Proceedings for defamation in NSW

[5-4000] Introduction

The topics covered by this section are:

  • pleadings used in defamation actions

  • common interlocutory applications, such as capacity arguments

  • conduct of jury and judge-alone trials

  • assessment of damages

  • limitation issues (Limitation Act 1969, s 14B)

  • costs, and

  • a list of texts for further reading.

Defamation actions are perceived as “controversial” (P George, Defamation Law in Australia, 2nd ed, LexisNexis, Sydney, 2012 (“George”) at [3.13]) because freedom of speech and protection of reputation are difficult to balance. Many of the complexities derive from the maintaining of this balance.

Although defamation actions are popularly believed to be actions by the famous or newsworthy against the media, analysis of damages awards (T K Tobin and M G Sexton, Australian Defamation Law and Practice, LexisNexis, Sydney, 1991 (“Tobin & Sexton”) at [60,100]) shows that most publications are non-media newsletters, electronic publications such as emails (see Tobin & Sexton at [24,000]–[24,090]) or slanders, where the extent of publication is limited. The high cost and complexity of proceedings are important considerations (Walter v Buckeridge (No 4) [2011] WASC 313; Lamont v Dwyer [2008] ACTSC 125 at [116]) when case-managing defamation claims and hearing trials.

[5-4005] The legislative framework

Defamation actions in Australia are governed by substantially uniform Defamation Acts (“UDA”) of each State and Territory. The relevant legislation in each of the other States and Territories is as follows: Defamation Act 2005 (Qld); Defamation Act 2005 (SA); Defamation Act 2005 (Tas); Defamation Act 2005 (Vic); Defamation Act 2005 (WA); Civil Law (Wrongs) Amendment Act 2006 (ACT) (amending the Civil Law (Wrongs) Act 2002 (ACT)) and the Defamation Act 2006 (NT) (collectively referred to as “the uniform legislation”).

In NSW, the Defamation Act 2005 replaces the Defamation Act 1974, which applied to publications made before 1 January 2006. The principal differences between the repealed NSW legislation and the UDA are the changed role of the imputation (which is no longer the cause of action), the increased role of the jury (which now determines defences as well as imputations issues) and a cap on general damages. The UDA do not codify the law of defamation. Common law principles operate alongside the UDA.

A comparison table for the relevant sections of the UDA in all States and Territories of Australia is set out in Tobin & Sexton at [60,000]. This is followed by the text of the Defamation Act 2005 (at p 21,511ff), and extracts from the UCPR (Tobin & Sexton at [31,505]–[31,583]). This helpfully puts together the main legislative provisions for defamation actions.

Two other relevant statutes are the Limitation Act 1969 and the Broadcasting Services Act 1992 (Cth). Different, and restrictive, limitation provisions apply to defamation actions.

Limitation Act 1969, s 14B provides that an action for defamation is not maintainable if brought after the end of a limitation period of one year running from “the date of the publication of the matter complained of”. There is no “single publication rule” in Australia, and this provision should not be read to mean the first date of the publication, which creates problems where the matter complained of is an electronic publication, as a separate cause of action accrues each time defamatory matter is published. “Publication” occurs each time the matter is read, heard or seen. The limitation period can be extended in limited circumstances: Limitation Act 1969, s 56A; however, the effect of s 56A has similarly been complicated by the impact of online publication on the multiple publication rule.

[5-4006] Defamation law reform

The changes clearly necessary to defamation law resulting from online publication problems have led to increasing calls for reform.

On 7 June 2018 Mr Mark Speakman SC, Attorney General for NSW, announced the release of the Statutory Review of Australia’s uniform defamation legislation. The review had been mandated by s 49 of the Defamation Act 2005 (NSW) as being undertaken after the period of five years from the date of assent (26 October 2005) to this Act (namely from 26 October 2010).

This review process is expected to result in legislation by 2020.[7]

[5-4007] Publications made on the internet

The most significant changes to defamation law over the past decades arise from the impact of electronic publication upon traditional principles of law developed for printed publications, often with a limited extent of publication. By comparison, publications on the internet are not only instantaneous and worldwide but are continuous in nature, in that a new cause of action is created each time the publication is accessed or downloaded: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575. All areas of defamation law are affected, including limitation issues, defences and damages assessments.

There are defences falling outside the uniform legislation for internet service providers (“ISPs”) as well as the defence of innocent dissemination (outlined in more detail below). Broadcasting Services Act 1992, Sch 5, cl 91 provides a defence for ISPs (M Collins, Law of Defamation and the Internet, 3rd ed, Oxford University Press, 2010 (“Collins”) at [16.144]). Pursuant to the Broadcasting Services Act, “ordinary electronic mail” and “information that is transmitted in the form of a broadcasting service” are excluded from the definition of “internet content”: Sch 5 cl 3; Tobin & Sexton at [24,060].

Broadcasting Services Act 1992, Sch 5, cl 91 provides a defence for internet service providers (“ISPs”) and internet content hosts (Collins at [16.144]). “Ordinary electronic mail” and “information that is transmitted in the form of a broadcasting service” are excluded from the definition of “internet content”: Broadcasting Services Act sch 5 cl 3; Tobin & Sexton [24,060]. The law relating to internet publication is changing rapidly; in Tamiz v Google Inc [2012] EWHC 449 (QB), Eady J considered an ISP was not liable even after notification that its service was being used for the communication of defamatory matter, principally because of the sheer volume of internet publication. See also Bunt v Tilley [2006] 3 All ER 336; Metropolitan International Schools Ltd t/as Skills Train and/or Train2Game v Designtechnica Corp t/as Digital Trends [2011] 1 WLR 1743; Karam v Fairfax New Zealand Limited [2012] NZHC 887.

In Google Inc v Duffy [2017] SASFC 130 the Full Court of the Supreme Court of South Australia affirmed the decision of the first instance judge (Blue J) that an ISP was liable for publication of both search results and web articles in its capacity as a secondary/subordinate publisher of defamatory material (the Full Court also upheld the trial judge’s assessment of damages at $100,000). Google’s search was liable in this context because it facilitated the reading of the matters complained of in a substantial, proximate and indeed essential way, not unlike placing a “post-it” note on a printed publication (at [173]) and by reason of the instantaneous nature of the publication: at [181].

While the leading Australian case remains Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, consideration of principles relating to electronic publication is likely to be a rapidly changing area of the law: see K Gould, “Hyperlinking and defamatory publication: a question of ‘trying to fit a square archaic peg into the hexagonal hole of modernity’?” (2012) 36 Aust Bar Rev 137; see also M Paltiel, “Navigating cyberspace — Australian precedent regarding internet liability” (2013) 16(2) INTLB 26.

