The Court of Appeal has dismissed John O’Connor’s appeal against the High Court’s decision to dismiss his defamation and malicious falsehood claims against the Legal Aid Board. The appeal concerned a letter sent on 27 July 2018 by a solicitor assigned through the Board, which O’Connor said implied that he had abused court process by bringing professional negligence proceedings without adequate expert support.
The court held that the letter was not reasonably capable of having a defamatory meaning. It also upheld the dismissal of the malicious falsehood claim, finding no basis to establish that the letter was untrue or published maliciously.
The dispute arose from separate professional negligence proceedings O’Connor had brought against solicitors involved in his family law matters. In 2017, the High Court allowed those claims against his former wife’s solicitor to continue, with some hesitation, after considering a letter from his own solicitors about unpaid settlement money. The judge declined to consolidate the actions.
After an earlier unsuccessful application for legal aid, O’Connor brought judicial review proceedings. Those proceedings settled with the Legal Aid Board agreeing to provide legal services for the negligence claims. The Board solicitor’s 2018 letter referred to earlier court decisions and said a supportive report from an independent solicitor was required for the law centre to come on record. The letter also identified solicitors who might be involved, to help O’Connor find a suitably qualified independent expert.
O’Connor argued that he had supportive advice from senior counsel and that the letter implied his proceedings were being maintained without an expert report and amounted to an abuse of process. The Court of Appeal said the question was what a hypothetical reasonable reader would understand from the letter, not what O’Connor understood it to mean. It distinguished the 2017 question of whether there were reasonable grounds to start proceedings from what was needed for them to progress to trial. It also said senior counsel advising and conducting a case could not give evidence in that case.
The court agreed with the High Court that the letter did not expressly or implicitly accuse O’Connor of abusing court process. It described the letter’s statements about the law and the Board’s requirements as non-defamatory and said the letter was an effort to assist him in proceeding with his claims.
The appeal was dismissed. The court gave a provisional view that the respondent should receive its costs because it had been entirely successful. O’Connor may contest that view by written submission within ten days of delivery of the judgment; the respondent may reply within ten days thereafter. The judgment records that Whelan and Allen JJ. agreed with Meenan J.