MLL17 Misleading Conduct and Economic Torts Exam Notes
Examinable Topics
Topic 1 - Defamation Defences and Damages
● Justification defences - substantial truth and contextual truth - Page 2 and 3
● Honest opinion - pPage 4 -5
● Privilege defences - absolute privilege Qualified privilege (common law and statutory) - Page 6 - 9
● Damages - Page 10
Topic 2 - Misinformation Torts
● Tort of Deceit - Page 11
● Injurious Falsehood - Page 12
● Negligent Misrepresentation - Page 13
Topic 3 - Misleading or Deceptive Conduct
● Misleading or deceptive conduct elements - page 14-18
Including advertising, puffery, health/premium claims and future representations
● Tort of passing off - Page 19-20
● Specific prohibition on false representations ( s 3-1 of the ACL) - Page 21-24
Topic 4 - Manufacturers liability for Safety Defects
● Manufacturers liability for safety defects elements - page 25 - 29
● Defences - page 29-30
Topic 5 - Other economic torts
● Duty of care (pure economic loss) - page 31
● Liability for consequential economic loss - page 31-32
● Liability for defective structures - page 32
● Tort of interference in contractual relations - page 34
● Tort of intimidation - page 35
● Tort of conspiracy - page 36
Defamation Defences
● Substantial truth (justification): s 25 of the Defamation Act
Section 25provides that the defence of justification is available if the defendant proves the defamatory imputations were ‘substantially true’, defined in section 4 as meaning ‘true in substance or not materially different from the truth’.
Character - according to chestertons ORP test based on the facts E.g. disgraceful individual = harbour radio v trad
Must be able to justify the gist or sting of the imputation - google v dufffy
Evidence of a single occassion of stalking was not sufficient to justify the sting of the imputation that the stalking was was obsessive and persistent and she possessing a tendency to continue doing it in the future - google v duffy
42 Proof of convictions for offences
(1) If the question whether or not a person committed an offence is in question in defamation proceedings:
(a) proof that the person was convicted of the offence by an Australian court is conclusive evidence that the person committed the offence, and
(b) proof that the person was convicted of the offence by a court of any country (other than an Australian court) or a court martial of any country is evidence that the person committed the offence.
Favell v queensland newspapers - guilt imputation must justify actual guilt not being charged or investigated
Sneddon v nationwide news
Rayney v state of wa - “prime and only suspect and only person of interest” - conveyed he had murdered his wife. Not sufficient grounds to suspect he had commited the crime
Common sting
Polly peck - imputations with a common sting do not need to be justified seperately
Khashoggi v icp magazines - did not need to prove she had affair with husbands friend if they could justify that she was promsiscuous and adulterous
contextual truth: s 26 of the Defamation Act Defence of contextual truth
26 Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (
"contextual imputations" ) that are substantially true, and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of thecontextual imputations.
The d will have a defence under s 26 of the DA as the additional defamatory imputation - (insert imputation) was substantially true and as such the pleaded imputation does not further harm the reputation of the p.
The imputation pleaded is not more damaging to the plaintiffs reputation than an additional imputation which is subtantially true and not significantly different to the pleaded imputation. - polly peck
DEFAMATION ACT 2005 - SECT 31 - Defences of honest opinion
(1) It is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter was an expression of opinion of the defendant rather than a statement of fact, and -
Statement must be objectively recognised as a statement of opinion (i.e. an
observation, inference, or criticism) according to the ORP, giving consideration to the language and context. This generally requires it to be
based on factual substratum in the publication or sufficiently indicated by the publication - the herald and weekly times v buckley
as it distinguishes between fact and opinion
And allows recipient to decide whether the opinion is supported by the fact
channel 7 adelaide v manock - today tonight promo imputed the forensic pathologist concealed evidence. Short promo with no facts, facts in episode not succificent because not everyone would watch the episode. Brief sensational material not likley to succeed.
Carolan v farifax media - commentary piece with authors opinion did not sufficiently distinguish between facts and opinion.
(b) the opinion related to a matter of public interest, and
Sport and conduct of sportspeople (testing rugby league players without consent_- carolan v fairfax media
Animal welfare (safety of collars) -orion pet products v rspca (c) the opinion is based on proper material
(5) For the purposes of this section, an opinion is based on
"proper material" if it is based on material that:
(a) is substantially true, or
(b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or
(c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.
weight of authority rules that facts must be published or directly referenced - herald v buckley
(6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.
- If based on some improper material, then need to establish that the opinion was reasonable based on the material that was proper
If opinion made by employee or agent of the d
(2) It is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact, and
(b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material.
- TP commentator
(3) It is a defence to the publication of defamatory matter if the defendant proves that: - e.g. talk back caller, letter to the editor submission
(a) the matter was an expression of opinion of a person (the
"commentator" ), other than the defendant or an employee or agent of the defendant, rather than a statement of fact, and
(b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material.
(4) A defence established under this section is defeated if, and only if, the plaintiff proves that:
(a) in the case of a defence under subsection (1)--the opinion was not honestly held by the defendant at the time the defamatory matter was published, or
- E.g. malice, ulterior motive, personal vendetta - Honestly held, doesnt need to be reasonable
(b) in the case of a defence under subsection (2)--the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published, or
(c) in the case of a defence under subsection (3)--the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.
E.g previous dealings with the commentator or reason to suspect they did not honestly hold it.
DEFAMATION ACT 2005 - SECT 27 defence of absolute privilege Defence of absolute privilege
It is unclear whether the privilege applies to other high ranking members of executive government, but it is clear that it does not apply to junior members of the public service: Gibbons v Duffell (1932) 47 CLR 520.
27 Defence of absolute privilege
(1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.
(2) Without limiting subsection (1) , matter is published on an occasion of absolute privilege if—
(a) the matter is published in the course of the proceedings of a parliamentary body, including (but not limited to)—
(i) the publication of a document by order, or under the authority, of the body; and
(ii) the publication of the debates and proceedings of the body by or under the authority of the body or any law; and
(iii) the publication of matter while giving evidence before the body;
and
(iv) the publication of matter while presenting or submitting a document to the body; or
(b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to)—
(i) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process); and
(ii) the publication of matter while giving evidence before the court or tribunal; and
(iii) the publication of matter in any judgment, order or other determination of the court or tribunal; or
(c) the matter is published on an occasion that, if published in another Australian jurisdiction, would be an occasion of absolute privilege in that jurisdiction under a provision of a law of the jurisdiction corresponding to this section; or
(d) the matter is published by a person or body in any circumstances specified in schedule 1 .
NOT DEFEATED BY MALICE
