Over the past few months, the New South Wales Supreme Court has
become the battle ground for the first string of defamation claims
to be heard under the uniform Defamation Act. Yet, in some
ways, the cases have raised more questions about the new
legislation than they have answered.
Uniform defamation legislation came into force across Australia in
2006 in the form of similar Defamation Acts passed in all States
and Territories, except the Northern Territory. The new Acts sit
side-by-side with the common law, allowing defendants to rely on
statutory and common law defences. The previous framework for
defamation in each State and Territory, whether codified (eg NSW)
or common law (eg Victoria), continues to apply to any material
published before 1 January 2006.
Defamation claims under the new Acts have only recently reached the
courts, reigniting discussion over their controversial provisions.
Mercedes Corby's widely reported action against Channel Seven
disclosed a loophole in the statutory defence of contextual truth.
Hot on the heels of Corby's case, another high profile claim
filed by Judy Davis was decided in the same Court, resulting in an
uncertain assessment of damages in the actress' favour. Yet it
was Holmes v Fraser, a lesser known case concerning political
donations, that snuck in as the Court's first damages decision
under the new Act.
Brett Holmes v Andrew Fraser
On 12 June 2008, Justice Simpson ordered NSW National MP Andrew
Fraser to pay NSW Nurses' Association General Secretary Brett
Holmes damages of $70,000 for a malicious publication. The matter
complained of was a letter written by Fraser Nine days before the
2007 NSW state election, claiming Holmes directed $1 million of the
Association's funds towards the Australian Labour Party to
secure a safe pre-selection seat for himself.
The parties agreed that all issues were to be heard by a judge
alone, avoiding the confusion that arose in Davis' action over
the respective roles of the judge and the jury (see below).
Justice Simpson found the two imputations pleaded by Holmes were
conveyed and defamatory, and rejected the defences of honest
opinion and qualified privilege pleaded by Fraser.
Justice Simpson noted the defence of honest opinion under the new
Act has a wider scope of protection than the common law defence of
fair comment. While the common law defence protects comments based
on accurately stated or identified facts, the statutory defence
provides additional protection to comments made on occasions of
qualified privilege. Qualified privilege arises when there is a
duty to publish, as well as a public interest in receiving
information about the subject, and the publisher has acted
reasonably.
Mercedes Corby v Channel Seven Sydney Pty Ltd
Corby's defamation action was the first to be heard by a NSW
jury under the new Defamation Act (NSW), but it was not
the prospect of new precedent that drew the crowds. Corby, the
sister of convicted drug trafficker Schapelle Corby, sued Channel
Seven Today Tonight presenter Anna Coren and reporter
Bryan Seymour, over 31 imputations she claimed had arisen from
three Today Tonight stories and a Seven News
bulletin.
The stories and bulletin featured Jodie Power, a former friend of
the Corbys, who claimed Corby had taken various illicit substances,
sold and smuggled marijuana, and was knowingly involved in sister
Schapelle Corby's importation of marijuana into Bali. Seven
pleaded the defences of truth and contextual truth.
Resisting the NSW tradition of splitting the jury's
deliberation between consideration of the imputations and the
defences, Justice Simpson instructed the jury to consider the
meanings conveyed by the broadcasts together with the truth of
those meanings. Any defence of contextual truth, she ordered,
should be considered only after the primary defence of truth.
Of the 31 imputations pleaded by Corby, the jury found 29 of them
to be conveyed and defamatory. Following Justice Simpson's
ruling that Seven could not possibly plead truth to five of the
imputations (most of which concerned Corby's guilt or
involvement in relation to criminal offences), the jury rejected
the defence of truth for all but one of the remaining imputations
(that Corby had possessed marijuana).
Following the failure of its truth defence, Seven cut short the
trial, withdrawing its defence of contextual truth and reaching a
confidential damages settlement with Corby. It was a disappointing
move, not just for those who hoped the Power-Corby mud-slinging
would go on a little longer, but for media lawyers, who were
expecting the case to shed some light on how certain provisions of
the new Act, two in particular, are to be applied.
