Supreme Court New South Wales Medium Neutral Citation: Templar v Watt (No 3) [2016] NSWSC 1230 Hearing dates: 25, 26, 27, 28 July 2016 Decision date: 02 September 2016 Before: McCallum J Decision: Verdict for the defendants Catchwords: DEFAMATION – defences – qualified privilege at common law and pursuant to the Defamation Act 2005 (NSW) – where government-employed paediatric specialist wrote to department of education officer raising concerns as to the department's unqualified support for a business offering hearing tests in public schools for a fee – whether an occasion of qualified privilege – whether statements relevant to the occasion – whether conduct of author in publishing the matter complained of reasonable in the circumstances CONSUMER LAW – email sent by government-employed paediatric specialist to department of education officer in relation to hearing tests offered in public schools by the plaintiffs – whether conduct in trade or commerce – consideration of extended definition of "trade or commerce" in the Australian Consumer Law Legislation Cited: Competition and Consumer Act 2010 (Cth), sch 2 Australian Consumer Law, s 236 Defamation Act 2005 (NSW), s 30 Health Services Act 1997 (NSW), s 8 Cases Cited: Adam v Ward [1917] AC 309 Auswest Timbers v Secretary to the Department of Sustainability and Environment (2010) 241 FLR 360; [2010] VSC 389 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 Bride v The Shire of Katanning [2016] FCA 65 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; [1990] HCA 17 Firewatch v Country Fire Authority (1999) 93 FCR 520; [1999] FCA 761 Guise v Kouvelis (1947) 74 CLR 102; [1947] 13 Markit Pty Ltd v Commissioner of Taxation (2007) 1 Qd R 253; [2006] QSC 157 Murphy v Victoria (2014) 45 VR 119; [2014] VSCA 238 Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323; NSWCA 9 Toben v Mathieson; Toben v Nationwide News Pty Ltd [2013] NSWSC 1530 Toben v Milne [2014] NSWCA 49 Unilan Holdings Pty Ltd v Kerin (1992) 35 FCR 272; [1992] FCA 211 Seafolly Pty Ltd v Madden (2012) 297 ALR 337; [2012] FCA 1346 Madden v Seafolly Pty Ltd (2014) 313 ALR 1; [2014] FCAFC 30 Texts Cited: Raymond E Brown, The Law of Defamation in Canada (2nd ed, Carswell) Category: Principal judgment Parties: Stephen Templar (first plaintiff) Audametrics Pty Ltd (second plaintiff) Phillip Watt (first defendant) Central Coast Local Health District (second defendant) Representation: Counsel: MK Rollinson (plaintiffs) K Smark SC, S Chrysanthou (defendants) Solicitors: City Attorneys (plaintiffs) Crown Solicitor's Office (NSW) (defendants) File Number(s): 2013/150908 Judgment 1. HER HONOUR: Mr Stephen Templar practises as an audiometrist (a person who conducts hearing tests). In 2010, Mr Templar became the sole director of a company, Audametrics Pty Ltd, through which he sought to establish a business offering hearing tests in the Central Coast region of New South Wales. In late 2011, Mr Templar approached public schools in that region offering to provide hearing screening tests on primary school children for a small fee. A number of schools allowed Mr Templar to attend school premises for that purpose, notifying parents of Audametrics' service through permission notes and school newsletters. 2. Dr Phillip Watt is a specialist paediatrician employed by the Central Coast Local Health District in the role of Service Director, Child and Family Health. In the early months of 2012, Dr Watt received various pieces of information about the service provided by Audametrics. The information he received and his analysis of it prompted Dr Watt to send an email to the Department of Education and Communities (DEC) (previously the Department of Education and Training) to raise "concerns about the unqualified support" for Audametrics' service within the public schools system. The person to whom Dr Watt wrote was the person acting at that time in the position of Student Services Manager, Ms Heather Hern. These proceedings relate to that email. 3. The plaintiffs (Mr Templar and the company, Audametrics) sue on two causes of action. Mr Templar alleges that the email was defamatory of him and seeks damages from Dr Watt. The claim in defamation is also brought against the Central Coast Local Health District as second defendant. However, the second defendant is sued only in its capacity as Dr Watt's employer; it admits that it is vicariously liable for him. Any liability of Dr Watt in the proceedings is accordingly a liability of the second defendant. 4. The defendants admit that Dr Watt published the email (by sending it to Ms Hern) but deny that it carried the defamatory meanings specified by Mr Templar and rely, further, on defences of qualified privilege at common law and pursuant to s 30 of the Defamation Act 2005 (NSW). 5. Separately, both Mr Templar and Audametrics seek damages for misleading or deceptive conduct in trade or commerce contrary to the Australian Consumer Law. The defendants deny that the sending of the email was conduct "in trade or commerce" within the meaning of that legislation. Claim in defamation 1. The email sent by Dr Watt to Ms Hern was in the following terms (Google searches omitted): Heather I raise concerns about the unqualified support for this service within the public schools system from the perspectives that; (1) there is significant doubt about the qualifications of Audametrics to provide what they purport to provide (2) feedback from parents to Central Coast Local Health District staff (CCLHD) suggests at least questionable practice (3) feedback from Central Coast Local Health District audiologist about children previously screened about Audametrics suggests the test and results obtained are dubious (4) The Audiological Society of Australia has approached CCLHD audiologist requesting information about 'Audametrics' services as they have been approached for an opinion. Have researched a little more since I spoke with you this morning. I googled 'Audametrics' and this led to a number of hits. The first related to 'Audametrics' and its director Stephen Templar, who claims on 'Linked In' to be a director of Australian Hearing. I rang Australian Hearing in Chatswood and they informed me that while he worked for them, he left on AH's initiative in May 2010. His role was apparently Sales Representative. I asked about whether he had any audiology of audiometry training, but Australian Hearing were not able to confirm that. The rest of the relevant google hits related to schools that have offered this hearing testing – St John the Baptist Woy Woy South, Holgate PS, Chertsey PS, Mannering Park PS, Tuggerah PS. Most of these are old school bulletins which include the notice about the hearing service and the consent form. A number of my health colleagues are aware of this service, and have provided feedback that parents have been 'scared into needing to access further services' from general practitioners or ENT specialists. A staff member today informed me that her child brought home a consent form for this service at Berkeley Vale PS which will is [sic] arranged for 22 May 2012. The concern brought to be [sic] by my audiologist is that the reports supplied from Audametrics are dubious and vague in detail. Parents of a number of children assessed by Audametrics have subsequently presented to Central Coast Local Health District Audiology for hearing assessment, where no abnormality has been found. While I have no evidence that Audametrics do not have audiometry or audiological qualifications making their service suitable for assessing children, that is also yet to be determined. This service is made to sound to parents as a good investment, and many parents would feel they need to take it up. Our service has a long waiting time, but it is a free service, and perhaps parents feel they want to exclude hearing problems sooner when the issue has been raised. I have had communication in the past with DET staff relating to Irlen lenses and their value, as the proponent optometrists have also been able to convince a number of school principals that they should have them provide vision testing for children. If you need to communicate more about these concerns, please feel free to contact me. 1. Mr Templar contends that the email conveyed the following imputations defamatory of him: (a) that he, as director of Audametrics, knowingly permitted it to perform questionable practices; (b) that he falsely claimed to have been a Director of Australian Hearing; (c) that he scares parents into needing to access to further services from General Practitioners and ENT Specialists; (d) that he, as director of Audametrics, knowingly permits it to scare parents into needing to access to further services from General Practitioners and ENT Specialists; (e) that he is not qualified to conduct hearing tests on children; (f) that he, as director of Audametrics, knowingly permits it to conduct hearing tests on children when it is not properly qualified to do them; (g) that he, as director of Audametrics, knowingly permits it to conduct hearing tests of such poor quality that the Department of Education should not be giving unqualified support within the public school system; (h) that he, as director of Audametrics, knowingly permits it to conduct hearing tests on children that are dubious; (i) that he, as director of Audametrics, knowingly permits it to produce hearing test results for children that are vague in detail. 