The year in Australian law

By Peter Bartlett and Sam White

Courts in different Australian jurisdictions have interpreted defamation in different ways on various issues.

Defamation

A Uniform Defamation Law came into operation in 2005 after some 30 years of lobbying. The law was a total compromise, needing the agreement of every state and territory and the Commonwealth.

It only came about because every state and territory had Labor governments and the Commonwealth had a strong and determined Liberal Attorney-General.

After some 12 years of operation, it is clear that the Defamation Act is in urgent need of amendments. Again, we see most state and territory governments with Labor governments. Can we reach consensus as to the reform we badly need?

As leading media QC Matt Collins points out “as soon as a publisher is found to have made a factual error and no matter how minor, in practical terms, the plaintiff succeeds”. He adds that it is relatively easy for a defamation plaintiff to establish that he has been defamed. It is then up to the defendant to establish that even though the plaintiff has been defamed and has suffered loss, the plaintiff should not be awarded damages.

That is a huge hurdle for a defendant, and one that is rarely achieved.

Mainstream media

Over the last 12 months, there have been a surprising number of defamation actions that have proceeded to judgment.

• Malcolm Weatherup v Nationwide News — more than $100,000 to a retired journalist accused of being “habitually intoxicated”, Queensland.
• Sean Carolan v Fairfax Media and Peter FitzSimons — $300,000 to a personal trainer accused of injecting football players with a banned substance and being involved with organised crime, NSW.
• Raelene Hardie v The Herald & Weekly Times and Andrew Rule — $250,000 to a strip-club owner, Victoria.
• Hanza Cheikho v Nationwide News (№4) — $100,000 to a Muslim man who took part in the 2012 Hyde Park protests, NSW.
• Lili Chel v Fairfax Media and Vanda Carson — a damages hearing is pending for a Kings Cross nightclub owner, NSW.

There have also been some positive results for the media:

• Stephen Dank v Nationwide News — Dank was awarded $0 damages, NSW.
• Graeme Cowper v Fairfax Media; Cowper v ABC — Cowper, the former NAB financial adviser, withdrew after a two week trial, NSW.
• Don Voelte v ABC — former CEO of 7 Group Holdings’s defamation claim failed before a jury.
• Nicholas Di Girolamo v Fairfax Media — Di Girolamo (lawyer to the Obeids) withdrew his action, NSW.
• Poniatowska v Channel 7 Sydney — Today Tonight succeeded on its pleaded defences (truth and fair comment). The plaintiff had initially been found to have acted fraudulently in relation to Centrelink payments, SA.
• Father Fleming v Advertiser — News — defences (truth, contextual truth) relating to sexual misconduct were upheld, SA.
• Natalie O’Brien v ABC — defences relating to fair comment, honest opinion and a matter of public interest upheld against a former Fairfax journalist accused of engaging in “trickery and behaving irresponsibly”, NSW. O’Brien is appealing this decision.

In spite of some of these outcomes, don’t get the idea that the defamation field is balanced. It is heavily weighted in favour of plaintiffs. The vast majority of cases are settled, not on the merits of the claim, but on a purely commercial basis. The cost of going to judgments is just too great.

Defamation trials are in many ways a lottery with the scales tilted against the defendants. Media defendants will only take an action to judgment if they believe they have a really strong case or if the plaintiff is too greedy in negotiations.

Social media

Another trend we are noticing is the number of defamation claims that relate to social media:

Facebook:

• Heather Reid v Stan Dukic — $180,000 for “irrational and ranting posts”, ACT.
• Kenneth Rothe v David Scott — $150,000 for an accusation of paedophilia, NSW.
• Kelly v Levick — $10,000 for an accusation of being a “money crazed bitch” by her husband, Queensland.

Other actions:

• Gratten v Porter — $170,000 after the defendant telephoned a school alleging sexual misconduct, Queensland.
• Dr Janice Duffy v Google Inc (№2) — $100,000 following search results and hyperlinks suggesting she was a “psychic stalker”, SA.
• Douglas v McLernon — $700,000 to three Perth businessmen defamed on the internet, WA.
• Dodds v McDonald — $150,000 — a Queensland barrister’s website accused the Victorian Police office of “executing” a 15 year old boy.
• Maras v Lesses — $75,000 after defamatory posts in a newsletter saw two members of the Greek Orthodox community in South Australia in Court.

