Defamation perspectives: scope of qualified privilege defence in the context of police complaints

Facts

The plaintiff (Mr Sherman) and defendant (Ms Lamb) worked for the same organisation and commenced a relationship in about August 2019.

Their relationship ended in early 2020. At that time, Mr Sherman was engaged in Family Court proceedings against his former wife, including in relation to custody and access arrangements for their children.

After Mr Sherman and Ms Lamb’s relationship came to an end, Mr Sherman alleged that Ms Lamb had made two defamatory publications – one to a Senior Constable of the New South Wales Police Force on 19 March 2020, and another to lawyers acting on behalf of Mr Sherman’s wife in the Family Court proceedings.

At the trial, the Queensland District Court found that only the publication to the police officer had been proven to have occurred. The trial judge found that, in relation to the publication to the police, Ms Lamb had made statements essentially to the following effect:

• She ended the relationship with Mr Sherman after Mr Sherman stopped listening to her and the line between their work life and relationship became blurred.
• After she ended the relationship, Mr Sherman continued to contact her through various means, which she ignored. Mr Sherman subsequently informed the CEO of the company they both worked for that Ms Lamb was a stakeholder in a rival company, which resulted in her being forced to resign.
• In March 2020, Mr Sherman texted her asking if he could call her, to which she responded ‘not comfortable with this’, and Mr Sherman subsequently contacted Ms Lamb’s family and attempted to arrange the handover of her belongings.
• Mr Sherman told Ms Lamb that, if she did not respond to his calls or texts, he would contact her university to advise that she had fraudulently applied to her current course.
• She did not want to have any further contact with Mr Sherman and did not want any of the personal belongings that were in his possession.

Mr Sherman argued that four imputations arose from these publication by Ms Lamb, namely that Mr Sherman was:

• a petty person
• a vengeful person
• a dishonest person
• the kind of person who engages in domestic violence.

The trial judge found that only the first and fourth imputations arose from the publication.

The trial judge:

• rejected the defence of qualified privilege on the basis that the police did not have an interest in receiving the publication because the statements did not contain information about the commission of an offence (such as domestic violence)
• further found that the publication to the police officer was malicious and accordingly was not made on an occasion of qualified privilege
• awarded Mr Sherman damages of $10,000
• ordered that Ms Lamb pay Mr Sherman’s costs of the proceeding.

While the damages award was relatively small, the defendant became bankrupt due to the $600,000 in legal fees she owed to Mr Sherman as a result of the judgment. In a perhaps uncommon move, the trustee in bankruptcy for Ms Lamb then appealed the decision.

Decision on appeal

On appeal, the trustee in bankruptcy for Ms Lamb argued that the trial judge’s decision was incorrect because:

• the imputations found by the trial judge did not actually arise from the publication to the police officer
• the publication to the police officer had been made on an occasion of qualified privilege, and the trial judge had no basis to conclude that the publication had been actuated by malice
• in any event, the triviality defence under section 33 of the Defamation Act 2005 (Qld) applied (as it existed at the time of the publication).

Ultimately, the appeal was successful and the Court of Appeal set aside the original judgment and instead found in favour of Ms Lamb.

Findings

Imputations

The Court of Appeal decided that the trial judge’s findings as to imputations were erroneous, but nonetheless found that an alternative imputation pleaded by Mr Sherman had been made out.

The Court found that the content of the publication more naturally carried the imputation that Mr Sherman was a ‘serious’ person rather than a petty person (as the trial judge found) in the aftermath of the parties’ breakup.

The Court of Appeal similarly found that the imputation that Mr Sherman was the kind of person who engages in domestic violence was not made out, as the description of his alleged behaviour towards Ms Lamb had fallen short of any express or implied description of domestic violence. Further, the description of the conduct was not ‘so serious, repeated, prolonged or obviously unwelcome’ that it could support the imputation that Mr Sherman was the type of person who engages in domestic violence.

However, the Court of Appeal found that the publication, which conveyed that Mr Sherman had used information gained during the relationship to terminate Ms Lamb’s employment and to threaten her studies, carried the imputation that Mr Sherman was a vengeful person, an imputation that the primary judge had found did not arise.

Qualified privilege

The common law defence of qualified privilege applies where a person has some interest or duty in publishing the allegedly defamatory material and the person to whom it is published has a corresponding interest or duty to receive it.

The defence does not apply to publications that are motivated by malice. In the typical case, the defence of qualified privilege will apply to complaints to investigative authorities that are honestly made and concern matters over which the relevant authority has an interest or duty in receiving information.

The Court of Appeal was critical of the trial judge’s interpretation of the defence of qualified privilege, and in particular the trial judge’s statement that ‘police have an interest in receiving information about domestic violence (or the commission of an offence more generally), but the same cannot be said about conduct which is not an offence, however is merely (if at all) morally objectionable’. The Court of Appeal found that it would be too narrow a construction to say that qualified privilege only applies to a report to police when the report discloses conduct that amounts to a crime.