1. The first task is to determine whether the matter complained of carried those imputations (in the event that it did, the defendants do not contend that any of those imputations is not defamatory). 2. The principles to be applied in determining defamatory meaning are well-established and were not in dispute. The test is whether the imputations were carried to the ordinary, reasonable reader who is taken to be a person of fair, average intelligence, fair-minded, not overly suspicious, not avid for scandal, not naïve, not a person who searches for strained or forced meanings, one who reads the entire matter complained of and one who considers the context as well as the words of the publication. The onus of establishing that the imputations were carried is on the plaintiff. 3. The test is not what the words would have conveyed to Ms Hern. However, a feature of the context to which the ordinary, reasonable reader would have regard is the fact that the publication in question was a communication between government officials (in the fields of health and education respectively) relating to the provision of services to children in public schools. 4. The overarching submission put by Mr Smark SC, who appears with Ms Chrysanthou for the defendants, was that the imputations were pitched too high. Mr Smark submitted that the ordinary, reasonable reader would understand the email as merely an expression of concern warranting investigation rather than as definitive imputation of discreditable conduct, as captured in the plaintiff's imputations. 5. The distinction was recognised by the English Court of Appeal in Chase v Newsgroup Newspapers Ltd: [1] The sting of a libel may be capable of meaning that a claimant has in fact committed some serious act, such as murder. Alternatively it may be suggested that the words mean that there are reasonable grounds to suspect that he/she has committed such an act. A third possibility is that they may mean that there are grounds for investigating whether he/she has been responsible for such an act. 1. Mr Smark submitted that the text of the email is consistent with the third category, pointing in particular to the following expressions: "I raise concerns"; "from the perspectives"; "there is significant doubt"; "feedback from parents… suggests"; "while I have no evidence [that Audametrics does not have suitable qualifications] that is also yet to be determined". 2. Mr Smark also relied upon the concluding words, "if you need to communicate more about these concerns, please feel free to contact me", as indicating a reservation of judgment. Mr Rollinson, who appears for the plaintiffs, relied on those same words, submitting that they would rather be understood to indicate that Dr Watt expected the recipient to act upon his email without more, thereby conveying positive assertions of discreditable conduct rather than the mere need for investigation. Conversely, however, those words could equally indicate that Dr Watt did not presume to expect or request any further action one way or the other, but merely sought on his part to communicate information he thought the Department of Education should have (leaving that department to deal with the information as it saw fit). 3. There is some force in the defendants' submission that both the text and the context of the email were such as to give the ordinary, reasonable reader to understand that the doctor was raising his concerns for consideration or investigation but stopping short of outright accusation. I accept, as submitted by Mr Smark, that the ordinary, reasonable reader would take the language of the email at face value and that the language is conservative. There is nothing in the email to invite loose thinking on the part of the reader. 4. Conversely, however, the reader would have regard to the fact that the communication was one made by a medical practitioner employed as a senior officer in the sector of government concerned with children's health. On that basis, in my view, while taking the author at face value, the reader would also take it that there was a real basis for the concerns expressed. To a degree, it is the careful language and the status of the author that give the email its force. 5. Against those broad considerations, I have concluded that, although the email plainly carried some defamatory meaning concerning Mr Templar, most of the imputations specified by him are pitched too high and are not carried by the matter complained of. I did not find this an easy question to determine. The extent of the defendants' success on the issue of defamatory meaning is ultimately a reflection of the high level at which the imputations were pitched. 6. The principal difficulty is that almost all of the imputations include an attribution as to Mr Templar's state of mind (to the effect that he knew the service he provided was deficient and knew it was one he was not qualified to provide). In effect, the burden of the plaintiff's case is that the email attributed to him of a species of fraud. 7. Imputation (a) is that Mr Templar, as director of Audametrics, knowingly permitted it to perform questionable practices. The relevant passage of the email stated that one of the perspectives of Dr Watt's concerns was that "feedback from parents…suggests at least questionable practice". Those words must be read in the context of the whole email including the later statement: "parents of a number of children assessed by Audametrics have subsequently presented to Central Coast Local Health District Audiology for hearing assessment, where no abnormality has been found" and the reference (taken up in imputation (c)) to parents being "scared in to needing to access further services". 8. I accept those words point to a suggestion that the reports supplied by Audametrics may in some instances have overstated hearing loss, resulting in over-servicing. However, in my view, it stretches the matter too far to conclude that the email imputed Mr Templar with knowingly (that is, deliberately) engaging in such "questionable practices". The sense conveyed is that Dr Watt considered that the matters reported by parents warranted question or investigation before it would be appropriate for the Department of Education and Communities to give its "unqualified support" to the service offered by Audamatrics. I am not persuaded that the higher sting captured in imputation (a) is conveyed. 9. Imputation (b) is that Mr Templar falsely claimed to have been a director of Australian Hearing. The email plainly states that Mr Templar "claims on 'LinkedIn' to be a director of Australian Hearing". It also hints that he may not in fact have held that role, but I do not think it goes so far as to say Mr Templar deliberately made a false statement in that respect. Rather, the sense conveyed is that, on the material available, the position was unclear and that Mr Templar should be called upon to substantiate his qualifications before it could be considered appropriate for the department to provide "unqualified support" for the provision of services by Audametrics in public schools. I am not persuaded that imputation (b) is conveyed. 10. Imputation (c) is that Mr Templar scares parents into needing to access further services from general practitioners and ENT specialists. By contrast with all but one of the other imputations, that imputation does not include reference to Mr Templar's state of mind. 11. The email expressly recorded "feedback that parents have been 'scared into needing to access further services' from general practitioners or ENT specialists". The words 'scared into needing to access further services' are attributed to one of Dr Watt's health colleagues. It is plain from the balance of the email that the plaintiff is the person conducting the tests offered by Audametrics. It follows that the email states, almost in terms, that the plaintiff's conduct did in fact scare parents into making further demands on the public health system. On that basis I am satisfied that the email did convey a meaning not different in substance from imputation (c) (the meaning I would find is that the service provided by the first plaintiff scared parents into needing to access further services from general practitioners and ENT specialists). On that basis, I am satisfied that imputation (c) is conveyed in substance. 12. Imputation (d) is that Mr Templar, as director of Audametrics, knowingly permits it to scare parents into needing to access further services from general practitioners and ENT specialists. The imputation is in virtually the same terms as imputation (c) except that it attributes Mr Templar with a higher degree of knowledge as to the effect on parents (and thus a degree of deliberateness in that conduct). I do not think the matter complained of goes that far. I am not persuaded that imputation (d) is carried. 