Permissible Variants in Defamation Pleadings: A Practitioner's Guide to Mond v The Age Company Pty Limited

1. Introduction

The decision in Mond v The Age Company Pty Limited [2025] FCA 442 provides significant guidance on the boundaries of permissible variants in defamation pleadings. Wheelahan J's judgment clarifies when courts may find defamatory meanings within the scope of pleaded imputations, even where those meanings differ from the precise formulations advanced by plaintiffs. This decision has substantial implications for how practitioners frame imputations and conduct defamation proceedings.

The case demonstrates the tension between procedural fairness to defendants and the substantive rights of plaintiffs to vindicate their reputations. Understanding the principles articulated in Mond is essential for practitioners advising clients on both sides of defamation disputes.

2. Background of Relevant Preceding Case Law

2.1 The Foundation: Chakravarti v Advertiser Newspapers

The High Court in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 established fundamental principles regarding the boundaries of pleaded meanings in defamation cases. At [21]-[22], Brennan CJ and McHugh J held that a plaintiff's case may extend to meanings that are:

• Comprehended in the pleaded meaning

• Less injurious than the pleaded meaning

• A mere shade or nuance of the pleaded meaning

However, their Honours emphasised at [19] that a plaintiff cannot seek a verdict on a meaning so different from that pleaded that the defendant would have been entitled to plead different issues, adduce different evidence, or conduct the case on a different basis.

2.2 The Modern Framework: ABC v Chau Chak Wing

The Full Federal Court in Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632 clarified the application of Chakravarti principles. At [33], the Court confirmed that plaintiffs may allege multiple distinct defamatory imputations and may plead imputations in the alternative.

Significantly, the Court in ABC v Wing at [87] recognised that plaintiffs are entitled to seek vindication on specific points through their pleaded imputations. This reinforces the role of pleadings in defining the territory for dispute.

2.3 Hore-Lacy Meanings

David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; 1 VR 667 established that defendants may plead alternative meanings to support positive defences. These "Hore-Lacy meanings" allow defendants to advance defences to meanings they contend are permissible variants of the plaintiff's imputations.

3. Facts of Mond v The Age Company

3.1 The Parties and Context

David Mond served as president of the Caulfield Hebrew Congregation from September 2018 to October 2021 (at [13]). The respondents comprised The Age Company Pty Ltd, Fairfax Media Publications Pty Ltd, and journalists Stephen Brook and Samantha Hutchinson (at [2]).

3.2 The Publications

Seven articles were published in The Age's "CBD" column between May 2021 and February 2022:

1. 5 May 2021 articles: Reported controversy over Mr Mond agreeing to host Jonathan Pollard, a convicted spy, at a Jerusalem Day event (at [4], [25])

2. 13 December 2021 articles: Referenced the earlier controversy and reported on the board's apology to Adam Slonim following Mr Mond's critical email about him (at [4], [29])

3. 18 February 2022 articles: Claimed divisions at the synagogue persisted and attendance at Rabbi Rabin's inauguration was low (at [4], [31])

3.3 The Pleaded Imputations

Mr Mond pleaded complex, rolled-up imputations. For the 13 December 2021 articles, these included (at [118]):

• That he was "so lacking in judgment that he recklessly and autocratically decided to host a speech by a convicted spy at CHC without consultation"

• That his "previous actions have inflicted lingering damage on CHC"

• That he "compounded the damage" by his "lack of consultation" and by sending an email that "forced the Board to issue an extraordinary apology"

3.4 The Respondents' Alternative Meanings

The respondents pleaded Hore-Lacy meanings including (at [120]):

• That Mr Mond "agreed to host an address by a person who was convicted of spying for Israel without appropriately consulting the Senior Rabbi"

• That he "had damaged the standing of the Caulfield Shule by sending an ill-considered and defamatory email"

4. The Court's Determinations on Specific Imputations

4.1 The 5 May 2021 Articles

The Court's treatment of the first publications demonstrates the importance of precision in identifying defamatory stings.

Plaintiff's pleaded imputations (at [93]):

• Mr Mond was "so lacking in judgment that he recklessly agreed to host a convicted spy at an important event for Melbourne's Orthodox Jewish community without appropriate consultation"

• Mr Mond was "a disruptive person who has caused uproar within the Orthodox Jewish community"

The Court's findings (at [101]-[105]): Wheelahan J held that these imputations were not conveyed. The critical finding was that the articles contained no suggestion about whether consultation was required, expected, or had occurred. The judge stated at [102]: "the article says nothing about whether consultation was required, or expected, or took place."

The Court found that while the articles conveyed the existence of controversy and implied questions about judgment, they did not support the specific elements of the pleaded imputations regarding lack of consultation or the applicant being a "disruptive person."

Significance: The plaintiff failed entirely on these articles because the pleaded imputations contained necessary elements not supported by the publications.

4.2 The 13 December 2021 Articles

These articles produced mixed results, demonstrating how courts parse complex imputations.

Imputation 11(a) - "so lacking in judgment that he recklessly and autocratically decided to host a speech by a convicted spy at CHC without consultation" (at [118]):

• Finding: Partially upheld in a lesser form (at [130])

• Reasoning: The "extravagant adverbs 'recklessly and autocratically'" were not conveyed, but the articles did convey that Mr Mond decided to host the speech without consulting Rabbi Genende when he should have

• Key passage: "The ordinary reasonable reader would understand the articles as conveying that the applicant thereby caused the 'rift'"

Imputation 11(c) - "Mr Mond's previous actions have inflicted lingering damage on CHC":

• Finding: Upheld (at [131])

• Reasoning: The reference to "previous actions" encompassed both the lack of consultation and the August email to members

Imputation 11(d) - Mr Mond "compounded the damage" by lack of consultation and by sending an email that "forced the Board to issue an extraordinary apology":

• Finding: Substance conveyed (at [132])

Imputation 11(e) - "so lacking in judgment due to his reckless and autocratic personality that his wrongful conduct on multiple occasions has created a mess at CHC":

• Finding: Not conveyed (at [133])

• Reasoning: Essential elements including "reckless and autocratic personality" were not established

4.3 The 18 February 2022 Articles

The Court's analysis of the final articles shows how repetition of false claims across publications affects findings.

Imputation 13(a) - "created bad times at CHC through his wrongful conduct by hosting a speech by a convicted spy without appropriate consultation":

• Finding: Substance conveyed (at [152])

• Reasoning: Despite the "elusive term" of "wrongful conduct," the articles implied the applicant's failure to consult was wrong

Imputation 13(e) - "compounded the damage he has inflicted on CHC by hosting a speech by a convicted spy without appropriate consultation by a further incident" involving the Slonim email:

• Finding: Substance conveyed (at [153])

• Reasoning: The articles stepped through episodes conveying that Mr Mond compounded damage from the rift with further conduct

Imputation 13(f) - "the divisions Mr Mond has created within CHC... have been so serious that they have not yet been able to be remedied":

• Finding: Conveyed (at [155])

• Reasoning: References to "bad times" and "divisions at the synagogue still exist" supported this meaning

5. Analysis of the Court's Reasoning

5.1 The Framework for Permissible Variants

Wheelahan J articulated key principles at [79]-[82]:

1. The cause of action is publication of matter, not imputations: Under s 8 of the Defamation Act 2005 (Vic), publication gives rise to a single cause of action even if multiple defamatory imputations are conveyed.

2. Pleadings shape but do not rigidly confine the issues: While an applicant's case is shaped by pleaded meanings, it may extend to permissible variants.

3. Procedural fairness is paramount: Courts will not allow applicants to succeed on meanings so different from those pleaded that defendants would have conducted their case differently.

4.2 Application to Specific Imputations

The Court's treatment of Mr Mond's imputation 11(a) illustrates the analysis (at [129]-[130]):

Pleaded imputation: Mr Mond was "so lacking in judgment that he recklessly and autocratically decided to host a speech by a convicted spy at CHC without consultation"

Finding: While the "extravagant adverbs 'recklessly and autocratically'" were not conveyed, a lesser defamatory meaning was established - that Mr Mond decided to host the speech without consulting Rabbi Genende when he should have.

This demonstrates how courts may strip away hyperbolic elements while finding the essential sting remains.

4.3 The Role of Defendants' Alternative Meanings

Wheelahan J held at [87] that where defendants plead Hore-Lacy meanings as permissible variants of plaintiffs' imputations, these may constitute meanings on which plaintiffs are entitled to succeed. This is because defendants' alternative meanings are premised on being bound up with plaintiffs' imputations.

However, the Court emphasised three qualifications at [88]:

1. Where plaintiffs expressly or impliedly exclude meanings other than those strictly pleaded

2. Where imputations contain necessary elements whose absence materially changes the case

3. Where accepting variants of defendants' alternative meanings would constitute "variants on variants"

5. Quantification and Assessment of Damages

5.1 The Serious Harm Threshold

For publications after 1 July 2021, s 10A of the Defamation Act requires proof of serious harm to reputation. The Court's analysis at [406]-[412] demonstrates:

• Each defamatory matter must independently satisfy the serious harm element

• Harm from different publications cannot be aggregated unless they constitute the same matter

• Inference of serious harm may arise from extent of publication and importance of the reputational aspect affected

5.2 Damages Assessment

The Court awarded $120,000 in damages (at [530]), considering:

Mitigating factors:

• One sting (regarding the email about Mr Slonim) was substantially true (at [441])

• The defamatory meanings sat "in the lower end of the spectrum of seriousness" (at [410])

Aggravating factors:

• The false claim about failing to consult was repeated across multiple articles

• The articles targeted Mr Mond personally in a mocking tone (at [483])

6. Worked Example: Practical Application

6.1 From the Plaintiff's Perspective

Scenario: A company CEO is accused in a newspaper article of "corruptly and dishonestly manipulating financial records to deceive shareholders"

Pleading strategy:

1. Primary imputation: The CEO corruptly and dishonestly manipulated financial records

2. Alternative imputation: The CEO engaged in financial misconduct

3. Further alternative: The CEO mismanaged company finances

At trial: If evidence shows financial irregularities but not corruption, the plaintiff may succeed on the lesser variant of financial misconduct, provided it remains within the pleaded case's boundaries.

6.2 From the Defendant's Perspective

Defence strategy:

1. Deny all imputations

2. Plead Hore-Lacy alternative: "The CEO made accounting errors that required correction"

3. Advance justification defence to this lesser meaning

Advantage: By pleading the alternative meaning, the defendant shapes the permissible variants available to the plaintiff while positioning defences to those variants.

7. Step-by-Step Guidance for Practitioners

7.1 For Plaintiff's Counsel

1. Draft imputations at multiple levels: Include primary and alternative formulations capturing different degrees of seriousness

2. Avoid unnecessary hyperbole: Extravagant language risks the court finding no imputation was conveyed

3. Consider defendants' likely alternatives: Anticipate Hore-Lacy meanings and ensure your alternatives encompass them

4. Preserve flexibility: Avoid language that locks you into single interpretations

7.2 For Defendant's Counsel

1. Analyse the boundaries: Identify what variants might fall within plaintiff's pleadings

2. Plead strategic alternatives: Use Hore-Lacy meanings to define the playing field

3. Focus defences appropriately: Target defences to both pleaded and variant meanings

4. Document the basis for meanings: Ensure evidence supports any alternative meanings advanced

8. Evidence and Arguments for Each Side

8.1 Plaintiff's Evidence and Arguments

Evidence to lead:

• Extent of publication and readership data

• Impact on specific reputational interests

• Evidence negativing any truth in extravagant elements

Arguments to advance:

• Natural progression from greater to lesser meanings

• Defendants' alternatives confirm variants are within pleaded case

• Procedural fairness not compromised as defendants addressed these meanings

8.2 Defendant's Evidence and Arguments

Evidence to lead:

• Factual basis supporting alternative meanings

• Context showing why lesser meanings are appropriate

• Evidence of plaintiff's prior conduct relevant to mitigation

Arguments to advance:

• Plaintiff's imputations contain essential elements not established

• Accepting variants would require different defence evidence

• Alternative meanings are maximum extent of liability

9. Key Takeaways for Legal Practice

1. Precision in pleading remains crucial: While variants are permissible, poorly drafted imputations risk complete failure

2. Strategic use of alternatives: Both sides should utilise alternative formulations to shape the boundaries of dispute

3. Evidence must address variants: Parties cannot assume courts will only consider precise pleaded meanings

4. Procedural fairness governs: Courts will not permit variants that would have changed how defendants conducted their case

5. Hyperbole is dangerous: Extravagant language in imputations risks defeating the entire claim

10. Conclusion: Broader Significance

Mond v The Age Company reinforces that defamation pleadings require careful strategic consideration. The decision confirms that while courts retain flexibility to find meanings within the boundaries of pleaded cases, this flexibility has defined limits.

The judgment provides clarity on how Hore-Lacy alternatives interact with plaintiffs' imputations, confirming that defendants' alternatives may inadvertently expand the meanings available to plaintiffs. This creates tactical considerations for both sides in framing their cases.

Most significantly, Mond demonstrates that successful defamation litigation requires more than identifying defamatory publications. It demands precise articulation of meanings that capture the essential sting while maintaining sufficient breadth to encompass likely findings. Practitioners who master these principles will better serve their clients' interests, whether seeking vindication or defending freedom of expression.

The decision ultimately strikes a balance between allowing plaintiffs reasonable latitude in seeking vindication and protecting defendants from unfair procedural prejudice. This balance reflects the fundamental tension in defamation law between protecting reputation and preserving open discourse - a tension that careful pleading can help resolve.

Roberts-Smith v Fairfax Media Publications Pty Limited (Appeal) [2025] FCAFC 67: A Comprehensive Analysis of the Standard of Proof for Serious Civil Allegations

1. Introduction: The Enduring Significance of Briginshaw in Contemporary Civil Litigation

The Full Court's decision in Roberts-Smith v Fairfax Media Publications Pty Limited (Appeal) [2025] FCAFC 67 represents a watershed moment in the application of the standard of proof to grave civil allegations. This case provides essential guidance on how courts approach allegations of criminal conduct within civil proceedings, particularly where such allegations involve matters of profound public interest and severe reputational consequences.