In Trkulja v Google LLC (2018) 356 ALR 178, the High Court of Australia set aside the summary dismissal of claims for defamation arising out of the publication by the defendant of “snippets”. This complex decision has been the subject of considerable academic debate (see K Barnett, “Trkulja v Google LLC”, High Court Blog, The University of Melbourne, 3 July 2018). The law in relation to liability for publication by internet service providers generally will remain in a degree of uncertainty for some time.

[5-4010] The pleadings

Defamation cases are conducted in the Supreme Court in accordance with Practice Note No SC CL 4 — Defamation List (commenced 5 September 2014), a similar form of which is in use in the District Court (DC Practice Note No 6 — Defamation List (commenced 9 February 2015)). The practice note regulates the speedy and efficient disposal of interlocutory applications and emphasises the importance of proportionality. Defamation proceedings may also be commenced in the Federal Court of Australia where there is a cause of action in the ACT: Crosby v Kelly (2012) 203 FCR 451. A jury trial may not be sought in such trials as the regulations for civil trials in the Federal Court of Australia do not contain provisions for jury trial: Wing v Fairfax Media Publications Pty Ltd (2017) 255 FCR 61. In addition, as hearings in the Federal Court are conducted under the docket system, interlocutory issues will generally be left to the trial, including imputation arguments, as occurred in Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33; see Goodfellow v Fairfax Media Publications Pty Limited [2017] FCA 1152 at [25]–[28].

The pleadings in defamation action (which do not require verification: UCPR r 14.22) consist of the statement of claim, the defence (and cross-claim if applicable) and, depending upon the defences pleaded, a Reply particularising issues such as malice.

The statement of claim

This pleading must contain full particulars of the matter complained of and its context, the imputations pleaded to arise (whether in their natural and ordinary meaning or by true innuendo), details of publication (including particulars of identification if the plaintiff is not named) and republication, as well as any claim for special damages and aggravated compensatory damages: Tobin & Sexton at [25,015]–[25,115]. Punitive damages are not available: Defamation Act 2005, s 37. A claim for interest should be pleaded (Tobin & Sexton at [25,120]) but, if omitted, may still be claimed.

Generally speaking, liability for publication is construed broadly: Webb v Bloch (1928) 41 CLR 331. The plaintiff may bring proceedings not only against the author of the publication but any other person who has authorised or otherwise participated in the publication — such as the proprietor of a newspaper, the source of the information or the person who repeats the libel — and the choice of whom to sue is a matter for the plaintiff: Tobin & Sexton [5260]–[5265].

The tort of defamation is based upon the communication of defamatory meaning, and not simply upon the words spoken (or written). In Monson v Tussaud’s Ltd [1894] 1 QB 671 the plaintiff brought proceedings for defamation after the Madame Tussaud museum placed a wax statue of him carrying a gun in a section devoted to famous murders. In fact a verdict of “not proven” had been given in Mr Monson’s trial for murder (the jury, however, only awarded a farthing in damages). Even photographs can, in some circumstances, convey a defamatory meaning: Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443.

There must be a plea of publication to a third party and, if the plaintiff is not named, particulars of identification should be provided, with verification if considered necessary: Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188; Younan v Nationwide News Pty Ltd [2013] NSWCA 335 at [14]–[22].

Where the publication was made on the internet, the element of publication requires proof that the article was downloaded from the web server: Dow-Jones and Co Inc v Gutnick (2002) 210 CLR 575 at [25]–[28], [44]. The plaintiff must therefore set out for each matter complained of that it was downloaded and seen by at least one person, as well as the State or Territory in which that person downloaded the material and, if the plaintiff was not named, particulars of how the person downloading the matter complained of identified the plaintiff.

The precise words said to have been written or spoken must also be pleaded; it is not enough to identify their substance: Collins v Jones [1955] 1 QB 564. Where the matter complained of is not defamatory on its face, the plaintiff must plead those extrinsic facts said to give rise to the defamatory imputation, and set out how persons knowing these would have understood the publication to refer to the plaintiff: Tobin & Sexton [3360]–[3370].

Where a plaintiff brings proceedings against a defendant for a republication of the defendant’s words made by a third party, in circumstances where the republication is asserted to be the natural and probable consequence of the defendant’s publication, this should be pleaded and particularised. The pleading should state whether the republication is relied upon as a cause of action pleaded against the defendant, or as a matter going only to damages: Tobin & Sexton at [5295]–[5395].

Damage to reputation in defamation actions is presumed. It is not necessary to allege or prove injury to reputation: Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118 at 150 per Windeyer J; Bristow v Adams [2012] NSWCA 166. The plaintiff nevertheless should include a claim for aggravated compensatory damages in the relief sought. This should include any claim for special damages and/or aggravated compensatory damages, together with particulars of the facts and matters relied upon: UCPR r 15.31.

General damages, under the UDA, are capped: s 35. A plaintiff has also always been entitled to claim general damages for loss of business (as opposed to special damages): Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225; Tobin & Sexton at [25,110]. The relationship between an Andrews claim and the cap on damages has not yet been judicially considered. Any claim for special damage should be particularised: Tobin & Sexton [25,105].

Where a claim for aggravated damages is made out, the claim for general damages, no matter how small, falls away, and the claim for damages may then exceed the cap: Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154. This has resulted in a significant increase in the quantum of damages, the most recent such judgment being Wagner v Harbour Radio Pty Ltd [2018] QSC 201.

Claims for damages for defamation attract interest from the date of defamation until the verdict: John Fairfax & Sons v Kelly (1987) 8 NSWLR 131. Although interest may be awarded even if a claim for interest is not pleaded (Murphy v Murphy [1963] VR 610), it is preferable for it to be pleaded.

The defence

The defence sets out whether the publication, identification and imputations are admitted, the defences pleaded to the publication and matters relevant to damages, such as a plea of mitigation of damages.

Where the matter complained of is restricted to publication in Australia, defences under the Act and the common law of Australia must be pleaded. Where the matter complained of is pleaded to have been published outside Australia (for example, publications in other jurisdictions, via the internet), defences in the jurisdiction where the publication is heard, read or downloaded will apply: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575.

In Australia, defences fall into three main categories: justification, fair comment and privilege (absolute or qualified): “Speaking generally, a defamatory publication is actionable only when it is not excused, protected or justified by law”, M McHugh, “What is an Actionable Defamation?”, Aspects of the Law of Defamation in New South Wales, J Gibson (ed), Law Society of NSW, 1990, p xxxi. Both statutory and common law defences may be pleaded, as the entitlement to rely upon common law defences, such as the “Hore-Lacey” defence (David Syme & Co Ltd v Hore-Lacey (2000) 1 VR 667; see Besser v Kermode (2011) 81 NSWLR 157 at [58] and [75]) has been retained: ss 6(2) and 24. This provision means that common law decisions on issues such as publication, defamatory meaning, and damages are also largely applicable (note, however, that the distinction between libel and slander at common law has been abolished: Defamation Act, s 7).

