Over the last 18 months, there have been significant developments in Australian defamation law. In 2021, as part of the Stage 1 Defamation Reforms, a series of amendments were made to the Uniform Defamation Laws in several jurisdictions with the aim of improving the balance between protecting individual reputations and freedom of expression, particularly in matters of public interest. A year on, the interpretation of provisions introduced as part of those reforms (particularly the interpretation of the new “serious harm” threshold) is now under consideration. Other case law developments are also unfolding with an increase in the number of defamation matters passing through Australian Courts as a result of the increased use of social media, while high profile defamation cases commenced by the likes of Craig McLachlan, Clive Palmer and Mark McGowan (to name a few), have brought defamation law into the public spotlight and given the Courts an opportunity to examine some important legal issues. In this article, we examine several important case studies.
Collective Mind – Commercial Considerations
After its grand final loss to Richmond in 2017, the Adelaide Crows engaged the high-performance consultancy firm “Collective Mind” to oversee a camp during the pre-season in early 2018. Following the camp, rumours began circulating that the camp had distressed some of the Adelaide Crows players.1 Those rumours persisted, and, on 4 July 2020, The Age (based in Melbourne) published a detailed expose by journalist Sam McClure regarding allegations surrounding the pre-season camp, which McClure said was based on interviews with six anonymous players.2 McClure and commentator Caroline Wilson also made comments about the allegations on Channel 9.
In around late 2020, Collective Mind, and its directors Amon Woulfe and Derek Leddie (who were named in the reporting), commenced defamation proceedings against Nine Entertainment, the publishers of The Age, in respect of its reporting of the camp. Mr Woulfe and Mr Leddie denied the claims made by McClure and Wilson and alleged that they had suffered damage as a result (including lost clients).
Whilst Sam McClure stood by his reporting of the pre-season camp, The Age chose not to defend the proceedings in Court and reached a quick settlement. As part of that settlement, The Age agreed to retract the relevant publications, to pay both sides’ costs, and to publish the following comprehensive apology3:
“On 4 July 2020, an article was published in The Sunday Age and on The Age website reporting on the Adelaide Crows camp in 2018. The article made a number of statements about Amon Woulfe, Derek Leddie and Collective Mind. The Age acknowledges that Workplace SA made no findings of wrongdoing against Collective Mind. The Age acknowledges that the camp was run in good faith and with the players’ interests front of mind. If the article was read to suggest otherwise, The Age withdraws that suggestion.
“The Age apologises and expresses regret if the article caused hurt and offence to Mr Woulfe, Mr Leddie and Collective Mind. The Age has withdrawn these publications.”
Notably, this apology did not include any statement or admission to the effect that the reporting by The Age was inaccurate. In August 2022, following the publication of this apology, the same allegations as reported (and withdrawn) by The Age were then made by Eddie Betts in his memoir, and by other former players.4
This highlights the dilemmas that media organisations have traditionally faced in defending their publications. In theory, if The Age had been prepared to defend its reporting, it might have sought to rely on the defences of justification or qualified privilege. However, both present difficulties. For example, if The Age had pursued the defence of justification, it may have been required to call evidence from confidential sources who were likely promised anonymity such that the journalist would not be in a position to reveal their identify without breaching their ethical and professional obligations.5 Further, the qualified privilege defence has been historically problematic for media defendants to rely on because their publications are made to a wider and untargeted audience (in circumstances where qualified privilege requires a defendant to establish that they have a legal, moral or social duty to communicate information to a recipient who has a corresponding interest in receiving it).6
The new public interest defence introduced as part of Stage 1 Defamation Reforms7 may go some way to alleviating the difficulties/hurdles traditionally experienced by media defendants who wish to defend proceedings. However, in the meantime, media defendants must continue to set their risk appetite and consider the point at which commercial considerations will outweigh any desire to stand by the accuracy of a story.
