Imputations of Suspicion and the Role of Denials in Defamation Law

Imputations of suspicion commonly arise in defamation law.

In "Duma v Fairfax Media Publications Pty Limited (No 3) [2023] FCA 47", the articles published by Fairfax claimed that Duma and his lawyer Simon Ketan conspired to create a shell vehicle for bribe payments. They also suggested that Duma conspired with Ketan to defraud tribal landowners and had acted corruptly in trying to move a naval base.

The court found that a news article conveyed defamatory imputations about the claimant, despite the respondents arguing to the contrary.

The respondents' contention was that the imputations were not conveyed, and the references to the claimant’s denials of wrongdoing played a significant role in their argument.

However, the Court disagreed, citing Lord Devlin's remarks in "Lewis v Daily Telegraph Ltd [1964] AC 234 at 277" which suggested that ordinary reasonable readers draw implications from text, particularly when they are derogatory. This shows that an ordinary reasonable reader is more likely to interpret an implication of guilt or wrongdoing, especially when the text suggests a suspicious or scandalous context.

One leading authority that the Court referred to was the High Court's decision in "Favell v Queensland Newspapers Pty Ltd [2005] HCA 52". Here, the High Court held that the mere statement of an investigation or charge may not impute guilt. However, when this is accompanied by an account of suspicious circumstances that point towards a likelihood of guilt, the position may be different. The Court in Duma referenced this decision to highlight that adding derogatory implications to a piece of information could indeed sway it from being a bare report to one that suggests wrongdoing.

Another case that sheds light on this issue is "Mirror Newspapers Limited v Harrison [1982] HCA 50". This case established that the mere report of an arrest or charge does not convey an imputation of guilt due to the presumption of innocence. However, as the Court in Duma pointed out, citing McColl JA's opinion in "John Fairfax Publications Pty Limited v Obeid [2005] NSWCA 60", this presumption may be limited in situations where defamatory statements are made in circumstances unrelated to or remote from the operation of the criminal justice system.

Importantly, the Court in Duma emphasized that even if an article does not assert directly that a person acted corruptly or received a bribe, it does not mean that such an imputation wasn't conveyed. This was supported by "Jones v Skelton [1963] 1 WLR 1362 at 1370; SR (NSW) 644 at 650 (PC)", where Lord Morris stated that the ordinary and natural meaning of words could include any implication or inference drawn by a reasonable reader.

The Court also noted that denials of wrongdoing don't necessarily shield a publisher from conveying defamatory imputations, even if included in the publication. This was established by "Rivkin v Amalgamated Television Services Pty Ltd [2001] HCA 67" where it was held that readers don't have to give equal weight to every part of a publication, and the publisher's emphasis on certain aspects can significantly influence the reader's perception.

Sexual abuse victim successfully defends defamation case: Useful English case

A significant defamation case has recently been decided in England, Hay v Cresswell [2023] EWHC 882 (KB), which was handed down on 26 April 2023.

The case is likely to be persuasive in Australian courts, in many respects, including findings in relation to the credibility of the Defendant.

The case involved a sexual abuse victim, Nina Cresswell, who successfully defended a libel claim brought by the perpetrator, William Hay.

This case is noteworthy as it is the first reported case where a sexual abuse survivor naming their perpetrator has successfully relied on the public interest defence under section 4 of the Defamation Act 2013 (England and Wales).

Ms. Cresswell had met Mr. Hay in 2010, after which he sexually assaulted her.

The assault was reported to the police, but they did not treat her complaint as a crime, and so Mr. Hay was never arrested or charged.

A decade later, Ms. Cresswell decided to name him publicly in a blog, an email, and in social media posts, after which Mr. Hay sued her for libel.

The court held that the single meaning of the five publications by Ms. Cresswell was that Mr. Hay had violently sexually assaulted her. While there was limited evidence before the court, it found Ms. Cresswell's evidence more persuasive than Mr. Hay's, thus establishing the substantial truth of the allegations.

The court also noted that the public interest defence was applicable in this case.

The judge considered Ms. Cresswell's publications to be on a matter of public interest, and her belief that her publications were in the public interest was found to be reasonable given the circumstances​​.

However, this ruling does not provide a carte blanche for survivors to name perpetrators.

The primary question considered by the judge was one of truth versus falsity, and Ms. Cresswell still needed to be able to prove the truth of the allegation to the civil standard (balance of probabilities). If her allegation had been found to be deliberately false, her public interest defence would have failed​.