The requirements for pleading and particularisation of statutory defences are set out in UCPR rr 14.31 and 15.21. The specific requirements in relation to each of these defences, and the relevant section of the Defamation Act for each such defence, are as follows:

1. 

Justification (s 25): UCPR rr 14.32 and 15.22. The most common problems with this defence arise from last-minute particulars, or an application to plead it just before the trial: Fierravanti-Wells v Nationwide News Pty Ltd [2010] NSWSC 648; Tobin & Sexton at [25,175]. The particulars of this defence, other than in clear situations where it is fully set out in the publication, should be set out with precision, and may include material not referred to in the matter complained of, including events subsequent to the publication: Tobin & Sexton at [25,180]–[25,190].

2. 

Contextual truth (s 26): UCPR rr 14.33 and 15.23. The scope of this defence has been reduced by Besser v Kermode, above. See Tobin & Sexton at [25,145]–[25,160]. There are differing views as to whether a plaintiff may “plead back” the contextual imputations: Hall v TCN Channel Nine Pty Ltd [2014] NSWSC 1604. This decision was one of a series of judgments expressing conflicting views on the defence, notably the correct way to apply it at trial: Phillips v Robab Pty Ltd [2014] NSWSC 1520. The pleadings and particulars are described in Tobin & Sexton at [25,165]–[25,170].

3. 

Absolute privilege (s 27): UCPR rr 14.34 and 15.24. This defence is commonly dealt with as a summary judgment application.

4. 

Publication of public and official documents (s 28): UCPR rr 14.35 and 15.25.

5. 

Fair report of proceedings of public concern (s 29): UCPR rr 14.36 and 15.26.

6. 

Qualified privilege (s 30): UCPR rr 14.37 and 15.27. The requirements for particulars of this defence are set out in Tobin & Sexton at [25,215]–[25,220]. If this defence is pleaded, the plaintiff should usually file a reply, in order to put in issue whether the publication was “reasonable” in all the circumstances within the meaning of ss 30(1)(c) and 30(3). Note that this defence differs from the common law defence, which is described in further detail below.

7. 

Honest opinion (s 31): UCPR rr 14.38 and 15.28. This statutory defence is, with some modifications, adapted from the common law defence of fair comment, but it is still possible to rely upon the common law defence. There are three forms of honest opinion defence: s 31(1)–(3). If this defence is pleaded, the plaintiff should usually file a Reply, in order to put in issue the matters in s 31(4). The defence has rarely been successful, but see O’Brien v Australian Broadcasting Corp [2016] NSWSC 1289.

8. 

Innocent dissemination (s 32): UCPR rr 14.39 and 15.29. This defence, once little used, is of significance for internet publications. In addition to s 32, an ISP may rely upon Broadcasting Services Act 1992 (Cth), Sch 5 cl 91: Tobin & Sexton [24,035]; Collins at [3.08], [16.133]–[16.144]. The common law defence of innocent dissemination also survives.

9. 

Triviality (s 33): UCPR rr 14.40 and 15.30. This defence (that the circumstances of publication were such that the plaintiff was not likely to suffer harm) is unique to Australian law, and is modelled on Defamation Act 1974, s 13.

No specific provision has been made in the UCPR for the procedure of offer of amends, statutory defences (for absolute or qualified privilege) under other legislation, or for common law pleadings such as the Lange defence: Lange v Australian Broadcasting Corp (1997) 189 CLR 520.

The nature of offer of amends, statutory defences of good faith and the common law defences may briefly be summarised as follows:

1. 

Offer of amends:Defamation Act Pt 3, Div 1. This provides for service of a “concerns notice” (s 14(2)) followed by a procedure for the making of an offer to make amends (s 15) which may be withdrawn (s 16) or accepted (s 17). Where there is a failure to accept a reasonable offer to make amends “a court” (s 18(2)) must determine whether the offer was made as soon as practicable and was reasonable, having regard to the circumstances set out in s 18(2). The provisions of the Defamation Act are unclear as to whether determination of these issues is a matter for the jury or for a judge sitting alone: Hunt v Radio 2SM Pty Ltd (No 2) (2010) 10 DCLR (NSW) 240. The defence is not limited to small publications, and substantial damages may be awarded. In Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 McCallum J held that an offer of amends of $50,000 and an apology were insufficient where the imputations were gravely serious claims that a teacher had sexual relations with underage students; the award of $350,000 is the highest sum awarded under the uniform legislation.

2. 

Statutory defences containing a good faith provision: An example of a statutory provision offering a defence for a publication made in good faith is Health Care Complaints Act 1993 (NSW), s 96.

3. 

Common law justification (David Syme & Co Ltd v Hore-Lacey (2000) 1 VR 667): Although earlier decisions of the NSW Court of Appeal held that this defence was not available for publications in other States and Territories where the action was brought in NSW, the Court of Appeal has now held that it is available: Besser v Kermode. The availability of the common law defence (Hore-Lacy nuance imputations) has been doubted in NSW: Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380; but cf Setka v Abbott [2014] VSCA 287.

4. 

Comment at common law: The pleadings and particulars for the common law defence of comment are similar to those of the statutory defence. Given the greater flexibility of the statutory defence, this defence is unlikely to be often encountered.

5. 

Qualified privilege at common law: This is the most commonly pleaded defence, and the particulars necessary to establish it differ from the statutory defence. It is not possible, in this overview, to deal with the elements of the defence in detail. The general principles are set out in Tobin & Sexton at [14,010]–[14,065]. Attempts by the media to rely upon this defence have been unsuccessful: Tobin & Sexton at [14,070] and Lloyd-Jones v Allen [2012] NSWCA 230. Qualified privilege at common law was described as a limited defence in Bennette v Cohen [2009] NSWCA 60 at [139]–[143]. However, the High Court has since reviewed and clarified elements of reciprocity and interest in Papaconstuntinos v Holmes a Court (2012) 87 ALJR 110, and rejected the asserted requirement, in cases such as Bennette, for “pressing need” (at [51]) for the publication to have been made. The High Court explained the operation of the defence where the publication was made in response to an attack (see also Harbour Radio Pty Ltd v Trad (2011) 245 CLR 257).

6. 