Judicial consideration of the “serious harm” element
The serious harm element was introduced as part of the Stage 1 Defamation Reforms. Under the new section 10A, it is an element of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.8
This new element was introduced to combat concerns that defamation claims are increasingly being commenced by individuals for trivial, spurious and vexatious reasons.9 Ultimately, its purpose is to discourage the bringing of cases likely to result in modest damages awards, where the costs were disproportionate to the damages.10
Zimmermann v Perkiss – First preliminary determination of the serious harm element
In Zimmermann v Perkiss11, the NSW District Court delivered one of the first substantive judicial decisions on serious harm in Australia in making a preliminary determination about serious harm prior to the continuation of proceedings. The publications concerned a series of Facebook messages sent by the Respondent, Ms Perkiss (who worked at ‘Perky Pooches’), to the owner of another animal groomers, Ms McPherson. The messages concerned Ms Zimmerman, who had left Perky Pooches to work at Ms McPherson’s business. The imputations related to the theft of items from Perky Pooches.
An application was brought by the Respondent which sought a determination as to whether the “serious harm” element had been established. The Respondent argued that any adverse effect was short lived, insignificant and did not cause serious harm. Key to the determination of the application was the evidence of Ms McPherson, and the impact that the Facebook messages had on Ms McPherson’s opinion of the plaintiff.
Her Honour, adopted the principles for determining “serious harm” at as set out in Rader v Haynes.12
Her Honour found Ms McPherson was concerned by the Facebook messages, but demonstrated a “high regard for the plaintiff” and a suspicion that the Respondent was “lashing out because the plaintiff had gone to work for her instead”.13 Her Honour ultimately held that the applicant had “not suffered any harm in Ms McPherson’s eyes at all” and dismissed the proceedings.14
Interestingly, Her Honour also commented on the adequacy of Concerns Notices, and the need for Concerns Notices to clearly provide particulars of serious harm – or risk the Concerns Notice being deemed defective.15 The judgment also highlighted the importance of properly particularising serious harm in a claim,16 noting that if a claimant fails to properly particularise an adequate claim for serious harm, this is a threshold issue and the particulars of claim are liable to be struck out.17
The decision in Zimmermann v Perkiss demonstrates the need for an applicant to prove that there is sufficient harm to an individual’s reputation in connection with the alleged publication. It is not enough to commence proceedings relying on the mere fact that a defamatory statement may have been published. It also highlights that section 10A can be used as a mechanism by the respondent to dispose of proceedings at an early stage which would have otherwise resulted in low damages (and likely disproportionate costs).
Martin v Najem – serious harm element satisfied
In Martin v Najem,18 the Court held that the new serious harm element had been satisfied, thus finding that the matters complained of were, individually and jointly, capable of causing serious harm to the plaintiff.19 The matters complained of related to videos posted on Instagram which gave rise to the following imputations:
- the Plaintiff was a paedophile;
- the Plaintiff was a racist in that he mocks and verbally attacks Muslims;
- the Plaintiff was a racist in that he attacks Muslims; and
- the Plaintiff was the most hated person in the social media marketing industry.20
The Court was satisfied that all the imputations were conveyed and defamatory.21
In assessing the serious harm element, the Court held that: “Serious harm requires fact-rich proof of harm which is actually or likely to be serious, rather than inferences of serious harm and a tendency to cause harm being drawn from the number of persons who were in the audience or other generalised statements. There must be causation between the publication and the serious harm“.22
When determining whether serious harm had arisen in relation to the publications, the Court considered that the publications were unique in that Martin was threatened with serious physical and professional harm. Further, the extreme nature of the allegations was another important factor.23 Other factors included:
- the fact that the respondent was making a call to arms to his supporters, threatened to harm Martin and called on his supporters to help;
- there was strong evidence of an extensive “grapevine effect”;
- the damage done to the plaintiff, in terms of the impact the publications had on his health and concerns about his security, was compounded and ongoing by reason of evidence of the allegations “sticking” due to repetition by the defendant as recently as a few days before the hearing. The impact on his health was serious and capable by itself of constituting serious harm; and
- the potential for physical harm to the plaintiff, the plaintiff’s injured feelings and the gravity of the imputations.
