DEFAMATION LAW IN VICTORIA March 2013 …...DEFAMATION LAW IN VICTORIA March 2013 Introduction 1....

Gary Hevey Gordon & Jackson 9225 8075 9225 7333

DEFAMATION LAW IN VICTORIA

March 2013

Introduction

1. Defamation: the publication of material that has the tendency to injure the

reputation of another; that is, when the esteem in which that person is held by

the community is diminished in some respect: Radio 2UE Sydney Pty Ltd v

Chesterton1.

2. The law of defamation is concerned with the meanings conveyed by a

publication: imputations. An imputation is any statement about a person that

asserts or attributes an act or condition to that person. It includes any natural

and ordinary meaning as well as true innuendoes; that is, where information is

published to a person with knowledge of special facts or circumstances an

otherwise innocent statement may become defamatory by reason of the true

innuendo2.

3. The competing interests have always been the right to “free speech” versus the

protection of reputation. While our society generally lauds freedom of

expression it has placed limits on that freedom through laws such as those

relating to defamation, sedition, incitement in certain areas (such as racial

vilification), obscenity and, to a lesser and lesser extent in today’s society,

offensive language.

4. At common law there was a distinction between slander (oral or transitory

defamation) and libel (printed or a more permanent record of the defamation).

1 [2009] HCA 16; (2009) 238 CLR 460 2 See generally: Lexis Nexis Chapter on Defamation by Dr David Rolph


2

That distinction is abolished by the Defamation Act 20053. The ever changing

world of communications through social media is leading to new challenges as

will be highlighted later in this paper.

5. The tort of defamation provides a remedy in damages designed to vindicate the

aggrieved person’s reputation and to provide consolation, insofar as can be done

by money, for the hurt suffered by the aggrieved person. At common law

damages were at large and included compensatory, aggravated, exemplary and

punitive damages.

6. In March 2010 a jury in the Supreme Court of Victoria awarded Dyson Hore-

Lacey SC of the Victorian Bar $600,000 by way of compensatory damages plus

$30,000 for exemplary damages having found him to have been defamed in a

book entitled Getting Away With Murder concerning the defence raised in the

Ramage murder case of 2003. The book, written by Mr Phil Cleary and

published by Allen and Unwin, suggested certain conduct by Hore-Lacy.

Interest and costs were in addition to the amount awarded and was one of the

largest claims awarded in Victoria. One other that remains in memory is that of

Ron Clarke, athlete extraordinaire, who in 2000 sued the ABC’s 7.30 Report

for comments made alleging that he was building a sporting complex over a

toxic dump. While his solicitors had sent a Calderbank offer shortly before trial

indicating that the plaintiff was prepared to settle for $75,000 the jury awarded

him $1,000,000 for the hurt to his reputation.

7. A few other cases that indicate the value placed on reputations might be thought

to be at different ends of the scale are mentioned here having regard to the cap

on damages introduced by the uniform legislation that will be covered shortly.

3 Sub-section 7(1)


3

Mr Andrew Ettinghausen a well-known rugby league player in New South

Wales sued as a result of a magazine publishing a photograph of him in a

shower after a match, the photograph was revealing; a jury compensated Mr

Ettinghausen to the amount of $350,000. The NSW Court of Appeal thought

the hurt not to be that large and reduced the damages to $100,000. In a similar

matter Ms Sonia Shepherd, a then 31-year-old mother from Hervey Bay in

Queensland was awarded $120,000 when a magazine, without her permission,

published a nude photograph of her. Mr Kennett, a former premier of this State

reportedly received a settlement from Channel 9 in the order of $400,000. Ms

Jelena Popovic, Magistrate received $250,000 when Mr Andrew Bolt inferred

that she was soft on crime and unfit to be a Magistrate. Mr John Marsden, a

former president of the New South Wales Law Society sued Channel 7 in 1999

over allegations aired in Witness and Today Tonight that Mr Marsden had

engaged in sexual conduct with under age boys. He was awarded $525,000 plus

millions of dollars in indemnity costs (his lawyers had made an offer of

compromise $500,000) with reports indicating that legal costs in this, a very

long running case, amounted to around $18 million dollars. Channel 7 appealed

and lost.

