Absolute privilege impregnable: Norris v Gittos [2011] WASC 295

The plaintiff represented herself and filed a statement of claim seeking damages of $4,000,000. In poker terms, this is what is called “over playing your hand”.

She made the claim against two employees of the Department of Child Protection. Her complaint arose from contents of affidavits they swore and filed in other proceedings in the Children’s in WA.

The defendants brought an application for summary judgment, on the basis that they had a complete defence to the defamation claims: absolute privilege. Quite simply, things that are written for the purposes of court proceedings are covered by absolute privilege. They can’t be sued on, even if they are not true.

Kenneth Martin J firstly noted the statutory cap of $324,000 was substantially lower than the $4,000,000 sought. He also confirmed the obvious: statements made in court, including documents used in court proceedings, are the subject of absolute privilege: s.27 of the Defamation Act 2005 (WA).

Briefly, His Honour noted that at common law, no action will lie for defamation statements made in connection with judicial proceedings. Whether the statements were true or false, or whether the plaintiff was present are irrelevant: the privilege is absolute. Case struck out.