DEFAMATION LAW IN VICTORIA. March Defamation: the publication of material that has the tendency to injure the

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1 DEFAMATION LAW IN VICTORIA March 2013 Introduction 1. Defamation: the publication of material that has the tendency to injure the reputation of another; that is, when the esteem in which that person is held by the community is diminished in some respect: Radio 2UE Sydney Pty Ltd v Chesterton The law of defamation is concerned with the meanings conveyed by a publication: imputations. An imputation is any statement about a person that asserts or attributes an act or condition to that person. It includes any natural and ordinary meaning as well as true innuendoes; that is, where information is published to a person with knowledge of special facts or circumstances an otherwise innocent statement may become defamatory by reason of the true innuendo The competing interests have always been the right to free speech versus the protection of reputation. While our society generally lauds freedom of expression it has placed limits on that freedom through laws such as those relating to defamation, sedition, incitement in certain areas (such as racial vilification), obscenity and, to a lesser and lesser extent in today s society, offensive language. 4. At common law there was a distinction between slander (oral or transitory defamation) and libel (printed or a more permanent record of the defamation). 1 [2009] HCA 16; (2009) 238 CLR See generally: Lexis Nexis Chapter on Defamation by Dr David Rolph

2 2 That distinction is abolished by the Defamation Act The ever changing world of communications through social media is leading to new challenges as will be highlighted later in this paper. 5. The tort of defamation provides a remedy in damages designed to vindicate the aggrieved person s reputation and to provide consolation, insofar as can be done by money, for the hurt suffered by the aggrieved person. At common law damages were at large and included compensatory, aggravated, exemplary and punitive damages. 6. In March 2010 a jury in the Supreme Court of Victoria awarded Dyson Hore- Lacey SC of the Victorian Bar $600,000 by way of compensatory damages plus $30,000 for exemplary damages having found him to have been defamed in a book entitled Getting Away With Murder concerning the defence raised in the Ramage murder case of The book, written by Mr Phil Cleary and published by Allen and Unwin, suggested certain conduct by Hore-Lacy. Interest and costs were in addition to the amount awarded and was one of the largest claims awarded in Victoria. One other that remains in memory is that of Ron Clarke, athlete extraordinaire, who in 2000 sued the ABC s 7.30 Report for comments made alleging that he was building a sporting complex over a toxic dump. While his solicitors had sent a Calderbank offer shortly before trial indicating that the plaintiff was prepared to settle for $75,000 the jury awarded him $1,000,000 for the hurt to his reputation. 7. A few other cases that indicate the value placed on reputations might be thought to be at different ends of the scale are mentioned here having regard to the cap on damages introduced by the uniform legislation that will be covered shortly. 3 Sub-section 7(1)

3 3 Mr Andrew Ettinghausen a well-known rugby league player in New South Wales sued as a result of a magazine publishing a photograph of him in a shower after a match, the photograph was revealing; a jury compensated Mr Ettinghausen to the amount of $350,000. The NSW Court of Appeal thought the hurt not to be that large and reduced the damages to $100,000. In a similar matter Ms Sonia Shepherd, a then 31-year-old mother from Hervey Bay in Queensland was awarded $120,000 when a magazine, without her permission, published a nude photograph of her. Mr Kennett, a former premier of this State reportedly received a settlement from Channel 9 in the order of $400,000. Ms Jelena Popovic, Magistrate received $250,000 when Mr Andrew Bolt inferred that she was soft on crime and unfit to be a Magistrate. Mr John Marsden, a former president of the New South Wales Law Society sued Channel 7 in 1999 over allegations aired in Witness and Today Tonight that Mr Marsden had engaged in sexual conduct with under age boys. He was awarded $525,000 plus millions of dollars in indemnity costs (his lawyers had made an offer of compromise $500,000) with reports indicating that legal costs in this, a very long running case, amounted to around $18 million dollars. Channel 7 appealed and lost. 8. Other matters that might be of interest include, the case commenced by Mr Alphonse Gangitano against the journalist Mr John Silvester and 3AW after Mr Silvester alleged Mr Gangitano had the brains of a flea and the genitalia to match. I have not seen the pleadings but I assume that both parts of the sentence were alleged to be defamatory. Regrettably, Mr Gangitano apparently experienced some difficulty with a Mr Jason Moran, and as a result of an early demise, was unable to see the proceedings through to the door of the Court.