It is clear from our experience that some of the negative trends we are observing could be slowed by considering the following amendments to the Uniform Defamation Act:

1. A serious harm test. Far too often our defamation law is used to intimidate the publishers, which has a chilling effect on free speech. The tort of defamation was developed for fine, upstanding citizens who are wrongly defamed. In furtherance of this a threshold test, like the test that has been introduced in the UK, would take us back toward where we should be.
2. A single publication rule. It is absurd that the Uniform Defamation Act has a 12 month limitation period for hard copy publications, but in practicality no limitation period for online publications. The reason is that every time a person downloads an online publication, it is considered a new publication for defamation purposes so the limitation period resets. In contrast to this, Britain has introduced a single publication rule, with a one year limitation period.
3. Rules to limit a plaintiff to one set of proceedings in relation to the same or similar defamatory imputations against all defendants. Too often we see plaintiffs suing several corporate entities for substantially similar (if not identical) articles that have been syndicated across various news websites. These publishers are effectively owned by the same parent company. This tactic that is used by plaintiffs subverts the purpose of the cap on damages contained in the Defamation Act, as it allows a plaintiff to succeed against multiple defendants with damages able to be awarded up to that cap multiple times. This is especially relevant to News Ltd and Fairfax Media, where the same or similar articles are syndicated and published in various newspapers and online sites.

Courts in different Australian jurisdictions have interpreted the Act in different ways on various issues including the assessment of damages and the defence of contextual truth.

There is also the vexed issue of the role of the Lange case’s “political discussion” defence. It appears that courts around the country have basically killed this defence off, which is a tragedy for freedom of speech in this country.

The cap on damages is indexed. It is now nearly $400,000. A leading plaintiff defamation SC recently observed that the cap is now “pretty reasonable”. That suggests to me that the cap is now too high.

Suppression orders

As Jason Bosland from Melbourne University recently wrote “… open justice is increasingly being undermined in Victoria due to the inappropriate use of suppression orders by the Courts”.

Jason is correct. Victoria has an Open Courts Act that is aimed at promoting the openness of our courts. The practical application of the Act, however, could better be described as facilitating the closing of our courts.

Few applications adhere to the notice requirements of the legislation, which means that the media is not given the opportunity to be heard and to act as a contradictor. Not only is this a breach of the legislative provisions, but it also more fundamentally deprives the open reporting of matters before our courts.

Orders are often drafted far more widely than is necessary to achieve their stated purpose. In many instances, orders do not comply with other the legislative requirements to specify precisely what is being suppressed and for how long the order is in effect.

By far the most fundamental problem we have observed is with the application of the grounds for making suppression orders that are clearly defined in the Act. While the grounds set out in the Act describe situations that should be reserved for exceptional circumstances, too often we see orders made in cases where a proper ground has not been adequately demonstrated.

Orders are most often made to avoid a real and substantial risk of prejudice to the proper administration of justice. However, in reality, many of these orders are being made in circumstances where the risk of jury prejudice could not be considered to be “real and substantial”. This includes an order that was made to avoid a risk that a juror would conduct his/her own internet searches about an accused, which would clearly be breach that juror’s obligations under the Juries Act.

Any risk of a juror intentionally breaching those obligations cannot be characterised as a “real and substantial” risk. It is too simple for judges and magistrates to exercise their discretion in making suppression orders whilst only paying lip service to the requirements of the Act.

Retired Mr Justice Vincent has been asked to review the suppression order legislation in Victoria. It is hoped that he will produce a report pointing out the problem in Victoria that does not appear to exist elsewhere in Australia.

Source protection

Since shield laws have been introduced in most states and territories, applications for disclosure of sources have largely failed.

However, the long running attempt by businesswoman, Helen Liu, to require The Age, Nick McKenzie, Richard Baker and Phillip Dowling, to disclose sources continues.

The High Court recently refused the newspaper’s leave to appeal the New South Wales Court of Appeal’s decision compelling disclosure of sources. Watch this space.

Peter Bartlett is a partner and Sam White is a lawyer with law firm Minter Ellison.