The decision's significance extends beyond defamation law, offering critical insights into:

• The practical application of s 140(2) of the Evidence Act 1995 (Cth)

• The contemporary relevance of Briginshaw v Briginshaw (1938) 60 CLR 336

• The interplay between the presumption of innocence and civil burden of proof

• The assessment of evidence quality when determining serious allegations

This analysis examines how the Court navigated the delicate balance between maintaining the civil standard of proof whilst ensuring appropriate rigour when adjudicating allegations of war crimes—arguably among the most serious allegations possible in civil proceedings.

2. The Evolution of Legal Principles: From Briginshaw to Section 140

2.1 The Foundation: Briginshaw v Briginshaw

The High Court's decision in Briginshaw v Briginshaw (1938) 60 CLR 336 established the fundamental principle that whilst the civil standard remains the balance of probabilities, the degree of satisfaction required varies with the gravity of the allegation. Dixon J articulated this principle at 361-362:

"The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found... reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved."

This formulation introduced three critical considerations:

1. The seriousness of the allegation made

2. The inherent unlikelihood of an occurrence

3. The gravity of the consequences flowing from a finding

2.2 Subsequent Development

The principle evolved through several key decisions:

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449: The High Court confirmed that "clear, or cogent or strict proof is necessary where so serious a matter as fraud is to be found" (at 450). This decision emphasised that the quality of evidence, not merely its quantity, determines whether the requisite satisfaction is achieved.

Qantas Airways Limited v Gama (2008) 167 FCR 537: The Full Federal Court clarified that Briginshaw does not create a third standard of proof but rather informs the application of the existing civil standard (at [139]).

2.3 Statutory Codification: Section 140

The Evidence Act 1995 (Cth) codified these principles:

140 Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged.

This provision explicitly requires courts to consider the gravity of allegations when determining whether the balance of probabilities is satisfied, effectively incorporating the Briginshaw principle into statute.

3. The Roberts-Smith Litigation: Factual Matrix and Procedural History

3.1 The Parties and Claims

Appellant: Ben Roberts-Smith VC, MG, a decorated former member of the Special Air Service Regiment (SASR), recipient of the Victoria Cross and Medal for Gallantry.

Respondents: Fairfax Media Publications Pty Limited, The Age Company Pty Ltd, The Sydney Morning Herald, and journalists Nick McKenzie, Chris Masters, and David Wroe.

3.2 The Publications and Imputations

The proceedings arose from articles published in June 2018 alleging various acts of misconduct during the appellant's service in Afghanistan. The defamatory imputations, as found by the primary judge, included that the appellant:

1. Whiskey 108 (2009): Murdered an unarmed Afghan civilian by kicking him off a cliff and procuring soldiers to shoot him (J[5])

2. Darwan (2012): Murdered an unarmed Afghan by machine gun fire (J[6])

3. Chinartu (2012): Committed murder by pressuring a subordinate soldier to execute an elderly, unarmed Afghan (J[7])

4. Engaged in domestic violence against his mistress (J[8])

5. Bullied and threatened fellow soldiers (J[9])

3.3 The Defence of Truth

The respondents pleaded substantial truth under s 25 of the Defamation Act 2005 (NSW), contending that the imputations conveyed by the articles were substantially true (J[1]). This defence required them to prove, on the balance of probabilities, that the appellant had committed the alleged acts.

3.4 The Primary Judgment

Following a 110-day trial involving 44 witnesses (J[32]), Besanko J delivered judgment on 1 June 2023. His Honour found:

• The articles conveyed defamatory imputations about the appellant

• The defence of substantial truth succeeded for the murder allegations at Whiskey 108, Darwan, and Chinartu

• The defence failed for certain other imputations, including allegations concerning missions at Fasil and allegations of domestic violence

Critically, the primary judge made express findings that:

• At Whiskey 108: EKIA56 was executed by Person 4 on the appellant's direction, and EKIA57 was murdered by the appellant with machine gun fire (J[5])

• At Darwan: The appellant murdered Ali Jan with machine gun fire (J[6])

• At Chinartu: The appellant directed Person 4 to execute an elderly, unarmed Afghan (J[7])

3.5 The Appeal

The appellant advanced 41 grounds of appeal (J[13]), including challenges to:

• The application of s 140 and Briginshaw principles (Ground 19)

• Specific factual findings regarding each incident

• The primary judge's assessment of witness credibility

• The admission and use of tendency evidence

4. The Court's Analysis: Applying Briginshaw in Practice

4.1 The Standard Articulated

The Full Court (Allsop CJ, Besanko and Lee JJ) began by reaffirming fundamental principles:

1. The standard remains civil: Despite the criminal nature of the allegations, "the standard of proof is the balance of probabilities, not the criminal standard" (J[16])

2. No intermediate standard exists: There is "no shifting standard of proof" or "third standard" between civil and criminal (J[17])

3. Quality of evidence varies: The Briginshaw principle affects "the strength or cogency of the evidence necessary to establish a fact on the balance of probabilities" (J[18])

4.2 The Primary Judge's Approach

The Court found that Besanko J had correctly applied these principles:

"The primary judge discussed the law at some length... He repeatedly reminded himself of those principles. We are satisfied that the primary judge was acutely conscious of the seriousness of the findings the respondents called upon him to make and of the necessity that he be reasonably satisfied that the imputations were substantially true without resorting to inexact proofs, indefinite testimony or indirect inferences." (J[23])

4.3 Practical Application to Evidence

The Court identified several examples demonstrating the primary judge's rigorous approach:

Fasil Mission: Despite evidence from an SASR member about misconduct, the primary judge declined to find this imputation true because identification evidence was not "sufficiently clear and cogent" (J[24]-[25])

Person 17 Assault: Evidence of an alleged assault was rejected as insufficiently reliable given the gravity of the allegation (J[26])

Reliance on Eyewitness Testimony: Where findings were made, they were "largely relied on eyewitness accounts" rather than inference or speculation (J[23])

4.4 The Presumption of Innocence

The Court addressed the appellant's argument regarding the presumption of innocence:

1. The presumption operates as a factor influencing the required cogency of evidence (J[19])

2. The primary judge explicitly considered this presumption (J[23], citing J[114] of the primary judgment)

3. The presumption does not create a different standard but informs the assessment of whether evidence is sufficiently cogent

4.5 Credibility Findings and Appellate Restraint

The Court emphasised the "natural limitations" on appellate review of credibility findings (J[32]), particularly where:

• The trial extended over 110 days

• The primary judge observed 44 witnesses

• Credibility assessments were central to the factual findings

• The appellant's credibility was comprehensively rejected

5. Quantification and Assessment: The Judicial Calculus

5.1 The Nature of Assessment

The assessment required under s 140 and Briginshaw is not mathematical but qualitative. The Court explicitly noted that the primary judge "did not engage in any mechanical comparison of probabilities divorced from a belief in the occurrence or existence of the matters in dispute" (J[24]).

5.2 Factors in the Assessment Matrix

The following factors influence the required cogency of evidence:

A. Intrinsic Factors

1. Gravity of Allegation: Murder allegations require the highest degree of cogency

2. Consequences: Reputational destruction, criminal investigation, loss of honours

3. Inherent Probability: Courts must consider whether the alleged conduct is inherently unlikely

B. Evidence Quality Indicators

1. Directness: Eyewitness testimony preferred over circumstantial evidence

2. Consistency: Internal consistency and consistency with objective facts

3. Corroboration: Multiple independent sources strengthening the evidence

4. Contemporaneity: Evidence closer in time to events generally more reliable

5. Credibility: Honesty and reliability of witnesses

C. Contextual Considerations

1. Documentary Support: Contemporaneous documents enhancing reliability

2. Motive to Fabricate: Absence of apparent bias or interest

3. Opportunity to Observe: Witness proximity and capacity to perceive events

5.3 The Sliding Scale in Practice

The required cogency operates on a sliding scale that increases with the severity of the allegation. Understanding this progression helps practitioners calibrate their evidence gathering and assessment strategies.

At the lower end of the spectrum, minor civil wrongs require only standard civil evidence meeting the basic balance of probabilities test. These might include simple contractual breaches or minor negligence claims where no serious moral culpability is alleged.

Moving up the scale, professional misconduct allegations demand clear and convincing evidence. In the Roberts-Smith case, the bullying allegations against fellow soldiers fell into this category. The evidence needed to be more than merely probable; it needed to be clear and persuasive given the professional consequences such findings would entail.

Fraud and dishonesty allegations require clear, cogent, and strict proof. This elevated standard reflects both the moral opprobrium attached to findings of dishonesty and the severe consequences for professional and personal reputation. In Roberts-Smith, allegations that the appellant gave false evidence to investigations would fall within this category, demanding evidence of particularly high quality.

At the apex of the scale, criminal conduct allegations—particularly serious crimes—require highly cogent and compelling evidence. The murder allegations in Roberts-Smith exemplified this highest category. The evidence needed to be of such quality that it could produce reasonable satisfaction despite the inherent improbability of a decorated soldier committing war crimes and the devastating consequences of such findings.

5.4 Practical Application in Roberts-Smith

The Court's analysis reveals how this assessment operated:

1. Multiple Witnesses: The murder findings relied on testimony from multiple SASR members who were present at the incidents

2. Consistency on Core Facts: Whilst witnesses differed on peripheral details, their accounts were consistent on central allegations

3. Absence of Contamination: The primary judge considered but rejected arguments of collusion or contamination

4. Credibility Differential: The comprehensive rejection of the appellant's credibility contrasted with acceptance of key prosecution witnesses

6. Worked Example: Practical Application in Commercial Fraud Litigation

Consider a civil claim where Company B alleges Company A engaged in systematic fraud through financial statement manipulation, causing $50 million in losses.

6.1 Company B's Perspective (Plaintiff/Alleging Party)

Strategic Considerations:

• Fraud carries severe reputational consequences requiring cogent evidence

• Must overcome inherent improbability of established company committing fraud

• Need evidence of both falsity and intention

Evidence Assembly:

1. Documentary Foundation

   • Forensic accounting analysis showing systematic discrepancies

   • Email communications indicating knowledge of falsity

   • Board minutes revealing awareness of issues

   • Whistleblower statements with contemporaneous notes

2. Witness Evidence

   • Former CFO willing to testify about pressure to manipulate figures

   • Independent auditor identifying red flags ignored by management

   • Multiple employees corroborating culture of deception

3. Pattern Evidence

   • Demonstration of repeated conduct over multiple reporting periods

   • Evidence of cover-up attempts when questions arose

   • Correlation between misstatements and executive bonuses

Argument Structure:

"Whilst we acknowledge fraud is a serious allegation requiring cogent proof, the evidence surpasses this threshold. We present not mere suspicion but a compelling mosaic: forensic analysis revealing systematic manipulation, contemporaneous documents showing intent, and consistent testimony from multiple independent witnesses. This is not inexact proof or indefinite testimony—it is clear, cogent evidence establishing deliberate deception."

Key Submissions on Standard:

• Acknowledge the Briginshaw requirement explicitly

• Demonstrate how evidence meets the "clear and cogent" threshold

• Address each element of fraud with specific, compelling evidence

• Emphasise multiple independent sources of verification

6.2 Company A's Perspective (Defendant/Responding Party)

Strategic Considerations:

• Emphasise gravity of fraud allegation and required proof standard

• Challenge evidence quality rather than quantity

• Provide innocent explanations for suspicious circumstances

Defensive Evidence:

1. Alternative Explanations

   • Expert evidence on accounting judgment legitimacy

   • Industry practice evidence supporting interpretations

   • Documentation of good faith decision-making processes

2. Credibility Challenges

   • Motivation of whistleblowers (dismissed employees)

   • Inconsistencies in witness accounts

   • Lack of contemporaneous complaint

3. Systemic Defences

   • Robust internal controls and audit processes

   • Clean regulatory history

   • Professional advice supporting accounting treatments

Argument Structure:

"The plaintiff bears the burden of proving fraud—an allegation of utmost gravity requiring the clearest and most cogent evidence. What they present falls materially short: disgruntled former employees with axes to grind, accounting disagreements recharacterised as deception, and a presumption of guilt from legitimate business difficulties. The evidence lacks the clarity, cogency and compelling nature required by Briginshaw for such devastating allegations."