At [20] the Judge stated:

For the avoidance of doubt, I indicate that if I had concluded that the defendant's allegation was a deliberately false one (contrary to my primary finding above), I would not have found that she believed that publishing the statements in question was in the public interest or that such a belief, if it existed, was reasonably held.

The Judge, in this case, expressed some concerns about certain aspects of the Defendant's evidence:

1. The Judge did not accept the Defendant's claim that she had identified Mr. Hay to the Northumbria Police officers as her assailant on the morning of May 28, 2010, or that she had mentioned specific physical characteristics like tattoos or a septum ring. The Judge felt that even though the police investigation was superficial and inadequate, it was unlikely that the officers would have overlooked such details if they had been provided.

2. The Judge also questioned the Defendant's account that the police officers told her they had seen CCTV footage of her leaving the nightclub alone and wearing a leather jacket. The Defendant suggested that this was a further indication of the police investigation's deficiency, as she had left her jacket in the nightclub. However, the Judge found no reference to the police attending the nightclub in the incident log and doubted that the officers would have had the time to do so, isolate the relevant footage, and identify her in it. The Judge concluded that this aspect of the Defendant's account seemed aimed at bolstering her criticism of the police's response.

Despite these concerns, the Judge ultimately did not doubt the honesty of the Defendant's account in its essential aspects, which was supported by other evidence. The Judge recognized that an otherwise honest witness might be tempted to embellish their case, particularly in areas where they feel vulnerable. The Judge concluded that this is what had happened in this case.

The judgment shows that civil courts will not shy away from findings of truth even in the absence of a criminal investigation, caution, or conviction.

When to determine the "Serious Harm Element" in Defamation Cases: A potential issue in the Federal Court of Australia

An increasing number of defamation cases are being prosecuted in the Federal Court of Australia.

In this blog post, I look at a recent decision (9 May 2023) in which the Federal Court considered when, during the course of a case, the serious harm element should be considered and determined. The case of Selkirk v Hocking [2023] FCA 432 gives us an interesting perspective on the matter.

What is the Serious Harm Element?

In Victoria, the serious harm element arose from amendments made to the Defamation Act 2005 (Vic) (Defamation Act) in 2020. It introduced the “serious harm element” as a necessary factor in a defamation cause of action. (note: this factor is yet to apply in Western Australia).

Timing of Serious Harm Element

The fifth and sixth respondents in this case applied for the serious harm element to be determined before the trial commenced, as provided under s 10A(4) of the Defamation Act.

The Defamation Act's sub-sections 10A(1), (5) and (6) provide that a judicial officer should determine the serious harm element as soon as practicable before the trial unless there are special circumstances justifying postponement.

The factors that a judicial officer may consider when deciding on the presence of special circumstances include the:

• cost implications for the parties,

• resources available to the court, and

• extent to which establishing the serious harm element is linked to other issues determined during the trial.

Does this section apply to the Federal Court?

In Selkirk v Hocking, the court considered a complex jurisdictional issue.

This was whether ss 10A(5) and (6) of the Defamation Act are picked up by s 79(1) of the Judiciary Act 1903 (Cth).

This question arises because:

• once federal jurisdiction is engaged, as per Rana v Google Inc (2017) 254 FCR 1 at 7, the entire matter falls within the federal jurisdiction, and there's no concurrent federal and State jurisdiction being exercised;

• the court also needed to determine how the Defamation Act, as a state statutory law, applies in the exercise of federal jurisdiction (see Solomons v District Court (NSW) (2002) 211 CLR 119 at 134 [21]);

• section 79(1) of the Judiciary Act states that each State or Territory's laws, including those relating to procedure, evidence, and the competency of witnesses, should be binding on all Courts exercising federal jurisdiction, unless otherwise provided by the Constitution or Commonwealth laws.

A potential roadblock in the application of ss 10A(5) and (6) of the Defamation Act emerged concerning the Federal Court Act's ss 37M, 37N, and 37P, which define overarching purpose of civil practice and procedure provisions, require parties to act consistently with the overarching purpose, and grant the Court power to give directions about practice and procedure in a civil proceeding, respectively.

That is:

• is there an inconsistency between the Defamation Act and the Federal Court Act in relation to the timing of when the serious harm element is determined?

