being Ms Ramirez who dealt with the information in the course of managing the appeal: (see Statement of Ms Lines at paragraphs 38 and 39, CB136); 5. there is no evidence of any 'grapevine effect' or the likelihood of that happening at the time of publication. In fact the only 'leakage' of the fact and circumstances of the misconduct allegations against the plaintiff was caused by the plaintiff himself in commencing these proceedings; 6. but for these proceedings, the evidence is that the findings and penalty against the plaintiff would not have been publicly disclosed. In an email to the plaintiff on 20 September 2019, Professor Crossly informed the plaintiff that: "I note that you raise concerns in your appeal regarding the findings and penalty appearing on your 'permanent record'. As stated in UNSW's Student Misconduct Procedure access to the Register is limited and records are stored confidentially. As such, the findings and penalty relating to this matter will not appear on your transcript or other standard document UNSW provides to students" (Exhibit P3, CB7) 1. in respect of the Second Matter Complained Of, as pleaded, MSS argued that reading the report in its entirety, MSS the recipient of the report would understand it to record an alleged incident with competing accounts of what occurred.
In all the circumstances, both defendants submitted that the circumstances of publication were such that the plaintiff was unlikely to suffer any harm, and the defence under s 33 of the Act should be upheld.

Kelly v University of New South Wales

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (32 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (21)

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