LVMH Watch & Jewellery Australia Pty Limited v Michael Lassanah & Ors: Police win on qualified privilege

The Supreme Court of NSW - Court of Appeal today allowed the appeal in LVMH Watch & Jewellery Australia Pty Limited v Michael Lassanah & Ors [2011] NSWCA 370, ruling that the there was no malice on the part of Police who accused an intellectually disabled man of attempted theft in a Tag-Heuer store in Sydney.

Michael Lassanah and Aaron Oddie (the Respondents) had claimed that the Police's accusations and manner of questioning them outside of the Tag store amounted to defamation. It was conceded at trial that Mssrs Lassanah and Oddie's actions in the Tag store were innocent.

The Respondents had accused the Police of being motivated by malice, prejudiced against them on both the basis of race and intellectual disability, and of speaking in an unnecessarily loud and rude manner in the vicinity of pedestrians, thus negating the defence of qualified privilege.

The Court of Appeal however found that the Police had acted reasonably given the circumstances, with Bergin CJ in EQ stating at 161 that

There is no doubt that the police officers were in a difficult situation; a suspicious and nervous manager of a reputable shop making serious allegations of attempted robbery; a difficult confrontation with a Respondent who was indignant and argumentative in a public street in an urgent situation where it was not clear whether any implements or other items may have been secreted on the Respondents….. I too am satisfied that the Police did their "best” and I am satisfied that in all the circumstances the conduct of the Police in publishing the matter was reasonable.

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