Leigh v Bruder Expedition Pty Ltd: Injurious Falsehood – What is the standard required to prove malice?

Injurious falsehood is an action in torts that can be brought against an individual/business for publishing false statements with malicious intent, resulting in some form of damage (generally financial damage). This is similar to defamation, however, ought to be distinguished as injurious falsehood is available for larger businesses and is concerned more with economic loss as opposed to reputational damage.

A critical element of establishing injurious falsehood is the requirement to have committed the publication with malicious intent. However, what exactly is the standard required to prove malice? This was an issue examined in detail in the 2020 appeal decision of Leigh v Bruder Expedition Pty Ltd [2020] QCA 246.

Background

In April 2018, Mr Coles purchased a caravan from Bruder Expedition Pty Ltd (‘Bruder). Shortly after, Mr Coles began to experience difficulties with the caravan and became extremely dissatisfied.

Mr Coles later came into contact with Ms Leigh, who is the administrator of a Facebook group named ‘Lemon Caravans & RVs in Australia’ consisting of 50,000 members. After such contact, Ms Leigh announced Mr Coles’ dissatisfaction with Bruderalong with a few statements based on her own critics including that the caravans were of poor quality, unsafe and overpriced.

As a result, Bruderbrought proceedings against Ms Leigh for injurious falsehood seeking an injunction and damages for economic loss.

The Original trial

In the original trial, Bruder alleged that Ms Leigh’s publication was false and had been published maliciously with an intention to cause financial harm. Ms Leigh, on the other hand, claimed that the publications were made with a belief that it was true in order to warn others about the defects found. The jury ultimately made a finding in favour of Bruder.

When concerned with the issue of proving malice, the trial Judge had directed the jury that the standard of proof was on a balance of probability; and in Her Honour’s words:

if one side of the scales is weighed down ever so much more slightly than the other side, that is sufficient”.[1]

Evidence from Bruder was successfully led against Ms Leigh that she was prone to use aggressive, immoderate, and strong language when she disapproved of another’s action. Based on this, the jury would have easily concluded that Ms Leigh’s statements illustrated an intention to cause financial harm to Bruder. Accordingly, when the evidence was weighed against the standard instructed, a finding of malice against Ms Leigh was made.

An award of $357,000 was subsequently given to Bruder and an injunction was also made restraining Ms Leigh from publishing similar statements in the future.

Appeal

Ms Leigh later filed an appeal against this decision. Ms Leigh argued that the trial judge had misdirected the jury with respect to the requisite standard to prove malice; an oversight of the Briginshaw standard had occurred.[2]

In commenting on the Briginshaw standardHis Honour indicated that the jury was required to consider the evidence led to prove a fact and determine whether the evidence has been able to effect an “actual persuasion of mind that the fact exists”.[3] A mere mechanical comparison of probabilities, or a weighing of a scale—as had occurred in the original trial—was insufficient.[4] Regard ought to have been had to the seriousness of the allegation in issue and the gravity of the consequences of a finding—and on this note, an allegation of malice, in His Honour’s words is a “serious allegation about a person’s lack of integrity.[5]

Further comments were also made regarding the difficulty of the case since Bruder had successfully proven that Ms Leigh was prone to react excessively. It was therefore ‘easy for the jury to leap from a finding of unreasonable and extreme behaviour to the conclusion that what was actually intended was to cause financial harm to the respondent (Bruder)’—or in other words ‘to confuse a disproportionate display of wrongheaded righteous indignation and which has caused harm with acts which were actually intended to harm’.

Accordingly, it was found that the trial judge had erred in misdirecting the jury. The orders of trial judge were set aside, and Bruder’s claims dismissed. Bruder was ordered to pay the cost of Ms Leigh’s proceedings including the appeal.

Hence, from Leigh v Bruder Expedition,[6] it has become apparent that the requisite standard to prove malice in an injurious falsehood action is not an ordinary civil standard—on the balance of probability. Where the consequences and gravity of a finding particularly that of a person’s integrity is at stake, it is no longer a matter of simply weighing the scales; therequirement is that there must be an actual persuasion of mind that a defendant held malicious intentions.

This article was written by Hongi Han and Ervin Hii


[1] See Leigh v Bruder Expedition Pty Ltd [2020] QCA 246, [17].

[2] See Briginshaw v Briginshaw [1938] HCA 34.

[3] Leigh v Bruder Expedition Pty Ltd [2020] QCA 246, [18], [23].

[4] Leigh v Bruder Expedition Pty Ltd [2020] QCA 246, [23].

[5] Leigh v Bruder Expedition Pty Ltd [2020] QCA 246, [22], [23].

[6] [2020] QCA 246.

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