• it might be inconsistent with the “overarching purpose of civil practice” provisions of the Federal Court Act to, in effect, abide by what the Defamation Act says in relation to the timing of when the serious harm element gets dealt with during the course of a case.

The Judge stated at [41]:

The courts have long warned of the potential perils of hearing separate trials of issues. In Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at 55 [168]–[170], for example, Kirby and Callinan JJ said:

… The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.

The second and related comment is this. A party whose whole case is knocked out on a trial of a preliminary or single issue, may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court’s, rather than the parties’, interests.

Thirdly, there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here were this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question.

How the Judge decided to deal with the application

The court decided to treat the application as brought under s 37P of the Federal Court Act and r 30.01 of the Federal Court Rules, and to order that the following questions be heard separately:

1. Whether the article conveyed one or more of the defamatory imputations alleged;

2. The extent of publication of the article; and

3. Whether, in light of the answers to (1) and (2), publication of defamatory matter about the applicant caused, or is likely to cause, serious harm to her reputation.

This approach, as noted by Sweeney J in TVW Enterprises Ltd v Duffy (No 3) (1985) 8 FCR 93 at 95, may determine the outcome of the proceeding and save the parties the expense of a trial on all issues. The advantages of ordering such questions separately are, as Sweeney J notes, "plain".

In the circumstances of Selkirk v Hocking, where the article was allegedly published to no more than three persons, and where the applicant has arguably agreed to having engaged in the same conduct that the article subjects her to, hearing these questions separately could be particularly beneficial.

Do sub-sections 10A(1), (5) and (6) of the Defamation Act apply in the Federal Court?

The Court in Selkirk v Hocking did not conclusively determine whether the application of ss 10A(5) and (6) of the Defamation Act gives rise to any potential statutory inconsistency standing in the way of the operation of s 79 of the Judiciary Act.

This issue was deemed sufficiently unclear that the Court decided not to resolve it at the time, opting instead for a case management hearing to be convened for further directions or orders.

Pre-Action Discovery in Defamation Cases: An Overview

When confronted with a potential defamation action, a critical stage that can significantly shape the trajectory of the case is pre-action discovery.

This process can involve obtaining relevant documents from the potential defendant, before formal proceedings are initiated.

It helps the plaintiff ascertain if there is a viable cause of action to pursue.

However, navigating the legal intricacies surrounding pre-action discovery in defamation cases can be challenging.

The Purpose of Pre-Action Discovery

The primary purpose of pre-action discovery is to assist a potential plaintiff who believes they may have a cause of action, but lacks specific details or evidence to substantiate their claim.

It can be particularly useful in defamation cases, where certain details may only be accessible to the potential defendant.

The Legal Framework

The Rules of the Supreme Court 1971 (WA) (RSC), specifically Order 26A rule 4, governs pre-action discovery in Western Australia for documents in the “custody, power or possession” of a potential defendant.

This rule provides that pre-action discovery can be ordered if the court is satisfied that the applicant may have a right to obtain relief from the court against a person, but can't ascertain certain details to initiate a proceeding.

Threshold for Pre-Action Discovery

The threshold for pre-action discovery is set high to prevent abuse of process.

As established in the case of Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14, the applicant must show they may have a right to relief, not merely a suspicion or speculative claim.

The test is an objective one and requires more than a mere assertion, conjecture, or suspicion.

Case Law Guidance

Several key cases provide further guidance.

In Waller v Waller [2009] WASCA 61, it was held that there must be some tangible backing or objective foundation that takes the existence of the cause of action beyond a mere allegation, suspicion or assertion. The applicant 'must demonstrate more than mere assertion, conjecture or suspicion, but does not have to positively establish the existence of a cause of action. What the applicant must produce is evidence showing that he, she or it may have a cause of action'.

In McCarthy v Dolpag Pty Ltd [2000] WASCA 106, it was emphasised that being wrongly subjected to an order for pre-action discovery can be a serious invasion of privacy.

In Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14 it was held there must be evidence objectively indicating - beyond the mere assertion, conjecture or suspicion of the applicant - that all facts necessary to give rise to a right to curial relief may be able to be established.

Balancing Act

Courts have to perform a delicate balancing act in pre-action discovery applications.

They must weigh the potential invasion of privacy and the oppressive nature of the order against the applicant's need for information to substantiate their claim.

As such, courts exercise caution and restraint in ordering pre-action discovery.