4 4 The final matter that I would remind you of was the celebrated case concerning the late Mr Frank Hardy, author of that wonderful Victorian novel, Power Without Glory. Mrs Ellen Wren, the widow of Mr John Wren, a colourful identity and businessman, who some were unkind enough to think might have been the subject upon which Mr Hardy based his story s hero/villain (please circle as you see fit), had the then 34 year old Hardy arrested and charged with criminal libel. I will return later to the famous Hardy name. 9. The personalities involved in defamation litigation over the years are, as interesting as are the matters to which they took offence, the courses chosen by them to restore their reputations, and the results of their various quests. All of the above matters are of public domain and I would refer those with prurient or otherwise motivated interest in such matters to where a rich treasury of many household names awaits. The Defamation Act The Uniform Legislation 10. On 1 January 2006 the Defamation Act 2005 came into operation 4. It is part of the uniform law of defamation that has existed since that time in all jurisdictions in Australia. The Act changed the law in many ways and since that time has been the starting point for any matter involving allegations of, or considerations of defences in relation to, defamation. 11. The objects of the act refer to uniformity of defamation in Australia, the need to ensure that there is no unreasonable limits on freedom of expression, especially in relation to matters of public interest and importance, to provide effective 4 Section 2 Unless otherwise stated all references are to the Defamation Act The Act is known as the Defamation Act in all jurisdictions in Australia except the ACT where it forms part of the Civil Law (Wrongs) Act 2002.

5 5 remedies for persons whose reputations are harmed and to promote speedy and non-litigious methods of resolving disputes The Act relates to the tort of defamation at general law and does not affect the operation of the general law except as provided for in the Act The Act abolishes the distinction between libel and slander 7. The importance of this abolition is that the publication of defamatory matter of any kind is actionable without proof of special damage 8. Before the Act any action for slander required proof of special damage by the plaintiff before they could be compensated by damages. 14. Where there are a number of defamatory matters published at the one time then only a single action may be brought, even if more than one defamatory imputation is carried by the matter 9. This does not mean, for example, that where different potential defendants publish the same defamation then the plaintiff is limited to one action. As many actions are open as there are publishers. An example of the potential for multiple actions is demonstrated by the cases of Trkulja v Yahoo! 10 and Trkulja v Google Inc (No 5) 11. Each of those matters concern publications on the internet alleging that the plaintiff was either involved in criminal activities, so involved with crime in Melbourne that his rivals had hired a hit man to murder him, or that he was such a significant figure in the Melbourne criminal underworld, that events involving him are recorded on a Web site that chronicles crime in Melbourne. The plaintiff 5 Section 3 6 Section 6 7 Sub-section 7(1) 8 Sub-section 7(2) 9 Section 8 10 [2012] VSC [2012] VSC 533

6 6 succeeded in both actions when the respective juries found he had been defamed. In the Yahoo! matter Kaye J assessed damages at $225,000 plus interest and costs, and in the Google matter, Beach J assessed damages at $200,000. There were slight differences in the findings by each of the juries but on any reading of the cases the assessment of damages was well toward the maximum amount available to the plaintiff under the Act. I shall return later to amounts awarded by way of damages since the introduction of the Act. 15. Section 9 of the Act restricts those corporations who can sue for defamation to those who might broadly be described as, not-for-profit corporations, or a corporation that employs fewer than ten persons and is not related to another corporation; so long as either of such corporations is not a public body. 16. As mentioned in relation to Mr Gangitano s matter his action lapsed with his death. No cause of action for or against a deceased person (including a personal representative of the deceased) is open even if the action was commenced before the death of the person The choice of law, a question that was often a very real one before the introduction of the uniform legislation, is now governed by factors set out in section 11 of the Act. If publication is within one jurisdiction then that will be where the action is, if in more than one jurisdiction then it is where the harm occasioned by the publication has its closest connection and, in deciding that, the court will take into account where the plaintiff was ordinarily resident or the extent of the publication in each relevant jurisdiction. 12 Section 10