8. Other matters that might be of interest include, the case commenced by Mr

Alphonse Gangitano against the journalist Mr John Silvester and 3AW after Mr

Silvester alleged Mr Gangitano had “the brains of a flea and the genitalia to

match”. I have not seen the pleadings but I assume that both parts of the

sentence were alleged to be defamatory. Regrettably, Mr Gangitano apparently

experienced some difficulty with a Mr Jason Moran, and as a result of an early

demise, was unable to see the proceedings through to the door of the Court.


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The final matter that I would remind you of was the celebrated case concerning

the late Mr Frank Hardy, author of that wonderful Victorian novel, Power

Without Glory. Mrs Ellen Wren, the widow of Mr John Wren, a colourful

identity and businessman, who some were unkind enough to think might have

been the subject upon which Mr Hardy based his story’s hero/villain (please

circle as you see fit), had the then 34 year old Hardy arrested and charged with

criminal libel. I will return later to the famous Hardy name.

9. The personalities involved in defamation litigation over the years are, as

interesting as are the matters to which they took offence, the courses chosen by

them to restore their reputations, and the results of their various quests. All of

the above matters are of public domain and I would refer those with prurient or

otherwise motivated interest in such matters to www.maynereport.com where a

rich treasury of many household names awaits.

The Defamation Act 2005 - The Uniform Legislation

10. On 1 January 2006 the Defamation Act 2005 came into operation4. It is part of

the uniform law of defamation that has existed since that time in all jurisdictions

in Australia. The Act changed the law in many ways and since that time has

been the starting point for any matter involving allegations of, or considerations

of defences in relation to, defamation.

11. The objects of the act refer to uniformity of defamation in Australia, the need to

ensure that there is no unreasonable limits on freedom of expression, especially

in relation to matters of public interest and importance, to provide effective

4 Section 2 – Unless otherwise stated all references are to the Defamation Act 2005. The Act is known as the Defamation Act in all jurisdictions in Australia except the ACT where it forms part of the Civil Law (Wrongs) Act 2002.

http://www.maynereport.com/


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remedies for persons whose reputations are harmed and to promote speedy and

non-litigious methods of resolving disputes5.

12. The Act relates to the tort of defamation at general law and does not affect the

operation of the general law except as provided for in the Act6.

13. The Act abolishes the distinction between libel and slander7. The

importance of this abolition is that the publication of defamatory matter of any

kind is actionable without proof of special damage8. Before the Act any action

for slander required proof of special damage by the plaintiff before they could

be compensated by damages.

14. Where there are a number of defamatory matters published at the one time then

only a single action may be brought, even if more than one defamatory

imputation is carried by the matter9. This does not mean, for example, that

where different potential defendants publish the same defamation then the

plaintiff is limited to one action. As many actions are open as there are

publishers. An example of the potential for multiple actions is demonstrated by

the cases of Trkulja v Yahoo!10

and Trkulja v Google Inc (No 5)11

. Each of

those matters concern publications on the internet alleging that the plaintiff was

either involved in criminal activities, so involved with crime in Melbourne that

his rivals had hired a hit man to murder him, or that he was such a significant

figure in the Melbourne criminal underworld, that events involving him are

recorded on a Web site that chronicles crime in Melbourne. The plaintiff

5 Section 3 6 Section 6 7 Sub-section 7(1) 8 Sub-section 7(2) 9 Section 8 10 [2012] VSC 88 11 [2012] VSC 533


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succeeded in both actions when the respective juries found he had been

defamed. In the Yahoo! matter Kaye J assessed damages at $225,000 plus

interest and costs, and in the Google matter, Beach J assessed damages at

$200,000. There were slight differences in the findings by each of the juries but

on any reading of the cases the assessment of damages was well toward the

maximum amount available to the plaintiff under the Act. I shall return later to

amounts awarded by way of damages since the introduction of the Act.