The Lange defence: The right of freedom of speech implied in the Constitution, and its impact upon defamation law, in relation to publications in the media concerning “government and political matters”, is explained in Lange v Australian Broadcasting Corp (1997) 180 CLR 520. The decision has been criticised as limited (see R Brown, Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States), 2nd edn, Thomson Reuters, at [27-58] n155), and its impact on defamation law since 1997 has been slight. It is not possible to deal with the complexities of this defence in this overview of defamation law. Briefly stated, the decision imposes a more stringent test of reasonableness in place of the common law qualified privilege requirement for malice. The defence has, for most practical purposes, been superseded by the s 30 defence. For a detailed analysis, see P Applegarth, “Distorting the Law of Defamation” (2011) 30(1) University of Queensland Law Journal 99-117.

The availability of a defence of qualified privilege at common law for statements made in election campaigns is limited to pending elections: Marshall v Megna [2013] NSWCA 30. There is no independent third category of qualified privilege falling outside the ambit of “election cases” and the Lange defence in respect of which the requirement of reasonableness is dispensed with: Marshall at [120] per Beazley JA; see also Tobin & Sexton at [14,025].

7. 

Consent: This rarely used defence, which requires the defendant to prove the plaintiff consented to the publication being made, has been successful in two actions in Australia: Austen v Ansett Transport Industries (Operations) Pty Ltd [1993] FCA 403; Dudzinski v Kellow (1999) 47 IPR 333; [1999] FCA 390; Dudzinski v Kellow [1999] FCA 1264; cf Frew v John Fairfax Publications Pty Ltd [2004] VSC 311. See R Brown, above, Ch 11.

Summary judgment applications may be brought by the defendant in certain limited circumstances:

  • if the plaintiff is not entitled to bring defamation proceedings (for example, a deceased person (Defamation Act, s 10), or certain corporations (s 9));

  • where a defence of absolute privilege is raised, or in relation to statements made concerning court proceedings (Cumberland v Clark (1996) 39 NSWLR 514 at 518–521) or in parliament (Della Bosca v Arena [1999] NSWSC 1057);

  • where the proceedings may be struck out as an abuse of process; for example, where other proceedings have been brought for the same publication: Bracks v Smyth-Kirk (2009) 263 ALR 522. Leave to commence proceedings under s 23 may be granted retrospectively: Carey v Australian Broadcasting Corp (2012) 84 NSWLR 90; or

  • where issues of proportionality (Bleyer v Google Inc (2014) 88 NSWLR 670 ) or lack of serious harm (Kostov v Nationwide News Pty Ltd [2018] NSWSC 858) arise. This is a controversial area of the law, as these doctrines have yet to receive appellate confirmation.

Summary judgment applications brought on the basis that the claim is trivial, successful in the UK, have also been brought in NSW: Barach v University of NSW [2011] NSWSC 431; Bristow v Adams [2012] NSWCA 166 at [41] as well as in other jurisdictions: Lazarus v Azize [2015] ACTSC 344; Asmar v Fontana [2018] VSC 382. However, in Bleyer v Google Inc (2014) 88 NSWLR 670, McCallum J permanently stayed proceedings pursuant to UCPR r 12.7 and CPA s 67 where the publication was limited, the defences strong and enforcement in the United States unlikely. Additionally, pleadings which are clearly hopeless may be dismissed summarily: McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133; Dank v Cronulla Sutherland District Rugby League Football Club Ltd (No 3) [2013] NSWSC 1850 at [28]; Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [101]–[103]; Trkilja v Dobrijevic (No 2) [2014] VSC 594.

The reply

If a plaintiff intends to meet any defamation defence either by alleging malice or by relying upon any other matter that would defeat the defence, this must be pleaded in a reply containing the particulars set out in UCPR rr 15.1 and 15.31, these being the facts, matters and circumstances relied upon by the plaintiff to establish the allegations or matters of defeasance: see Tobin & Sexton at [18,001]–[18,060] and [25,225]. The onus of proof lies upon the defendant to establish matters relevant to the defences, such as qualified privilege, but once these elements have been established, the burden of establishing malice lies on the plaintiff, not upon the defendant: Dillon v Cush [2010] NSWCA 165 at [63]–[67].

Other pleadings

  • Claims for indemnity between defendants or against third parties: Defendants may bring claims under the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) for contribution or indemnity against each other or against a third party.

  • Cross claims: Claims for defamation have been brought as a cross-claim to a claim for misleading and deceptive conduct (Madden v Seafolly Pty Ltd [2014] FCAFC 30) and infringement of copyright (Boyapati v Rockefeller Management Corp (2008) 77 IPR 251 as well as to a claim for defamation (Greinert v Booker [2018] NSWSC 1194).

  • Discovery and interrogatories: The principal difference between discovery and interrogatories in defamation action is that more than 30 interrogatories may be administered: Lewis v Page (unrep, 19/7/89, NSWSC). This allows for a number of commonly used interrogatories to be administered as to the defences, see [5-4040] below.

[5-4020] Applications to amend or to strike out pleadings and other pre-trial issues

Applications to amend or strike out portions of the pleadings in defamation actions occur most commonly at two stages. The first is at the commencement of the litigation. Applications for rulings at this stage usually consist of challenges to the form and capacity of the plaintiff’s imputations and, after the defence has been filed, if contextual truth is pleaded, an application by the plaintiff either to strike out or to plead back contextual imputations: McMahon v John Fairfax Publications Pty Ltd (No 3) [2012] NSWSC 196. Applications by plaintiffs to plead back contextual imputations are now often refused: Waterhouse v The Age Co Ltd [2012] NSWSC 9. Applications to strike out proceedings commenced after the one-year limitation period are generally brought at the commencement of the proceedings.

Applications for amendment are also often brought shortly before the trial: Lee v Keddie [2011] NSWCA 2; McMahon v John Fairfax Publications Pty Ltd [2011] NSWSC 485. They may also be brought during (TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682 at 695; Ainsworth v Burden [2005] NSWCA 174 at [51]), or even after the trial: Snedden v Nationwide News Pty Ltd [2011] NSWCA 262 at [52]ff. Where the result of amendment would be to adjourn or delay the trial, these applications are often refused: Lee v Keddie.

In New South Wales, defamation actions are managed in a specialist list where interlocutory motions are dealt with as part of case management.

[5-4030] Applications to amend or to strike out imputations

When a judge makes orders striking out imputations, pleadings, or a cause of action, reasons should be given. In Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6, the NSW Court of Appeal stated that interlocutory decisions affecting a party’s case, such as the striking out of imputations, should be contained in a judgment, and that the practice of making rulings without giving reasons was “regrettable”: at [102].