7 7 Alternative dispute resolution process 18. Part 3 of the Act is entitled Resolution of Civil Disputes without Litigation. As mentioned earlier one of the objects of the Act as set out in section 3 is to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter. 19. The Act provides that a publisher may make an offer to make amends to an aggrieved person and any such offer to make amends is taken to have been made without prejudice, unless the offer provides otherwise 13. Such an offer is dependant upon the aggrieved person giving a notice in writing to the publisher of their concerns (a concern notice) informing the publisher of the defamatory imputations alleged to have been made (the imputations of concern). Upon receipt of the concern notice the publisher has 28 days in which to make the offer to make amends or to request further particulars from the aggrieved person. If a request for further particulars is made then the plaintiff has 14 days to provide them An offer to make amends must include a number of matters listed in section 15 of the Act and, should you ever find yourself in a position that you are assisting a client to prepare one, you should use section 15 as a check list to ensure that the offer will have its full effect should the matter proceed to litigation. Apart from the obvious offer to make amends (or to attempt to) for the perceived defamation and suitable publication thereof there must also be an offer to pay reasonable expenses incurred by the aggrieved person while there may also be an offer to pay a stated amount or to pay an amount to be determined by an 13 Section Section 14

8 8 arbitrator appointed by the parties or, finally, to pay the amount determined by a court. If a court is the chosen path then the court will be the court in which any proceedings have already been issued and, if none have yet been issued then in the Supreme Court There is power for an offer to make amends to be withdrawn If the offer to make amends is accepted, and carried out, then the aggrieved person cannot assert, continue or enforce any action for defamation in relation to the matter which will then, in effect, be regarded as settled 17. A court may (but need not) order the publisher to pay the aggrieved person expenses reasonably incurred as a result of accepting the offer and order any costs incurred that form part of those expenses be assessed on an indemnity basis Like many such provisions there is a sting in the tail for an aggrieved person who chooses not to accept an offer to make amends. An offer to make amends, and its rejection, may be pleaded as a defence by the publisher and a court will look objectively at the offer to determine whether it was reasonable in all the circumstances, and if it is judged to be so, an otherwise potentially successful action may well fail Any admissions that are made in any offer to make amends is inadmissible in any action for defamation whether civil or criminal although such admissions may be considered when looking at the effects of this part of the Act and, perhaps obviously, in any question as to costs Sub-sections 15(3) and 15(4) 16 Section Section Sub-section 17(2) 19 Section Section 19

9 9 25. In similar vein apologies offered by a publisher does not constitute an express or an implied admission and is also inadmissible in any proceedings in like manner to the offer to make amends 21. Manner of trial 26. Litigation can be tried, at the election of either party, by a jury although the court can veto such a request if the trial will involve a prolonged examination of records or involves technical, scientific or other issue that cannot be conveniently be considered and resolved by a jury 22. I make no comment on this apparent comment on trial by jury! 27. While the jury (if one has been allowed) has the task of deciding whether defamation has occurred and whether a defence has been successful, should the plaintiff succeed it will be the judicial officer who decides what damages are to be paid 23. It is to be noted that nothing in section 22 affects any law or practice relating to special verdicts. 28. Section 23 prevents the bringing of a second action by the aggrieved person against the same defendant in a different jurisdiction without leave of the court to do so. Defences 29. The Act does not affect the defences or exclusion of liability that may be available to a defendant under the general law 24. An example cited in the Act is 21 Section Section Section Section 24

10 10 section 19 of the Constitution Act 1975 conferring privileges and immunities on members of parliament. Importantly, while the state of mind of a publisher may not be relevant in the plaintiff s case it may be relevant in defeating a defence raised Contextual truth is a defence if the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations Absolute privilege is a defence, i.e. matters said within parliament or court including accurate publication of the same 27. Likewise the publication of public documents document or a fair summary or extract from a public document is a defence 28. The definition of public document restricts the meaning to government, curial and quasi government type documents. 32. A defence of fair reporting of proceedings of public concern is provided for by the Act 29 but this defence, once established, is defeated, if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education 30. Interestingly, learned societies, sports associations and trade associations are all included within the definition of matters that relate to proceedings of public concern. 33. A defence of qualified privilege exists if the defendant proves that the recipient of the defamatory material had an apparent interest in having information on the subject, and, the matter is published to give the recipient information on that 25 Sub-section 24(2) 26 Section Section Section Section Sub-section 29(3)

