Cantwell v Sinclair [2011] NSWSC 1244

The question of whether a defamatory statement is made on an occasion of qualified privilege is one of the more controversial issues to arise in defamation cases. It has been the subject of a number of cases in the States' Supreme Courts and the High Court in recent years.

While the qualified privilege defence can be described in abstract terms, it is often difficult to apply the principles to specific facts. Crucial to the success of the defence is the defendant's ability to demonstrate a reciprocity of interest with those who received the offending material. The question of whether some recipients' interest in the offending material is sufficient is often a matter of degree and it is often difficult to determine where, in the particular circumstances of any given fact situation, to draw the line.

In Cantwell v Sinclair [2011] NSWSC 1244, Justice Rothman considered this issue in the context of an email sent by the defendant to a large number of individuals with varying degrees of connection with the subject matter of the publication.

Facts

The defendant was a member and the president and coach of a dragon boat racing club. The plaintiff was an employee of the New South Wales administrative body for dragon boat racing and a volunteer official with the Australian Dragon Boat Federation.

The defendant published throughout Australia a series of emails referring, in part, to the plaintiff and containing certain allegations about the plaintiff and her involvement in officiating dragon boat racing.

The recipients of the emails included (broadly speaking):

  • individuals involved with the governing bodies of dragon boat racing in New South Wales, Australia and overseas
  • people involved in dragon boat racing but who were not involved in the official or administrative aspects of the sport.

The plaintiff alleged that the e-mails carried imputations defamatory of her including that she had spitefully used her best efforts to prevent the defendant from being promoted up a grade as an official of the International Dragon Boat Federation.

The defendant relied on the defence of qualified privilege on the basis that:

"as a member of the dragon boat racing community... [he] had a duty and interest to communicate with other members of the community who had a reciprocal duty and interest in receiving such communications..."

Decision

Justice Rothman agreed with the defendant that he had an interest in protecting his position as an official within the dragon boat racing community. His Honour also accepted that the committee of the New South Wales, Australian and International governing bodies for the sport had a corresponding interest and/or duty to receive the information.

However, his Honour did not accept that anyone beyond people in these classes had an interest in receiving the information. His Honour stated:

"Other than the bare interests associated with some form of connection to or participation in dragon boat racing, [the defendant] could not have been aware of the interests of the persons to whom his emails were sent to receive the information in them."

Interestingly, his Honour placed some importance on the fact that the defendant chose the recipients of his emails including those recipients who were not members of the governing bodies. It is possible that his Honour might have found that a qualified privilege defence was available if the publication was not intended for or directed at individuals not involved in the governing bodies.

Comment

Often "broadcast" emails are sent without any consideration of the particular interest that all of the recipients have in the subject matter. The defence of qualified privilege will not be available unless the defendant can demonstrate some real interest on the part of the recipient in receiving the defamatory material.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.