13. Imputation (e) is that Mr Templar is not qualified to conduct hearing tests on children. I do not think that imputation is carried. The burden of the matters carefully stated in Dr Watt's email is to raise a question as to Mr Templar's qualifications. The email certainly raises matters calling for investigation in that respect but in my view it does not go so far as to assert that Mr Templar does not hold any qualification to carry out the services offered. 14. Imputation (f) is that Mr Templar, as director of Audametrics, knowingly permits it to conduct hearing tests on children when it is not properly qualified to do them. I am not persuaded that imputation is carried, for the reasons expressed in respect of imputation (e). 15. Imputations (g), (h) and (i) suffer from the same difficulty as imputations (a), (d) and (f). Each attributes the first plaintiff with knowingly permitting Audametrics to provide a service that is subpar. The matter complained of certainly conveyed a concern that the service provided by Audametrics may not warrant the unqualified support of the Department of Education and Communtities. In the description of the tests and results it probably went further, asserting that the reports supplied are dubious and vague in detail. However, in my view, the burden of the message conveyed is the need for these matters to be investigated before decisions are made to allow the service to be provided in public schools. In my view, it is a stretch too far to conclude that the ordinary, reasonable reader would have understood the email to be attributing Mr Templar with knowingly providing a service with those attributes (in effect, engaging in a scam). 16. For those reasons, the only imputation which, in my view, is carried by the matter complained of is imputation (c). That imputation is plainly defamatory. As already noted, the defendants did not contend otherwise. Defence of qualified privilege at common law 1. There is a defence at common law if a defamatory publication is made on an occasion of qualified privilege, provided what is said is germane to the occasion. The relevant principles were summarised in the defendants' written submissions and were not disputed by the first plaintiff. The common law recognises that communications are protected where a person has an interest or a duty (legal, social or moral) to make a statement on an occasion and the recipient of the statement has a corresponding interest or duty to receive it. [2] 2. The defendants submitted that the application of those principles has often seen the recognition of an occasion of qualified privilege in respect of communications between public officials. Mr Smark relied in that context on the Canadian text, Raymond E Brown, The Law of Defamation in Canada (2nd ed, Carswell) at 13-346: "In order to discharge properly the duties of their office, public officials necessarily must communicate information to each other and to persons outside their office. Whenever these communications are permitted or required in the performance of their duties, they are privileged." 1. Professor Brown also states at 13-353: "Communications between public officials in the course of their official duties are protected by a qualified privilege. It is enough that a person acts honestly and in good faith, even though he may be unreasonable or wrong in his belief, since otherwise he would be seriously deterred from acting at all." 1. Those statements certainly accord with the principles set out above, so far they go. As observed by Mr Rollinson, however, they are pitched at a high level of generality; such statements must necessarily be considered by reference to a close consideration of the circumstances of the individual case. As has previously been observed in this field, the principles are well settled; the difficulty lies in their application. [3] The proper approach to that task was explained by Dixon J in Guise v Kouvelis: [4] But the very width of the principles governing qualified privilege for defamation makes it more necessary, in deciding how they apply, to make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication. 1. It is appropriate in the present case to begin with an examination of the circumstances relating to Dr Watt and his situation leading up to and at the time of the publication. Dr Watt is a medical practitioner who is both highly qualified and greatly experienced. He presently practises as a specialist paediatrician. He completed his undergraduate medical training between 1968 and 1973 and was awarded a Bachelor of Medicine and a Bachelor of Surgery from the University of New South Wales in 1974. He trained mainly at St Vincent's Hospital, also completing some units of study at Prince of Wales Hospital, Prince Henry Hospital and the Royal Hospital for Women at Paddington. He began his paediatric training in 1977 and, in 1982, was awarded fellowship of the Royal Australian College of Physicians in paediatrics. In 1982 he was seconded to Port Moresby General Hospital in Papua New Guinea where he worked as a specialist medical officer in paediatrics until 1991. He then went to the island of Nauru as a child health medical officer before returning to Australia in 1992, where he worked in Central Australia for five months as a locum district medical officer in paediatrics based in Alice Springs. 2. In 1993, Dr Watt began his employment as a career medical officer in paediatrics with the second defendant (then called the Central Coast Area Health Service). The second defendant is constituted under the Health Services Act 1997 (NSW). Section 8 of that Act states that the principal reason for constituting local health districts is "to facilitate the conduct of public hospitals and health institutions and the provision of health services for residents of the areas of the State in respect of which the districts are constituted". 3. Since 1983 Dr Watt has worked in the Child and Family Health Unit. In 1997 he was appointed Service Director of that Unit. Throughout his professional practice (since being awarded his fellowship in paediatrics in 1981), Dr Watt has continued practising as a clinical paediatrician, although his administrative role now takes up a significant proportion of his time. He also plays a role in the training and supervision of registrars and advanced paediatric trainees. 4. The services directed by Dr Watt under the auspices of the Child and Family Health Unit are community-based and are funded by the Government. Dr Watt is a "community paediatrician"; he is not in private practice. 5. Dr Watt's present position is Service Director, Child and Family Health; Staff Specialist Paediatrician. He is the clinical director for Central Coast Kids and Families and acting head of department in paediatrics. 6. The defendants issued a notice to admit as a result of which a number of facts relating to Dr Watt's functions, duties and responsibilities are admitted by the plaintiffs. The following paragraphs are drawn verbatim from the notice to admit: * The second defendant has an audiology department which offers free testing of hearing for children at Gosford Hospital and Wyong Hospital. * The second defendant and the Department of Education have a long-standing history of co-operative arrangements with respect to child public health. * Up until about 2000 the Child & Family Health division of the second defendant provided a routine school health program which involved child health nurses visiting primary schools to undertake a screen of all kindergarten children to assess their general health. This screen included hearing and vision assessments to determine whether a child required further development or assistance in order to successfully engage in education. * In the event the screening identified hearing or vision concerns, the child would be referred for further assessment through services provided privately or by the second defendant (with the choice of service being left to the child's parents). * In about 2002 the NSW State-wide Infant Screening – Hearing (SWISH) Program was introduced pursuant to which Local Health Districts provide universal hearing screening of all newborns to identify, and provide intervention for, babies with significant bilateral hearing loss. SWISH effectively replaced hearing screening of kindergarten children. * In about 2006 the State-wide Eyesight Pre-schooler Screening (STEPS) Program was introduced, pursuant to which Local Health Districts provide free vision screening to all children of 4 years of age. STEPS effectively replaced vision screening of preschool children. * The second defendant liaises with the Department of Education in providing a school immunisation program to provide inoculations to both high school children and (historically, although not at present due to the national vaccine recommendations) primary school children. * Counsellors employed by the second defendant participate in the Family Assessment Consultation Education Therapy service (FACETS), which provides counselling for families with children of 3 years age to end of primary school age. As part of FACETS, counsellors are often required to communicate with employees of the DEC (either by phone, observation in the school setting, or in conference) to communicate information regarding children affected by health conditions or behavioural problems. * The second defendant is directly involved in "Schools as Community Centres Program" (SaCC), a whole of government