A Closer Look: BWS v ARV (No 2) [2021] WASCA 62

In BWS v ARV (No 2) [2021] WASCA 62, the plaintiff provided several pieces of evidence to substantiate their claim that they might have a substantive case against the defendant. These included details about their relationship with the potential defendant, the nature of alleged defamatory statements, and the reasoning behind their belief that the potential defendant was the source of these statements.

The parties were formerly married and had been involved in acrimonious proceedings in the Family Court of Western Australia (paragraph 5). The plaintiff was also engaged in separate proceedings before the Islamic Religious Council of Singapore (IRCS) involving a trust dispute (paragraph 5).

The plaintiff provided evidence of specific statements made in the IRCS proceedings that they considered to be defamatory and damaging to their personal life and affairs (paragraph 7). These included allegations about the plaintiff's religious practice, responsibilities as a parent, professional conduct, and personal and financial management.

The plaintiff believed that these defamatory statements were based on comments made by the potential defendant to one or more of the other parties in the IRCS proceedings (paragraph 8). The plaintiff's affidavit detailed the reasons for this belief, including their previous marital relationship with the potential defendant and the lack of other potential sources for the information contained in the defamatory statements (paragraph 9).

The court noted that while the plaintiff was able to present a logically consistent argument supporting their belief that the potential defendant had provided the defamatory information to the other parties (paragraph 44), the evidence did not go beyond this belief to directly establish the nature and content of the alleged communications between the potential defendant and these parties (paragraph 51).

This left the court to consider whether the plaintiff's belief that the potential defendant may have published defamatory statements about them was sufficient to satisfy the jurisdictional requirement under Order 26A rule 4(1) of the Rules of the Supreme Court 1971 (WA) that the plaintiff may have a cause of action against the potential defendant (paragraph 52).

The court concluded that the plaintiff’s belief, while logically consistent, did not meet the threshold for pre-action discovery as set out in the Rules of the Supreme Court and interpreted in case law. The plaintiff was not able to provide the necessary evidence of the nature and content of the alleged communications between the defendant and the other parties in the IRCS proceedings. Therefore, the court determined that the plaintiff’s belief alone was not enough to establish that they may have a cause of action against the appellant for defamation.

Key Take-Aways

• Pre-action discovery can be a potent tool for potential plaintiffs in defamation cases. However, the need to protect individuals from unnecessary invasion of privacy means the threshold for obtaining such orders is high.

• Familiarity with the rules and case law governing pre-action discovery can ensure a more strategic approach to potential defamation actions.

Cases mentioned in this blog post:

• BWS v ARV (No 2) [2021] WASCA 62

• Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14

• Waller v Waller [2009] WASCA 61

• McCarthy v Dolpag Pty Ltd [2000] WASCA 106

The Newspaper Rule in Defamation Cases: Insights from Poland v Hedley [2023] WASCA 69

Defamation law is a complex area, balancing the protection of individual reputations against the importance of freedom of speech.

A key aspect in defamation cases involving media defendants is the newspaper rule, which offers special protection to confidential sources in the interests of preserving the free flow of information.

In this blog post, I explore the concept of the newspaper rule and its application in defamation cases, drawing on the recent Western Australian case of Poland v Hedley [2023] WASCA 69.

The Newspaper Rule: Definition and Purpose

The newspaper rule is neither a rule of evidence nor a rule of law, but rather a rule of practice in defamation actions (Poland v Hedley, [86]).

It generally prevents courts from compelling media defendants to disclose their confidential sources of information during the pre-trial process (ibid).

This protection against disclosure exists only prior to the hearing of the action, and not at trial (ibid, [87]).

The rule is grounded in the recognition of public interest in the free flow of information (ibid, [88]).

It supports investigative journalism, a vital ingredient of a healthy society, by allowing journalists to protect their sources' confidentiality, thus encouraging information sharing (ibid).

This protection extends to media defendants in analogous interlocutory applications, such as preliminary discovery (ibid, [89]).

The newspaper rule is designed to protect the identity of informants, not the information itself obtained from them (Poland v Hedley, [90]). However, the rule may protect the information if its disclosure would reveal the informant's identity (ibid).

The court exercises discretion in determining whether to require disclosure of a confidential source during the interlocutory stage, taking into account the interests of justice and any special circumstances (ibid, [91]).

Factors Influencing the Court's Discretion

In deciding whether to require disclosure of a confidential source at the interlocutory stage, the court considers several factors depending on the specific case.

