Australia: Mitigation in defamation: New South Wales Court of Appeal overturns Rochfort v Fairfax

Last Updated: 15 December 2010
Article by David Hope

A defendant in a defamation action may lead evidence of the plaintiff's bad reputation to reduce or mitigate damages. Until now, despite some criticisms of the principle, the courts have followed the rule in Rochfort v John Fairfax & Sons Limited [1972] 1 NSWLR 16 ('Rochfort') that evidence of bad character subsequent to the defamatory publication is not admissible in mitigation of damages.

In Channel Seven Sydney Pty Limited v Mahommed [2010] NSWCA 335, a specially constituted bench of the New South Wales Court of Appeal accepted the submission that Rochfort was wrongly decided and overruled the case.

The Rule in Rochfort

The rule in Rochfort is found in Sugarman ACJ's judgment in that case and is based on the proposition that defamation law is concerned with a person's "actual" or "current" reputation which means his or her reputation as at the date of defamatory publication. Referring to the authority of Goody v OdhamsPress Limited [1967] 1 QB 333. Sugarman ACJ held in Rochfort that

"The admissibility of convictions for [mitigation] is limited to convictions which have occurred prior to the publication of the defamatory matter sued for."

Channel Seven Sydney Pty Limited v Mahommed

Mr Mahommed was the subject of an episode of Channel Seven's current affairs programme, "Today Tonight", and associated promotions. A jury found that the broadcasts carried a number of defamatory imputations alleged by Mr Mahommed. The trial judge rejected Channel Seven's defences.

On the issue of damages, Channel Seven sought to rely on findings adverse to Mr Mahommed which were made after the broadcasts in separate civil proceedings heard by Justice Palmer. Channel Seven argued that the adverse findings should be admitted into evidence in mitigation of damages.

The trial judge ruled that he was bound by Rochfort and that the adverse findings were inadmissible in mitigation.

Channel Seven appealed on bases including that Rochfort was wrongly decided and should be overturned.

The Court of Appeal reviewed the authorities and identified a number of criticisms of the rule that evidence of post-publication events is not admissible in mitigation.

The Court of Appeal also addressed the rule as matter of logic. In this respect, the Court of Appeal reasoned that the assessment of damages in defamation proceedings can take into account harm that occurs after publication. For example, a plaintiff may lead evidence in support of a claim for aggravated damages of the defendant's subsequent conduct. A plaintiff may also lead evidence of statements made about him or her after the defamatory publication to prove actual harm.

The Court of Appeal also reasoned that damage to a plaintiff's reputation may continue after a defamatory publication. McColl JA (who gave the leading judgment) stated that it is not always the case that injury to reputation will end, or even diminish, as time passes. Her Honour provided the following examples:

  • belief in the sting of the imputations may become more entrenched over time
  • the number of people who become aware of the imputations may increase
  • the plaintiff's awareness of the diminished regard in which he or she is held may grow over time.

That a plaintiff's entitlement to damages may be affected by post publication events led the Court of Appeal to conclude that evidence of post publication matters should be admissible on the question of mitigation of damages.

Caution about using findings in civil proceedings

The finding that Channel Seven sought to have admitted into evidence was made in a civil proceeding. Beazley JA, in particular, thought that findings in civil proceedings should be approached with some caution when sought to be used as evidence of a plaintiff's bad character. Her Honour referred to the standard of proof in civil proceedings which is lower than the standard of proof in criminal proceedings and stated:

"That a finding is made on the civil standard ... does not diminish the cogency of such a finding. There is, however, a significant difference in a finding made on a civil standard from a finding made on the criminal standard."


The Court of Appeal's decision in Mahommed represents a significant departure from the principles that the Courts have applied over the past 30 years in assessing damages in defamation cases.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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