funded inter-agency program managed by the NSW Departments of Community Services, Disability, Ageing and Home Care, Education and Training, Health and Housing. The purpose of SaCC is to reduce the impact of disadvantage for children entering school by providing integrated services for families in communities where indicators of disadvantage are high. SaCC is aimed at increasing school readiness, community networking and social capital. The structure of the SaCC includes Central Coast SaCC Management Group, members of which include school principals, officers of DEC and Communities and the Director, Child & Family Health, CCLHD. The Central Coast SaCC Management Group provided a forum for sharing information and concerns regarding child public health issues. * At the time of publication of the matter complained of, Dr Watt's responsibilities included management and organisation of Child & Family Health; managing the second defendant's early childhood nursing services; managing FACETS, SWISH and STEPS; managing the audiology service provided by second defendant (the main function of which is to assess children's hearing); managing staff employed by Child & Family Health including audiologists employed at the audiology clinic; interacting and cooperating with other services provided to children including general practice, public health, health promotion, education and disability services; attending and participating in the Central Coast SaCC Management Group meetings every 3 to 6 months (which meetings Dr Watt has been attending since 1997) and liaising with the Department of Education Central Office at Gosford in relation to health issues affecting children in primary schools in the Central Coast area. 1. Dr Watt managed the audiology services provided on the Central Coast by the second defendant from March 2007. There was a clinic at Gosford Hospital and one at Wyong. The service employed two clinicians and one administrative support officer. One of the clinicians was Ms Winnie Chan, who was based at Gosford Hospital. The other was an intern audiologist, Ms Mehreen Khan, who was supervised by Ms Chan (T156). 2. Turning to the recipient of the matter complained of, Ms Heather Hern was acting in the position of Student Services Manager in the Department of Education. A statement of the duties of that position was tendered by the defendants (tab 18 of exhibit 18). That document provides a "brief role statement" of the position as follows: Co-ordinating, monitoring and reviewing disability programs, student welfare and behaviour provisions across the region. 1. The duties of that office include: Assisting, advising and supporting schools, principals and teachers in all aspects of disability, student welfare and behaviour programs. Leading the student services team to ensure effective delivery if disability programs, student welfare and behaviour provisions across the region. 1. Dr Watt had previously communicated with the holder of that office in relation to services offered in public schools, being the provision of Irlen lenses by developmental optometrists purportedly for correcting the ability of dyslexic children to read. Dr Watt was of the view that there was no scientific evidence that Irlen lenses make any scientifically measurable change in the ability of a dyslexic child to read. Health authorities including Dr Watt's own service "strongly recommended to the schools that they should not co-operate" with the supply of Irlen lenses in public schools. Importantly, Dr Watt said (at T213.40): It was still the prerogative of the school principals to decide whether they would invite in external providers of a service, as is currently the case. That is my understanding. 1. Mr Smark submitted that "a straight-forward occasion of privilege" arose for Dr Watt to communicate information to Ms Hern. Mr Rollinson did not contend otherwise; the focus of his submissions was upon the importance of defining the occasion with precision. He submitted, correctly, that it is not appropriate to define an occasion of qualified privilege in broad terms and simply assume anything that passes between the two agencies falls within it. 2. In particular, Mr Rollinson submitted that the occasion must be defined more precisely than by simply adopting the broad principle stated by Professor Brown set out above. He submitted that, in the present case, an appropriately precise statement of the occasion of qualified privilege reveals a real question as to the limit of what was relevant or reasonably germane to that occasion. Mr Rollinson submitted that, in the present case, Dr Watt went further than merely raising concerns, proceeding to make categorical statements to the effect that Mr Templar's tests and results were to be doubted; that he had misrepresented his qualifications and that there was no occasion for dialogue in respect of those opinions but only an invitation to immediate action. 3. In assessing that submission it is necessary to have regard to the defamatory meaning of the matter complained of. It is important in that context to bear in mind that, although I have found that the high meanings pleaded by the plaintiff were not conveyed, I do accept that the matter complained of conveyed some meaning defamatory of Mr Templar; it clearly represented that there were strong grounds for investigating the qualifications of Audametrics and Mr Templar before affording unqualified support to their provision of services in public schools. 4. It is also necessary to give close consideration to the information Dr Watt had received which prompted him to send the email. Dr Watt first met Mr Templar towards the end of 2010. At that time, Mr Templar was in the process of establishing the business of Audametrics. Mr Templar contacted Dr Watt and asked to meet him. Dr Watt had not heard of Mr Templar at that point in time. He consulted his staff in the audiology clinic; they had not heard of Mr Templar either. 5. Mr Templar indicated that he wanted to talk to Dr Watt about "a service that he intended to begin on the Central Coast". Dr Watt discussed the matter with his staff. He said they were "sceptical about what might be the outcome of that service" (T161.13). 6. Dr Watt had a relatively good recollection of the meeting and I accept his evidence about it. It was his recollection that Mr Templar told him he wanted to begin a service screening children's hearing, but for adults as well, which he intended to conduct from Mt Gosford Private Hospital. According to Dr Watt's recollection, there was no discussion during that meeting of the prospect of conducting screening tests in public schools. 7. The next Dr Watt heard of Mr Templar was from his audiology staff in the second half of 2011. Ms Chan told Dr Watt that "there were a number of families that had brought their children for assessment who had previously been seen by Mr Templar and there was concerns expressed by the parents about the assessments that had been done by Mr Templar" (T163.45). 8. The next Dr Watt remembered hearing about Mr Templar was that in March 2012 an issue was raised at a Child and Family Health Team meeting of staff where a number of staff discussed the fact that there was a private provider offering hearing assessment of children from Audametrics. Dr Watt said there was some discussion at that meeting about "the validity of those assessments" (T164.40). 9. In April 2012, Ms Chan informed Dr Watt that she had been approached by the Audiological Society of Australia regarding information about the services provided by Audametrics. Ms Chan showed Dr Watt copies of some Audametrics screening test results that had been provided to her. She brought that material to Dr Watt's attention as "examples of the concerns that had been raised by parents to her and Ms Khan" (T166.18). Dr Watt said (at T166.30): She indicated that a number of parents had expressed concern about the way the testing was done, the way the testing was reported, and that they had been scared into needing to have further assessments so that the concerns that they - the audiologists particularly raised, were the format which shows that the three items at the top of the form, the otoscopic examination, the tympanometry and the otoacoustic emissions could be just "normal" or "abnormal". 1. Dr Watt looked at the Audametrics screening test results provided to him by Ms Chan and formed the view that they were "confusing". He noted that the report of the results "did not define why there was a normal examination or an abnormal examination, apart from perhaps some explanation down in the bottom of the right hand corner of the form". 2. The documents in question became exhibit 16 in the proceedings. Even without the benefit of Dr Watt's considerable expertise, the confusing nature of the reports can be seen at a glance. In my view, the manner in which the results were reported by Audametrics was troubling in at least three respects. First, the report form provides no helpful or accurate statement of relevant qualifications. The presentation of the report is apt to create the impression that Audametrics employs practitioners with considerably more qualifications than is the fact. 3. Secondly, the reporting of the results is confusing, at once providing too much information and not enough. The presentation of the information that is provided is, in my view, apt to contribute to the impression that these are important results presented by a qualified paediatric hearing specialist. 