Imputations pleaded by parties fall into three categories: those pleaded by the plaintiff, those pleaded by the defendant pursuant to s 26 Defamation Act, and “Hore-Lacy” imputations: David Syme & Co Ltd v Hore-Lacey (2000) 1 VR 667; Besser v Kermode (2011) 81 NSWLR 157 at [56].

There have been many judgments concerning form and capacity of imputations in New South Wales since the procedure first became widespread in the late 1970s. This is because, prior to the UDA, the imputations (and not the publications from which they were derived) were the cause of action: Defamation Act 1974 s 9. An amendment to the Defamation Act 1974, in 1994, restricted the jury’s role essentially to this issue only. This led to many perverse verdicts in the NSW Supreme Court. The UDA accordingly abandoned the concept of a cause of action based on the pleaded imputations; the cause of action is the publication. New South Wales decisions on these issues prior to the UDA need to be read with this history in mind.

The principles to follow on capacity issues are those set out by the High Court in Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716, where the court (in particular Kirby J at [20]–[22]) warned against “excessive refinement” in relation to pleading imputations. The High Court essentially restated these principles in Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460.

The relevant principles in relation to challenges to the plaintiff’s imputations may be summarised as follows:

1. 

Imputations may be challenged on three bases: “capacity” (whether the imputation is conveyed); form; and defamatory meaning.

2. 

The correct approach to determining issues of capacity is set out in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164–167, Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300 at [19]–[20] and Favell v Queensland Newspapers Pty Ltd, above. In Hue v The Vietnamese Herald [2009] NSWSC 1292 at [9], McCallum J summarised the principle very simply as being “whether the meaning contended for is reasonably capable of being conveyed by the matter complained of”, noting the statement in Favell at [17] that the question is ultimately what a jury could properly make of the imputation. The High Court stated:

Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out: Favell v Queensland Newspapers Pty Ltd [2004] QCA 135; Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [6].

3. 

Issues of the proper form of imputations, like capacity, are questions of practical justice rather than philology: Drummoyne Municipal Council v Australian Broadcasting Corp (1991) 21 NSWLR 135 at 137 per Gleeson CJ; see also Gant v The Age Co Ltd [2011] VSC 169 at [40]. Objections commonly raised are that the words in the imputation offend some principle of grammar or meaning by being ambiguous or a “weasel word”. If the word used is slang which is not widely known, the imputation may require an alternative true innuendo pleading: Allsop v Church of England Newspaper Ltd [1972] 2 QB 161 (“bent”).

4. 

An imputation is defamatory, according to the most commonly applied test, if the words tend to lower the plaintiff in the estimation of right-thinking members of society generally: Sim v Stretch [1936] 2 All ER 1237; Radio 2UE Sydney Pty Ltd v Chesterton, above, at [3]–[7]. Courts should be slow to find that an imputation is not defamatory, or that the bane is outweighed by the antidote (Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749), as these are quintessentially matters for the tribunal of fact.

5. 

Similar principles apply to challenges to the form and capacity of the defendant’s imputations.

[5-4040] Other interlocutory applications

Other pre-trial applications range from urgent applications for an interlocutory injunction, to arguments unique to defamation law (such as so-called “strike in” applications) to arguments common to other causes of action, such as disputes about the adequacy of discovery or answers to interrogatories.

1. 

Discovery before action: Where a plaintiff seeks preliminary discovery to enable proceedings to be commenced, an application may be brought under UCPR r 5.2(2)(a). There is, however, a rule of practice that both during the process of discovery and in pre-discovery proceedings, a media defendant will not be required to disclose the sources for the matter complained of if those sources provided information to the media defendant on conditions of confidentiality (“the newspaper rule”): John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 (the Newspaper Rule case); Guide Dog Owners’ & Friends’ Association v Herald & Weekly Times [1990] VR 451.The principles are set out by McColl JA in Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506 at [46]–[52]. For a recent decision which refers to the relevant provisions of the CPA, see Liu v The Age Co Ltd [2012] NSWSC 12.

2. 

Interlocutory injunction: The circumstances in which an interlocutory injunction will be granted in defamation actions are rare as, in addition to the barriers faced by litigants in other causes of action (American Cyanamid v Ethicon Ltd [1975] AC 396), a plaintiff in defamation proceedings faces the additional hurdle of balancing the asserted damage to his reputation with the defendant’s entitlement to freedom of speech: Church of Scientology of California Inc v Readers Digest Services Pty Ltd [1980] 1 NSWLR 344; see also Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57. Justice Heydon, in the latter case, in dissent, said that the effect of the majority’s decision was that “as a practical matter no plaintiff is ever likely to succeed in an application against a mass media defendant for an interlocutory injunction to restrain publication of defamatory material on a matter of public interest, however strong the plaintiff’s case, however feeble the defences and however damaging the defamation”: at [170]. The relevant principles are discussed in Tobin & Sexton at [23,001]–[23,037] and in George at 39.2. Such applications are generally brought in the Supreme Court, although the District Court’s jurisdiction would permit the making of ancillary interlocutory orders.

Interlocutory injunctions may become more common as defamation actions increasingly reflect privacy concerns: D Rolph, “Irreconcilable Differences? Interlocutory injunctions for defamation and privacy” (2012) 17 Media and Arts Law Review 170-200. Actions for breach of privacy in England (a cause of action not available in Australia) are a fertile source for such applications; actions for breach of privacy now outnumber defamation actions: see International Forum for Responsible Media, Inforrm Blog, Table of Media Law cases, accessed 20 November 2019.

3. 

Discovery, interrogatories and challenges to pleadings: While the same principles applicable to discovery in civil litigation generally apply to defamation, failure to provide full discovery may have serious consequences: Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264; Palavi v Queensland Newspapers Pty Ltd (2012) 84 NSWLR 523. A defendant may not, however, insist upon discovery prior to providing particulars of justification which make the documents sought relevant: see the cases discussed in Tobin & Sexton at [25,230].

Topics upon which interrogatories may be administered by the plaintiff include specific admissions in relation to publication, identification (if the plaintiff is not named), intention to convey the imputations, the extent of publication and readership, inquiries prior to publication, belief in the truth of the imputations and failure to apologise: Clarke v Ainsworth (1996) 40 NSWLR 463. The topics about which a defendant may interrogate include “reaction” (Kermode v Fairfax Media Publications (No 2) [2011] NSWSC 646 at [27]–[29]), injury to reputation, in the form helpfully set out by Hunt J in Assaf v Skalkos (1995) A Def R 52-050, and the plaintiff’s belief as to falsity: Clout v Jones [2011] NSWSC 1430. More than 30 interrogatories may be administered: Lewis v Page (unrep, 19/7/89, NSWSC).