While these factors alone are not enough to establish serious harm (noting the requirement for serious harm to reputation is concerned with actual or likely reputational damage), these factors did lead to a finding about the impact of the imputation, in all the circumstances, on the plaintiff’s reputation.24
Ultimately, the Court found that the plaintiff established that the publication of each of the matters complained of caused serious harm.25
The true costs of litigation – even when you’re ‘right’
In late 2020, Clive Palmer commenced defamation proceedings against the Western Australian Premier, Mark McGowan. Mr McGowan then counter-sued alleging that Palmer defamed him in the media. The primary judgment found both parties had defamed each other.26
Ultimately, Clive Palmer received damages of $5,000 while Mark McGowan received $20,000 because Justice Michael Lee accepted his evidence about his hurt feelings.27
Although both parties were successful in their respective claims, the nominal damages awarded did not outweigh the significant costs incurred by both parties. Justice Lee made the following remarks which, in effect, highlighted that not all litigation is worth pursuing:
“These proceedings have not only involved considerable expenditure by Mr Palmer and the taxpayers of Western Australia, but have also consumed considerable resources of the Commonwealth and, importantly, diverted Court time from resolving controversies of real importance to persons who have a pressing need to litigate.”28
Whilst both Mr Palmer and Mr McGowan were found to have defamed each other, the Court ordered that Clive Palmer was to pay part of Mr McGowan’s legal costs while Mr McGowan was not required to pay anything in return.
In this respect, the Court held there was an “asymmetry of responsibility” for the “long and costly” hearing of the case, because Mr Palmer launched the proceedings in the first instance but only McGowan “was willing to draw back” by offering to resolve the proceedings in December 2021.29
It held that Palmer’s “failure to engage with the offer did not serve to best facilitate the optimal use of the resources of the court and the parties”.30
The judgment made it clear that the Courts will put weight on the conduct of the parties when considering costs, noting that: “Mr Palmer may not be unduly troubled about spending his money on litigation, but he had an obligation to facilitate the just resolution of the dispute according to law, and as quickly, inexpensively and efficiently as possible.”31
The Court also decided against awarding indemnity costs, irrespective of the offer made by Mr McGowan, on the basis that there had been a mixed result, while Mr McGowan increased the costs of the action by running a number of relatively unmeritorious arguments, including a common law and statutory qualified privilege defence that could not succeed.32
The costs judgment highlights some important factors:
- the need for parties to demonstrate to the court that have taken appropriate steps to resolve the matters in dispute prior to trial;
- the effect offers can have on the outcome of proceedings;
- the consequences of spending money on litigation versus actual payout of damages; and
- the overarching obligations of parties to resolve matters efficiently.
Craig McLachlan case
In May 2018, Craig McLachlan commenced defamation proceedings against actress Christie Whelan Browne, Fairfax and the ABC over a joint ABC-Fairfax investigation carried out in January 2018 which claimed (at a high level) that McLachlan had engaged in sexual misconduct and sexual harassment during the 2014 production of The Rocky Horror Show. The defendants relied on the defences of justification and contextual truth. Whilst McLachlan ultimately abandoned the proceedings midway through the trial in May 2022, earlier interlocutory rulings made by the NSW Supreme Court in respect of the operation of the principles of the defence of contextual truth provided a useful reminder of the potential strategic importance of that defence to a defendant.
The contextual truth defence is, in effect, a defence to an action in defamation where the defendant asserts that the defamatory matter for which he or she would otherwise be liable did not further harm a plaintiff’s reputation because of the existence of a more injurious and truthful imputation published at the same time.
During the course of the proceedings, the plaintiff made an application to have the defence of contextual truth struck out on the basis that the contextual imputations pleaded by the defendants were imprecise.
