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  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 
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  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
belief in the sting of the imputations may become more
entrenched over time
the number of people who become aware of the imputations may
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
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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