In 2022, Siobhan Lamb was bankrupted after reporting the concerning behaviour of her former partner, Sheldon Sherman, to police. After she ended their relationship, his excessive texts, threats to her university education and unsolicited contact with her family caused her distress. Ms Lamb did what she thought was right by reporting this conduct. She could not have been prepared for what unfolded. In Sherman v Lamb [2022] QDC 215, Sherman sued Lamb for defaming him with imputations contained in the police report and by disclosing the contents of that report to his ex-wife’s lawyers.
In the first instance, Sherman won. Jarro DCJ found Ms Lamb injured his reputation with no defences available. This bankrupted Ms Lamb, who was forced to pay not only the $10,000 in damages awarded, but also—as the losing party—Sherman’s enormous legal costs.
Lamb overturned the decision on appeal by way of a trustee in bankruptcy on a point of law related to qualified legal privilege. In Bill Karageozis as trustee for the bankrupt estate of Siobhan Lamb v Sherman [2023] QCA 258, the full Queensland Court of Appeal found the defence of qualified privilege in defamation law can attach to police reports even if the conduct reported does not amount to a crime (at [21]). It also found Lamb did not act with malice (at [34]).
While vindicated, Lamb is not a winner. She endured the trauma of protracted legal proceedings and bankruptcy, all because she was a woman who reported escalating coercive control behaviours of an ex-partner to police. Her ex-partner weaponised the law to try and silence her.
Solutions are needed to make it safe for women to report harm at work or at home. Urgent defamation reform is one solution, as is the creation of laws which look to ‘throw out’ abusive lawsuits known as ‘strategic lawsuits against public participation’ (‘SLAPPs’). Anti-SLAPP laws recognise the law can be misused to shut down public participation, providing a tool for those trying to silence others. Everyone needs to feel safe when reporting harm, and the legal profession and our systems have a vital role in making that possible.
This problem exists all over the world. The UN Special Rapporteur on Violence Against Women called the act of threatening survivors with
legal proceedings ‘a form of gender-based violence in and of itself’ in a
2018 report.
As Lamb’s case and research illustrate, communicating with just one person can constitute the publishing of defamatory material. The reality is that accusing a person of sexual harassment or violence will inherently meet the threshold of harming a person’s reputation, because that person may be perceived as a perpetrator of harm.
Should a victim-survivor refuse to apologise and withdraw their imputations they must rely on a defamation defence. If they rely on the truth defence, their case may come down to credibility and evidence. An obvious issue is that sexual harassment or abuse often occurs without witnesses, so many victim-survivors’ claims cannot be corroborated.
The defence of qualified privilege is most relevant to reports of misconduct to human resources or an employer. As was shown in Lamb’s case, this defence is made out if a defendant can prove they had a legal, social or moral duty to communicate the information and the recipient had a reciprocal interest in receiving the information. However, as with Lamb, it is not straightforward and, importantly, relies on a full trial to be successful. Further, this defence can be defeated if a court determines the defendant acted with malice.
On 22 September 2023, the Standing Council of Attorneys-General approved the Part B amendments of the model defamation laws, to extend absolute privilege to police reports, reasoning that ‘feedback from stakeholders suggests the defence of qualified privilege does not provide a sufficient safeguard against this deterrent effect’. But they stopped short of extending that to all circumstances where a person may report, curtailing the potential benefit for victim-survivors.
Magar v Khan [2025] FCA 874 (‘Magar v Khan’), the landmark sexual harassment case run by Redfern Legal Centre with Dilan Mahendra as counsel, contained a defamation concerns notice. Biplavi Jarga Magar, a migrant worker, was sexual harassed while working at a Mad Mex chain restaurant. When she reported the conduct, she was met with a concerns notice from Sher Khan alleging she had defamed him. Instead of backing down, Magar, with her legal team, sought to classify this concerns notice as ‘victimisation’ (at [62]).
Pursuant to section 47A of the Sex Discrimination Act 1984 (Cth) (‘SDA’), it is unlawful for a person to cause detriment to another because they have made a sexual harassment complaint. Magar v Khan tested these provisions and the Court confirmed a concerns notice sent in response to Magar’s sexual harassment complaint constituted acts done in contravention of the victimisation provisions of the SDA (at [158]). Not only did this case see a groundbreaking $305,000 in damages, but it also set a precedent, encouraging alleged perpetrators and their lawyers to consider how they use legal processes when responding to sexual harassment victim-survivors.
The Human Rights Law Centre, in its 2024 report, Stop the SLAPP, defines a SLAPP as an exploitative use of the law ‘not to resolve genuine legal disputes but rather to silence or discourage participation, advocacy or activism. These strategies create financial and emotional strain on those they target’ (at 4).
Defamation reform in Australia would assist to counter the use of abusive defamation claims. The reluctance of decision-makers to extend absolute privilege to all recipients receiving reports of sexual misconduct sits uncomfortably against the broader epidemic of gendered violence, which our systems are failing to address. However, there is opportunity for reform.
The misuse of law to silence women is not inevitable.
Source: Recent cases and reform on the use of defamation to silence victims – Law Society Journal