Key Submissions on Standard:

• Emphasise that suspicion, however grave, is insufficient

• Highlight gaps, inconsistencies and alternative explanations

• Invoke presumption of innocence as interpretive principle

• Demonstrate failure to meet Briginshaw threshold

7. Practitioner's Guide: Step-by-Step Approach

7.1 Initial Case Assessment

Step 1: Categorise the Allegations

• Identify all serious allegations (criminal conduct, fraud, professional misconduct)

• Assess reputational and legal consequences of adverse findings

• Determine applicable Briginshaw considerations

Step 2: Evidence Audit

• Catalogue available evidence by type and quality

• Assess cogency against Briginshaw requirements

• Identify evidence gaps requiring attention

Step 3: Strategic Planning

• Determine whether evidence meets required threshold

• Identify additional evidence needed

• Consider alternative causes of action with lower thresholds

7.2 Pleading Considerations

For Plaintiffs:

• Plead serious allegations with precision and particularity

• Ensure factual foundation for each element

• Consider whether lesser allegations might achieve client objectives

For Defendants:

• Challenge adequacy of particulars for serious allegations

• Reserve position on standard of proof arguments

• Consider strategic admissions on less serious matters

7.3 Evidence Gathering Phase

Documentary Evidence:

• Prioritise contemporaneous documents

• Seek corroborating documentation

• Preserve metadata and chain of custody

Witness Evidence:

• Identify witnesses with direct knowledge

• Assess credibility and potential bias

• Obtain signed statements early

• Consider expert evidence on industry standards

Strategic Considerations:

• Focus resources on evidence meeting cogency requirements

• Consider cost-benefit of pursuing marginal evidence

• Maintain evidence integrity throughout process

7.4 Pre-Trial Preparation

Witness Preparation:

• Explain significance of serious allegations

• Emphasise importance of clarity and precision

• Address potential credibility challenges

• Prepare for rigorous cross-examination

Expert Evidence:

• Ensure experts understand Briginshaw requirements

• Focus opinions on clear, demonstrable conclusions

• Avoid speculation or equivocation

7.5 Trial Strategy

Opening Submissions:

• Address standard of proof explicitly

• Preview evidence meeting Briginshaw requirements

• Frame case theory consistent with required cogency

Evidence Presentation:

• Lead with strongest, most direct evidence

• Build corroboration systematically

• Address credibility proactively

Cross-Examination:

• Target evidence quality, not just contradictions

• Explore bias and motivation

• Test reliability of observations

• Highlight absence of corroboration

Closing Submissions:

• Synthesise evidence against Briginshaw standard

• Address each serious allegation systematically

• Emphasise cumulative effect of cogent evidence (if plaintiff)

• Highlight evidential deficiencies (if defendant)

8. Evidence and Arguments: Detailed Strategic Analysis

8.1 For Parties Making Serious Allegations

Essential Evidence Components:

1. Primary Evidence

   • Direct witness testimony from participants

   • Contemporaneous documents showing intent

   • Admissions or inconsistent statements

   • Expert analysis of objective facts

2. Corroborative Evidence

   • Multiple independent witnesses

   • Documentary trails supporting testimony

   • Circumstantial evidence forming coherent pattern

   • Post-incident conduct suggesting guilt

3. Credibility Enhancement

   • Evidence of witness independence

   • Absence of motive to fabricate

   • Consistency with objective facts

   • Prior consistent statements

Argument Framework:

• Acknowledge gravity of allegations upfront

• Demonstrate evidence exceeds Briginshaw threshold

• Address each element with specific, cogent proof

• Emphasise multiple sources of verification

• Distinguish from criminal standard whilst meeting civil requirements

8.2 For Parties Defending Serious Allegations

Defensive Evidence Strategy:

1. Direct Contradiction

   • Witness testimony refuting allegations

   • Documentary evidence disproving claims

   • Expert evidence challenging interpretations

   • Alibi or impossibility evidence

2. Credibility Attacks

   • Evidence of bias or motive

   • Prior inconsistent statements

   • Collusion or contamination

   • Memory reliability challenges

3. Alternative Narratives

   • Innocent explanations for suspicious facts

   • Industry practice evidence

   • Contextual evidence changing interpretation

   • Good character evidence (where admissible)

Argument Framework:

• Emphasise exceptional gravity requiring exceptional proof

• Systematically identify evidential deficiencies

• Challenge quality, not just quantity of evidence

• Invoke presumption of innocence

• Demonstrate reasonable alternative explanations

9. Key Practice Points: Lessons from Roberts-Smith

9.1 For Litigation Strategy

1. Evidence Quality Paramount: Multiple weak sources cannot substitute for cogent proof

2. Credibility Crucial: Adverse credibility findings can be case-determinative

3. Details Matter: Minor inconsistencies in serious allegations can be fatal

4. Context Essential: Understanding operational/industry context affects assessment

9.2 For Evidence Management

1. Preserve Contemporaneous Records: These carry exceptional weight

2. Witness Statements Early: Memory degradation affects cogency

3. Expert Evidence Carefully: Must be clear and compelling, not equivocal

4. Corroboration Systematically: Build mutually reinforcing evidence

9.3 For Client Management

1. Realistic Assessment: Clients must understand heightened proof requirements

2. Cost Implications: Proving serious allegations requires substantial resources

3. Risk Analysis: Consider reputational damage even if successful

4. Alternative Strategies: Lesser allegations might achieve objectives

9.4 For Procedural Management

1. Pleadings Precision: Particulars crucial for serious allegations

2. Discovery Breadth: Cast wide net for corroborative evidence

3. Witness Management: Credibility preparation essential

4. Appeal Prospects: Credibility findings create high appellate barrier

10. Conclusion: The Enduring Relevance of Principled Analysis

Roberts-Smith v Fairfax Media Publications Pty Limited (Appeal) demonstrates that the Briginshaw principle remains vital in contemporary litigation. The decision confirms that courts can and will make findings of the most serious nature in civil proceedings where evidence meets the required standard of cogency.

The case establishes several enduring principles:

1. No Sliding Scale of Standards: The civil standard remains constant; only evidence quality requirements vary

2. Gravity Demands Cogency: The more serious the allegation, the more compelling the evidence must be

3. Judicial Method Matters: Courts must explicitly consider gravity when assessing evidence

4. Credibility is Central: In serious matters, credibility findings often determine outcomes

5. Appellate Deference Applies: Factual findings based on credibility assessment face high appellate barriers

For practitioners, Roberts-Smith provides both cautionary lessons and practical guidance. Those making serious allegations must assemble evidence of exceptional quality, whilst those defending such allegations can invoke Briginshaw to challenge evidential sufficiency.

Ultimately, the decision reaffirms that civil justice can address the most serious allegations whilst maintaining principled distinctions between civil and criminal standards. The Briginshaw principle, now embodied in s 140 of the Evidence Act, ensures that grave allegations receive appropriately rigorous scrutiny without abandoning the fundamental civil standard of proof.

This balance—between accessibility of civil justice and protection against unfounded serious allegations—remains essential to the integrity of our civil justice system. Roberts-Smith demonstrates that this balance, whilst delicate, can be maintained through rigorous judicial method and careful attention to evidence quality.

Note: This analysis is based on the reported decision and is intended for educational and professional development purposes. Practitioners should consult primary sources and seek specific advice for particular matters.

The Grapevine Effect in Australian Defamation Law: An Evolving Doctrine and Jurisdictional Differences

Introduction

Defamation law in Australia has long grappled with the challenge of reputational harm spreading beyond the initial publication.

This phenomenon, known as the “grapevine effect”, refers to the way defamatory imputations can be repeated informally, reaching audiences far removed from the original publication.

Recent legal developments — including the introduction of a statutory serious harm threshold in most jurisdictions — have prompted courts to refine how they assess the grapevine effect in proving harm and awarding damages.

This article examines the grapevine effect’s legal significance, the accuracy of recent case law interpretations, and key jurisdictional differences as of May 2025, focusing on how the concept has evolved since its High Court articulation in Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69, the impact of the serious harm requirement (absent in Western Australia), and the courts’ approach to evidence of digital dissemination on social media.

The Grapevine Effect: Concept and Significance

The grapevine effect captures the reality that, once a defamatory statement is released, its “real damage” cannot be precisely measured because the slander or libel may be relayed to others through rumour or gossip. Lord Atkin described this in Ley v Hamilton (1935): "It is impossible to track the scandal, to know what quarters the poison may reach: it is impossible to weigh the compensation which will recompense a person for the pain of a false accusation." In defamation law, this insight justifies robust general damages. Even if a plaintiff cannot identify every person who encountered the slur, the law presumes some wider reputational harm as a natural consequence of the publication. This presumption historically allowed plaintiffs to recover general damages without strict proof of actual loss, on the premise that defamatory “poison” likely spread beyond the initial audience.

The grapevine effect also relates to the vindicatory function of defamation damages. Because it is often impossible for a plaintiff to know who later heard the slur, damages not only compensate for proven harm and personal distress, but also provide solace for unquantifiable future harm and serve to vindicate the plaintiff’s reputation. Courts have emphasised that an award of damages should be sufficient to convince a reasonable observer — even one who learns of the defamatory claim later “through the grapevine” — that the allegation was baseless.

High Court Endorsement in Palmer Bruyn & Parker v Parsons (2001)

The High Court of Australia in Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69 acknowledged the grapevine effect when discussing how damages are assessed in reputation-based torts. Although the case concerned injurious falsehood, the Court’s reasoning drew on defamation principles. Gummow J noted that the “grapevine effect” is a metaphor explaining the breadth of general damages in defamation because one cannot track how far the defamation spreads or what damage ensues. Referencing Ley v Hamilton, his Honour affirmed that general damages are “at large”, covering not only observable harm but also the immeasurable likelihood of further dissemination.

The Serious Harm Threshold and the End of Presumed Damage

In 2021, Australian defamation law entered a new era with the enactment of the Stage 1 Model Defamation Amendment Provisions 2020 in most jurisdictions. A centrepiece of these reforms was the introduction of a “serious harm” element (now s 10A of the Defamation Act 2005 (NSW) and equivalent provisions elsewhere). A plaintiff must now prove that a publication "has caused, or is likely to cause, serious harm" to their reputation. This reform abolishes the old common‑law presumption of damage. Courts look to the United Kingdom’s Lachaux v Independent Print Ltd [2019] UKSC 27 when interpreting the serious harm requirement and insist on concrete evidence of impact.

Grapevine Effect in the Era of Serious Harm: Recent Case Law

Limited Spread: Rader v Haines [2022] NSWCA 198

In Rader v Haines, defamatory allegations were emailed only to the plaintiff’s parents. Having regard to English case law, the New South Wales Court of Appeal held that the serious‑harm threshold was not met. There was no evidence of wider dissemination or any grapevine effect; the limited publication failed to cause serious reputational damage.

Ongoing Social Media Campaign: Martin v Najem [2022] NSWDC 479

By contrast, Martin v Najem concerned a series of defamatory Instagram posts published by a well‑known food blogger. The District Court found that the serious‑harm element was satisfied because the posts were public, widely shared, and repeated. The Court inferred a grapevine effect from the online reach and awarded substantial damages, including aggravated damages and injunctive relief.

Procedural Clarity: Newman v Whittington [2022] NSWSC 249

Newman v Whittington provides guidance on pleading serious harm. The plaintiff’s initial pleading was struck out for failing to articulate specific facts showing serious reputational impact. The decision underscores that plaintiffs must plead particulars such as audience size, republication, or community reaction to rely on the grapevine effect.

Queensland Example: Hockings v Lynch & Adams [2022] QDC 127

Hockings v Lynch & Adams demonstrates a fact‑specific approach to social‑media publication. The Court examined Facebook analytics and evidence of cross‑sharing between groups to determine the extent of the publication. Damages reflected the proven scope of dissemination, distinguishing between posts that went viral and those limited to a narrow audience.

Digital Dissemination: Evidence of Online Reach vs. Potential Reach

Modern defamation claims often involve social media and require proof of actual dissemination. Courts accept analytics data (views, shares, likes), witness evidence of republication, and the nature of the platform in inferring or rejecting a grapevine effect. A mere theoretical potential for worldwide reach is insufficient without supporting evidence of traction.

Jurisdictional Divergence: Western Australia’s Non‑Adoption of Reforms

Western Australia (and the Northern Territory) has not enacted the Stage 1 reforms. Consequently, the serious‑harm threshold does not apply in those jurisdictions, and the common‑law presumption of damage persists. This divergence creates potential forum‑shopping incentives, as illustrated by Bartlett v Roffey [2023] WASC 3. Courts may transfer proceedings to prevent strategic venue choices, but plaintiffs can still benefit from the absence of a serious‑harm threshold in WA.

Conclusion

The grapevine effect remains central to Australian defamation law, explaining why damages are not confined to provable loss. Its role has shifted in jurisdictions with a serious‑harm threshold, where plaintiffs must produce evidence of dissemination to meet the statutory test. In Western Australia, the presumption of damage endures, underscoring significant jurisdictional differences. Practitioners must consider these nuances when advising clients and devising litigation strategies in defamation matters.

Sources

·         Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69 (208 CLR 388).

·         Ley v Hamilton (1935) 153 LT 384 (KB).

·         Defamation Act 2005 (NSW) s 10A; Defamation Act 2005 (WA) (unamended).

·         Newman v Whittington [2022] NSWSC 249.

·         Rader v Haines [2022] NSWCA 198.

·         Martin v Najem [2022] NSWDC 479.

·         Hockings v Lynch & Adams [2022] QDC 127.

·         Bartlett v Roffey [2023] WASC 3.

·         FJ v Siglin (No 2) [2024] WADC 13.

Grapevine Effect in Australian Defamation Law – Case Summaries

Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69

In this High Court decision (which primarily concerned injurious falsehood), the “grapevine effect” was explicitly discussed as a concept in defamation law. Gummow J described the term “grapevine effect” as a metaphor used “to help explain the basis upon which general damages may be recovered in defamation actions”. His Honour quoted Lord Atkin’s famous statement in Ley v Hamilton that in defamation cases it is “impossible to track the scandal, to know what quarters the poison may reach”, emphasising that the real damage to reputation often cannot be precisely measured. In other words, defamatory remarks, once “driven underground,” may resurface and spread beyond the initial publication, which justifies awarding damages at large. This recognition underpins the law’s willingness to presume some level of damage to reputation even without direct evidence of harm in every quarter.

Importantly, Gummow J also cautioned that the grapevine effect is not a legal wild card but an inference drawn from the facts. He noted that the effect “may provide the means by which a Court may conclude that a given result was ‘natural and probable’. However, this will depend upon a variety of factors, such as the nature of the false statement and the circumstances in which it was published.” In short, a court can take likely republication into account when assessing defamation damages, but only if the evidence and context support a finding that further dissemination was the natural and probable consequence of the initial publication. The High Court’s remarks in Palmer Bruyn firmly entrenched the grapevine effect in Australian defamation jurisprudence as a real but fact-dependent phenomenon, rather than a presumption operating in a vacuum.

Newman v Whittington [2022] NSWSC 249

This was one of the first Australian cases to consider the newly introduced “serious harm” threshold in defamation, and Sackar J’s judgment provides a detailed treatment of the grapevine effect in the context of online defamation. His Honour reaffirmed the principle that defamatory communications often spread beyond their original audience, citing with approval the notion that “the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published” and that the “poison” of a libel may extend beyond its initial recipients. The judgment references the High Court’s explanation in Palmer Bruyn and Lord Atkin’s metaphor, making clear that damages must account for the risk that a defamation, once public, can circulate broadly over time. Sackar J noted that defamation damages should contemplate republication because a slander “driven underground [may] emerge from its lurking place at some future date”, encapsulating the grapevine effect’s enduring impact.