In making this conclusion, the Court of Appeal noted that one of the duties of police is to keep the peace, including by warning persons off a course of conduct that, while not yet criminal, might become criminal if continued. This is particularly important in the context of domestic violence, which takes many forms and, as the Court of Appeal noted, ‘may be signalled by behaviour which is not criminal’. Preventing the reporting of some such concerns would be an unfortunate consequence of the trial judge’s reasoning.

Additionally, the Court of Appeal noted that, in many cases, a person making a complaint or giving information to the police is not in a position to know what information the police already have, or whether the information they are providing is of significance in the context of information already held by the police. Such information, even if it could be characterised as hearsay or rumour incapable of standing up on its own to evidential hurdles in court, may nonetheless be very helpful to police investigations. The Court of Appeal also noted that there are numerous reasons a person may give reports to police that do not disclose the commission of an offence, including (without limitation) that the person giving the information may be distressed, frightened of the consequences of giving information to police, or feel some sense of personal shame or anxiety about disclosing the information.

The Court of Appeal concluded that, where a person has a sincere concern about another person’s behaviour, a reciprocal interest and duty may exist between the police and the publisher even where the conduct is not criminal. The Court of Appeal found this to be the case here, such that if Ms Lamb’s publication was made without malice, she would be protected by the defence of qualified privilege.

Malice

In concluding at first instance that Ms Lamb’s publication to the police officer was actuated by malice, the trial judge relied upon (among other more minor things):

• the allegation that Ms Lamb had interfered in Mr Sherman’s Family Court proceedings by calling Mr Sherman’s lawyers and expressing concerns for the welfare of Mr Sherman’s children
• the impression that, in light of the timing of the police complaint, Ms Lamb had made the publication in order to ‘retrieve her position’ with her former de facto partner and to ‘lash out’ in revenge at Mr Sherman.

On appeal, the Court of Appeal noted that, in the context of qualified privilege defences, honesty of purpose is presumed in favour of the party making the publication, and a party alleging malice needs to prove ‘to a high standard of cogency’ that the publishing party’s dominant motive in making the publication was inconsistent with the duty or interest that would otherwise protect the publication.

The Court of Appeal determined that there was not sufficient evidence to draw an inference of malice on the part of Ms Lamb. as any inference of malice would need to be directed at the defendant’s conduct in publishing the defamatory material to the police.

Therefore, the Court of Appeal allowed the appeal, set aside the order of the primary judge, and required the defendant to pay the trustee’s costs of the appeal.

Triviality

On appeal, the Court of Appeal considered that there was no compelling evidence that the police officer to whom Ms Lamb made the publication thought less of Mr Sherman than he did before the complaint. However, the Court of Appeal concluded that the triviality defence was not made out, as the publication was made to a person in their capacity as a member of the police force in serious circumstances.

Since the bringing of this action, this aspect of the law of defamation has changed significantly. The triviality defence as it was previously formulated no longer applies, and, instead, it is now a threshold requirement for any defamation action to succeed that the publication has caused, or is likely to cause, serious harm to the reputation of the plaintiff.

In light of the Court of Appeal’s comments as to the lack of the evidence of the publication causing harm to Mr Sherman’s reputation in the eyes of the police officer, it would appear possible that, if the current law of defamation applied in this proceeding, the claim would have failed to meet the serious harm element.

Comments

The Court of Appeal’s decision in this case provides a useful illustration of the relevant principles applicable to protection from liability for defamation in the context of complaints or other communications made to the police and similar investigatory bodies.

In particular, the case demonstrates that the scope of information of interest to the police will be considered broadly and that, unless the relevant publication can be proven to have been actuated by malice, the defence will ordinarily protect the publisher.

The mere fact that the publication does not necessarily itself disclose a breach or offence does not mean that the relevant investigator has no interest in hearing the allegation. There may be many reasons an investigator has an interest in receiving such information, including providing necessary context to the investigation as a whole, presenting potential lines of inquiry, and (in the case of the police) warning persons off a course of conduct that may become criminal if it continues. In each case, the publication made to an investigator needs to be considered in its factual context and in the context of the investigator’s duties and functions.

Additionally, the case is perhaps notable for the relatively uncommon situation of a trustee in bankruptcy appealing the original decision that had resulted in the defendant becoming bankrupt. Clearly, the trustee’s decision has paid dividends, as Ms Lamb’s original $600,000+ liability for damages and costs has now been set aside. The Court of Appeal has instead ordered that she is entitled to the payment of her costs over the course of the proceeding by Mr Sherman (subject to certain exclusions): see Bill Karageozis as trustee for the bankrupt estate of Siobhan Lamb v Sherman [No 2] [2024] QCA 12.

Regardless of the fact that Ms Lamb ultimately ‘won’ the defamation proceeding following the Court of Appeal’s decision, it is clear that the consequences of the defamation action being brought have been quite disastrous for all parties. While it is beneficial to know that the qualified privilege defence will generally offer relatively broad protection in respect of publications made to investigative bodies, parties should be hypervigilant in making such complaints and carefully consider their true motives in doing so, especially in the context of pre-existing disputes.