Aktas v Westpac Banking Corporation Limited [2010] HCA 25

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, HEYDON AND KIEFEL JJ

PAUL UYSAL AKTAS APPELLANT

AND

WESTPAC BANKING CORPORATION LIMITED

& ANOR RESPONDENTS

Aktas v Westpac Banking Corporation Limited [2010] HCA 25

4 August 2010

S3/2010

ORDER

1. Appeal allowed.

2. Set aside Order 1 of the orders of the Court of Appeal of the Supreme Court of New South Wales made on 9 February 2009 and in its place order that:

(a) the appeal by Mr Aktas be allowed with costs;

(b) set aside Order 1 of the orders made by Fullerton J on 7 November 2007 and in its place enter verdict and judgment for Mr Aktas for damages in the sum of $50,000 with interest.

(c) set aside Order 2 of the orders made by Fullerton J on 29 November 2007 and in its place order that Westpac Banking Corporation Limited ("Westpac") pay the costs of the action by Mr Aktas.

3. Westpac to pay Mr Aktas's costs in this Court.

4. The parties are at liberty within 28 days to re-list the appeal for further orders if an agreement is reached respecting the interest to be added to the verdict of $50,000. In the absence of agreement, the question of interest will be remitted for determination by a Judge of the Supreme Court of New South Wales.

On appeal from the Supreme Court of New South Wales

Representation

T S Hale SC with A T S Dawson for the appellant (instructed by Penhall & Co Lawyers)

J R Sackar QC with K P Smark SC and R J Hardcastle for the first respondent (instructed by Mallesons Stephen Jaques)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Aktas v Westpac Banking Corporation Limited

Defamation – Defences – Qualified privilege – Common law – Respondent bank mistakenly dishonoured cheques of appellant and communicated dishonour to payees of cheques – Communication defamatory – Whether communication made on occasion of qualified privilege – Rationale for defence of qualified privilege – Whether reciprocity of interest between respondent bank and payees – Whether public interest in privilege attaching to occasion of such communication – Relevance of mistake leading to communication – Relevance of statutory obligations.