In applying these principles, Newman v Whittington illustrates how the grapevine effect can bolster a plaintiff’s case on both serious harm and damages. The defendant’s allegations (posted on Facebook and a blog) were highly serious – accusing the plaintiff of supporting paedophiles and other misconduct – and were made on public platforms. The Court found strong evidence that the defamatory claims had circulated widely, or at least that they were likely to spread, given the public nature of the posts and the incendiary content. Sackar J explicitly allowed for the grapevine effect in the damages assessment, accepting that “by the ordinary function of human nature, the dissemination of defamatory material” would extend beyond the first audience. Even if the precise extent of publication could not be proven, the Court inferred continued circulation and lasting reputational harm. As a result, the plaintiff was found to have suffered (and be likely to suffer) serious harm to her reputation, and the Court awarded substantial general and aggravated damages, taking into account the probable spread of the defamation through the community. In sum, Newman v Whittington confirms that Australian courts will factor in the grapevine effect – supported by evidence or common sense inference – when determining if a defamatory publication has caused “serious harm” and in quantifying damages for reputational injury.

Rader v Haines [2022] NSWCA 198

The New South Wales Court of Appeal in Rader v Haines directly grappled with the grapevine effect in evaluating whether the serious harm threshold was met. This case involved an email containing defamatory accusations sent by a couple to the plaintiff’s parents – a very limited initial publication. The plaintiff argued that the email had nonetheless gravely harmed his reputation. However, the Court (Brereton JA, with Macfarlan JA agreeing) held that the evidence did not establish serious reputational harm, largely because the defamatory material had not spread beyond the original recipients. His Honour noted there was “no evidence presented that [the email] caused reputational harm to the appellant within a broader audience or via the ‘grapevine effect’.” In other words, there was nothing to show that anyone other than the two parent recipients had heard or believed the allegations. The parents’ negative reaction to the email was temporary, and they reconciled with the appellant within weeks, which meant the impact on the plaintiff’s reputation was fleeting and contained.

Rader v Haines makes clear that the grapevine effect is not to be presumed in a vacuum and that the onus is on the plaintiff to prove broader dissemination if it is to be relied upon. Brereton JA outlined factors relevant to “serious harm,” explicitly including whether there is any evidence of a grapevine effect (i.e. the allegations spreading beyond the immediate recipients). In this case, the absence of such evidence was decisive. The Court refused to infer serious harm merely from the gravity of the allegations or the plaintiff’s own feelings; without proof that the defamatory email had percolated through the community or reached others who thought less of the plaintiff, the statutory threshold was not satisfied. Thus, Rader v Haines serves as a cautionary counterpoint – it underscores that while courts recognize the grapevine effect, a plaintiff cannot rely on it unless there is tangible or inferential evidence of republication or rumour. The grapevine effect must be proven or at least plausibly inferred from the circumstances, and if a defamation remains limited to a tiny audience (as here, one’s parents), broad damage to reputation will not be found.

Martin v Najem [2022] NSWDC 479

In Martin v Najem, the District Court (Gibson DCJ) applied the grapevine effect doctrine in a modern social media context. The plaintiff, a prominent food blogger, sued a rival influencer who had published videos on Instagram calling him, among other things, “a paedophile” and “a racist.” Given the plaintiff’s public profile and the nature of the platform, the Court was satisfied that the serious harm element (required under the amended Defamation Act) was met – indeed, this case was noted as the first time an Australian court upheld a plaintiff’s claim under the new serious harm test. A key reason was the extensive dissemination and impact of the defamatory videos. Gibson DCJ found that the extreme gravity of the imputations, the mode and reach of publication, and the ensuing effects on the plaintiff all pointed to significant reputational harm.

Notably, the Court took into account the grapevine effect in reaching that conclusion. Because the defamatory statements were made by a well-known blogger on a public social media account, it was inferred that the allegations would naturally spread beyond the immediate viewers. In fact, there was evidence of substantial publication – for example, the Instagram account had a large follower count and the posts generated considerable attention. Gibson DCJ cited Sackar J’s discussion in Newman v Whittington (paras [30]–[46]) on the typical spread of defamation via the grapevine, underscoring that social media accelerates and amplifies the phenomenon. She observed that the “grapevine effect” was of particular significance in the circumstances of this online feud. In practical terms, this meant the Court was willing to infer that many people in the foodie and social media community would hear of the accusations (even if they did not witness the original posts), compounding the harm to the plaintiff’s reputation. Ultimately, Martin v Najem resulted in a substantial damages award ($300,000 including aggravated damages). The case highlights that when defamatory content is shared on social networks, courts will readily acknowledge the grapevine effect – supported by evidence like follower numbers, reactions, and the plaintiff’s public standing – to find serious harm and to ensure the damages adequately compensate for the likely spread of the false allegations.

Hockings v Lynch & Adams [2022] QDC 127

This Queensland District Court case illustrates a nuanced application of the grapevine effect in the context of Facebook publications. The plaintiff, Ms Hockings, sued the defendants over a series of defamatory posts on social media (Facebook) that had targeted her. In assessing the extent of publication and the appropriate damages, the Court (Porter QC DCJ) was mindful of the grapevine effect and the need to gauge how far the defamatory statements had permeated beyond the original posts. The judgment explicitly noted that the expression “grapevine effect” has long been used to explain how general damages in defamation compensate for unobservable spread of a slur. Echoing the High Court and other authorities, the Court acknowledged that the real harm of defamation often lies in its covert and uncontrolled propagation: the “real damage cannot be ascertained and established” because once a defamatory statement is published, one cannot easily “determine the extent to which the poison may reach.” Accordingly, Hockings v Lynch & Adams reinforced that courts must ensure a damages award is sufficient to vindicate the plaintiff if and when the defamation later “emerges from its lurking place” via the grapevine. As the Court observed, damages should be enough to convince a hypothetical bystander who learns of the slur down the track of its baselessness. This is effectively the vindicatory aspect of defamation damages, tightly linked to the grapevine effect principle.

Crucially, the court did not assume the grapevine effect operated uniformly for every publication – it examined the evidence for each post. In some instances, the plaintiff was able to show that the defamatory posts circulated beyond the originally intended audience, given the size of certain Facebook groups and the overlap of membership between groups. For those occasions, the judge found that publication was broader than the defendants admitted, meaning the grapevine had indeed carried the defamation to additional people. However, in other instances, the posts were seen only by the defendants’ own friends or followers and did not escape into the wider community. In those scenarios, the grapevine effect was minimal or nil. This balanced approach demonstrates that the grapevine effect is a fact-specific inquiry: the Court will infer or allow for reputational spread only to the extent justified by the social networks and circumstances at play. Ultimately, Hockings v Lynch & Adams awarded damages calibrated to the proven reach of the posts – accounting for broader dissemination where evidenced (or reasonably probable) and not speculating beyond that. The case stands as an example of a court carefully dissecting how a defamatory message on Facebook can ripple through shared connections (or, sometimes, remain relatively contained), and tailoring its legal response to those findings.

Dabrowski v Greeuw [2014] WADC 175

Dabrowski v Greeuw is an early Australian example of Facebook defamation and shows the court’s consideration of the grapevine effect in a relatively small-scale publication. The defendant, Ms Greeuw, had posted on her public Facebook page that she had separated from the plaintiff after “18 years of suffering domestic violence and abuse” – a serious allegation of misconduct by the plaintiff (Mr. Dabrowski). The District Court of Western Australia (Bowden DCJ) found this post defamatory and rejected the defence of truth, ultimately awarding the plaintiff $12,500 in general damages. In reaching that modest sum, the Court carefully evaluated the scope of publication and potential republication of the defamatory claim.

Bowden DCJ expressly noted the grapevine effect, observing that a statement on social media can be spread or repeated beyond the initial viewers. He cited the New South Wales case Mickle v Farley (which involved defamatory Facebook and Twitter posts) for the proposition that the “grapevine effect” stemming from the use of Facebook must be considered when assessing damages. The judge acknowledged that the defamatory imputations could have been circulated further by friends-of-friends or gossip – in theory, the grapevine effect “could mean that the defamatory imputations were repeated.” However, the critical finding in this case was that the actual reach of the post was quite limited. The evidence showed only a handful of people had seen the Facebook post (the plaintiff’s brother and a few others, including one person who stumbled upon it while looking up the plaintiff’s profile). There was no proof of any broad republication or that the wider community had learned of the allegations. In fact, the people who saw the post were mostly those in the plaintiff’s and defendant’s circle (and one curious outsider), and there was no indication of the news spreading further through the “grapevine.” Bowden DCJ noted that no special or financial loss was proved and that the remarks were made to a limited audience.

In these circumstances, while the Court conceptually recognized the grapevine effect, it did not significantly inflate the damages on the basis of any hypothetical spread. The judge treated the grapevine effect as a factor that was “properly taken into account in assessing damages”, but ultimately he assessed the harm as relatively contained. The result was a moderate damages award reflecting the injury to the plaintiff’s reputation among those who actually saw the post, without any premium for widespread dissemination (since none was shown). Dabrowski v Greeuw thus underscores that a plaintiff should present evidence of extended publication if they wish to leverage the grapevine effect; absent that, courts will limit damages to the scale of publication that is proven, even on social media.

Wilson v Ferguson [2015] WASC 15

Although Wilson v Ferguson was not a defamation case (it was a breach of confidence case concerning the unlawful sharing of private images on Facebook), the Supreme Court of Western Australia’s discussion is instructive on the grapevine effect’s broader relevance. The plaintiff’s ex-boyfriend had posted intimate photographs of her online out of revenge, and the Court (Mitchell J) was asked to award an injunction and equitable compensation for the distress and harm caused. The plaintiff’s counsel drew an analogy to defamation, arguing that the grapevine effect concept should guide the Court in appreciating how far and fast the humiliation could spread in a workplace and social community.

Mitchell J referred to defamation authorities on the grapevine effect but ultimately to make a cautionary point about evidence. He noted that in defamation cases, courts may take into account the potential republication of a defamatory statement when assessing general damages. Indeed, counsel cited Palmer Bruyn & Parker v Parsons [2001] HCA 69 at [88]–[89] in this regard. However, His Honour clarified that those cases dealt with how a court assesses damages given likely dissemination, and did not override the normal rules of proof. In the context of Wilson v Ferguson, this meant that while the Court was aware that gossip about the leaked photos could circulate (the modern “grapevine”), one still needed proper evidence to prove that such conversations and further publications had in fact occurred. The plaintiff sought to admit hearsay evidence that people at her workplace were talking about the images. Mitchell J refused to allow hearsay under the guise of the grapevine effect, holding that defamation law’s recognition of likely circulation does not make otherwise inadmissible evidence acceptable.

In the end, the Court did infer from admissible evidence that the defendant’s Facebook post was widely discussed among colleagues (the mine-site “Cloudbreak” employees). That inference was based on direct testimony, not just speculation. Mitchell J’s judgment therefore resonates with a key lesson: the grapevine effect can be a double-edged sword. It reminds courts of the real possibility of widespread harm, but it is not a license to dispense with proof. Even outside defamation, the notion that scandal spreads informed the Court’s approach to crafting relief – the judge granted an injunction and awarded ~$48,000 in equitable compensation, effectively acknowledging that the reputational and emotional harm was magnified by the broad dissemination of the private images. However, he grounded his findings in solid evidence of circulation rather than mere assumption. Wilson v Ferguson thus demonstrates the judiciary’s general acceptance of the grapevine effect’s logic (information online tends to diffuse quickly, causing extensive harm), coupled with a insistence on evidence-based reasoning when applying that logic to the facts at hand.

Each of these cases, in its own way, sheds light on how Australian courts handle the grapevine effect. From High Court endorsement of the concept in principle (Palmer Bruyn), to meticulous trial court applications in social media contexts (Newman, Martin, Hockings, Dabrowski), to a cautious evidentiary approach when the concept is invoked (Rader, Wilson), the consistent theme is that while the law recognizes people gossip and defamation can spread like wildfire, the extent of such spread must be proven or reasonably inferred from the circumstances. Courts will neither ignore the grapevine effect when justice requires it, nor will they assume it in the absence of any indicia. This calibrated approach ensures that damages and outcomes in defamation (and analogous actions) remain firmly anchored in the reality of each case.

The Defence of Contextual Truth in Defamation Law (Western Australia)

1. Introduction and Overview

The defence of contextual truth represents a significant component of Australia's defamation law framework. This defence acknowledges the complex reality that defamatory publications often contain multiple imputations of varying veracity. It provides defendants with a means to defeat defamation actions even where some statements are false, provided the publication's overall truth outweighs any false elements it contains.

The contextual truth defence operates on the principle that a plaintiff's reputation should not receive legal protection against false imputations when other substantially true imputations in the same publication have already damaged that reputation to such an extent that the false imputations cause no incremental harm. Unlike partial justification (which merely mitigates damages), contextual truth constitutes a complete defence if successfully established.

This chapter examines the statutory basis, elements, procedural requirements, and practical application of the contextual truth defence with particular focus on its operation in Western Australia, where significant jurisdictional differences exist compared to other Australian states and territories.

2. Statutory Framework in Western Australia

2.1 Section 26 of the Defamation Act 2005 (WA)

In Western Australia, the contextual truth defence is enshrined in section 26 of the Defamation Act 2005 (WA), which provides:

26 Defence of contextual truth

(1) It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true; and

(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

This provision formed part of the uniform defamation legislation adopted across Australian jurisdictions in 2005, which sought to harmonize defamation law throughout the country. However, it is important to note that Western Australia has not adopted the 2020-2021 uniform defamation law amendments (Stage 1 reforms) that have been implemented in other jurisdictions such as New South Wales, Victoria, Queensland, South Australia, Tasmania, and the Australian Capital Territory.

2.2 Distinction from Other Jurisdictions

The 2020 amendments, which Western Australia has not adopted, introduced a significant modification to the contextual truth defence through section 26(2), which explicitly states:

The contextual imputations on which the defendant may rely to establish the defence include imputations of which the plaintiff complains.

