Schlaepfer v Australian Securities & Investments Commission [2021] NSWCA 129

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Schlaepfer v Australian Securities & Investments Commission [2021] NSWCA 129 Hearing dates: 28 July 2020 Decision date: 30 June 2021 Before: Meagher JA at [1] White JA at [2] McCallum JA at [111] Decision: (1) that the primary judge's order as to costs be vacated; (2) that the appeal otherwise be dismissed; (3) that Mr Schlaepfer pay one third of the costs of the proceedings below and of the appeal. Catchwords: DEFAMATION – Publication – Slander – Where appellant relied on contemporaneous email to prove publication of the words allegedly said – Whether slander proved in the terms pleaded – Whether appellant identified by the matters complained of – Whether imputations complained of by appellant conveyed to the ordinary reasonable listener DEFAMATION – Defences – Defence of qualified privilege at common law and under Defamation Act 2005 – Whether reasonableness required to be proved to establish defence at common law having regard to defence as pleaded – Whether reasonableness established – Defence of justification – Where ASIC sought to establish truth of imputation of market manipulation without attempting to establish the individual trading of any particular trader or pod of traders – Contention that the relevant company had engaged in the impugned conduct on "any one or more" of 23 "occasions" – Expert opinion evidence concerning proof of impugned conduct by the establishment of certain metrics observed in the company's trading – Whether sufficient to establish truth defence Legislation Cited: ASIC Market Integrity Rules (Securities Markets) 2017 (Cth), r 5.6.12 Australian Securities and Investments Commission Act 2001 (Cth), ss 1, 11(4), 12A(2),(6) Civil Procedure Act 2005 (NSW), s 56 Corporations Act 2001 (Cth), ss 761A, 798F, 798G, 1041A,1041B,1308A, 1311 Criminal Code (Cth), s 11.3 Defamation Act 2005 (NSW), ss 25, 30 Supreme Court Act 1970 (NSW), s 101 Cases Cited: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; [1998] NSWSC 4 Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331 Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Cush v Dillon; Boland v Dillon (2011) 243 CLR 298; [2011] HCA 30 Director for Public Prosecutions (Cth) v JM (2013) 250 CLR 135; [2013] HCA 30 Dyson v Associated Newspapers Ltd [2020] EWHC 188 Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237 J'Anson v Stuart (1787) 99 ER 1357 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 Lindholdt v Hyer [2008] NSWCA 264 Papaconstuntinos v Holmes a Court (2012) 249 CLR 534; [2012] HCA 53 Prince v Malouf [2014] NSWCA 12 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16 Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 400; [1982] HCA 4 Reynolds v Times Newspapers Ltd [2001] 2 AC 127; [1999] UKHL 45 Salomon v Salomon [1897] AC 22 Wootton v Sievier [1913] 3 KB 499 Category: Principal judgment Parties: Daniel Schlaepfer (Appellant) Australian Securities & Investments Commission (First Respondent) Greg Yanco (Second Respondent) Representation: Counsel: RG McHugh SC, M Richardson, A Harding (Appellant) J Hmelnitsky, M Lewis, PJ Holmes (Respondents)