11 11 subject and finally that the conduct of the defendant is reasonable in the circumstances 31. The matters that a court will take into account in assessing whether the criteria for qualified privilege have been met are set out in section 30 but, as mentioned earlier, this defence can be defeated if the plaintiff proves malice but note that merely because reward is associated with the publication does not equate to malice A defence of honest opinion can be made out if the opinion was of public interest and is based on proper material and such defence extends to employers/ principals of commentators who might express defamatory honest opinions 33. This defence too may be defeated if, and only if, the plaintiff proves that the opinion was not honestly held at the time of publication, or in the case of an employer/principal that they did not believe that the opinion was honestly held by the commentator. 35. There is a defence of innocent dissemination where an employee/agent or subordinate distributor and in that capacity did not know, nor could not reasonably have been expected to know that the statement was defamatory 34. Such a defence is likely to be raised where matters have been published on the internet and an aggrieved person seeks to sue those who might be seen to have the deepest pockets, Google and Yahoo perhaps? Despite the earlier mentioned matters involving Mr Trkulja and both Google and Yahoo the matter is not yet settled as to whether search engines are in fact publishers of such material. 31 Section Sub-sections 30(4) and 30(5) 33 Section Section 32

12 The very recent decision of Mansfield J in the Federal Court matter of Rana v Google Australia Pty Ltd, Darda Gregurev, Nina Gregurev and Google Inc 35 is an example that the law on publication and the defences is still in a state of development. The New Zealand Case of A v Google New Zealand Ltd 36 considered that in order to be held liable as a publisher of defamatory material it must be the case that the defendant could have prevented the continued publication of the material or had the ability to bring about the cessation of that material. The NZ court found that because of Google New Zealand being a subsidiary of Google Inc the named defendant did not have the power to prevent or bring about the cessation of the publication of the relevant material. A similar decision was reached in Tamiz v Google Inc and Google UK Ltd Following the reasons in the NZ and UK cases cited Mansfield J held that, on the facts before him in the Rana Case, Mr Rana had no reasonable prospect of success and dismissed the action against Google Australia. Mansfield J considered the differing approaches taken in Tamiz and Trkulja v Google Inc LLC (No 5) and decided that as the law was not yet settled he would not, on that basis, refuse to give leave to serve the proceedings on Google Inc which would have had the effect of effectively dismissing that claim. His Honour gave Mr Rana 28 days to file and serve a Further Amended Statement of Claim so that the question of granting leave for overseas service might be considered in light of the fresh pleadings. 38. The differing views expressed in Tamiz and Trkulja are important. Eady J in Tamiz used the analogy of a graffitied wall and queried whether the owner of a 35 [2013] FCA 60 judgment handed down 7 February [2012] NZHC 2352, cited in Rana at para 38 of that judgment 37 [2012] EWHC 449 (QB), cited in Rana at para 39 of that judgment

13 13 wall daubed with defamatory material could be said to be the publisher of it; Beach J, on the other hand, expressed the view that it was open to the jury in his case to find that Google was the publisher of the defamatory material because the search engine operates precisely as intended by those who own it and who provide its services. It should also be noted that in the Trkulja Case notice of the offending material had been provided to Google Inc and Beach J found that it was open to the jury to find that after receipt of such notice, as infelicitous as the letter of 22 September 2009 might have been, the defendant did not make out its defence of innocent dissemination. 39. The final defence contained in the Act is that of triviality, which relates to circumstances where the publication was such that it was unlikely that the plaintiff would sustain harm as a result 38. Damages 40. Damages in any action are to bear an appropriate and rational relationship to the harm sustained by the plaintiff 39. In the normal course of events damages for non-economic loss are limited to $250,000 (plus CPI increases since 1 January 2006) 40. However, if the court is satisfied in the circumstances the publication(s) is such as to warrant an award of aggravated damages then the figure may be exceeded 41. Importantly, the state of mind of the defendant at the 38 Section Section Sub-section 35(1) present value just over $300, Sub-section 35(2)

14 14 time of the publication is irrelevant, except where malice, or other state of mind, affects the harm sustained by the plaintiff The awarding of exemplary or punitive damages was abolished by the Act Factors that will mitigate damages include an apology, a correction, the fact that a plaintiff has issued or compromised or recovered damages from other proceedings in relation to any other publication of matter having the same meaning, or effect, as the subject defamatory matter Damages for multiple causes of defamation may be assessed as a single sum I make some general observations to perhaps dispel the view that there may be a river of gold awaiting a person defamed. 45. In another case involving Mr Trjulka, while successful, the damages awarded were modest. In 2009 Mr Trkulja sued Ms Trajkovska for defamation. The defendant did not contest the proceedings, she did not appear at court. Mr Trjulka was successful. The allegation was that the defendant had alleged to have said to a group of five friends that Mr Trjulka had drugged her causing her to become ill and lose sleep and that the plaintiff was guilty of a serious crime. Similar allegations were allegedly made shortly after to another small group of about twenty-four people, this time the allegation included that the plaintiff was selling illegal drugs and that he once offered to sell his own daughters into prostitution at the ages of five and six. Of interest was that the first publication was alleged to have occurred on or about 6 January 2003 and the second on or about 7 January Proceedings were not issued until 24 March One 42 Section Section Section Section 39