15. Section 9 of the Act restricts those corporations who can sue for defamation

to those who might broadly be described as, not-for-profit corporations, or a

corporation that employs fewer than ten persons and is not related to another

corporation; so long as either of such corporations is not a public body.

16. As mentioned in relation to Mr Gangitano’s matter his action lapsed with his

death. No cause of action for or against a deceased person (including a

personal representative of the deceased) is open even if the action was

commenced before the death of the person12

.

17. The choice of law, a question that was often a very real one before the

introduction of the uniform legislation, is now governed by factors set out in

section 11 of the Act. If publication is within one jurisdiction then that will be

where the action is, if in more than one jurisdiction then it is where the harm

occasioned by the publication has its closest connection and, in deciding that,

the court will take into account where the plaintiff was ordinarily resident or the

extent of the publication in each relevant jurisdiction.

12 Section 10


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Alternative dispute resolution process

18. Part 3 of the Act is entitled Resolution of Civil Disputes without Litigation.

As mentioned earlier one of the objects of the Act as set out in section 3 is to

promote speedy and non-litigious methods of resolving disputes about the

publication of defamatory matter.

19. The Act provides that a publisher may make “an offer to make amends” to an

aggrieved person and any such offer to make amends is taken to have been

made without prejudice, unless the offer provides otherwise13

. Such an offer is

dependant upon the aggrieved person giving a notice in writing to the publisher

of their concerns (a concern notice) informing the publisher of the defamatory

imputations alleged to have been made (the imputations of concern). Upon

receipt of the concern notice the publisher has 28 days in which to make the

offer to make amends or to request further particulars from the aggrieved

person. If a request for further particulars is made then the plaintiff has 14 days

to provide them14

.

20. An offer to make amends must include a number of matters listed in section 15

of the Act and, should you ever find yourself in a position that you are assisting

a client to prepare one, you should use section 15 as a check list to ensure that

the offer will have its full effect should the matter proceed to litigation. Apart

from the obvious offer to make amends (or to attempt to) for the perceived

defamation and suitable publication thereof there must also be an offer to pay

reasonable expenses incurred by the aggrieved person while there may also be

an offer to pay a stated amount or to pay an amount to be determined by an

13 Section 13 14 Section 14


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arbitrator appointed by the parties or, finally, to pay the amount determined by a

court. If a court is the chosen path then the court will be the court in which any

proceedings have already been issued and, if none have yet been issued then in

the Supreme Court15

.

21. There is power for an offer to make amends to be withdrawn16

.

22. If the offer to make amends is accepted, and carried out, then the aggrieved

person cannot assert, continue or enforce any action for defamation in relation

to the matter which will then, in effect, be regarded as settled17

. A court may

(but need not) order the publisher to pay the aggrieved person expenses

reasonably incurred as a result of accepting the offer and order any costs

incurred that form part of those expenses be assessed on an indemnity basis18

.

23. Like many such provisions there is a sting in the tail for an aggrieved person

who chooses not to accept an offer to make amends. An offer to make amends,

and its rejection, may be pleaded as a defence by the publisher and a court will

look objectively at the offer to determine whether it was reasonable in all the

circumstances, and if it is judged to be so, an otherwise potentially successful

action may well fail19

.

24. Any admissions that are made in any offer to make amends is inadmissible in

any action for defamation whether civil or criminal although such admissions

may be considered when looking at the effects of this part of the Act and,

perhaps obviously, in any question as to costs20

15 Sub-sections 15(3) and 15(4) 16 Section 16 17 Section 17 18 Sub-section 17(2) 19 Section 18 20 Section 19


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25. In similar vein apologies offered by a publisher does not constitute an express

or an implied admission and is also inadmissible in any proceedings in like

manner to the offer to make amends21

.

Manner of trial

26. Litigation can be tried, at the election of either party, by a jury although the

court can veto such a request if the trial will involve a prolonged examination of

records or involves technical, scientific or other issue that cannot be

conveniently be considered and resolved by a jury22

. I make no comment on

this apparent comment on trial by jury!