4. Thirdly, the style of the presentation of the results and the handwritten comments added by Mr Templar is, in my view, likely to cause parents to understand that their child has been the subject of a formal diagnosis by a qualified paediatric hearing specialist. Apart from causing alarm, that impression would in turn contribute to the likelihood of parents proceeding to access further services, either boosting Mr Templar's business or adding to the burden of the community services provided by the second defendant. 5. Finally, on 15 May 2012, Dr Watt was given a copy of a consent form by the mother of a student at a primary school on the Central Coast who happened to be the acting nursing unit manager at the Child and Family Health Unit. The consent form indicated that Mr Templar was offering his screening service in public schools to primary school children and that, at least in the case of the school in question, the service was being represented to parents by the school as a valuable service which the parents should take up. 6. It was an admitted fact that, in 2011 and 2012, advertisements appeared in school newsletters in a number of schools in the Central Coast region stating that a paediatric audiometrist or qualified professional would be attending the school to screen children for hearing loss at a cost of $15 per child. 7. Having regard to Dr Watt's position and the cumulative effect of the information he had received about Audametrics and Mr Templar over a period of some months, in circumstances where it is clear Audametrics was proposing to continue to offer its services at public schools and the schools were allowing that to occur (and indeed facilitating it), I am satisfied that Dr Watt had a duty to convey his concerns about Audametrics to the relevant officer in the Department of Education. 8. Indeed, in the circumstances, I consider the duty was one of high order. A significant factor in assessing the nature and extent of the privileged occasion is the fact that Dr Watt was better placed than most (arguably, than any other person) to assess the appropriateness of hearing tests offered by way of universal screening in public schools in the health region for which he was responsible. His qualifications in that respect are beyond question and, as it turned out, his instinct was good. The evidence revealed that Mr Templar has, on more than one occasion, tended to overstate his qualifications. For example, Mr Templar states in his CV (Exhibit A, Tab 11) that he has a University Diploma when in fact he has a TAFE certificate (Exhibit 1). Although Dr Watt did not know that at the time (and accordingly it is not relevant to the present determination), the absence of transparency in Audametrics' published material was a relevant consideration in the formation of Dr Watt's concerns. It is the role if not the burden of such specialists to hold the line against confusion or misinformation in the provision of health services within their fields of expertise. 9. I am further satisfied that Ms Hern had an interest in receiving information as to Dr Watt's concerns about Audametrics. As noted above, her duties included "assisting, advising and supporting schools, principals and teachers in all aspects of disability, student welfare and behaviour programs". She was the obvious point of contact for the communication of information of the kind held by Dr Watt. For those reasons, I am satisfied that the email was sent on an occasion of qualified privilege. 10. I am further satisfied that the content of the email was relevant and reasonably germane to the occasion. The proper limits of the occasion are informed by the nature of the information held by Dr Watt. For the reasons already explained, the concerns Dr Watt held as to the nature of the results reported by Audametrics and its qualifications to provide such results were, in my assessment, well-founded. I am not persuaded that the email went beyond the mere raising of concerns and moved into the territory of categorical statements demanding action, as submitted by Mr Rollinson on behalf of the plaintiff. On the contrary, having regard to the nature of the information that had come into Dr Watt's possession and his assessment of that information, I consider the email was expressed in careful and conservative terms falling well within the purpose of the protection afforded by the occasion. 11. There is no plea of malice in defeasance of the defence. It follows that the defence of qualified privilege at common law is established. Statutory qualified privilege 1. In case that conclusion is wrong, it is necessary to consider the defence of statutory qualified privilege pleaded by the defendants. The defence invokes s 30 of the Defamation Act, which provides as follows: (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the "recipient") if the defendant proves that: (a) the recipient has an interest or apparent interest in having information on some subject, and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances. 1. In the circumstances set out above, Mr Rollinson accepted that the recipient of the email, Ms Hern, had an interest or apparent interest in having information on the subject addressed in the email and that the email was published to her in the course of giving her information on that subject. He submitted, however, that the third element of the defence is not satisfied in that Dr Watt's conduct in publishing the email was not reasonable in the circumstances. The defendants bear the onus of proving, on the balance of probabilities, that it was. 2. Mr Smark accepted that, if Dr Watt's conduct was unreasonable in any particular respect, it would follow that the defendants had failed to establish that element and the whole defence would fail. 3. Section 30(3) of the Act provides a list of matters the Court may take into account in determining whether the conduct of the defendant in publishing matter about a person was reasonable in the circumstances, as follows: (3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account: (a) the extent to which the matter published is of public interest, and (b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and (c) the seriousness of any defamatory imputation carried by the matter published, and (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and (e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and (f) the nature of the business environment in which the defendant operates, and (g) the sources of the information in the matter published and the integrity of those sources, and (h) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and (i) any other steps taken to verify the information in the matter published, and (j) any other circumstances that the court considers relevant. 1. Mr Rollinson accepted that a number of those matters were established by the evidence. Specifically, he accepted that the matter published was of public interest and related to the performance of the public functions or activities of the person. 2. My findings as to the defamatory imputations carried by the matter complained are set out above. Although I have rejected most of the imputations pleaded by the plaintiff I accept, as submitted by Mr Rollinson, that the email carried imputations of some seriousness. 3. Mr Rollinson submitted that the matter complained of did not distinguish between suspicions, allegations and proven facts. I do not accept that submission. On the contrary, in my view the matter complained of was carefully worded, providing an appropriate degree of information as to the forensic foundation for the concerns raised. In my respectful opinion, the plaintiff's case on this issue misjudged the interests at stake, underestimating the significance of the concerns entertained by Dr Watt and overestimating the plaintiff's entitlement to have access to public schools for the provision of private health services. 4. A similar misjudgement or misconception was implicit in the plaintiff's case on the next issue listed in s 30(3)(e), whether it was in the public interest in the circumstances for the matter published to be published expeditiously. Mr Rollinson submitted that it was not. The submission echoed aspects of the cross-examination of Dr Watt, in which it was suggested that there was "no harm" done if Mr Templar reported on a screening test by recommending comprehensive testing. For example, the cross examination included the following exchange (at T205.6): Q. Yes, but in the end, all that has happened is that "abnormal further testing required" has been marked - number 1. A circle has been put around one of the eight items - number 2. And, at the foot of the page, there are these words "possible recent rupture of both eardrums, significant loss possible. Recommend comprehensive test". It's exaggerating to say it's a diagnosis, isn't it? A. Not if you've got the circle there which has the one option underneath it. Q. Who do you believe would interpret the form, including the circle you've just mentioned, as a diagnosis of acute otitis media? A. It could be anybody who read the form. Q. Such as a parent? A. A parent. Q. But all that the filler-out of the form is recommending is that they should on certain grounds have a comprehensive test or, as it's put at the top of the page, a further test. A. I agree. Q. There's no harm in that, is there? A. I think there's an issue here regarding ethical practice, regarding parents being given information which can be misleading. So I think that in providing a report which definitively says "further testing is required" without a clear definition of what the findings were then I think that is a little bit far stretched. 