Background

The Chinese Australian Services Society Limited (CASS) is a company limited by guarantee which is a charity registered under the ACNC Act. It provides aged care, disability, settlement and child-care services in New South Wales with annual revenue of almost $23M.

P is the unpaid honorary executive director of CASS and Z is chair of the board of CASS. C was a senior employee of CASS holding the position of Director of Nursing at CASS’ aged care facility.  She later resigned her position.

CASS, P and Z were the targets of a letter writing campaign by a person or persons not identified in the publications. All of the letters were written in Chinese characters and were said to be written on behalf of or by various groups, including “People in the Chinese community”, “People in the community who care about CASS”, “Representatives of family members from the CASS” and other similar identifying comments.  They were sent to various officials and firms in the People’s Republic of China.

The NSW Court[1] found that the letters defamed CASS, P and Z. CASS, P and Z claimed that C was the publisher of the material, but the facts were entirely circumstantial.

After reviewing the evidence, the Court came to the conclusion that (at [92]):

“It is obvious from the evidence before the Court, and the demeanour of the defendant, that she is and was extremely angry at her treatment by CASS, by the first plaintiff and by the second plaintiff and that she held, and continues to hold, significant resentment and anger towards the plaintiffs. I have no hesitation in coming to the conclusion that the defendant was the only person, that was the subject of evidence in these proceedings, who possessed a motive to write the anonymous letters.”

However, the claim that C published the anonymous letters had to be proved on the balance of probabilities. After reviewing a chronology of events, CCTV footage of letters being posted and C’s testimony, the Court found that she had published the letters.

Concerning harm to reputation, the Court noted that (at [170]):

“In relation to CASS, while it has no feelings, or, in the words of Lord Atkin, no soul to be damned or body to be kicked, the allegations were extremely damaging. CASS was shunned by Chinese ambassadorial and consular staff; Chinese community radio stations; and influential people within the Chinese Australian community.”

On the issue of the limited number of receivers of the defamatory letters, the Court decided that (at [169]):

“While the addressees and the persons to whom the publications were sent were not a large number of people, the fact that it was deliberately sent to influential members of the Chinese community, including the Ambassador of the People’s Republic of China and the Consul General and staff, necessarily involves the proposition that the grapevine effect would have been even larger than would ordinarily be the case. It is not conjecture to posit that, within a minority group in Australia, scandalous accusations of this kind will circulate to an even greater level than might be the case within the general Australian community.”

The Court awarded damages on the basis that each of the plaintiffs was entitled to aggravated damages. As a consequence, the Court was not bound by the cap prescribed by s 35 of the Defamation Act.  Nevertheless, the Court was still required to fix the damages on the basis that those damages bore a rational relationship to the harm, including the aggravated damage, suffered by each of the plaintiffs.

P was awarded damages of $285,000, Z $200,000 and CASS $150,000. Further, C was restrained from distributing or publishing materials in relation to P, Z or CASS.

Discussion

In July 2020, Attorneys-General from each state and territory came together to support the enactment of major reform to the law of defamation that would be consistent at a national level.

The above NSW case was decided under the new model law.

The Defamation (Model Provisions) and Other Legislation Amendment Bill 2021(Bill) has been introduced to Queensland Parliament and, if passed, the amendments to the Defamation Act 2005 are proposed to commence on 1 July 2021.

A further stage 2 of the review of the Model Defamation Provisions is currently underway in Queensland and will focus on the responsibilities and liability of digital platforms for defamatory conduct and the defences applying to disclosures of criminal conduct and misconduct in the workforce.

[1] Pan v Cheng; Zhou v Cheng [2021] NSWSC 30