27. While the jury (if one has been allowed) has the task of deciding whether

defamation has occurred and whether a defence has been successful, should the

plaintiff succeed it will be the judicial officer who decides what damages are to

be paid23

. It is to be noted that nothing in section 22 affects any law or practice

relating to special verdicts.

28. Section 23 prevents the bringing of a second action by the aggrieved person

against the same defendant in a different jurisdiction without leave of the court

to do so.

Defences

29. The Act does not affect the defences or exclusion of liability that may be

available to a defendant under the general law24

. An example cited in the Act is

21 Section 20 22 Section 21 23 Section 22 24 Section 24


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section 19 of the Constitution Act 1975 conferring privileges and immunities on

members of parliament. Importantly, while the state of mind of a publisher may

not be relevant in the plaintiff’s case it may be relevant in defeating a defence

raised25

.

30. Contextual truth is a defence if the defamatory imputations do not further

harm the reputation of the plaintiff because of the substantial truth of the

contextual imputations26

.

31. Absolute privilege is a defence, i.e. matters said within parliament or court

including accurate publication of the same27

. Likewise the publication of public

documents document or a fair summary or extract from a public document is a

defence28

. The definition of public document restricts the meaning to

government, curial and quasi government type documents.

32. A defence of fair reporting of proceedings of public concern is provided for

by the Act29

but this defence, once established, is defeated, if, and only if, the

plaintiff proves that the defamatory matter was not published honestly for the

information of the public or the advancement of education30

. Interestingly,

learned societies, sports associations and trade associations are all included

within the definition of matters that relate to “proceedings of public concern”.

33. A defence of qualified privilege exists if the defendant proves that the recipient

of the defamatory material had an apparent interest in having information on the

subject, and, the matter is published to give the recipient information on that

25 Sub-section 24(2) 26 Section 26 27 Section 27 28 Section 28 29 Section 29 30 Sub-section 29(3)


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subject and finally that the conduct of the defendant is reasonable in the

circumstances31

. The matters that a court will take into account in assessing

whether the criteria for qualified privilege have been met are set out in section

30 but, as mentioned earlier, this defence can be defeated if the plaintiff proves

malice but note that merely because reward is associated with the publication

does not equate to malice32

.

34. A defence of honest opinion can be made out if the opinion was of public

interest and is based on proper material and such defence extends to employers/

principals of commentators who might express defamatory honest opinions33

.

This defence too may be defeated if, and only if, the plaintiff proves that the

opinion was not honestly held at the time of publication, or in the case of an

employer/principal that they did not believe that the opinion was honestly held

by the commentator.

35. There is a defence of innocent dissemination where an employee/agent or

subordinate distributor and in that capacity did not know, nor could not

reasonably have been expected to know that the statement was defamatory34

.

Such a defence is likely to be raised where matters have been published on the

internet and an aggrieved person seeks to sue those who might be seen to have

the deepest pockets, Google and Yahoo perhaps? Despite the earlier mentioned

matters involving Mr Trkulja and both Google and Yahoo the matter is not yet

settled as to whether search engines are in fact publishers of such material.

31 Section 30 32 Sub-sections 30(4) and 30(5) 33 Section 31 34 Section 32


12

36. The very recent decision of Mansfield J in the Federal Court matter of Rana v

Google Australia Pty Ltd, Darda Gregurev, Nina Gregurev and Google Inc35

is

an example that the law on publication and the defences is still in a state of

development. The New Zealand Case of A v Google New Zealand Ltd36

considered that in order to be held liable as a publisher of defamatory material it

must be the case that the defendant “could have prevented the continued

publication of the material” or had the ability to bring about the cessation of

that material. The NZ court found that because of Google New Zealand being a

subsidiary of Google Inc the named defendant did not have the power to prevent

or bring about the cessation of the publication of the relevant material. A

similar decision was reached in Tamiz v Google Inc and Google UK Ltd37

.