1. (There was cross-examination along a similar line at T207.9 and T210.43). In my view, having regard to the concerns Dr Watt held at that time and the fact that he had been handed a consent form contemplating broad testing at another public school in the near future, prompt communication of his concerns to Ms Hern was warranted. 2. Section 30(3)(f) of the Act directs attention to "the nature of the business environment in which the defendant operates". That consideration would be relevant in the case of, for example, a mass media organisation such as a television station or the tabloid press. The exigencies of such a case would not apply to the kind of communication under consideration here, being a communication between two Government officials relating to the provision of health services to children in public schools. 3. As to the sources of the information in the matter complained of and the integrity of those sources, Mr Rollinson submitted that the information held by Dr Watt was "all hearsay". The submission overlooked the documents contained in exhibit 16 (the examples of screening test results provided to parents by Audametrics). Dr Watt had direct access to that information; it enabled him to form his own assessment as to the appropriateness of some aspects of the service offered by Audametrics. As already noted, I would think the number of people in New South Wales better qualified to make a reliable and appropriate assessment of those matters would be small. 4. Other information communicated in the email was hearsay. However, in my view, the information Dr Watt received from his colleagues was information he was entitled to regard as coming from a reliable source. To the extent that what was received was information concerning parents' responses to the service provided by Audametrics, it may not have been a reliable assessment of the quality of the service provided but the fact that parents were concerned was in itself important information. 5. In my view, all of the foregoing matters militate in favour of a conclusion that Dr Watt's conduct in publishing the email was reasonable in the circumstances. 6. Two matters potentially derogate from that conclusion. The first is the matter referred to in s 30(3)(h) of the Act, whether the matter published contained the substance of Mr Templar's "side of the story" and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person. Dr Watt made no attempt to contact Mr Templar before sending the email. It may be accepted that, in the context of a mass media publication, the failure to publish the plaintiff's side of the story or to make reasonable attempts to obtain a response from the plaintiff for that purpose will ordinarily be fatal to the statutory defence. That is, of course, a generalisation but one which, in my view, accurately states the likely synthesis in that context of the matters listed in s 30(3), including the matter identified in s 30(3)(f) (the nature of the business environment in which the defendant operates). Where a defendant operates in a business environment in which it has a commercial interest in the publication of defamatory matter to a wide audience, the content of the obligation to contact a person about whom defamatory statements are to be included in the proposed publication is high. 7. Mr Smark submitted that that consideration, although relevant, is "far from determinative" in the circumstances of the present case. The communication here was made to only one person, albeit a person plainly in a position to influence decisions within her department as to the provision of services in public schools. Separately, for the reasons already explained, I consider that the language of the email was careful, expressing concerns in tentative rather than definitive language. In the circumstances, there is much force in Mr Smark's contention that a communication of that kind may be regarded as "reasonable" within the meaning of s 30 of the Defamation Act even though contact has not first been made with the subject of the communication. Indeed, as submitted by Mr Smark, the contrary would be a surprising result. It would impose an undue burden on Government officials, and a chilling effect on their communications, if the communication of important information could not be made with impunity without first contacting the subject of the communication. The exchange of defamatory information in that context is closer to the position of information exchanged within or between police forces than to the position of publications in the mass media. 8. The second matter pointing to a conclusion that Dr Watt's conduct was not "reasonable" is the fact that the matter complained of included an assertion based on a misreading of Mr Templar's "LinkedIn" entry. The matter complained of stated that Mr Templar "claims on 'LinkedIn' to be a director of Australian Hearing". The relevant entry was in fact set out underneath the body of the email and included the following information: Director at Audametrics, National Sales Manager at Australian Hearing, National Sales Manager at Australian Hearing, National Sales Manager at AU… 1. Dr Watt misread the entry, understanding that Mr Templar was claiming to be a director at Australian Hearing. I do not think it follows that his conduct was unreasonable. In my view, the misreading was understandable, owing to the manner in which the information was presented. 2. In all the circumstances, I am satisfied that Dr Watt's conduct in publishing the email was reasonable. It follows that the defence of statutory qualified privilege is also established. 3. For those reasons, Mr Templar's claim in defamation fails. Misleading or deceptive conduct 1. Mr Templar and Audametrics claim damages under the Australian Consumer Law [5] for misleading or deceptive conduct. Section 18(1) of the Australian Consumer Law provides: A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. 1. A person who suffers loss or damage because of conduct of another person in contravention of that prohibition may recover damages against that person. [6] 2. The defendants submitted that the claim fails at the threshold because Dr Watt's conduct in sending the email was not conduct "in trade or commerce" within the meaning of the statute. They submitted that s 18 must be interpreted in the same way as its predecessor, s 52 of the Trade Practices Act, which the High Court held in Concrete Constructions had a restrictive operation. [7] As has been observed on many occasions, the High Court made a deliberate choice in that case between a wide and narrow view of the term "in trade or commerce", preferring the narrow view and confining the operation of the section to conduct which is itself an aspect or element of "activities or transactions which, of their nature, bear a trading or commercial character". [8] 3. The defendants' written submissions provided a helpful survey of subsequent decisions on that issue with emphasis on cases concerning communications between public officials. They submitted that the cases in which statements by public officials have been found to be in trade or commerce are "very much the exception" and involve features missing from the present case. 4. The first decision referred to by the defendants was the decision of the Federal Court (Hill J) in Unilan Holdings Pty Ltd v Kerin. [9] The applicant's claim in that case was based on a statement made by the Minister for Primary Industry and Energy at an international wool trade conference in which he promised, in effect, not to reduce the reserve price of wool. Legislative change intervened to prove him wrong. The applicants, who were engaged in the international wool trade, claimed to have suffered loss as a result of holding wool they would otherwise have sold. Hill J struck out that part of the claim, holding (at 277): The giving of a speech to an international wool conference by a Minister of State is not an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character…It does not form part of the central conception of trade or commerce of which the majority of the High Court [in Concrete Constructions] speaks, and is not made so merely because the speech concerns matters of trade or commerce. The giving of the speech is a matter that can be said to be in relation to trade or commerce, but not conduct which is actually in trade or commerce. 