This amendment was designed to address limitations in the original formulation of the defence that had been identified through judicial interpretation. The absence of this provision in Western Australia's legislation means that the contextual truth defence operates more restrictively in this jurisdiction compared to those that have adopted the 2020 amendments.

In practical terms, this means defendants in Western Australia cannot "plead back" the plaintiff's own imputations as contextual imputations, creating significant strategic and procedural differences in how the defence operates.

3. Elements of the Defence

To successfully invoke the defence of contextual truth in Western Australia, a defendant must establish two key elements:

3.1 Substantially True Contextual Imputations

The first element requires the defendant to prove that the publication carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations that are substantially true.

Key aspects of this element include:

• Separate imputations: The contextual imputations must be separate from those complained of by the plaintiff. Under the unamended WA provision, these must be "other imputations" beyond those the plaintiff has pleaded.

• Substantial truth: The defendant must prove that these contextual imputations are substantially true on the balance of probabilities. Courts recognize that absolute truth may be difficult to establish; minor inaccuracies will not defeat the defence if the "sting" or substantial meaning of the imputation is true.

3.2 No Further Harm to Reputation

The second element requires the defendant to demonstrate that the defamatory imputations complained of do not further harm the plaintiff's reputation because of the substantial truth of the contextual imputations.

Key aspects of this element include:

• Comparative assessment: This involves a qualitative assessment of the reputational impact of the imputations complained of against the backdrop of the contextual imputations.

• Zero incremental harm: The test is whether, given the truth of the contextual imputations, the false imputations complained of cause any additional damage to the plaintiff's reputation. If the contextual imputations are of such gravity that the false imputations do not materially worsen the plaintiff's reputation, the defence will succeed.

• Balancing exercise: The tribunal of fact (judge or jury) must weigh the gravity of the true imputations against the gravity of the false ones to determine if the latter add anything to the reputational harm.

4. Judicial Interpretation and Key Case Law

The interpretation and application of the contextual truth defence have evolved through judicial consideration in several significant cases. While many of these cases were decided in other jurisdictions, they provide valuable guidance for Western Australian courts in applying the defence.

4.1 The Whole Publication Approach

In Herald & Weekly Times Ltd & Bolt v Popovic [2003] VSCA 161, Gillard AJA established a fundamental principle regarding the contextual truth defence:

"The whole libel that is all the defamatory imputations must be proved as true; it is no defence to prove that part of the defamatory libel is true. The publisher must prove the truth of the defamatory sting."

This principle was reinforced in Besser v Kermode [2011] NSWCA 174, where the court held:

"A defence of contextual truth must defeat the whole defamatory matter (cause of action) of which the plaintiff complains, that is to say all of the plaintiff's stings."

These cases emphasize that the defence must address the entirety of the defamatory matter being complained of, not just portions of it. The contextual truth defence operates at the level of the publication as a whole, not each imputation in isolation. The aim is to defeat the claim entirely, rather than to excuse or justify individual statements.

4.2 The "In Addition To" Requirement

The most significant limitation of the original s 26 (which still applies in WA) was clarified in Besser v Kermode [2011] NSWCA 174. The NSW Court of Appeal confirmed that s 26 (as unamended) "did not permit a defendant to plead back a plaintiff's imputations" as the contextual truths. The court strictly interpreted the phrase "in addition to the imputations of which the plaintiff complains" to mean the defence is only available if the defendant has some extra imputation apart from those the plaintiff has pleaded.

Subsequently, cases such as Mizikovsky v Queensland Television Ltd (QCA 2013) similarly noted that plaintiffs could neutralize contextual truth by adopting the defendant's contextual imputations into their claim, effectively disarming the defence before trial.

4.3 Separate and Distinct Imputations

For the contextual truth defence to succeed, the contextual imputations must be sufficiently separate and distinct from the imputations complained of by the plaintiff. The test applied to determine whether a particular imputation is sufficiently separate and distinct is whether it is "substantially separate" and "self-contained" as opposed to being "merely one ingredient of a component whole which, when taken as a whole, conveys an imputation which is not conveyed by a part or parts of the publication taken separately."

This requirement ensures that defendants cannot simply reformulate the plaintiff's imputations to establish the defence. The contextual imputations must present a separate narrative substantiated by evidence.

4.4 Successful Applications of the Defence

Under the original s 26, successful invocations of contextual truth were relatively rare, except in cases where plaintiffs neglected to plead certain meanings. For instance, in Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369, the defence of contextual truth succeeded against the sole remaining imputation in issue – effectively because the proven truth of other allegations in the broadcast neutralised the sting of that last imputation.

By contrast, in Holt v TCN Channel Nine (2012/2014), the defence was run but ultimately failed – the jury evidently found that the false imputations (such as that the plaintiff wanted his wife to die) did add something to the harm beyond the proved truths. Nevertheless, as noted, Holt received only nominal damages, demonstrating how proven truths can significantly mitigate damages even when contextual truth fails as a complete defence.

5. Procedural Requirements and Pleading Strategy

5.1 Pleading the Defence

A defendant wishing to invoke contextual truth in WA must plead it as a distinct defence in the defence pleading, typically in the alternative to a justification defence. The requirements for pleading and particularization are set out in the Rules of the Supreme Court 1971 (WA), which broadly align with the uniform civil procedure rules in other jurisdictions.

The pleading should include:

1. Identification of contextual imputations: The defence must clearly set out the particular imputation(s) said to be conveyed by the matter that are not among those the plaintiff alleges. These should be pleaded with the same degree of precision as any defamatory imputation.

2. Particulars of substantial truth: The defendant must plead and provide particulars of facts or evidence that will be relied on to prove the substantial truth of each contextual imputation.

3. No further harm assertion: The pleading should assert that, by reason of the substantial truth of these contextual imputations, the plaintiff's reputation was not further harmed by the defamatory imputations complained of.

4. Distinctiveness from plaintiff's imputations: In Western Australia, contextual imputations must be clearly differentiated from the plaintiff's pleaded imputations, given the requirement that they be "in addition to" those complained of.

Failure to comply with these pleading requirements may result in the defence being struck out.

5.2 Plaintiff's Strategic Responses

Under Western Australia's procedures, a plaintiff may respond to a contextual truth plea in several ways:

1. Reply: A plaintiff might file a Reply if there is some affirmative answer, though usually truth is a matter for the defendant alone.

2. Strike-out applications: More commonly, plaintiffs will attack the contextual truth plea via interlocutory applications, seeking to strike out a contextual imputation on the basis that it is not capable of arising or is insufficiently distinct from the pleaded imputations.

3. "Pleading back" or appropriation: A strategic option for plaintiffs in WA is to seek to amend their Statement of Claim to add any defamatory meaning the defendant labels as a contextual imputation, effectively absorbing it into the plaintiff's case and nullifying the "additional" context. In Besser v Kermode, Justice Simpson (at trial) noted the potential for injustice if a plaintiff appropriates a true imputation purely to strip the defendant of a contextual truth defence. However, the Court of Appeal confirmed that under the 2005 wording, the defence strictly requires the imputations to be "in addition" to those complained of. Therefore, if a plaintiff does adopt the would-be contextual imputations into the claim (with leave of the court), the defendant cannot rely on them as context in WA's current framework. Courts may be cautious about allowing late amendments that appear calculated solely to undermine a defence; the timing and overall justice of the case will be considered.

5.3 Jury Considerations

At trial, the contextual truth defence is determined by the jury (if there is a jury) or by the judge in a bench trial. In Western Australia, either party may elect for a jury trial in defamation, although in practice many cases (especially in the WA Supreme Court) proceed without a jury.

If tried by jury, the issues are usually divided as follows:

1. Truth of the contextual imputations: The jury will be asked to decide whether each contextual imputation pleaded by the defendant is substantially true on the balance of probabilities. If the jury finds none of the contextual imputations true, the defence fails immediately.

2. "No further harm" question: If at least one contextual imputation is found true, the jury must assess whether the additional harm caused by the remaining false imputation(s) is negligible or non-existent. This requires them to weigh the gravity of the true imputations against the gravity of the false ones.

The trial judge must craft jury questions or directions to reflect this two-stage process. For example:

1. Are one or more of the following contextual imputations substantially true? If so, identify which ones.

2. If one or more contextual imputations are true, do the defamatory imputations complained of cause any further harm to the plaintiff's reputation because of the substantial truth of the contextual imputations?

It is the defendant's burden to persuade the jury (or judge) on both points.

6. Comparison: 2005 Contextual Truth vs 2021 Amendments

6.1 Key Differences in the Amended Provision

The 2020 Amendment Act (Stage 1 reforms) introduced a revised s 26 (enacted in NSW, Victoria, Queensland, South Australia, etc., from 1 July 2021). Western Australia has not yet adopted these amendments and continues with the original text, but it is important for WA judges and practitioners to understand the differences.

The most significant change in the amended provision is the addition of subsection (2), which states: "The contextual imputations on which the defendant may rely to establish the defence include imputations of which the plaintiff complains."

This amendment explicitly enables defendants to "plead back" the plaintiff's own imputations as contextual imputations, addressing the limitation identified in Besser v Kermode. The requirement for contextual imputations to be "in addition to" the plaintiff's imputations was effectively removed.

6.2 Practical Impact of the Differences

The practical effect of this difference is substantial:

1. Under the 2005/WA law: Defendants cannot use the plaintiff's pleaded imputations as contextual imputations because they are not "in addition to" the plaintiff's pleaded imputations. This allows plaintiffs to strategically "box in" defendants by pleading a broad array of imputations, including any that are substantially true, leaving no surplus truths for the defendant to deploy.

2. Under the 2021 amended law: Defendants can expressly plead that any of the plaintiff's imputations that are substantially true constitute contextual imputations, and argue that in light of those truths, the remaining false imputations cause no further reputational harm.

Illustration of difference: Consider a case where a plaintiff alleges two defamatory imputations from a publication: (1) that he committed fraud (which is true), and (2) that he committed perjury (which is false).

• Under the 2005/WA law, the defendant cannot use imputation (1) as a contextual imputation because it is not "in addition" to the plaintiff's pleaded imputations – it is one of them. The defendant would be forced to run a defence of justification on (1) (succeeding on that part) and separately defend (2) (failing on that). The plaintiff would win on the perjury allegation, albeit with some damage mitigation due to the fraud being proven true.

• Under the 2021 amended law, the defendant could expressly plead that imputation (1) (fraud) is substantially true and constitutes a contextual imputation, and that in light of that truth, imputation (2) (perjury) causes no further reputational harm. If the tribunal of fact agrees, the defendant would succeed in a complete defence.

6.3 Implications for Western Australian Practitioners

For Western Australian lawyers and litigants, the key comparative point is that authorities from other jurisdictions after 1 July 2021 must be read with caution. For example, if a NSW decision in 2022 holds that a defendant was entitled to plead back a plaintiff's imputation, that reasoning is based on the amended provision, not the WA law.

Conversely, older decisions like Besser v Kermode and Mizikovsky remain highly persuasive in WA because they interpret the same statutory language that WA still uses. Unless and until WA updates its defamation statute, a WA court would likely follow the Besser principle that a contextual imputation must be an "additional" one not sued on by the plaintiff.

The strategic dynamics in WA therefore differ significantly from other jurisdictions:

• Plaintiffs can still attempt to preempt contextual truth by broad pleading

• Defendants must be diligent in scanning the publication for any defamatory imputations the plaintiff did not plead

• The scope of contextual truth is narrower in WA than in jurisdictions that have adopted the amendments

7. Worked Examples

7.1 Example 1: The More Serious Imputation

Consider a publication that carries two defamatory imputations about a plaintiff:

1. That the plaintiff has body odor (false)

2. That the plaintiff is a sexual predator (true)

If the plaintiff sues for defamation based only on the first imputation (body odor), the defendant may invoke the contextual truth defence by:

• Identifying the second imputation (sexual predator) as a contextual imputation

• Proving that this contextual imputation is substantially true

• Demonstrating that the imputation about body odor does not further harm the plaintiff's reputation given the truth of the imputation that they are a sexual predator

In this example, the defence would likely succeed because being a sexual predator is objectively more damaging to one's reputation than having body odor. The false imputation does not cause any meaningful additional harm to the plaintiff's reputation in light of the true contextual imputation.

7.2 Example 2: Multiple Imputations in a Business Context

Consider a newspaper article about a Perth businessman that contains the following imputations:

1. That the businessman evaded taxes (false)

2. That the businessman engaged in price-fixing arrangements with competitors (true)

3. That the businessman verbally abused employees (false)

4. That the businessman knowingly sold defective products to consumers (true)

If the businessman sues for defamation based on imputations 1 and 3, the newspaper might invoke the contextual truth defence by:

• Identifying imputations 2 and 4 as contextual imputations

• Proving that these contextual imputations are substantially true

• Demonstrating that the false imputations about tax evasion and verbal abuse do not further harm the businessman's reputation given the truth of the imputations about price-fixing and selling defective products

This defence would only succeed if the newspaper could prove that imputations 2 and 4 are substantially true and that they are of such gravity that imputations 1 and 3 cause no further harm to the businessman's reputation.

7.3 Example 3: Strategic Pleading Considerations

A TV program broadcasts a story about a local official containing these imputations:

1. The official embezzled city funds (true)

2. The official cheated at golf in a charity tournament (false)

Scenario A - Plaintiff omits the embezzlement allegation: If the official sues only on imputation 2 (cheating at golf), the defendant can plead the embezzlement (imputation 1) as a contextual imputation. If proven true, the defendant would likely succeed by arguing that being known as a golf cheat adds nothing to the reputation of someone already proven to be corrupt.

Scenario B - Plaintiff pleads both imputations: If the official includes both imputations in his claim, the defendant in WA cannot use imputation 1 (embezzlement) as a "contextual imputation" because it would not be "in addition to the imputations of which the plaintiff complains." The defendant would need to rely on:

• A direct truth defence (justification) for the embezzlement allegation

• Some other defence for the golf cheating allegation, or accept liability for it

This illustrates how a plaintiff's pleading choices can strategically constrain a defendant under WA law.

