Smith v Lucht

This is a recent decision of the Court of Appeal concerned with the proper construction of s 33 of the Defamation Act 2005, being the defence of triviality.  Pursuant to s 33, it is a “defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm”.  The issue before the Court in this matter was whether “harm” as used in s 33 concerns only harm to reputation or instead extends to other compensable harm such as hurt feelings.  It is unnecessary to go into the minutia of the factual matters giving rise to this appeal, suffice to say that the appellant, a lawyer, was appealing against the primary judge’s decision that although the respondent, the former husband of the appellant’s daughter-in-law, had made the defamatory imputations alleged (referring to him as “Dennis Denuto” of “The Castle” fame), he had established that the circumstances of their publication were such that the appellant was unlikely to sustain any harm.  

Upon being satisfied that the primary judge’s application of s 33 (limited to reputation harm) to the circumstances of the case disclosed no error, the Court then turned to consider whether the words “any harm” in s 33 were limited to reputational harm or extend to harm to feelings – a question of statutory construction. 

A consideration of the context, including general purpose and policy of s 33, reveals that the words “any harm” are confined to reputational harm.  In this regard the Court noted that one of the objects of the Defamation Act  was to provide a remedy to “persons whose reputations are harmed by the publication of defamatory matter” and further that the Act was not intended to affect the operation of the common law which has historically protected an individual’s interest in their reputation. [59], see 2UE Sydney Pty Ltd v Chesterton; [60]–[68].   Particularly persuasive was the respondent’s argument that extending the interpretation of harm to include hurt feelings would mean that a court could never exclude the prospect of hurt feelings given that that inquiry is entirely subjective – defeating the purpose of the defence.  [99]. The Court did however note the observations of Kaye JA in Barrow v Bolt and  Szanto v Melville that the use of “harm” in both ss 34 and 36 encompassed harm both to reputation and to feelings, but ultimately considered that the fact that s 33 was in a different division, one that dealt with defences as opposed to remedies [72] and that an examination of the legislative history [74]–[77] warranted the conclusion that its use in that section was restricted to “reputational harm”.  The Court further indicated that the inclusion of the word “any” in s 33 should be interpreted as referring to the degree of harm, rather than a qualification of type.  [93]–[96].