15 15 can only presume that as the defendant took no part in the proceedings any question of limitations periods was not raised. Judge Davis 46 was guided by the terms of the Act and considered the matter relating to Ms Popovic, (referred to earlier in this paper 47 ), as well as the case of Winn v Goodwin 48 (where Judge Shelton had awarded $30,000 in relation to defamatory statements repeated in correspondence to VCAT) and finally a decision of Judge Campbell in the matter of Gluyas v Tenana 49 (where $20,000 was awarded to a defendant who had defamed the plaintiff on the World Wide Web). Waving some judicial magic wand Judge Davis awarded Mr Trkulja the princely sum of $3,000 by way of compensatory damages. Mr Trkulja was also compensated $ for his own costs (as a self represented party) together with interest of $ Lest you should think that the County Court is the only court where damages might be somewhat less than expected I would also refer you to the case of Amanatidis v Darmos 50. In that matter Ms Anastasia Darmos caused to be delivered to one person, and personally delivered to a priest, a letter containing defamatory material of the husband and wife plaintiffs concerning the disposition of the assets of a family member. Ms Darmos was the male plaintiff s sister. The relevant deceased was their father. The case was hard fought with silk and junior for the plaintiffs and a Mr P. Darmos appeared for Ms Darmos. The judgment does not record whether counsel for the defendant was related to her although Wilson QC, for the plaintiff, alleged that there was further aggravation caused by the manner in which the defendant s case was 46 Trkulja v Trajkovska [2010] VCC [2002] VSC [2008] VCC [2008] VCC [2011] VSC 163

16 16 conducted and sought aggravated damages accordingly. Taking everything into account Sifris J awarded the husband plaintiff $5,000 by way of compensatory damages and the wife (who had been accused of robbing the dead by taking money and papers from the deceased s pockets a defamation which His Honour regarded as particularly serious ) was awarded $10,000 which sum included an unspecified amount for aggravated damages. 47. To provide a broader picture for the 2011 year the largest recorded award of damages was $150,000 was in the matter of Nowark v Putland 51 where the plaintiff was allegedly called a paedophile and a wog while at a Surf Live Saving Club. However, on appeal 52 the judgment was overturned and the matter was sent back for a retrial before a different judge with the Court of Appeal exhorting the parties to consider whether some other form of settlement could occur under the ancient legal maxim: enough is enough. The average in New South Wales 2011 was $71,286 with the two largest recorded awards being $100,000 each As mentioned earlier in the paper the late Mr Frank Hardy suffered the indignity of being arrested and charged with criminal defamation. His grand daughter Ms Marieke Hardy was recently involved in a defamation action concerning Mr Johua Meggitt. Ms Hardy had been the subject of what she described as a hate blog against her. Regrettably, on 9 November 2011 she incorrectly identified Mr Meggitt as the man responsible for writing the blog under the nom de guerre of James Vincent McKenzie. That matter settled for a reported $13,000 with Ms Hardy, clearly the victim of defamation herself, having to pay Mr Meggitt 51 Queensland District Court at Southport delivered 8 November Putland v Nowak [2012] QCA 121 judgment delivered 11 May

17 17 for outing the wrong man. One can only assume that Ms Hardy will search for the correct blogger and seek to make good the money that she has lost. Costs 49. It is important to remember that in matters involving defamation the potential for the award of costs on an indemnity basis to the successful party is very real 54. Having regard to the attempts to resolve matters before ending at court a successful party may be in a strong position when arguing that having reasonably attempted to settle the matter then they ought to be awarded indemnity costs as allowed under the Act. Time limits ONE YEAR 50. The other matter that is of paramount importance to any solicitor considering a potential defamation action is the time limit. In the original Act section 48 prescribed the relevant time limits for the commencement of an action but these were repealed in 2011 and are now to be found in sections 5(1AAA) and 23B of the Limitation of Actions Act Section 5(1AAA) prescribes one year from the date of publication for the bringing of an action for defamation. There is provision within section 23B to extend that period to a maximum of three years (but no longer) where it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year of the publication. An application for an extension may be made even though the one year period has passed. 54 Section 40