These factors may include the manner in which the information was obtained and whether it was obtained lawfully (Poland v Hedley, [93]).

Additionally, the court may be more inclined to order disclosure if the defendants raise the identity and integrity of their confidential sources as part of a qualified privilege defense (ibid, [94]).

Special Circumstances and the Newspaper Rule

The newspaper rule may be overridden by special circumstances or if it is necessary in the interests of justice (Poland v Hedley, [92]). For instance, if the plaintiff may be left without an effective remedy due to the defendant's statutory defense of qualified privilege, the court may compel disclosure to enable the informant to be sued or joined as a defendant (ibid).

Applying the Newspaper Rule in Poland v Hedley [2023] WASCA 69

The Poland v Hedley case provides a valuable example of the newspaper rule's application and the court's discretion in ordering the disclosure of confidential sources. In this case, the court ultimately ordered the production of audio recordings of communications with the confidential source (Source B) for several reasons, including special circumstances (Poland v Hedley, [106]).

The fact that the identity of Source B was already known to the plaintiff, and that the issue revolved around the content of the communications, counted strongly against applying the newspaper rule to refuse protection (ibid, [98], [100]).

The Importance of a Concerns Notice under the Uniform Defamation Laws in Australia

The Uniform Defamation Laws in Australia require an aggrieved person to provide a concerns notice before commencing defamation proceedings.

A recent case, Hooper v Catholic Family Services trading as Centacare Catholic Family Services [2023] FEDCFAMC2G 323, highlights the significance of this requirement.

In this blog post, I discuss the mandatory nature of a concerns notice under the Uniform Defamation Laws and the implications of not adhering to this requirement.

The Uniform Defamation Laws

Defamation laws in Australia were historically inconsistent across different states and territories. However, the introduction of the Uniform Defamation Laws (these particular amendments yet to apply in WA) sought to harmonise these laws across the country, recognising the need for consistency in an era where publications can be disseminated instantaneously throughout Australia. The Uniform Defamation Laws introduced several key amendments to defamation law, including the requirement of a concerns notice before commencing defamation proceedings.

Mandatory Nature of a Concerns Notice

Section 12B(1) of the South Australian Defamation Act (DA) mandates that an aggrieved person cannot commence defamation proceedings unless they have provided a concerns notice to the proposed defendant. The concerns notice must specify the alleged defamatory imputations, the serious harm caused, and include a copy of the allegedly defamatory material.

In Hooper v Catholic Family Services, the court found that the plaintiff failed to comply with the mandatory provisions of the DA concerning the provision of a concerns notice, resulting in the summary dismissal of the defamation aspects of her claim.

Imperative vs. Directory Provisions

The High Court in Clayton v Heffron distinguished between imperative (mandatory) and directory provisions in the context of statutory requirements. Imperative provisions require strict compliance, with non-compliance rendering the resulting action null and void, while directory provisions do not have such fatal consequences, although substantial compliance is still necessary.

The court in Hooper v Catholic Family Services agreed with Gibson DCJ's view in Teh v Woodworth that section 12B(1) of the DA is an imperative provision, emphasizing the use of the word "cannot" in the provision.

Consequences of Non-Compliance with the Concerns Notice Requirement

Failure to comply with the concerns notice requirement can result in the dismissal of the defamation aspects of a claim, as demonstrated in Hooper v Catholic Family Services. The court in M1 v R1 also held that leave could not be granted to retrospectively validate defective concerns notices under the Uniform Defamation Laws.

Key Take-Aways

• The Hooper v Catholic Family Services case serves as a reminder of the importance of complying with the mandatory concerns notice requirement under the Uniform Defamation Laws in Australia.

• Failing to provide a proper concerns notice can lead to the summary dismissal of defamation claims, and such defects cannot be retrospectively remedied by amendment.

• As such, it is essential for those pursuing defamation claims to ensure strict adherence to the concerns notice provisions of the DA.

Economic Loss Arising from Defamation: Impaired Capacity to Work

Defamation cases can have a significant impact on a person's ability to work, especially when the defamatory material is published widely and causes reputational damage.

In this blog post, I discuss the issue of economic loss arising from defamation, focusing on the impairment of a person's capacity to work.

I reference the decision in Poniatowska v Channel Seven Sydney Pty Ltd [2020] SASCFC 5, as well as other relevant cases, to provide an understanding of this subject matter.