8. Practical Considerations for Western Australian Practitioners

8.1 Advising Plaintiffs

When advising potential plaintiffs in defamation actions in Western Australia, practitioners should consider:

1. Strategic pleading: Consider pleading all potential defamatory imputations conveyed by the publication, including those that might be substantially true, to limit the defendant's ability to rely on contextual truth.

2. Anticipating contextual imputations: Review the publication carefully to identify any potential contextual imputations the defendant might rely upon, and consider whether to include these in the original pleading.

3. Responding to contextual truth pleas: Be prepared to challenge the distinctiveness of any contextual imputations pleaded by the defendant, arguing they are not sufficiently separate from the pleaded imputations.

4. Amendment strategy: Consider the timing and strategic value of seeking to amend pleadings to incorporate contextual imputations, while recognizing that courts may view late tactical amendments with skepticism.

8.2 Advising Defendants

When advising defendants considering a contextual truth defence in Western Australia, practitioners should:

1. Jurisdictional awareness: Recognize that Western Australia has not adopted the 2020 uniform law amendments, making the contextual truth defence more restrictive than in other jurisdictions.

2. Thorough publication analysis: Carefully analyze the publication to identify potential contextual imputations not pleaded by the plaintiff that could form the basis of the defence.

3. Evidence assessment: Realistically assess the strength of evidence available to establish the substantial truth of contextual imputations, recognizing the potentially higher evidentiary threshold for serious allegations.

4. Comparative harm analysis: Evaluate whether the defamatory imputations complained of would cause any additional harm to the plaintiff's reputation in light of the contextual imputations, considering factors such as the gravity and subject matter of the imputations.

5. Alternative defences: Consider whether other defences, such as justification (truth) or qualified privilege, may be more appropriate or should be pleaded in the alternative.

6. Strategic pleading: Ensure that contextual imputations are clearly identified and distinguished from the imputations complained of by the plaintiff, with comprehensive particulars provided.

8.3 Interplay with Other Defences

Contextual truth often appears alongside a plea of justification (truth) for the same publication. The defendant will typically attempt justification (s 25) on as many of the plaintiff's imputations as possible, and reserve contextual truth (s 26) for the scenario where one or more imputations cannot be justified.

It is acceptable and common practice to plead both defences—they are not mutually exclusive. From a trial management perspective:

1. The evidence led to establish truth will often serve both defences.

2. If the defendant proves all the plaintiff's imputations true, justification succeeds and contextual truth need not be considered.

3. If the defendant proves only some imputations true, justification fails as a complete defence, but contextual truth may still succeed if the proven truths outweigh the false remainder.

Judges should direct juries carefully on the difference: justification requires every defamatory imputation to be true (a high bar), whereas contextual truth requires at least one contextual imputation to be true and effectively no incremental harm from the plaintiff's imputations.

9. Judicial Considerations

For judges managing defamation proceedings in WA, the contextual truth defence raises particular case management and instructional issues:

9.1 Pleadings Scrutiny

1. At the pleadings stage, scrutinize the formulations of imputations on both sides. A defendant's pleading of contextual truth should be examined for viability: ensure each contextual imputation is properly pleaded and particularized.

2. If a plaintiff seeks to amend pleadings late to absorb a contextual imputation, weigh the prejudice and timing. Courts have a discretion to disallow amendments that would unfairly deprive a defendant of a substantive defence at a very late stage, especially if the contextual truth plea was properly notified earlier.

9.2 Jury Management

1. If a jury trial is on foot, recall that the jury will determine both elements of contextual truth (both truth and "no additional harm"). The judge's role is to explain the concept in summing up and to frame questions that capture the statutory test.

2. When directing a jury on the "no further harm" concept, it may help to instruct jurors to consider the position of the plaintiff's reputation if the true imputations stood alone, and then ask whether adding the false imputation(s) would really make people think any worse of the plaintiff.

3. Clearly instruct that the burden is on the defendant—if the jury is uncertain whether there is additional harm, that uncertainty means the defence has not been proven.

9.3 Multiple Publications or Plaintiffs

1. In cases involving multiple defamatory publications or multiple plaintiffs, the defence must be assessed separately for each publication (since each is a separate cause of action).

2. The defence applies to each plaintiff separately—one plaintiff's reputation might not be saved by truths about another plaintiff.

9.4 Verdict and Judgment Considerations

1. If the trial is by judge alone (which is common given the complexity of issues like contextual truth), the judge must explicitly address the two limbs of s 26 in the reasons for decision, making clear findings on truth of contextual imputations and on the extent of reputational harm.

2. If contextual truth succeeds, it results in a complete defence (judgment for the defendant). If it fails but some imputations are proven true, those truths may still be relevant to mitigation of damages.

10. Conclusion

The defence of contextual truth provides an important mechanism for defendants in defamation actions to avoid liability where the overall truth of a publication outweighs any false statements it contains. In Western Australia, however, its application remains more restrictive than in jurisdictions that have adopted the 2020 uniform law amendments.

The defence reflects a policy decision that truth should prevail over falsity when assessing the sting of a publication as a whole. However, the technical requirements—particularly the need for contextual imputations to be "in addition to" those complained of by the plaintiff—can create significant hurdles for defendants.

Western Australian practitioners must use this defence with precision, crafting pleadings to fit the statutory requirements and marshalling strong evidence for any truth asserted. Judges must guide its use at trial, ensuring that juries (if empanelled) grasp the nuanced task required.

Unless and until WA enacts the uniform amendments, contextual truth in WA operates under the 2005 parameters—a reminder that, in defamation law, context can be everything, but only if you're allowed to plead it.

Walking the Tightrope: When to Consider Capacity Applications in Litigation

Introduction

The decision in M -v- P [No 3] [2024] WASC 123 provides guidance on the approach courts take when considering applications regarding a litigant's capacity.

Justice Lundberg's judgment illuminates the delicate balance courts must strike between protecting potentially vulnerable litigants and respecting individual autonomy. This decision carries particular significance for practitioners faced with opposing self-represented litigants whose capacity may be questionable, offering a roadmap for appropriate procedural steps while highlighting the evidentiary threshold required for such applications.

The case reinforces the Court's protective jurisdiction while demonstrating judicial reluctance to make declarations of incapacity without proper evidence. It establishes an intermediate pathway through referral to the Public Advocate that practitioners should note when contemplating similar applications.

Background of Relevant Case Law

The principles applicable to applications under Order 70 of the Rules of the Supreme Court 1971 (WA) ('RSC') have been developed through several key decisions.

In A v City of Swan [No 5] [2010] WASC 204, Murphy JA provided a detailed analysis of the Court's parens patriae jurisdiction and the principles governing determinations of capacity. His Honour emphasised that capacity is not a fixed standard but fluctuates according to the legal character, complexity, and significance of the matter in question.

More recently in Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91, Seaward J summarised the applicable principles, noting that proof of complete incapacity is not required, and that a person can lack mental capacity to participate in legal proceedings whilst still being capable of performing the usual activities of daily life.

The Court in Farrell v Allregal Enterprises Pty Ltd [2008] WASCA 264 established a procedural framework for seeking assistance from the Public Advocate in determining questions of capacity, which Justice Lundberg adopted in the present case.

Facts of the Case

M -v- P [No 3] concerned a defamation action brought by an unrepresented plaintiff against the defendant, both of whom were medical practitioners (at [1]). The action, which had been on foot for over a year, involved allegations of defamation through "several oral and written communications allegedly published by the defendant" with "around 18 publications identified in the pleadings" (at [1]).

The plaintiff was engaged in multiple disputes across various courts and tribunals, all whilst self-represented (at [1]-[2]).

The defendant applied for an order that the plaintiff be declared a person under a disability by reason of mental illness, defect or infirmity, within the meaning of paragraph (c) of the definition of 'person under disability' in Order 70 rule 1 of the RSC (at [3]).

Order 70 RSC relates to the Court's parens patriae jurisdiction, which derives from "the inherent obligation of the Crown to care for those who are unable to care for themselves" and is expressly conferred by s 16(1)(d) and s 23 of the Supreme Court Act 1935 (WA) (at [5]).

Significantly, the defendant did not present any medical evidence in support of the application (at [14]) but rather invited the Court to draw inferences about the plaintiff's capacity from the plaintiff's conduct, communications, and court documents.

The defendant presented an alternative pathway in the event the Court was not prepared to make an immediate declaration, proposing orders that would request the Public Advocate investigate and report on whether the plaintiff had the ability to make reasonable judgments about the conduct of the proceedings (at [7]-[8]).

The plaintiff strongly opposed the application, filing multiple submissions totalling 87 pages and a 156-page affidavit (at [15]).

Analysis of the Court's Reasoning

Justice Lundberg commenced his analysis by acknowledging the serious nature of the application and the Court's duty to consider whether a person has the requisite capacity when put on notice (at [19]). His Honour emphasised the risk that any final determination of the action could later be challenged as irregular if the plaintiff were subsequently found to be under a disability (at [20]).

The Court accepted the following principles from Snook v Magistrate Trevor Darge [No 2] (at [21]):

1. There is no fixed standard of mental capacity required at law

2. The standard fluctuates according to the legal character, complexity and significance of the matter

3. Proof of complete incapacity is not required

4. A person can lack capacity for legal proceedings while still managing daily activities

5. The Court must consider whether the person can understand the case, make decisions, and give instructions

6. Self-represented litigants are held to a higher standard of capacity than those with legal representation

Justice Lundberg stressed the serious consequence of a declaration under Order 70 RSC - namely, that it would "preclude the individual exercising their right to prosecute, compromise or participate in the specific litigation in their own name" (at [22]).

Rather than determining the application on the material before the Court, His Honour opted for the alternative pathway of seeking assistance from the Public Advocate (at [24]), but only after satisfying himself that the application had a "reasonable basis of succeeding" (at [24]).

The Court found that the defendant had raised the issue in a "legitimate manner" and that there was material capable of supporting the declaration sought (at [25]). This conclusion was reached after considering:

1. The material in the plaintiff's submissions and affidavit

2. The Court's own observations of the plaintiff in several appearances since early 2023

3. The "volume of the material adduced by the plaintiff and the nature of the serious allegations he raises"

4. The manner in which the plaintiff articulated allegations, which "goes well beyond the ordinary language of a passionate or zealous litigant in person" (at [26])

Of particular note, Justice Lundberg observed that the plaintiff's affidavit material contained "lengthy personal accounts of the plaintiff's life, his family and background, personal photographs one would not expect to be adduced in evidence in this action, and personal and intimate WhatsApp and text messages, as well as records of voicemail messages" - all deemed irrelevant to both the application and the proceeding (at [27]).

The Court also highlighted the plaintiff's "intense focus on those who stand against him" and "the belief that there is a network of people coordinating actions against him" (at [28]).

Justice Lundberg considered the complexity of defamation actions and the significant decisions a plaintiff would ordinarily need to make regarding pleadings, evidence, and responses to defences (at [29]).

Ultimately, the Court decided to request assistance from the Public Advocate under s 97(1)(c) of the Guardianship and Administration Act 1990 (WA) (at [30]-[31]), with specific orders structured to facilitate this assistance while preserving procedural fairness (at [37]).

Quantification and Assessment Aspects

Justice Lundberg's judgment provides valuable guidance on how courts assess a litigant's capacity in the absence of direct medical evidence. The Court identified several quantifiable factors that may indicate capacity concerns:

1. The volume of material produced by a litigant (the plaintiff filed 87 pages of submissions and a 156-page affidavit)

2. The relevance of material to the proceedings (substantial irrelevant personal content was noted)

3. The nature and manner of allegations made (references to "criminal networks" and conspiracies)

4. The complexity of the underlying proceedings (defamation involving multiple publications)

5. The litigant's conduct in court proceedings over time

The Court acknowledged that drawing inferences about capacity from these factors is "legitimate" (at [14]) but also that "the absence of direct medical evidence renders an applicant's task of discharging its burden of proof more onerous" (at [14]).

The judgment establishes that the threshold for referring the matter to the Public Advocate is that "the application has a reasonable basis of succeeding" (at [24]), which is evidently lower than the threshold for making the declaration itself.

Worked Example: Practical Application

Consider a solicitor representing a defendant in a complex commercial dispute where the unrepresented plaintiff exhibits concerning behaviours:

Scenario: The plaintiff has filed multiple, excessively lengthy submissions containing irrelevant personal information, makes allegations of widespread conspiracy against various institutions, demonstrates an inability to focus on relevant legal issues despite judicial guidance, and produces volumes of irrelevant evidence.

Step 1: Document all instances of concerning conduct or communications

• Compile court transcripts showing the plaintiff's inability to follow judicial directions

• Collate all written communications demonstrating disorganised thinking or paranoid ideation

• Catalogue filed documents showing irrelevant content or inability to address legal issues

Step 2: Assess whether the conduct crosses the threshold from merely vexatious to suggesting incapacity

• Compare to established case law (e.g., M -v- P [No 3], A v City of Swan [No 5])

• Consider the complexity of the particular proceedings and demands on the litigant

• Evaluate whether the conduct suggests an inability to understand the proceedings or make reasonable judgments

Step 3: Consider the ethical implications and proportionality

• Is the application genuinely in the interests of justice, or merely tactical?

• Are there less intrusive alternatives available?

• What impact would the application have on the proceedings and the plaintiff?

Step 4: Frame the application with appropriate sensitivity

• Propose the "alternative pathway" approach rather than seeking an immediate declaration

• Structure orders similar to those in M -v- P [No 3] requesting Public Advocate assistance

• Ensure all evidence presented is objective and factual, avoiding speculation

Step-by-Step Guidance for Practitioners

When faced with a potentially incapacitated opposing party, practitioners should:

1. Maintain detailed records of all interactions with the opposing party, particularly noting:

   • Inability to understand or engage with legal concepts

   • Persistent irrelevant submissions or evidence

   • Paranoid or delusional thinking in correspondence or submissions

   • Inability to follow court directions or understand procedural requirements

2. Consult the relevant procedural rules governing capacity in your jurisdiction (e.g., Order 70 RSC in Western Australia)

3. Consider whether the threshold for intervention is met:

   • Is there a genuine basis for concern beyond mere frustration with a difficult litigant?

