Schlaepfer v Australian Securities and Investments Commission [2021] NSWCA 129 (30 June 2021) (Meagher JA at [1], White JA at [2], McCallum JA at [111])


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