Applications to strike out defences, and in particular the defence of justification, have been granted in a number of actions in the Federal Court: see for example ABC v Chau Chak Wing [2019] FCAFC 125.

4. 

Jury-related applications: Where one party has requisitioned a jury, the opposing party may challenge the requisition. The most common grounds are that the correct procedure for requisitioning a jury has not been followed (Bristow v Adams (2010) 10 DCLR (NSW) 261) or where it is asserted the grounds set out in Defamation Act, s 21 are relied upon: Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1200. The CPA does not confer power on the court to dispense with a jury by the court’s own motion: Channel Seven Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315 at [94]. Note that jury trials are not available for defamation proceedings heard in the Federal Court of Australia: Wing v Fairfax Media Publications Pty Ltd [2017] FCAFC 191.

5. 

Non-publication orders: Applications for injunctive relief may be accompanied by an application for a non-publication order, such as the anonymisation of the parties’ names (W v M [2009] NSWSC 1084) and/or for the proceedings to be conducted in the absence of the public: AMI Aus Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 1290. See [1-0400]ff.

6. 

Strike-in applications: The plaintiff must plead the defamatory words and any other words capable of materially altering the meaning of the matter complained of. Determining the context of the publication may be difficult if it is, for example, one of a series of publications separated by time, or space, such as book instalments (Burrows v Knightley & Nationwide News Pty Ltd (1987) 10 NSWLR 651), or if the plaintiff has sued on part only of a broadcast: Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 at 413–5; Australian Broadcasting Corp v Obeid (2006) 66 NSWLR 605 at [26]. An application may be made to “strike out” portions of a matter complained of if the plaintiff has included material that is arguably a separate publication or (more commonly) to “strike in” portions of a publication which have been excluded by the plaintiff. Applications of this kind are likely to become more frequent due to the fluid nature of electronic publications. Potential future problems include hyperlinks: Crookes v Wikimedia Foundation Inc (2011) SCC 47 (Supreme Court of Canada); Collins at [3.11]ff; [5.29]–[5.34].

7. 

Summary judgment applications: See [5-4010].

8. 

Transfer of proceedings to another court: Applications to transfer proceedings to another jurisdiction proceed on the same bases as applications in other actions. For a recent application, see Pugh v Morrison [2011] ACTSC 44. In Crosby v Kelly (2012) 203 FCR 451 the Full Court of the Federal Court held that Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 9(3) created a surrogate Commonwealth law by reference to the jurisdiction of the ACT Supreme Court, thereby conferring jurisdiction to hear defamation actions. Applications to cross-vest defamation proceedings may occur more commonly following this decision, particularly where a Lange defence is pleaded. Jury trials are not ordered in the Federal Court and in addition a more generous approach to pleading issues applies; see Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152 at [52]–[74] (form of imputations) and [80] (inutility of capacity hearings in non-jury trials).

[5-4050] Limitation issues

When the UDA was enacted, all jurisdictions amended their limitation statutes to provide that a cause of action was not maintainable if brought after the end of the limitation period (one year) from the date of publication of the matter complained of: Limitation Act 1969 s 14B. An extension of up to three years may be granted, but the test (that the plaintiff must demonstrate that it was not reasonable to have commenced an action within the one year period from date of publication) has been called a “difficult hurdle”: Rayney v State of Western Australia (No 3) [2010] WASC 83 at [41].

The test of unreasonableness is a difficult one to satisfy; in Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175, the court (by majority) considered that negotiations for an offer of amends (where the plaintiff contended it was not reasonable to start proceedings which would imperil these negotiations) was an insufficient ground.

As there is no “single publication” rule in Australia, the cause of action does not run solely from the first date of publication; subsequent publications, particularly on the internet, should not be caught, although the cases on this issue were initially in conflict: Rayney, above, at [45] per Martin CJ. That is no longer the case, and the practical result, given that most publications now sued upon are electronic, is that the one-year limitation period for defamation, which was intended to promote the prompt commencement of proceedings, has been rendered largely ineffective: Otto (aka Ashworth) v Gold Coast Publications Pty Ltd [2017] NSWDC 101; L Mullins, “Open justice v suppression orders: Tales from the front line”, Gazette of Law and Journalism, August 2017.

[5-4060] Conduct of the trial (judge sitting alone)

Where the parties have not requisitioned a jury, the trial judge will determine all issues of fact and law. In such cases, a separate hearing as to damages is not necessary.

The role of the judge during the trial Due to the complexity of defamation trials, judges used to play an active role in both jury and non-jury trials, by putting questions to witnesses, pointing out Brown v Dunn problems (Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219) or limiting address time in accordance with the principles discussed in GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15. While this is still the case in other common law jurisdictions (Brown, [17.2(3)(a)]), this may not be the case in New South Wales: Lee v Cha [2008] NSWCA 13.

Many of the applications that parties make during a trial occur whether a jury is empanelled or not; for convenience, applications which mainly relate to the jury’s role are set out in a separate section below. The following are examples of rulings which may be sought in a judge-alone trial:

  • No case submission: where the claim is clearly hopeless, an application may be made during the trial for the whole case to be struck out: Wijayaweera v St Gobain Abrasives Ltd (No 2) [2012] FCA 98 (note that this application proceeds on different principles to those applicable to an application to take a defence or the whole action from the jury; see [5-4070] below);

  • Reputation: the plaintiff may seek to lead evidence about good reputation (Mizikovsky v Queensland Television Ltd (No 3) [2011] QSC 375) and/or the defendant about bad reputation: Tobin & Sexton at [26,575];

  • Special damage: evidence, including expert evidence, may be led, in the same manner as in other causes of action: Tobin & Sexton at [26,555];

  • Splitting/inverting the case: see Tobin & Sexton at [26,568]; French v Triple M Melbourne Pty Ltd (Ruling No 2) [2008] VSC 548.

[5-4070] Additional matters for conduct of the trial before a jury

Delineation of the role of judge and jury

The jury determines whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established: s 22(2). It is for the judge, however, to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount: s 22(3).

Empanelling the jury

Defamation Act s 21 provides that either the plaintiff or the defendant may elect for proceedings to be tried by a jury. The procedure for requisitioning a jury, and payment of the fee, is set out in UCPR rr 29.2 and 29.2A. The number of jurors is four, not 12 as in criminal trials. An application for a jury of 12 instead of four may be made: Ra v Nationwide News Pty Ltd (2009) 182 FCR 148. The procedure for empanelment is similar to that in a jury trial. Each party has two challenges.