37. Following the reasons in the NZ and UK cases cited Mansfield J held that, on

the facts before him in the Rana Case, Mr Rana had no reasonable prospect of

success and dismissed the action against Google Australia. Mansfield J

considered the differing approaches taken in Tamiz and Trkulja v Google Inc

LLC (No 5) and decided that as the law was not yet settled he would not, on that

basis, refuse to give leave to serve the proceedings on Google Inc which would

have had the effect of effectively dismissing that claim. His Honour gave Mr

Rana 28 days to file and serve a Further Amended Statement of Claim so that

the question of granting leave for overseas service might be considered in light

of the fresh pleadings.

38. The differing views expressed in Tamiz and Trkulja are important. Eady J in

Tamiz used the analogy of a graffitied wall and queried whether the owner of a

35 [2013] FCA 60 – judgment handed down 7 February 2013 36 [2012] NZHC 2352, cited in Rana at para 38 of that judgment 37 [2012] EWHC 449 (QB), cited in Rana at para 39 of that judgment


13

wall daubed with defamatory material could be said to be the publisher of it;

Beach J, on the other hand, expressed the view that it was open to the jury in his

case to find that Google was the publisher of the defamatory material because

the search engine operates precisely as intended by those who own it and who

provide its services. It should also be noted that in the Trkulja Case notice of

the offending material had been provided to Google Inc and Beach J found that

it was open to the jury to find that after receipt of such notice, “as infelicitous

as the letter of 22 September 2009 might have been”, the defendant did not

make out its defence of innocent dissemination.

39. The final defence contained in the Act is that of triviality, which relates to

circumstances where the publication was such that it was unlikely that the

plaintiff would sustain harm as a result38

.

Damages

40. Damages in any action are to bear an appropriate and rational relationship to the

harm sustained by the plaintiff39

. In the normal course of events damages for

non-economic loss are limited to $250,000 (plus CPI increases since 1 January

2006)40

. However, if the court is satisfied in the circumstances the

publication(s) is such as to warrant an award of aggravated damages then the

figure may be exceeded41

. Importantly, the state of mind of the defendant at the

38 Section 33 39 Section 34 40 Sub-section 35(1) – present value just over $300,000 41 Sub-section 35(2)


14

time of the publication is irrelevant, except where malice, or other state of mind,

affects the harm sustained by the plaintiff42

.

41. The awarding of exemplary or punitive damages was abolished by the Act43

.

42. Factors that will mitigate damages include an apology, a correction, the fact that

a plaintiff has issued or compromised or recovered damages from other

proceedings in relation to any other publication of matter having the same

meaning, or effect, as the subject defamatory matter44

.

43. Damages for multiple causes of defamation may be assessed as a single sum45

.

44. I make some general observations to perhaps dispel the view that there may be a

river of gold awaiting a person defamed.

45. In another case involving Mr Trjulka, while successful, the damages awarded

were modest. In 2009 Mr Trkulja sued Ms Trajkovska for defamation. The

defendant did not contest the proceedings, she did not appear at court. Mr

Trjulka was successful. The allegation was that the defendant had alleged to

have said to a group of five friends that Mr Trjulka had drugged her causing her

to become ill and lose sleep and that the plaintiff was guilty of a serious crime.

Similar allegations were allegedly made shortly after to another small group of

about twenty-four people, this time the allegation included that the plaintiff was

selling illegal drugs and that he once offered to sell his own daughters into

prostitution at the ages of five and six. Of interest was that the first publication

was alleged to have occurred on or about 6 January 2003 and the second on or

about 7 January 2003. Proceedings were not issued until 24 March 2009. One

42 Section 36 43 Section 37 44 Section 38 45 Section 39


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can only presume that as the defendant took no part in the proceedings any

question of limitations periods was not raised. Judge Davis46

was guided by the

terms of the Act and considered the matter relating to Ms Popovic, (referred to

earlier in this paper47

), as well as the case of Winn v Goodwin48

(where Judge

Shelton had awarded $30,000 in relation to defamatory statements repeated in

correspondence to VCAT) and finally a decision of Judge Campbell in the

matter of Gluyas v Tenana49

(where $20,000 was awarded to a defendant who

had defamed the plaintiff on the World Wide Web). Waving some judicial

magic wand Judge Davis awarded Mr Trkulja the princely sum of $3,000 by

way of compensatory damages. Mr Trkulja was also compensated $960.50 for

his own costs (as a self represented party) together with interest of $104.40.