   • Does the conduct go "well beyond the ordinary language of a passionate or zealous litigant in person"?

   • Is the nature of the proceedings sufficiently complex to require a higher standard of capacity?

4. Explore alternative pathways:

   • Consider whether a less intrusive approach might assist the opposing party

   • Identify relevant support services or authorities (e.g., Public Advocate) that might provide assistance

5. Frame the application appropriately:

   • Seek preliminary assistance from appropriate authorities before requesting declarations

   • Structure proposed orders to allow for investigation before determination

   • Request the court's guidance on procedure

6. Prepare for procedural delays:

   • Advise clients that such applications may extend timeframes

   • Consider whether interim arrangements are necessary

7. Maintain proportionality:

   • Ensure the scope of any application is confined to the specific proceedings

   • Avoid unnecessarily broad declarations that might impact the opposing party's autonomy in other matters

Evidence and Arguments for Each Side

For the Applicant (Party Questioning Capacity)

Evidence:

• Court documents containing irrelevant, excessive, or disorganised content

• Transcripts demonstrating inability to follow judicial guidance or respond to questions

• Correspondence showing paranoid ideation or delusional thinking

• Witness evidence of behaviour in court or mediation settings

• Expert evidence (if available) regarding the cognitive demands of the specific proceedings

Arguments:

• The Court has a duty to ensure parties can meaningfully participate in proceedings

• Allowing proceedings to continue risks injustice to both parties

• The complexity of the proceedings requires a certain level of capacity

• The Court's parens patriae jurisdiction is protective, not punitive

• The alternative pathway approach provides appropriate procedural safeguards

For the Respondent (Party Whose Capacity is Questioned)

Evidence:

• Evidence of capacity to manage other aspects of life

• Examples of logical and coherent submissions or correspondence

• Evidence of previous successful litigation management

• Character evidence from professional colleagues or associates

• Expert evidence (if available) supporting capacity

Arguments:

• The presumption of capacity must be respected

• Passionate or unusual advocacy is not equivalent to incapacity

• The application represents an attempt to impede access to justice

• Less restrictive alternatives have not been explored

• The absence of medical evidence is fatal to the application

• The serious consequences for civil rights require a high evidentiary threshold

Key Takeaways for Legal Practice

1. Evidence threshold: While medical evidence is not strictly required for capacity applications, its absence significantly increases the burden of proof on the applicant.

2. Alternative pathways: Courts may prefer a staged approach involving investigative assistance from authorities such as the Public Advocate before making declarations.

3. Contextual assessment: Capacity requirements fluctuate according to the nature and complexity of the proceedings - defamation actions, with their complexity, demand a higher standard.

4. Preserving autonomy: Courts remain conscious of the serious impact of declarations on individual autonomy and will only intervene where genuinely necessary.

5. Tactical considerations: Practitioners must ensure capacity applications are genuinely motivated by legitimate concerns rather than tactical advantage.

6. Self-representation factor: Courts recognise that self-represented litigants require a higher standard of capacity than those with legal representation.

7. Documentation importance: Systematic documentation of concerning conduct or communications is essential for establishing sufficient grounds for investigation.

Conclusion

M -v- P [No 3] offers a nuanced approach to the challenging intersection of mental capacity and litigation rights. The judgment reinforces the Court's protective role while establishing procedural safeguards that respect individual autonomy. By adopting the "alternative pathway" of seeking Public Advocate assistance, Justice Lundberg has demonstrated a balanced approach that other courts may follow.

For practitioners, the case underscores the need for careful consideration before initiating capacity applications, the importance of thorough documentation, and the value of structured, proportionate approaches that prioritise investigation before declaration.

The decision ultimately serves as a reminder that while the legal system must protect vulnerable individuals, it must do so with appropriate restraint and procedural fairness, recognising that declarations of incapacity represent a significant limitation on fundamental rights of access to justice.

The Significance of Apologies in Defamation Proceedings: Analysis of Wright v de Kauwe

1. Introduction

The Western Australian Court of Appeal's decision in Wright v de Kauwe [2024] WASCA 51 provides guidance on the significance of apologies in defamation proceedings, particularly in the context of settlement offers.

The case illuminates how courts assess the adequacy of apologies when determining whether a plaintiff's rejection of a settlement offer was reasonable for costs purposes.

The Court's analysis offers insights into the relative importance of monetary and non-monetary elements in defamation settlements, emphasising that vindication of reputation through an appropriate apology can be as significant as financial compensation.

This decision is noteworthy for its detailed consideration of how courts should approach the adequacy of proffered apologies when exercising costs discretion following a plaintiff's rejection of Calderbank offers. It provides authoritative guidance on a previously underdeveloped area of law concerning the intersection of apologies, settlement offers, and costs consequences in defamation proceedings.

2. Background of Relevant Preceding Case Law

The Role of Apologies in Defamation Law

Apologies have long held a special place in defamation law, serving multiple purposes:

1. Statutory recognition: Section 38(1)(a) of the Defamation Act 2005 (WA) specifically recognises that an apology is evidence in mitigation of damages. Section 20 protects apologies from being admissible in determining fault or liability.

2. Vindication of reputation: As noted in Cassell & Co Ltd v Broome [1972] AC 1027, an apology can serve to vindicate a plaintiff's reputation where monetary compensation alone may be insufficient.

3. Settlement context: In Ford Motor Co of Australia Ltd v Lo Presti [2009] WASCA 115, the Court established principles for assessing Calderbank offers, including "the extent of the compromise offered" as a relevant factor.

4. Costs consequences: In Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96, the Court emphasised that in determining whether rejection of an offer was unreasonable, "all relevant facts and circumstances must be considered" including the extent of compromise offered.

Prior to Wright v de Kauwe, there was limited guidance on how courts should weigh the adequacy of apologies when assessing whether rejection of a settlement offer was reasonable for costs purposes.

3. Detailed Facts of the Case

The Defamatory Publications

Dr Brendan de Kauwe brought a defamation action against Mr Matthew Wright, five director defendants (Mr Cohen, Mr Saad, Ms Shenhar, Mr Gilboa, and Mr Karasik) and Mr Pamensky. Dr de Kauwe and the director defendants were directors of eSense Lab Ltd, and Mr Pamensky was its company secretary [96].

The trial judge found that Dr de Kauwe had been defamed by imputations in four publications:

1. A letter from three director defendants to Dr de Kauwe on 5 February 2018 [97(1)]

2. A letter from Mr Cohen to Dr de Kauwe on 15 February 2018 [97(2)]

3. An announcement by eSense to the ASX on 13 March 2018 (First ASX Announcement) [97(3)]

4. An announcement by eSense to the ASX on 21 March 2018 (Second ASX Announcement) [97(4)]

The defamatory imputations included that Dr de Kauwe was not fit to be a director, was a blackmailer and extortionist, and had engaged in conduct warranting investigation [136-137].

Settlement Offers and Proposed Apologies

The defendants made several Calderbank offers:

1. 17 August 2020: $500,000 plus costs and an apology [289-290]

2. 14 October 2020: $650,000 plus costs and an apology [289-290]

3. 26 January 2021: $750,000 plus costs and an apology [289-290]

4. 27 January 2021: $850,000 plus costs and an apology [289-290]

5. 28 January 2021: $850,000 plus costs and an apology [289-290]

The proposed apology in each offer was identical and stated:

"We the undersigned (Haim Cohen, Ilan Saad, Galit Shenhar, Eran Gilboa, Benjamin Karasik and Ian Pamensky) each accept that we variously published or caused to be published 2 ASX announcements released to the market and to other parties by eSense-Lab Ltd in 2018. In the ASX announcements various allegations were made concerning Dr de Kauwe, which we accept were defamatory of him.

We sincerely and unreservedly apologise for the damage, hurt, distress and embarrassment that we have caused to Dr de Kauwe and we fully and unreservedly retract the defamatory allegations we made.

We hereby undertake to refrain from making any further such statements regarding Dr de Kauwe in the future." [290]

Notably, Mr Wright was not a signatory to the proposed apology.

4. Analysis of the Court's Reasoning

The Trial Judge's Approach to Apologies in Settlement Offers

The trial judge found that Dr de Kauwe's rejection of the Calderbank offers was not unreasonable, in part because the proposed apology was inadequate. The trial judge identified several limitations in the apology:

1. It referred only to the ASX Announcements and not to the defamatory letters [304]

2. The defendants made no offer to publish it to a wider audience [305]

3. It did not identify the specific allegations being retracted [306]

4. The settlement was "without any admission of liability" which detracted from the apology's value [307]

The trial judge stated that "in settlement of defamation claims the offer and terms of an apology is of paramount importance" [319] and concluded that "the inadequacy of the apology... is of itself a sufficient reason to make Dr de Kauwe's failure to accept the offer not unreasonable" [320].

The Court of Appeal's Analysis

Mitchell JA (with whom Buss P and Lundberg J agreed) concluded that the trial judge did not make an error of principle in his approach to the significance of the apology. The Court held:

1. Weight versus error of principle: The director defendants' complaint that the trial judge placed "excessive weight" on the terms of the apology did not disclose a proper basis for appellate intervention [324].

2. Significance of apologies in defamation: It is open to a trial court to give significant weight to the adequacy or inadequacy of an apology proffered as part of a settlement offer when assessing whether rejection was unreasonable [325].

3. Statutory context: The Court noted the significance of apologies in the Defamation Act, including their role as evidence in mitigation of damages under s 38(1)(a) and in offers to make amends under s 18 [325].

4. Holistic approach: Mitchell JA emphasised that the trial judge had considered all the circumstances, with the apology being only one factor (albeit an important one) [326].

5. Vindication versus compensation: The Court recognised that "the publication of a judgment of the court provides for its own vindication of a plaintiff's reputation. Where a private settlement is offered, there will ordinarily be no public vindication of the plaintiff's reputation except to the extent that a public apology is offered by the defendant" [328].

The Court rejected the argument that the trial judge had erred in principle by elevating the significance of the apology, finding that the judge had properly considered all relevant circumstances.

5. Quantification and Assessment Aspects

Balancing Monetary and Non-Monetary Elements

The Court's approach demonstrates the need to balance monetary and non-monetary elements when assessing the adequacy of settlement offers in defamation cases:

1. Comparing monetary value: The trial judge compared the settlement sum offered ($650,000-$850,000) with the judgment eventually obtained ($530,880 plus interest of $72,262.82, totalling $603,142.82) [297-302].

2. Costs considerations: The difference between costs taxed on a special costs order basis versus party/party costs was taken into account when comparing the offers to the judgment [300-301].

3. Vindication value: The Court recognised that an apology offers vindication that monetary compensation alone cannot provide, particularly where a private settlement precludes the vindication provided by a judgment [328].

4. Timing factors: The timing of offers and time allowed for consideration were relevant factors, with the Court noting that some offers were open for unreasonably short periods close to trial [312-315].

The Court's analysis reinforces that quantifying the adequacy of settlement offers in defamation cases requires consideration of both the monetary value and the qualitative aspects of proposed apologies.

6. Worked Example of Practical Application

Perspective A: Plaintiff's Counsel

Scenario: Your client has been defamed by publications alleging professional misconduct. The defendant has offered $200,000, costs on a party/party basis, and an apology.

Application of Wright v de Kauwe principles:

1. Assess apology adequacy:

   • Does it address all defamatory publications or only some?

   • Does it clearly identify and retract the defamatory imputations?

   • Is it offered without qualification or undermined by denial of liability?

   • Will it be published to reach the same audience as the defamation?

2. Monetary assessment:

   • Compare offer amount to likely damages plus interest

   • Consider difference between party/party costs and potential special costs order

   • Calculate overall difference between offer and potential judgment value

3. Timing considerations:

   • Is sufficient time allowed for proper consideration of the offer?

   • Is the offer made close to trial when preparation costs are high?

4. Advise client: "While the monetary offer of $200,000 appears reasonable, the apology is inadequate because it doesn't clearly identify the imputations being retracted and wouldn't reach the same audience as the original publication. Based on Wright v de Kauwe, rejection would likely not be considered unreasonable for costs purposes."

Perspective B: Defendant's Counsel

Scenario: Your client has published material that may be defamatory. You are preparing a Calderbank offer.

Application of Wright v de Kauwe principles:

1. Design comprehensive apology:

   • Address all potentially defamatory publications

   • Specifically identify the imputations being retracted

   • Provide for publication to reach similar audience as the defamation

   • Consider whether unqualified acceptance of defamatory nature is possible

2. Structure monetary component:

   • Ensure offer covers likely damages plus reasonable interest

   • Consider offering costs on a more generous basis than party/party

   • Calculate potential value difference if special costs order were made

3. Timing strategy:

   • Allow reasonable time for consideration (at least 14-21 days)

   • Make offer well before trial preparation intensifies

4. Advise client: "To maximize costs protection, your apology should address both publications, specifically acknowledge the false imputations, and be published on your website. The monetary offer should exceed your counsel's assessment of likely damages by at least 20% to account for interest and costs differentials. We should allow at least 21 days for consideration to avoid the timing issues identified in Wright v de Kauwe."

7. Step-by-Step Guidance for Practitioners

Advising Plaintiffs on Settlement Offers

1. Assess the apology's adequacy:

   • Does it address all defamatory publications?

   • Does it specifically identify and retract the defamatory imputations?

   • Is the publication method appropriate to reach the original audience?

   • Is the apology undermined by qualifications or denials?

2. Evaluate monetary compensation:

   • Compare offer to realistic assessment of general and special damages

   • Add pre-judgment interest likely to accrue

   • Consider difference between party/party costs and indemnity costs

   • Assess total package value against likely judgment value

3. Consider timing factors:

   • Is sufficient time provided to consider the offer?

   • At what stage of proceedings is the offer made?

   • What costs have already been incurred?