1. The decision in Unilan was tentatively distinguished in Meadow Gem Pty Ltd v ANZ Executors & Trustee Co Ltd [10] on the basis that the Minister's speech was dealing with "government policy and was not specifically dealing with any identifiable conduct which itself had a trading or commercial character". In Meadow Gem, claims were pleaded against two Ministers of the Victorian Government and the Registrar of Building Societies based on public statements representing that investments in the Pyramid Building Society were secure and that there was no risk to investors. The Building Society later failed. The State parties resisted being joined as defendants on the basis that the statements had not been made in trade or commerce. Hedigan J rejected that argument, endorsing the view expressed in an earlier case that: "the conduct in question does not have to be conduct in connection with one's own business, and that it would be sufficient if the conduct engaged in was for the purpose of promoting the business of some other person or corporation." 1. However, it is clear from a consideration of the extract reported that his Honour's view very much turned on the impossibility of rejecting the claim on a summary basis. 2. In his written submissions, Mr Smark suggested that the dividing line between Meadow Gem and Unilan "may be fine" but noted that the decision in Meadow Gem held only that the claim was arguable. Importantly, as submitted by Mr Smark, those two authorities, which concern "public statements by Ministers of the Crown encouraging consumers to hold particular investments", stand in stark contrast to private statements between government officials of the kind with which the present case is concerned. I accept, as submitted by Mr Smark, that they do not establish a general proposition that a representation "about" another person's trade is conduct "in trade or commerce". The weight of authority is to the contrary. 3. Markit Pty Ltd v Commissioner of Taxation [11] was a case involving an ambitious claim against the Commissioner of Taxation. The Commissioner had previously brought proceedings against a company and its directors arising out of the company's alleged failure to make PAYE deductions. Those proceedings were settled at mediation. The directors later brought a claim for misleading or deceptive conduct on the strength of a representation made in a clause contained in a draft deed of settlement reflecting the agreement reached. Muir J struck out the pleading, holding (at [38]-[39]) that the claim was not arguable. His Honour said: For the reasons explained earlier, the subject activities of the Commissioner are governmental in nature. The fact that, in the course of collecting taxes, penalties and superannuation levies, the Commissioner resorts to the sorts of action a commercial enterprise would take in order to recover moneys owing to it does not cause the Commissioner's conduct to "bear a trading or commercial character". The Commissioner's conduct must be considered in the light of his statutory function and undertaking. 1. Markit was applied in Bride v The Shire of Katanning, [12] a case in which McKerracher J summarily dismissed a claim against a local council for misleading or deceptive conduct arising out of steps taken by the council to collect rates. 2. An informative discussion of this issue may be found in the decision of the Supreme Court of Victoria in Auswest Timbers Pty Ltd v The Secretary to the Department of Sustainability and Environment. [13] The defendant was responsible for the regulation of forest timber cutting and extraction in Victoria. The plaintiff was the purchaser of a timber operation and needed to obtain a right to timber to continue its sawmilling operations. The plaintiff claimed that the defendant had engaged in misleading or deceptive conduct when, as described in the judgment (at [156]), it wrote a letter "to a potential licensee (the plaintiff), which contained a statement as to a possible future offer of a renewal of a licence not held by the licensee". 3. The Court (Croft J) held that the representation that the timber licence would be renewed was not made in trade or commerce. His Honour said (at [161]): [The representations] concerned "trade and commerce" in the sense that both the vendor of the Orbost Mill, Monier, and the plaintiff, as intending purchaser of the Orbost Mill, were both engaged in trade and commerce as timber millers and suppliers. The granting or withholding of a timber licence clearly impinged upon and may have had significant effects in relation to the commercial activities of the vendor or the purchaser, the latter more particularly after its purchase of the Orbost Mill. Nevertheless, on the basis of the reasoning of the authorities referred to above, particularly in Unilan Holdings, I am of the opinion that the representations as alleged by the plaintiff are properly to be regarded as concerning "trade and commerce", rather than being made "in" trade and commerce vis-à-vis the defendant. 1. As submitted by Mr Smark, the conduct of the government official in that case, being a representation made directly to a company on a matter relevant to its commercial activities, was probably closer to being "in" trade or commerce than the facts of the present case. 2. In TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd, [14] television journalists had made false statements pretending to be prospective customers of a home construction company. The Court held [15] that the representations were made in trade or commerce as they were made in the trade of the person to whom the representation was made and, being directed "for the sole purpose of acquiring the services of the respondents as builders", bore the requisite trading or commercial character. 3. Ilvariy was relied upon in an application I determined in Toben v Matheson; Toben v Nationwide News Pty Ltd, [16] where the plaintiff sought to sue on remarks made by a Senator as being misleading or deceptive conduct in the plaintiff's business or profession as a historian. I held (at [26]) that the proposed claim under the Australian Consumer Law was unarguable and refused leave to amend to include it. Leave to appeal on that issue was refused. [17] While a decision refusing leave does not stand as precedent, it is comforting in this context to have regard to the remarks of Emmett JA who, agreeing with Macfarlan JA that leave should be refused, said (at [9]): I simply add one observation: the mere fact that a statement is made about a person who is engaged in trade or commerce does not mean that the statement itself is conduct in trade or commerce. 1. As submitted by Mr Smark, the decision in Ilvariy does not stand for the proposition that statements made "about" another person's business (whether disparaging, laudatory or otherwise) are made in trade or commerce. As Mr Smark correctly observed, that would be contrary to the narrow view adopted in Concrete Constructions and the many cases which have followed it. 2. Mr Smark identified one "arguably outlying authority" on this issue, being the decision of the Federal Court in Firewatch Australia Pty Ltd v Country Fire Authority. [18] In that case, an officer of the Victorian Country Fire Authority issued a bulletin making statements about a fire extinguisher marketed by the applicants. The Court (Goldberg J) held that the making of the statements was conduct in trade or commerce. His Honour said at [63]-[64]: [63] The present case falls into that area identified by the majority in Concrete Constructions (supra) where the dividing line between what is and what is not conduct "in trade or commerce" is less clear. Although an internal CFA communication will ordinarily not have a trading or commercial character there was added to the bulletin a recommendation to brigades that as part of their trading or commercial activity they not be involved in the distribution or recommendation of the Firewatch extinguisher. In that context the primary distribution of the bulletin was conduct "in trade or commerce". More particularly was this so where the bulletin was distributed further to persons outside the CFA organisation and reached consumers and potential consumers. [64] Although the bulletin was an internal document it had "a trading or commercial character" in the sense that it was intended to influence servicing brigades not to be involved in the distribution or recommendation of the Firewatch extinguisher. Putting the matter another way, the bulletin had more than "an internal character"; it was intended to have a consequence or impact on trading and commercial activities. It was intended that in dealings or potential dealings with consumers fire equipment maintenance servicing brigades would be influenced not to become involved in the distribution or recommendation of the product. 