Economic Loss in Defamation Cases

In defamation cases, economic loss may be claimed by the plaintiff if they can prove that the defamatory material published has caused a negative impact on their capacity to work.

In the case of Poniatowska v Channel Seven Sydney Pty Ltd [2020] SASCFC 5, the plaintiff claimed that the publication of the defamatory material led to a relapse in her psychiatric conditions (depression and anxiety) and caused her incapacity to work. Furthermore, her loss of reputation adversely affected her prospects of obtaining employment.

Causation: Effect of Publication on Capacity to Work

To establish a causal link between the publication of defamatory material and the plaintiff's incapacity to work, expert evidence may be required.

In Poniatowska's case, the expert evidence of Dr. Czechowicz was crucial in proving that the publication had caused a relapse of her psychiatric conditions, which in turn resulted in her incapacity to work.

In some cases, the defamatory material may only be one of several contributing factors to the plaintiff's impaired capacity to work.

In Poniatowska, the court acknowledged that the defamatory publication was one of several factors that contributed to her psychological dysfunction.

Assessment of Damages for Economic Loss

Determining the appropriate amount of damages for economic loss in defamation cases can be challenging.

In some cases, a mathematical approach can be taken by multiplying the value of the lost opportunity by the percentage chance that the opportunity would have materialized. In other cases, a more holistic assessment may be required.

In Poniatowska, the court opted for a broad-axe holistic assessment of the economic loss, considering the adverse circumstances caused by the defamatory publication that impacted her earning capacity. These circumstances included the:

• exacerbation of her psychological dysfunction, which affected her job-seeking efforts, motivation; and

• capacity to seek employment in various roles.

The court ultimately assessed her economic loss at $80,000.

Key Take-Aways

• Economic loss arising from defamation can have a significant impact on a person's capacity to work.

• The Poniatowska v Channel Seven Sydney Pty Ltd [2020] SASCFC 5 decision provides valuable insights into how courts assess the causal link between the publication of defamatory material and the plaintiff's incapacity to work, as well as the appropriate damages for economic loss.

• When pursuing a defamation claim, it is essential to gather strong evidence to establish causation and to ensure that damages for economic loss are accurately assessed.

The Challenges in Assessing Damages for Defamation: Striking the Right Balance

Defamation law is an important tool for protecting individuals from damage to their reputation.

In Australia, the assessment of damages for defamation involves ensuring an appropriate and rational relationship between the harm suffered by the plaintiff and the damages awarded.

This can be a complex process, with several inherent challenges.

In this blog post, I discuss these challenges, drawing on relevant cases, including the decision in Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2020] QCA 221.

The Appropriate and Rational Relationship Between Harm and Damages

Section 34 of the Defamation Act requires courts to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

The concept of an "appropriate and rational relationship" was discussed in the case of Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327, where it was noted that reputation is not a commodity with a market value, making comparisons between awards for defamation difficult.

Furthermore, because the remedy for defamation is damages, courts must have regard to what is allowed as damages for other types of non-economic injury.

The Role of Vindication in Damages Calculations

In assessing damages for defamation, courts must consider three purposes:

• consolation for personal distress and hurt,

• reparation for harm done to the plaintiff's reputation, and

• the vindication of the plaintiff's reputation.

Vindication looks to the attitudes of others and is often considered in tandem with the first two purposes.

The appellants in the Wagner case argued that the size of the final awards was indicative of an excessive allowance for vindication.

They suggested that if a substantial sum is awarded for injury to reputation and hurt feelings, it is unnecessary to add a further sum for vindication, as the substantial sum will serve to vindicate the respondent's reputation.

However, this approach may not necessarily conform to the global assessment of damages usually employed by courts.

Comparing Awards Across Different Cases

The appellants in Wagner did not advance any arguments based on comparison with other awards of damages for non-economic loss in other cases of damages for defamation or possibly relevant awards of damages for personal injuries or false imprisonment.

This highlights the difficulty in comparing awards across different cases, as each case is unique, and there may not be a clear "external standard" against which to measure the required "appropriate and rational relationship."

Key Take-Aways

• Assessing damages for defamation is a complex process, with inherent challenges such as determining the appropriate and rational relationship between harm and damages, comparing awards across different cases, and the role of vindication in damages calculations.

• Courts must balance these factors to ensure a just outcome for both plaintiffs and defendants in defamation cases.