4. Document reasons for rejection:

   • Record specific deficiencies in the apology

   • Note any valuation issues in monetary component

   • Consider counter-offering with adequate apology terms

Advising Defendants on Formulating Offers

1. Craft a comprehensive apology:

   • Address all defamatory publications specifically

   • Clearly identify the imputations being retracted

   • Propose appropriate publication method(s)

   • Avoid qualifying language that undermines sincerity

2. Structure monetary component strategically:

   • Offer should exceed realistic damages assessment

   • Include allowance for pre-judgment interest

   • Consider offering costs on more favorable basis than party/party

   • Ensure total package exceeds likely judgment value

3. Time the offer appropriately:

   • Allow reasonable time for consideration (minimum 14-21 days)

   • Make offer sufficiently early in proceedings

   • Avoid timing close to hearing dates or when plaintiff is preparing for trial

4. Clear communication:

   • Specify all terms clearly without ambiguity

   • Explicitly state costs consequences if rejected

   • Ensure settlement deed terms (if applicable) are provided with offer

8. Specific Evidence and Arguments

For Plaintiffs

1. Inadequacy of apology:

   • Evidence of all defamatory publications not addressed in the apology

   • Analysis of audience reached by original publication versus proposed apology

   • Expert evidence on reputational harm requiring specific vindication

   • Evidence of continuing harm due to inadequate vindication

2. Monetary considerations:

   • Evidence of special damages incurred

   • Comparable awards in similar defamation cases

   • Documentation of actual legal costs exceeding party/party costs

   • Evidence of aggravating factors justifying higher damages

3. Procedural arguments:

   • Evidence of unreasonable time pressure to consider offer

   • Documentation of proximity to trial and preparation costs already incurred

   • Evidence of ambiguity or uncertainty in offer terms

For Defendants

1. Adequacy of apology:

   • Evidence that apology would reach similar audience to original publication

   • Precedents showing similar apologies accepted as adequate

   • Evidence that apology addresses core reputational concerns

   • Documentation of attempts to refine apology terms

2. Monetary considerations:

   • Comparative analysis showing offer exceeded likely judgment

   • Expert evidence on appropriate quantum

   • Calculations showing offer's value considering interest and costs

   • Evidence of mitigating factors justifying lower damages

3. Procedural arguments:

   • Evidence that timeframe for considering offer was reasonable

   • Documentation of early timing in proceedings

   • Evidence of clarity and certainty in offer terms

9. Key Takeaways for Legal Practice

1. Apology design is critical: Courts recognize that apologies serve a distinct purpose in defamation that monetary compensation cannot provide. Apologies should address all defamatory publications, specifically identify the imputations being retracted, and propose appropriate publication methods.

2. Holistic assessment: When assessing settlement offers, courts take a holistic approach considering the monetary component, adequacy of apology, timing, and procedural aspects. No single factor is determinative.

3. Vindication value: Courts acknowledge that vindication of reputation through an appropriate apology is a core purpose of defamation proceedings, and private settlements lacking adequate vindication may reasonably be rejected despite generous monetary offers.

4. Cost protection strategy: To maximize costs protection, defendants should ensure apologies are comprehensive, specific, and published appropriately, while monetary offers should clearly exceed likely judgment values accounting for interest and costs differentials.

5. Timing matters: Offers should allow reasonable time for consideration and be made sufficiently early in proceedings to avoid being compromised by proximity to trial.

6. Documentation importance: Both parties should document their reasoning regarding offer adequacy or inadequacy to support later costs applications.

10. Conclusion on Broader Significance

Wright v de Kauwe represents an important development in defamation jurisprudence by providing guidance on the significance of apologies in settlement offers. The decision reinforces that defamation law serves purposes beyond mere compensation, with vindication of reputation being a central objective that apologies specifically address.

The Court's approach acknowledges the unique nature of reputational harm and the limited capacity of monetary compensation alone to remedy such harm. This recognition has significant implications for defamation practice, emphasizing that crafting appropriate apologies is not merely a peripheral element of settlement strategy but central to it.

The decision also brings welcome clarity to the application of Calderbank principles in the defamation context, providing a structured framework for assessing whether rejection of settlement offers was reasonable. This guidance will likely influence settlement practices in defamation proceedings by encouraging more carefully crafted apologies and more realistic assessment of non-monetary elements.

As defamation continues to evolve in the digital age, where reputational harm can spread rapidly and persistently, the significance of appropriately tailored apologies is only likely to increase. Wright v de Kauwe provides a foundation for this evolving area of law, emphasizing that effective vindication requires attention to the qualitative aspects of apologies rather than merely their existence.

Apportionment of Costs in Defamation Proceedings: Greenwich v Latham (No 3)

Introduction

The Federal Court of Australia's decision in Greenwich v Latham (No 3) [2025] FCA 312 explains the principles governing costs orders in defamation proceedings where a plaintiff achieves partial success. This case represents a contribution to the jurisprudence on costs apportionment in defamation matters, particularly when dealing with multiple publications and imputations. Justice O'Callaghan's reasoning offers practical guidance on when costs should follow the event despite a plaintiff's partial success, and when indemnity costs might be warranted following the rejection of a settlement offer.

Background: Costs Principles in Defamation Proceedings

The apportionment of costs in defamation proceedings has evolved considerably in recent years, with courts increasingly willing to divide costs to reflect the parties' respective successes and failures. The legal framework for costs orders in the Federal Court includes s 43 of the Federal Court of Australia Act 1976 (Cth), which vests a wide discretion in the Court with respect to costs.

As summarised by White J in Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127 (Hockey (No 2)), the relevant principles include:

1. The wide discretion must be exercised judicially (Hockey (No 2) at 134 [37]);

2. Ordinarily, costs follow the event, with a successful litigant receiving costs absent special circumstances (Hockey (No 2) at 134 [37]);

3. Courts are increasingly prepared to apportion costs where a party succeeds on only some claims (Hockey (No 2) at 143 [88]);

4. A litigant succeeding on only part of their claim may reasonably bear the expense of litigating unsuccessful portions (Hockey (No 2) at 134 [37]); and

5. Apportionment may be appropriate where issues on which the plaintiff failed were "clearly dominant or separable" (Hockey (No 2) at 142 [87]).

Facts of the Case

Greenwich v Latham (No 3) concerned the costs determination following Justice O'Callaghan's judgment in Greenwich v Latham [2024] FCA 1050 (the primary judgment). The defamation proceeding was brought by Alexander Greenwich, member for Sydney in the NSW Legislative Assembly, against Mark Latham, an independent member of the NSW Legislative Council, regarding two publications: the "primary tweet" and the "DT quotes" (at [2]-[3]).

At trial, Mr Greenwich contended that each publication conveyed two defamatory imputations and claimed damages for non-economic loss, aggravated damages, and injunctive relief (at [3]).

Regarding the primary tweet, Justice O'Callaghan found that:

• The imputation that Mr Greenwich "engages in disgusting sexual activities" was conveyed and was defamatory (at [5], [9]);

• The imputation that Mr Greenwich "is not a fit and proper person to be a member of the NSW Parliament because he engages in disgusting sexual activities" was not conveyed (at [6]).

Regarding the DT quotes, Justice O'Callaghan found that:

• Neither pleaded imputation was conveyed (at [8]).

Justice O'Callaghan awarded Mr Greenwich $100,000 in damages for non-economic loss and $40,000 in aggravated damages (at [12]). A subsequent application for injunctive relief was dismissed in Greenwich v Latham (No 2) [2025] FCA 131 (at [13]).

The Court's Reasoning on Costs

Apportionment of Costs

Mr Latham submitted that each party should pay its own costs or, alternatively, that he should only be ordered to pay one quarter of Mr Greenwich's costs on a party-party basis (at [22]-[24]). This submission was based on Mr Latham's claim that he succeeded on a "preponderance of the issues" - specifically, the second pleaded imputation regarding the primary tweet and the entirety of the claim regarding the DT quotes (at [24]).

In contrast, Mr Greenwich argued he should be awarded the whole of his costs because he was successful in his claim and there was no reason costs should not follow the event (at [25]). Mr Greenwich's counsel, Dr Collins AM KC, submitted that it was misconceived to rely on a numerical comparison of issues (at [26]).

Dr Collins advanced five key reasons why the case would have been run in exactly the same way even if Mr Greenwich had sued only in respect of the primary tweet (at [27]):

1. The affidavit evidence relied upon would have been identical, covering necessary background, context, and damages (at [27(1)]);

2. All the same witnesses would have been called (at [27(2)]);

3. The DT quotes case was not severable from the primary tweet case due to "an unbroken chain of causation" between the publications (at [27(3)]);

4. The second pleaded imputation regarding the primary tweet involved only brief legal argument with no additional evidence (at [27(4)]); and

5. All evidence about serious harm would still have been necessary (at [27(5)]).

Justice O'Callaghan found these submissions "irresistible" and accepted that Mr Greenwich should recover his costs of the proceeding (at [29]). His Honour noted that while Mr Greenwich was unsuccessful in his application for injunctive relief, this was offset by delays and expenses caused by Mr Latham's insistence that Mr Greenwich provide sworn evidence about his sources of funding for the proceeding (at [30]).

Indemnity Costs

Mr Greenwich submitted that costs should be paid on an indemnity basis, principally because Mr Latham unreasonably rejected an offer to settle contained in a concerns notice dated 19 April 2023 (at [32]). The offer included terms requiring:

• A public apology and retraction;

• Permanent disabling of comments on the apology;

• Undertakings not to publish similar imputations in future;

• Payment of Mr Greenwich's reasonable expenses; and

• Payment of $20,000 compensation (at [33]).

After reviewing the principles governing indemnity costs following rejected settlement offers from CGU Insurance Ltd v Corrections Corporation of Australia Staff Superannuation Pty Ltd [2008] FCAFC 173 and Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 40, Justice O'Callaghan was not persuaded that Mr Latham's rejection of the offer was unreasonable (at [44]).

His Honour reasoned that:

• The DT quotes were not defamatory, yet formed a significant part of the concerns notice (at [44]);

• The undertakings sought were "very broad and unlimited in time" (at [44]);

• The proposed terms would have imposed "onerous obligations to monitor social media that may have posed difficulties in enforcement" (at [44]).

Consequently, Justice O'Callaghan declined to award costs on an indemnity basis (at [46]).

Practical Application: A Worked Example

Consider the following hypothetical scenario:

Plaintiff X sues Defendant Y for defamation regarding three separate publications (A, B, and C). Each publication has two pleaded imputations. At trial, X succeeds on both imputations for publication A, one imputation for publication B, and fails entirely on publication C. X is awarded $150,000 in damages.

Applying the principles from Greenwich v Latham (No 3):

1. Consider whether the successful and unsuccessful claims are truly separable or whether they form part of an interconnected narrative;

2. Determine whether the same evidence would have been necessary even if only the successful claims had been pursued;

3. Assess whether the unsuccessful publications or imputations added significant complexity or length to the proceedings.

If the evidence and witnesses would have been largely the same regardless of whether publications B and C were included, a court would likely award X their full costs despite the partial success. However, if publication C required distinct evidence and significantly extended the proceedings, the court might reduce X's recoverable costs to reflect this unnecessary expenditure.

Guidance for Practitioners

When advising clients on costs in defamation proceedings with partial success, practitioners should:

1. Assess Practical Severability

• Consider whether the successful and unsuccessful claims share common evidentiary foundations

• Determine if the same witnesses would have been required even without the unsuccessful claims

• Evaluate whether preparation would have been substantially different if only successful claims were pursued

2. Evaluate the Relative Significance of Claims

• Consider whether the unsuccessful claims were peripheral or central to the overall case

• Assess the proportion of court time and evidence devoted to unsuccessful claims

• Determine whether unsuccessful claims significantly extended proceedings

3. Consider Settlement Offers

• Ensure settlement offers are reasonable and proportionate

• Make offers that acknowledge the strength and weaknesses of the case

• For defendants, consider the potential for indemnity costs when evaluating settlement offers

4. Prepare Detailed Records

• Document time spent on different aspects of the case

• Keep records that differentiate between work on distinct publications or imputations

• Be prepared to demonstrate how time and resources would have been allocated if only successful claims were pursued

Arguments and Evidence for Each Side

For Plaintiffs Seeking Full Costs

1. Evidence that the same witnesses would have been called regardless of unsuccessful claims

2. Documentation showing that preparation for successful and unsuccessful claims overlapped significantly

3. Evidence that the defendant's conduct necessitated pursuit of all claims together

4. Argument that unsuccessful claims formed part of a single narrative requiring comprehensive treatment

For Defendants Seeking Apportionment

1. Evidence that unsuccessful claims significantly extended proceedings

2. Documentation of distinct evidence pertaining solely to unsuccessful claims

3. Argument that unsuccessful claims were clearly separable and dominant parts of the case

4. Time records showing disproportionate resources devoted to unsuccessful claims

Key Takeaways for Legal Practice

1. Severability is Practical, Not Theoretical: The test for apportionment turns on practical considerations of how the case would have been run, not merely the numerical proportion of successful claims.

2. Evidence Overlap is Crucial: Where the same evidence would have been necessary even if only successful claims were pursued, courts are unlikely to apportion costs.

3. Careful Offer Construction: Settlement offers should be carefully constructed to make rejection unreasonable. Broad undertakings and coverage of ultimately unsuccessful claims may undermine arguments for indemnity costs.

4. Document Resource Allocation: Practitioners should document how resources are allocated between different aspects of a case to support or defend against apportionment applications.

5. Look Beyond Numbers: Courts will not merely count successful versus unsuccessful imputations but will assess their relative significance and the resources devoted to them.

Conclusion

Greenwich v Latham (No 3) represents a significant contribution to the evolving jurisprudence on costs in defamation proceedings. Justice O'Callaghan's decision reinforces that courts will take a practical approach to costs apportionment, looking beyond mere numerical success to consider how the case would actually have been conducted if only the successful claims had been pursued.

The decision also highlights the challenges plaintiffs can face in securing indemnity costs following rejected settlement offers, particularly where those offers encompass ultimately unsuccessful claims or contain broad undertakings that may be difficult to enforce.