Saturday, 29th AprDefamation: Negligence, novel duties of care and defamation

Perera v Genworth Financial Mortgage Insurance Pty Ltd  [2017] NSWCA 19

Mr Perera brought three claims against Genworth, a mortgage insurer, arising out of claims made by Genworth concerning Mr Perera’s expertise as a property valuer. 

First, Mr Perera brought an action in negligence occasioning economic loss, positing a novel duty of care said to be owed by a potential plaintiff to a potential defendant not to bring proceedings negligently. 

Secondly, Mr Perera brought an action in defamation on the basis of a letter written by Genworth and sent to Genworth’s client. 

Thirdly, Mr Perera brought an action in negligence occasioning psychological injury resulting from a senior employee of Genworth threatening to sue Mr Perera personally for an alleged negligent valuation. 

The issue on appeal was whether the primary judge erred in summarily dismissing each of Mr Perera’s claims. This raised:

• A question as to the proper approach where novel duties of care cut across or subvert other legal principles; and
• As to the defamation claim, a question whether the relevant imputations were specified and whether they were capable of arising.

Held:

• The primary judge did not err in striking out the two claims in negligence. The asserted novel duties of care could not exist coherently with the current law, including torts based on misuse of legal process, the absence of a duty of care owed by one litigant to another and the importance of unfettered access to the courts. As such, findings of fact were unnecessary.
• The defamation proceedings should not have been struck out and should proceed in the District Court.