Foundations of Australian Law

Fourth Edition

Copyright © 2013 Tilde Publishing and Distribution

Chapter 7Defamation, nuisance & trespass

Chapter overview

This chapter looks at the concepts of defamation nuisance trespass

Defamation

Legal principle: Defamation can only occur when statements made by the

defendant about the plaintiff are untrue. If the statements made by the defendant

are true, then defamation has not taken place.

Defamation concept summaryFigure 7.1

Defamation

• Two categories Libel

- permanent form in writing, illustrations, recordings or broadcasts

Slander- non-permanent form through spoken words

Elements of defamation

• Statement made by defendant against plaintiff is defamatory

• Third party would interpret statement as referring to plaintiff

• Statement identifies the plaintiff

• The statement is published to a third party

Defamatory imputations

• When a person attributes something which is:

Dishonest Wrongful Fault or Misconduct

Settling disputes without litigation

• Plaintiff and defendant have opportunity to resolve dispute without litigation

• Offer of amends

Offer of Amends – Sections 12-19: Figure 7.2

Restrictions on bringing action of defamation• Corporation defamed cannot bring

action unless they belong to an excluded category

non-profit organisation corporation that is not public body and

has < 10 employees

• Time restriction – one year of date of publication

Recognised defences to an action of defamation• Consent

• Justification

• Honest opinion

• Absolute privilege

• Qualified privilege

• Fair comment

Remedies for defamation

• Damages are awarded to the injured party

• Juries (except in NSW) have task of awarding damages

Internet implications

• Can be difficult to prove the identity of actual source

• These may be liable for defamatory material published on the internet

author information system provider ISP any other infrastructure providers

Nuisance

• A civil wrong committed against a plaintiff’s right of use and enjoyment of his/her land

• Two areas private nuisance

- civil wrong that is not a crime- indirect interference

public nuisance- criminal act, unreasonable, substantial

Nuisance

• Nuisance concept summary: Figure 7.3

Private nuisance

• Two types of defendant directly responsible for nuisance person who occupied land from

which nuisance arose

Defences for private nuisance• Plaintiff had consented to the

nuisance

• Statutory authority caused them to take reasonable precautions

Remedies for private nuisance

• Normally an injunction stopping the defendant from causing the nuisance again

• Damages awarded if loss has occurred

Public nuisance

• Related to criminal acts

• Plaintiff must prove nuisance was unreasonable and substantial affected reasonable comfort of life was greater to themselves than

suffered by the general public

• Remedies including injunctions and special damages

Trespass

• Trespass concept summary: Figure 7.4

Trespass

• Trespass against the person assault, battery, false imprisonment

• Trespass against land squatting is intentional trespass

• Trespass against chattels property other than land

Chapter review

In this chapter you have looked at negligence defamation nuisance trespass