Judge’s opening remarks to the jury

The opening remarks that a judge makes in a defamation jury trial are similar to those made in criminal trials. It may be appropriate to raise with counsel whether to give a Skaf direction: R v Skaf (2004) 60 NSWLR 86; [2004] NSWCCA 37; see Dehsabzi v John Fairfax Publications Pty Ltd (No 4) (2008) 8 DCLR (NSW) 175.

The questions to go to the jury

The jury is required to answer specific questions as to whether the imputations pleaded are conveyed, whether the imputations are defamatory, and disputed issues of fact relevant for the determination of the defence: Morgan v John Fairfax & Sons Ltd (1990) 20 NSWLR 511.

The questions are drafted by the parties. Any disputes about the questions which the jury must answer should be formulated and ruled upon by the trial judge, preferably before the trial has started.

Opening and closing addresses of counsel

While each party must be given reasonable time to address the jury the judge may take into account the temporal restraints of the trial: Keramianakis v Regional Publishers Pty Ltd (2007) 70 NSWLR 395.

Applications to discharge the jury during the trial

Applications to discharge the jury are commonly made, but rarely granted. The most common bases for such an application are:

  • inflammatory language by counsel (Lever v Murray (unrep, 5/11/92, NSWCA));

  • cross-examination outside the case as particularised (Antoniadis v TCN Channel Nine Pty Ltd (unrep, 3/3/97, NSWSC));

  • misstatements by counsel as to the law (Lee v Cha [2005] NSWCA 279; Lee v Cha [2006] HCATrans 132).

Separate ruling on imputation meanings

An application may be made by a party (usually the defendant) for the jury to retire, prior to evidence on defence issues, to consider the meaning of the plaintiff’s imputations: see Brown [17.2(3)(d)]. Care should be taken in making such an order if a common law defence of justification has been pleaded, as the jury would, for the purpose of determining the common law defence, need to go behind their findings as to the imputations pleaded by the plaintiff: Fierravanti-Wells v Channel Seven Sydney Pty Ltd (No 3) (2011) 13 DCLR (NSW) 307.

Delays during the trial

Adjournments due to unavailability of witnesses during a civil trial are dealt with on different principles to that of a criminal trial and are matters for the discretion of the judge: Turner v Meryweather (1849) 7 CB 251; Singleton v Ffrench (1986) 5 NSWLR 425.

Application to take a defence away from the jury

On an application by a party, the trial judge may take a defence (Greig v WIN Television NSW Pty Ltd [2009] NSWSC 632) or the whole case (Barbaro v Amalgamated Television Services Pty Ltd (1989) 20 NSWLR 493) from the jury.

When a submission is made that an issue or a defence should be withdrawn from the jury, it is the trial judge’s duty to determine whether there is any evidence on which the jury could reasonably find that the party opposing the motion has made out a case on the balance of probabilities. The judge has regard to the evidence favouring the party opposing the motion and disregards the evidence of the proponent of the motion: McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42 at 47 per Clarke JA.

Summing up by the judge to the jury

It is the trial judge’s duty to instruct on all issues raised by the pleadings and evidence, in an orderly and precise way, correctly stating the applicable law and how that law is to be applied: Brown at [17.2(2)(c)(v)]; Singleton v Ffrench (1986) 5 NSWLR 425. A helpful outline of what the trial judge should cover is set out by Lord Bingham of Cornhill CJ in Reynolds v Times Newspapers Ltd [1999] 4 All ER 609 at 961. A pro forma summing up for a jury in a civil trial is set out in this Bench Book at [3-0030].

It is acceptable for the trial judge to emphasise particular arguments by one side or to take such other steps as are necessary to maintain a reasonable equilibrium in the way in which issues go to the jury: Illawarra Newspapers Pty Ltd v Butler [1981] 2 NSWLR 502 at 509 per Samuels JA. While judges express opinions in other common law jurisdictions (Brown [17.2(3)(d)], and formerly did so in Australia (Jackson v Brennan (1911) 13 WALR 121; Cunningham v Ryan (1919) 27 CLR 294; Seymour v Australian Broadcasting Corp (1990) 19 NSWLR 219 at 225 per Glass JA), judges should be cautious about expressing views at any stage of the trial: Channel Seven Sydney Pty Ltd v Mohammed (2008) 70 NSWLR 669.

Any objection to the judge’s summing up must identify the points of law or questions of fact with precision: Buck v Jones [2002] NSWCA 8.

The jury determines all disputed issues of fact (Morgan v John Fairfax & Sons Ltd (1988) 13 NSWLR 208) and not issues of law: Singleton v Ffrench, above.

The jury verdict

Where a jury is deadlocked, consideration may be given to giving a Black direction: Criminal Trial Courts Bench Book, 2nd ed, 2002 at [8-060]. A majority verdict may be taken: Morgan v John Fairfax & Son Pty Ltd (1990) 20 NSWLR 511.

If the jury, in answers to questions, has given answers which appear to indicate misunderstanding, the judge is entitled to question them and to give them an opportunity to amend the answers: Australian Broadcasting Corp v Reading [2004] NSWCA 411 at [111]. Where a jury verdict is asserted to be perverse, an application to set the verdict aside may be made. The procedure is set out in Hall v Swan [2009] NSWCA 371, one of a series of perverse Supreme Court s 7A jury verdicts. Apart from these s 7A verdicts, perverse verdicts in defamation are rare.

[5-4080] Common evidence problems

Rulings on evidence, such as the admissibility of business records, applications for exclusion or limitation of evidence pursuant to Evidence Act 1995 s 135 and issues of credit, generally proceed in the same manner as other civil trials, whether there is a jury or not. Some common problems in jury trials are:

  • tender of a transcript of the matter complained of where it is a television or radio broadcast: Foreign Media Pty Ltd v Konstantinidis [2003] NSWCA 161 at [17]–[18] (foreign language publication); Nuclear Utility Technology & Environmental Corporation Inc (Nu-Tec) v Australian Broadcasting Corporation [2010] NSWSC 711;

  • cross-examination outside the particulars, which may lead to an application to discharge the jury (TCN Channel Nine Pty Ltd v Antoniadis (1998) 44 NSWLR 682);

  • admissibility of a criminal history, which is permissible under Defamation Act, s 42;

  • whether the jury should hear evidence relevant only to the issue of damages, although damages are an issue for the trial judge (s 22(3)): Greig v WIN Television Pty Ltd [2009] NSWSC 876 at [10]–[12] (jury permitted to hear this evidence);

  • tendency, credit and s 135 issues: Blomfield v Nationwide News Pty Ltd [2009] NSWSC 977 at 978, 979;

  • preservation of ephemeral records, such as social media: a notation may be sought by a party requesting that social media or electronic records be kept pending the trial, see for example, Cavric v Nationwide News Pty Ltd [2015] NSWDC 107.

