Evidence of economic loss required in defamation cases

Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924 (Australian Security Academy) involved alleged defamatory imputations against Australian Security Academy Pty Ltd (Applicant) by the Australian Institute of Chartered Loss Adjusters Pty Ltd (Respondent).  The decision highlights that no defamatory imputations will exist where no damage can be proven.  A key issue in this case was that the Applicant failed to provide sufficient evidence of loss suffered as a result of the alleged defamatory imputations.

Background to the Australian Security Academy case

The Applicant alleged that the Respondent had sent an email on 30 June 2020 (Email) containing the following defamatory imputations:

• “ASA is misleading students in relation to the accreditation status of its course (first imputation).
• ASA is not a fit and registered training body in that it falsely declares its course to be registered and accredited when they are not (second imputation).
• ASA falsely declared that its course is nationally recognised and meets the quality assurance standards of the Australian Qualifications Framework (third imputation).
• ASA’s course would not satisfy the criteria for AICLA to provide an exemption from the admission requirements of AICLA (fourth imputation).
• ASA’s course was inferior to AICLA’s course as it would not satisfy the criteria for admission thereto, or for an exemption from its requirements (fifth imputation).”^[1]

The Respondent admitted the contents of the Email were true and therefore could not be considered defamatory.^[2]  They argued that any defamatory comment was trivial, and the circumstances indicated that anything stated would not have caused harm to the Applicant.^[3]  In addition, the Respondent’s plead the qualified privilege defence, requiring that:

• “The Recipient had an interest or apparent interest in having information on some subject;
• the matter is published to the recipient in the course of giving to the recipient information on that subject; and
• the conduct of the respondent in publishing that matter is reasonable in the circumstances.”^[4]

Discussion of defamation in the Australian Security Academy case

In determining whether the Email contained defamatory content, Anderson J evaluated the facts in line with the following threshold considerations.

Jurisdiction and publication

It was held that all jurisdictional and publication elements were satisfied.  The claim was correctly brought under the Defamation Act 2005 (Qld) (Defamation Act) despite a lack of evidence as to the location of the parties at the time the Email was sent.^[5]

Standing to sue

The Applicant was a corporation and cannot claim an action in defamation unless it was excluded at the time of the publication.^[6]  The Applicant alleged that at the time of publication, it was an excluded corporation given it had fewer than ten employees.^[7]  Anderson J agreed with this and determined that the Applicant did have standing to sue for defamation.^[8]

Identification

The element of identification requires that a defamatory publication identifies the Applicant.  The Email failed to expressly refer to the Applicant, and therefore for defamation to be possible, identification must be implied.^[9]  Anderson J held that one (1) of the recipients of the Email did not identify that the Applicant was being referred to.^[10]  This element could not be satisfied.

Existence of defamatory imputations

In determining whether the statements in the Email contained defamatory imputations, the ordinary meaning of each statement was examined.^[11]  Anderson J referred to the case of Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 to determine what “ordinary meaning” entails.^[12]  The decision in this case directed readers of a publication to consider the relevant word or section in alignment with the broader context of the publication.^[13]  The judgment added that it should be determined what a ‘reasonable reader’ would interpret.^[14]

It was decided that the first second, and third imputations were not evident from the Email because statements were related to membership requirements rather than attempting to convey that the Applicant’s accreditation status was misleading.^[15]  This was determined through an examination of the whole context of the email.^[16]

Regarding the fourth and fifth imputations, the meaning of both could not be discerned from the Email.^[17]  A lack of clarity and specificity in the Applicant’s listing of alleged imputations limited the Court’s ability to understand whether the imputations were present in the Email.^[18]  Given the Respondent’s tone in the email was factual, it was not possible to ascertain a defamatory meaning.^[19]

Anderson J’s decision in the Australian Security Academy case

The Applicant’s claim failed on the basis that no defamatory imputations existed in the Email because they were true and no harm could be established.^[20]  Because of this, the Applicant’s claims of misleading or deceptive conduct and injurious falsehood also failed.^[21]  The Respondent’s defence of qualified privilege and triviality became irrelevant as a result.^[22]

The Applicant failed to provide evidence of its loss

In paragraphs [100] to [113] of Australian Security Academy, Anderson J discussed the hypothetical loss calculation that would have occurred had the claim not failed.  Both experts in the second joint expert report confirmed that:

“they had not been provided with any documentation which supported that ASA had suffered any loss or damage as a result of the 30 June Email”.

In short the Experts agreed that there appeared to be no correlation between the contents of the Email and the loss of enrolments in the Applicants course “Diploma of Loss Adjusting”.  The evidence needed to establish a relationship between student enrolments respective course and the imputations in the Email.

This decision in Australian Security Academy highlights the need to adduce documentary evidence of loss of sales caused by alleged defamatory statements.

Links and further references

Legislation

Defamation Act 2005 (Qld)

Cases

Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924

Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33

Link to this case on the Federal Court of Australia website: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2025/2025fca0924

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Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

[1] Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924 at [68].

[2] Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924 at [70].

[3] Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924 at [73].

[4] Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924 at [70]; Defamation Act 2005 (Qld) s 30.

[5] Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924 at [77].

[6] Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924 at [78]; Defamation Act 2005 (Qld) s 9(1).

[7] Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924 at [78]; Defamation Act 2005 (Qld) s 9(2)(b).

[8] Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924 at [78].

[9] Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924 at [79].

[10] Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924 at [83].

[11] Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924 at [84].

[12] Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924 at [84].

[13] Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at [63]-[73].

[14] Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at [63]-[73].

[15] Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924 at [86]-[87].

[16] Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924 at [86]-[87].

[17] Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924 at [88]-[89].

[18] Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924 at [88]-[89].

[19] Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924 at [88]-[89].

[20] Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924 at [91].

[21] Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924 at [92]-[99].

[22] Australian Security Academy Pty Ltd v Australasian Institute of Chartered Loss Adjusters Pty Ltd (No 2) [2025] FCA 924 at [91].

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