The first fuzzy area relates to the defence of contextual truth,
which requires the defendant to prove the publication contained one
or more other substantially true imputations (contextual
imputations), and the defamatory imputations complained of did no
further harm to the plaintiff's reputation given the
substantial truth of those contextual imputations. Under the new
Act, this defence contains a potential loophole as the plaintiff
may appropriate the defendant's contextual imputations in their
amended statement of claim. Stuart Littlemore QC (acting for Corby)
exploited this loophole, amending Corby's claim to adopt and
plead Seven's contextual truth imputations against it, with the
result that the contextual imputations no longer belonged to Seven.
As Seven eventually withdrew its defence of contextual truth, the
validity of the potential loophole was not put to the test.
Secondly, the confidential agreement reached by the parties over
damages removed the need for the Court to assess damages, including
aggravated damages. Littlemore QC had indicated his intention to
seek aggravated damages exceeding the maximum amount established by
the Act, on the grounds that the claims were broadcast seven times.
He was expected to argue the normal payout should accordingly be
multiplied by seven, later commenting extra-judicially that there
was 'some room for creativity' with damages under the new
Act. Unfortunatelyhe did not have the chance to test that
speculation.
Judy Davis v Nationwide News Pty Ltd
After an ambivalent approach to damages, Justice Peter McClellan
ordered Nationwide News to pay actress Judy Davis $140,000 for two
similar articles that ran in the Daily Telegraph. The
articles related to Davis' involvement in a council meeting
held to discuss a proposal to erect floodlights at a local park
where children often play sport in the evening.
Prompted by concerns expressed by Terry Tobin QC, acting for Davis,
that it would be too 'complex' and 'convoluted' for
the jury to return a general verdict, Justice McClellan reverted to
the traditional 'section 7A' structure of defamation trials
in NSW. He ordered the jury to consider the imputations separately
before considering any applicable defences. He also reserved some
elements of the defences for his own consideration.
Of the original ten imputations pleaded, including that Davis was a
child-hater, a hypocrite, and had behaved in an angry and arrogant
manner, the jury found only two to be conveyed and defamatory, that
Davis had acted unreasonably and selfishly in opposing the
developments, and was heartless and indifferent to the risk of
injury to young children.
Nationwide News pleaded the defences of honest opinion and
qualified privilege. In relation to the first defence, the jury
found the matter complained of was presented as fact, and not as
opinion honestly held.
On qualified privilege, Justice McClellan reserved the question of
reasonableness for himself, but left it to the jury to decide on
the factual circumstances. The jury's finding that the
publications had been actuated by malice defeated any privilege
attaching to the articles.
On the question of damages, Justice McClellan, conceded he had
'never quite understood' the section in the Act relating to
aggravated damages. While the judge prepared his damages judgment,
Tobin QC speculated, extra-judicially, that section 35(2) was a
potential 'gateway' through which judges could exceed the
cap to award unlimited aggravated damages.
When the rather conservative damages judgment was eventually handed
down, the 'gateway' theory proved not to apply in the
present case, in awarding Davis $140,000, Justice McClellan
stressed the cap applies to limit damages even where there are
multiple causes of action.
More questions than answers
Davis v Nationwide News marks what appears to be a
deliberately conservative approach to the assessment of damages
under the new Act. It remains to be seen whether the NSW Supreme
Court, and the Supreme Courts of other states and territories, will
follow suit. One does wonder whether the Court in Corby v
Channel Seven, had it been required to assess damages, would
have had less qualms about exceeding the cap, in light of the high
ratings, national reach and multiple publications (in Seven
News as well as Today Tonight) of the defamatory
matter.
These two cases show that old habits die hard when it comes to the
procedure governing defamation trials. The judges' approach to
deliberation splitting, not to mention role splitting between the
judge and jury, while mixing the new with the old, displayed a fond
adherence to the structure of the traditional 'section 7A'
NSW defamation trial.
Of concern to practitioners is the potential loophole to be found
in the defence of contextual truth provided by the new Act. It is
unfortunate that the Court in Corby v Channel Seven was
deprived of the chance to consider the intended application of the
defence. Yet it should only be a matter of time before the loophole
is challenged in one of the country's Supreme Courts.
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