1. The bulletin was widely distributed, including to prospective customers of the applicants. The decision appears to have been influenced by his Honour's finding that the bulletin was sent to brigades that did maintenance servicing on fire equipment and so might become involved in the distribution of fire extinguishers. [19] As noted in the passage cited above, the bulletin expressly recommended to fire brigades that they not be involved in the distribution of the extinguisher as part of their own commercial activity. Those features distinguish it from the present case. 2. For completeness, I should note one further decision referred to by Mr Smark, the decision of the Federal Court (Tracy J) in Seafolly Pty Ltd v Madden. [20] In that case, the parties were competitors in the ladies swimwear fashion industry. Ms Madden had wrongly asserted on Facebook that the respondent, Seafolly, had copied eight of her swimwear designs. The trial judge held that the comments were made in trade or commerce on the basis that they were made to influence the attitudes of customers and potential customers of that business. The decision was upheld on appeal. [21] The facts of that case are so different that I do not think they inform the present question. 3. The defendants' submissions and my review of the authorities to which they referred have persuaded me that, according to the traditional conception of the phrase "in trade or commerce" under the Trade Practices Act, Dr Watt's conduct in sending the email to Ms Hern would not have been conduct "in trade or commerce" within the meaning of that legislation. However, it is necessary to consider whether the Australian Consumer Law prohibits a broader range of conduct. 4. Mr Rollinson submitted that it does, by reason of the extended definition of the phrase "trade or commerce" in s 2 of the Australian Consumer Law, as follows: "Trade or commerce" means: (a) trade or commerce within Australia; or (b) trade or commerce between Australia and places outside Australia; and includes any business or professional activity (whether or not carried on for profit) 1. The significance of the extended definition was considered by the Victorian Court of Appeal in Murphy v Victoria. [22] The Court held [23] that s 18 of the Australian Consumer Law "remains subject to the limitations that were authoritatively identified in respect of the Trade Practices Act by the majority in Concrete Constructions." The reasons for that conclusion included consideration of the extended definition of "trade or commerce" in s 2 of the Australian Consumer Law. The Court said: [24] Thirdly, the Trade Practices Act 1974 included a definition of 'trade or commerce'. As much as the new definition in the ACL does is to include in the definition of 'trade or commerce' the additional words 'any business or professional activity'. It is not reasonable to conclude that the inclusion of those words work to remove the restriction imposed upon the use of the term 'in trade or commerce' contained in Concrete Constructions. It will be recalled that in that case, the majority contrasted the broad generality of the terms 'trade' and 'commerce' with the temporal element introduced by the word 'in' in the phrase 'in trade or commerce'. The definition in the ACL is confined to the words 'trade or commerce'. But, s 18 uses the phrase 'in trade or commerce'. Meaning has to be given to all the words; the preposition requires there to be a temporal element. 1. Mr Rollinson submitted that the decision in Murphy is plainly wrong and that I should not follow it. He submitted that the additional words in s 2 "any business or professional activity (whether or not carried on for profit)" necessarily expand the scope of the prohibition on misleading or deceptive conduct because, if "business" were simply a subset of trade or commerce, it would not have been necessary to expand upon the definition of trade or commerce (as it appeared the Trade Practices Act) by the addition of those words. 2. I understand the argument, which was put persuasively by Mr Rollinson. There is, however, the competing argument explained by the Court in Murphy at [92] (set out above). I am not persuaded that the Court was wrong in Murphy (indeed, as revealed by my judgment in Toben, I had independently reached the same conclusion before that decision was published). It follows that I should regard the decision in Murphy as one binding on me. 3. I am not persuaded that Dr Watt's conduct in sending the email was conduct "in trade or commerce" within the meaning of the Australian Consumer Law. I am fortified in that conclusion by one further consideration touched on in passing by Mr Smark in his oral submissions, which is the need to preserve coherence in the law. That consideration informed the High Court's rejection of a claim in negligence for psychiatric injury in Tame v New South Wales [25] , where four of the seven members of the Court considered that coherence in the law was a relevant factor in determining whether a duty of care existed. [26] Gleeson CJ said: Furthermore, as in Sullivan v Moody, this is a case where the appellant claims to have been injured in consequence of what others were told about her. There is the same intersection with the law of defamation, and the same need to preserve legal coherence [27] . In the events that occurred, Mrs Tame's reputation was not harmed. But suppose it had been. Then the law would have engaged in an exercise of balancing the rights and responsibilities of Mrs Tame and Acting Sergeant Beardsley by reference to considerations many of which would be rendered irrelevant by the application of the law of negligence. 1. I appreciate that the Court was there concerned with a question as to the scope of the law of negligence under the common law; care must be taken in applying those remarks in the construction of a statute. Even so, it may be observed that there is a complete intersection between the plaintiffs' claim under the Australian Consumer Law and Mr Templar's claim in defamation. Yet the considerations that give rise to defences under the Defamation Act 2005, which seeks to balance the rights and responsibilities of persons in the respective positions of Mr Templar and Dr Watt, are rendered irrelevant by the application of the Australian Consumer Law. 2. In Tame, McHugh J considered that the law of defamation was "a more appropriate medium" for dealing with the facts of the plaintiff's case than the law of negligently inflicted nervous shock. His Honour noted that the action arose out of a communication to a third party; that the plaintiff's concern was with her reputation and that the law of defamation has various defences that "reconcile the competing interests of the parties more appropriately than the law of negligence". 3. The Australian Consumer Law provides no mechanism for addressing the interests of a person in the position of Dr Watt who, by virtue of his position and for reasons concerned with the public interest, fell under a professional duty to impart information about the plaintiffs. That consideration has reinforced my conclusion that his conduct was not within the scope of what parliament had in mind when the Australian Consumer Law was enacted. 4. For the foregoing reasons, I have determined that the plaintiffs' claim under the Australian Consumer Law must fail. Conclusion 1. It follows that there will be a verdict for the defendants. 2. I accept that, in many cases, it is appropriate for the court at first instance to proceed to assess damages against the risk of error in a conclusion adverse to the plaintiff as to liability. [28] I do not think that is necessary or appropriate in the present case. The narrow finding I have made as to defamatory meaning, which is no less amenable to appeal than any other finding, means that the quantum of the assessment would sound derisory; to give articulation to such a finding would be inimical to the object of the proceedings. ********** Endnotes 1. [2002] EWCA Civ 1722 at [45] (Brooke LJ); agreeing at [67] and [68] (Rix LJ and Keene LJ). 2. Adam v Ward [1917] AC 309 at 334 per Lord Atkinson; and see Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at [9]-[10] (Gleeson CJ, Hayne and Heydon JJ); at [53] (McHugh J) (his Honour dissented in the result but not as to the relevant principles); at [136]-[137] (Gummow J). 3. Macintosh v Dun (1908) 6 CLR 303; [1908] AC 390; [1908] UKPCHCA 3; cited in Bashford at [10]. 4. (1947) 74 CLR 102 at 116 (Dixon J); [1947] HCA 13 (affirmed in Bashford at [10]). 5. Competition and Consumer Act 2010 (Cth), sch 2. 6. Australian Consumer Law, s 236. 7. Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 602.8; [1990] HCA 17. 8. Concrete Constructions at 603.2-6, 603.8-604.2. 9. (1992) 35 FCR 272; [1992] FCA 211. 10. (1994) ATPR (Digest) 46-130. 11. [2007] 1 Qd R 253; [2006] QSC 157. 12. [2016] FCA 65 at [27]. 13. (2010) 241 FLR 360; [2010] VSC 389. 14. (2008) 71 NSWLR 323; [2008] NSWCA 9. 15. Ilvariy at [47]-[49] (Spigelman CJ); at [97] and [98] (Beazley and Hodgson JJA relevantly agreeing). 16. [2013] NSWSC 1530. 17. Toben v Milne [2014] NSWCA 49. 18. (1999) 93 FCR 520; [1999] FCA 761. 19. Firewatch at [66]. 20. (2012) 297 ALR 337; [2012] FCA 1346. 21. Madden v Seafolly Pty Ltd (2014) 313 ALR 1; [2014] FCAFC 30 at [9] (Marshall J); at [97]-[98] (Rares and Robertson JJ). 22. (2014) 45 VR 119; [2014] VSCA 238 (Nettle AP, Santamaria and Beach JJA). 23. Murphy at [77]. 24. Murphy at [92]. 25. (2002) 211 CLR 317; [2002] HCA 35. 26. At [28] per Gleeson CJ; at [123] per McHugh J; at [250] per Hayne J; at [323] per Callinan J. 27. See Sullivan v Moody (2001) 75 ALJR 1570 at 1579-1580 [54]-[55]; 183 ALR 404 at 416. 28. Cf Dansar Pty Ltd v Byron Shire Council [2013] NSWSC 17 at [96]-[99]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 September 2016