The Significance of a Failure to Apologise in Defamation Law: The Role in Aggravated Damages

In defamation law, the role of a defendant's failure to apologise in assessing damages for non-economic loss, including aggravated damages, can be significant.

This blog post discusses the general importance of an apology in defamation cases and its influence on aggravated damages.

Carson v John Fairfax & Sons Ltd

A starting point for understanding the role of an apology in defamation cases is the 1993 High Court decision in Carson v John Fairfax & Sons Ltd.

In this case, the court found that the absence of an apology does not necessarily aggravate damages, as it does not increase the plaintiff's hurt or widen the area of publication.

However, subsequent case law has contradicted this view, suggesting that the failure to apologise can indeed aggravate damages.

Clark v Ainsworth

In the 1996 case of Clark v Ainsworth, the Court of Appeal of NSW distinguished the passage from Carson, stating that it related to aggravated damages, not ordinary damages.

The court held that the absence of an apology could be taken into account as something that extended the publication's vitality and capability to cause injury to the plaintiff.

Ali v Nationwide News Pty Ltd

The Court of Appeal of NSW in Ali v Nationwide News Pty Ltd further held that failure to apologise can aggravate damages.

It was established that damages for failure to apologise can be awarded as part of general compensatory damages, as the harm from the original publication may be prolonged and intensified by the absence of an apology, or as aggravating compensatory damages.

Trigell v Pheeney and Herald & Weekly Times Ltd v McGregor

In Trigell v Pheeney and Herald & Weekly Times Ltd v McGregor, the relevance of a failure to apologise to aggravated damages was considered.

This cases suggested that the conduct of the defence may be taken into account as improperly aggravating the injury done to the plaintiff if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable.

Bauer Media Pty Ltd v Wilson

In Bauer Media Pty Ltd v Wilson, the Court of Appeal of Victoria found that the defendant's failure to apologise was not justifiable or bona fide due to their knowledge of the false imputations conveyed by the articles and their motive for publication.

The failure to apologise from the outset was considered improper and justified an award of aggravated damages.

Conclusion

• Although the mere absence of an apology does not automatically aggravate damages in defamation cases, it can be a factor considered by courts depending on the specific circumstances of each case.

• The failure to apologise can prolong and intensify the harm caused by the defamatory publication and may be taken into account when assessing both general compensatory damages and aggravated damages.

At what stage should the question of Serious Harm be considered in defamation cases under the Uniform Defamation Laws?

The recent decision in GRC Project Pty Ltd trading as GRC Property Management v Lai [2023] NSWDC 63 provides an insightful look into when the issue of serious harm is addressed in defamation cases under the uniform defamation laws. (Note: the serious harm test does not yet apply in Western Australia).

Serious Harm: A Key Element in Defamation Cases

As a result of amendments that took effect on 1 July 2021, proof of serious harm is a necessary element in the cause of action in defamation cases in New South Wales (Wilks v Qu (Ruling) [2022] VCC 620 at [40]–[4] and Wilks v Qu (Ruling 2) [2022] VCC 1503 at [6]–[11]).

The purpose of establishing serious harm is to discourage the bringing of cases likely to result in modest awards where the costs are out of proportion to the damages (Newman v Whittington [2022] NSWSC 249 at [30]–[46]).

Timing and Determination of Serious Harm

Under the uniform defamation laws, the question of serious harm must be determined early in the litigation unless there are “special circumstances” (s 10A(5)).

Special circumstances, as outlined in GRC Project Pty Ltd trading as GRC Property Management v Lai [2023] NSWDC 63 at [48], include situations where:

1. The nature of the publications (e.g., slanders in a foreign language) requires the trial judge to hear the evidence and manner of publication before determining serious harm.

2. Serious harm cannot be disentangled from other trial issues, such as financial loss or the grapevine effect.

3. The determination of serious harm could take a significant amount of time, requiring many witnesses to give evidence twice, which would result in additional costs, emotional burdens, and time constraints for the court.

The court also relied on guidance from English decisions, such as Ames v The Spamhaus Project Ltd [2015] EWHC 127 (QB), where it was determined that the proceedings were "not ripe" for a preliminary hearing on serious harm, as the facts deserved further examination.

Where the burden lies

The burden of satisfying the court that there are special circumstances justifying the postponement of the determination of serious harm to a later stage in the proceedings lies on the plaintiff (Hossein v Ali (Ruling) [2022] VCC 2195 at [45]).