In this respect, the Court noted that the imputations pleaded by McLachlan all specifically related to events that allegedly occurred during the 2014 production of The Rocky Horror Show, whereas the contextual imputations pleaded by the defendants were not confined to those specific allegations but instead pleaded attributions of bad character in general terms. For example, the first imputation in the proceedings against Fairfax (Fairfax proceedings) included that “McLachlan is calculated, manipulative and a sexual predator“.33
In an earlier hearing, the Court ruled that these imputations were imprecise, and the defendants subsequently sought leave to re-plead the contextual imputations in response to the ruling. For example, in the Fairfax proceedings, the first contextual imputation was reformulated as follows: “that the plaintiff is a sexual predator in that he has indecently assaulted, exposed himself to and sexually harassed multiple women“.34
The defendants argued that the reformulated contextual imputations were permissible on the basis that there is a distinction between imprecision and generality,35 and the fact that, whilst a contextual imputation in general terms might permit evidence extraneous to the matter complained of to be adduced at the trial, it does not follow that the imputation is imprecise (and therefore liable to be struck out).36
In doing so, the defendants relied on Fairfax v Zeccola37 where the NSW Court of Appeal held that the purpose of the contextual truth defence is that a plaintiff should not be permitted to avoid serious stings in defamatory matter by selective pleading. The defendants further submitted that selective pleading includes pleading a specific imputation and not the general.38
The Court accepted a submission by the plaintiff that a contextual imputation has to be formulated so that the facts, matters and circumstances that can be relied on to establish its truth bear a reasonable relationship to both published material and the contextual imputation.39
The defendants argued that the subject matter of the relevant articles about McLachlan was not confined to the 2014 production of The Rocky Horror Show, but also concerned “conduct on the part of Mr McLachlan that reveals … a persistent characteristic”.40 Ultimately, the Court was satisfied that the alleged discreditable conduct contained in the relevant articles was in the nature of a persistent characteristic, such that the introduction of allegations which tended to prove that “persistent characteristic”, but which were unrelated to the 2014 production of the Rocky Horror Show, would not contravene the principles referred to above (as submitted by the plaintiff).41
Notably, however, the Court ruled that that the defendants should only have leave to plead a contextual imputation that confines the imputation to conduct directed at female colleagues in the workplace.42
The outcome ultimately allowed the media defendants to argue a contextual truth defence based on an imputation directed at McLachlan’s conduct towards his female colleagues in the workplace generally. The defendants were therefore permitted to introduce evidence from several of McLachlan’s female colleagues on the ABC drama, “The Doctor Blake Mysteries”.43 As a result, by the time the matter reached trial, the defendants had planned to lead evidence from eleven women who were to claim they had been harassed by McLachlan while working with him in television and the theatre – significantly more than if the defendants had been confined to evidence in relation to McLachlan’s behaviour on The Rocky Horror Show.
Reform
The case studies referred to above offer a snapshot of the developments in defamation law over the last few years. The law will continue to develop with Part A of the Stage 2 Review of the Model Defamation Provisions having now commenced.
This article was written by Caitlin Surman, Senior Associate and Alexandra Douvartzidis, Associate, and reviewed by Peter Campbell, Partner.
1Joseph Friedman, The Gazette of Law and Journalism, “Something to Crow about”, 17 August 2022.
2Jai Bendall, Action launched against The Age, Channel 9 over Adelaide Crows camp stories, 12 September 2020, news.com.au https://www.news.com.au/sport/afl/action-launched-against-the-age-channel-9-over-adelaide-crows-camp-stories/news-story/018b75a0848512fdb58c23abcffa4c3e
3Above n 1.
4Above n 1.
5Above n 1.
6Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at [263]-[264] (McHugh J).
7See, eg, Defamation Act 2005 (SA), s27A.
8Defamation Act (SA) 2005, s10A.
9New South Wales, Parliamentary Debates, Legislative Assembly, 29 July 2020 (the Honourable M Speakman SC, Attorney General.
10Newman v Whittington [2022] NSWSC 249 at [30] –[46]; Wilks v Qu (Ruling) [2022] VCC 620.
11[2022] NSWDC 448.
12RADER (PSEUDONYM) v HAINES (PSEUDONYM) [2022] NSWCA 198
13[2022] NSWDC 448, [110].
14Ibid, [152].
15[2022] NSWDC 479.
16[2022] NSWDC 479.
17[2022] NSWDC 479.
18[2022] NSWDC 479.
19Ibid.
20Ibid, [44] and [52].
21Ibid, [51] and [57].
22Ibid, [70].
23Ibid, [71].
24Ibid, [71].
25Ibid, [77].
26Palmer v McGowan (No 5) [2022] FCA 893.
27Ibid.
28Ibid, [523].
29Ibid, [19] – [20].
30Ibid, [33].
31Ibid, [31].
32Ibid, [35].
33McLachlan v Browne (No 7) [2018] NSWSC 1914 (McLachlan No 7), [7].
34McLachlan No 7, [25].
35McLachlan No 7, [28].
36McLachlan No 7, [26].
37[2015] NSWCA 329,[70].
38McLachlan No 7, [29].
39McLachlan No 7, [31] – [32].
40McLachlan No 7, [29].
41McLachlan No 7, [35].
42McLachlan No 7, [36].
43Stephen Murray, The Gazette of Law and Journalism, “Dr Blake Mystery”, 16 December 2018.