46. Lest you should think that the County Court is the only court where damages

might be somewhat less than expected I would also refer you to the case of

Amanatidis v Darmos50

. In that matter Ms Anastasia Darmos caused to be

delivered to one person, and personally delivered to a priest, a letter containing

defamatory material of the husband and wife plaintiffs concerning the

disposition of the assets of a family member. Ms Darmos was the male

plaintiff’s sister. The relevant deceased was their father. The case was hard

fought with silk and junior for the plaintiffs and a Mr P. Darmos appeared for

Ms Darmos. The judgment does not record whether counsel for the defendant

was related to her although Wilson QC, for the plaintiff, alleged that there was

further aggravation caused by the manner in which the defendant’s case was

46 Trkulja v Trajkovska [2010] VCC 0010 47 [2002] VSC 220 48 [2008] VCC 1507 49 [2008] VCC 1161 50 [2011] VSC 163


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conducted and sought aggravated damages accordingly. Taking everything into

account Sifris J awarded the husband plaintiff $5,000 by way of compensatory

damages and the wife (who had been accused of robbing the dead by taking

money and papers from the deceased’s pockets – a defamation which His

Honour regarded as “particularly serious”) was awarded $10,000 which sum

included an unspecified amount for aggravated damages.

47. To provide a broader picture for the 2011 year the largest recorded award of

damages was $150,000 was in the matter of Nowark v Putland51

where the

plaintiff was allegedly called a “paedophile” and a “wog” while at a Surf Live

Saving Club. However, on appeal52

the judgment was overturned and the

matter was sent back for a retrial before a different judge with the Court of

Appeal exhorting the parties to consider whether some other form of settlement

could occur under the ancient legal maxim: enough is enough. The average in

New South Wales 2011 was $71,286 with the two largest recorded awards

being $100,000 each53

.

48. As mentioned earlier in the paper the late Mr Frank Hardy suffered the indignity

of being arrested and charged with criminal defamation. His grand daughter Ms

Marieke Hardy was recently involved in a defamation action concerning Mr

Johua Meggitt. Ms Hardy had been the subject of what she described as a hate

blog against her. Regrettably, on 9 November 2011 she incorrectly identified

Mr Meggitt as the man responsible for writing the blog under the nom de guerre

of James Vincent McKenzie. That matter settled for a reported $13,000 with

Ms Hardy, clearly the victim of defamation herself, having to pay Mr Meggitt

51 Queensland District Court at Southport delivered 8 November 2011 52 Putland v Nowak [2012] QCA 121 – judgment delivered 11 May 2012 53 www.justinian.com.au/bloggers/hateful-blogging.html


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for “outing” the wrong man. One can only assume that Ms Hardy will search

for the correct blogger and seek to make good the money that she has lost.

Costs

49. It is important to remember that in matters involving defamation the potential

for the award of costs on an indemnity basis to the successful party is very

real54

. Having regard to the attempts to resolve matters before ending at court a

successful party may be in a strong position when arguing that having

reasonably attempted to settle the matter then they ought to be awarded

indemnity costs as allowed under the Act.

Time limits – ONE YEAR

50. The other matter that is of paramount importance to any solicitor considering

a potential defamation action is the time limit. In the original Act section 48

prescribed the relevant time limits for the commencement of an action but these

were repealed in 2011 and are now to be found in sections 5(1AAA) and 23B of

the Limitation of Actions Act 1958. Section 5(1AAA) prescribes one year from

the date of publication for the bringing of an action for defamation. There is

provision within section 23B to extend that period to a maximum of three years

(but no longer) where it was not reasonable in the circumstances for the plaintiff

to have commenced an action in relation to the matter complained of within one

year of the publication. An application for an extension may be made even

though the one year period has passed.

54 Section 40

DEFAMATION LAW IN VICTORIA March 2013 …...DEFAMATION LAW IN VICTORIA March 2013 Introduction 1....

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