Directions may be made that the judgments are not published until after the jury has completed its role in the trial: McMahon v John Fairfax Publications Pty Ltd [2012] NSWSC 196 at 197,198.

[5-4090] Damages

The assessment of damages is an issue for the judge, whether or not a jury has been empanelled: Defamation Act, s 22(3).

Section 35 imposes a cap on damages that can be awarded in “defamation proceedings” ($250,000 as at 1 January 2006, which is revised on 1 July of each year in accordance with the provisions of s 35(3); see the table in Tobin & Sexton at [20,100] for the current maximum figure). The cap applies to an award in particular proceedings, whether or not there are multiple causes of action: Davis v Nationwide News Pty Ltd (2008) 71 NSWLR 606.

As s 35 was based upon Defamation Act 1974 s 46A which, from 1 January 1995, imposed a cap on damages, decisions in NSW which consider damages pursuant to s 46A are of some assistance in the determination of the quantum of damages. The principal authority on s 46A damages is Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327. At [72]–[76], Hayne J explains the operation of this section, and the relevant principles for determining quantum of damages generally. It is unresolved whether the cap applied separately to each plaintiff in proceedings with multiple plaintiffs.

Damage is presumed once the publication of defamatory matter has been proved. The relevant heads include vindication (Tobin & Sexton at [20,020]), injury to feelings and to reputation (Tobin & Sexton at [20,025]), and consolation. The principles for compensatory damages are comprehensively reviewed by Tobin & Sexton at [21,001]–[21,180] and by George, ch 31–38. The plaintiff may claim special or aggravated compensatory damages, but exemplary damages are not available for publications where the place of publication is within the States and Territories of Australia: Tobin & Sexton at [22,180].

[5-4095] Aggravated compensatory damages

Aggravated compensatory damages (Tobin & Sexton at [22,001]–[22,210]; George, ch 33) must be the subject of pleading and particulars, and generally are claimed in relation to the conduct of the defendant at the time of publication, the mode and extent of publication, failure to apologise and retract, and the conduct of the litigation by the defendant (the most common basis for which is an unsuccessful claim of justification by a defendant).

As with aggravation of damages, the factors upon which a defendant may rely on the issue of mitigation of damages are many and various: Tobin & Sexton at [22,110]–[22,145]. The most common include partial success of a defence of justification (Cerutti v Crestside Pty Ltd, above) or contextual truth (Holt v TCN Channel Nine Pty Ltd (2012) 82 NSWLR 293; affirmed Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; [2014] NSWCA 90), the proffer of an apology, or the award of damages for another publication having the same meaning or effect as the matter complained of: Defamation Act s 38.

The relationship between the cap on general damages in s 35 and aggravated damages was set out by McClellan CJ at CL in Davis v Nationwide News Pty Ltd [2008] NSWSC 693 at [18]–[20], and by Applegarth J in Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89 at [38]–[42]. Where aggravated damages are awarded, one sum for both general and aggravated damages will be given, but that sum may, in an appropriate case, be higher than the cap on general damages if the sum arrived at as a result exceeds the cap: Al Muderis v Duncan (No 3) [2017] NSWSC 726 at [100] and [120].

However, in Wilson v Bauer Media Pty Ltd [2017] VSC 521 John Dixon J considered that the language of s 35 made it clear that, once the court was satisfied that an award of aggravated damages should be made, the cap on damages no longer applied. The same approach was taken in Rayney v The State of WA (No 9) [2017] WASC 367. While this is in contradiction to the approach taken in earlier cases such as Al Muderis v Duncan (No 3), above, it has been confirmed on appeal in Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154, as is noted in Wagner v Harbour Radio Pty Ltd [2018] QSC 201.

[5-4096] Special damages and injury to health

Claims for special damages in defamation may be brought where it is asserted that the publication of the matter complained of results in actual loss: see Tobin & Sexton at [21,165]. The range of losses may be quite far-reaching, such as the cost of making films to combat the negative publicity engendered by the defamatory publication (Comalco Ltd v ABC (1985) 64 ACTR 1; ABC v Comalco Ltd (1986) 68 ALR 259) or the loss of film roles for an actress: Wilson v Bauer Media Pty Ltd [2017] VSC 521. Such a claim requires specific pleading and is generally supported by expert evidence. Such a claim differs from an “Andrews” claim (Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225) for general loss of business, which is generally only supported by particulars and discovery: see Tobin & Sexton at [21,175].

Claims for damages for injury to health are rare: see Tobin & Sexton at [21,145]; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [77]–[78].

[5-4097] Derisory damages and mitigation of damages

While injury to reputation is presumed, even in relation to the most anodyne or limited publication, the circumstances of the publication may be such that only nominal damages should be awarded: Beaven v Fink [2009] NSWDC 218 (damages of $2,500 for slander to one person). Such awards are generally called “nominal” (Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57; [2006] HCA 46 per Gleeson CJ and Crennan J at [19]) or “derisory” awards: Holt v TCN Channel Nine Pty Ltd (No 2) (2012) 82 NSWLR 293; [2012] NSWSC 968 per Adamson J at [9]. The most celebrated of these very small awards was the farthing damages award to the plaintiff in the litigation arising from the portion of Leon Uris’s book, Exodus, Doubleday & Co, 1958, concerning the alleged conduct of experiments by a doctor in concentration camps during the Holocaust: Dering v Uris [1964] 2 All ER 660; [1964] 2 WLR 1298.

Where a defendant has been successful in a defence of partial justification, the damages may be significantly reduced: Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; [2014] NSWCA 90 (award of $5,000). In Dank v Nationwide News Pty Ltd [2016] NSWSC 295 McCallum J awarded the sum of zero damages. The question of mitigation of damages may also arise where there has been partial success in a defence of justification: Holt v TCN Channel Nine Pty Ltd, above, at [32]; see Pamplin v Express Newspapers Ltd (No 2) [1988] 1 All ER 282; [1988] 1 WLR 116 at 120. Tobin & Sexton at [21,087] note the question of whether adverse findings as to a plaintiff’s credit may be taken into account is a question that cannot be considered closed, despite the NSWCA considering that such evidence was irrelevant in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419.

[5-4098] Evidence of bad — and good — reputation

While evidence of bad reputation in the relevant sector of reputation may be given, courts have declined to permit evidence of specific acts of bad reputation to be pleaded where there is no plea of justification: see Tobin & Sexton [21,050]. The defendant is limited to particulars of general bad reputation, which must be given before trial: see Tobin & Sexton [21,055]–[21,080]. Evidence of prior criminal convictions may be given, but only if such particulars are given before trial: see Tobin & Sexton [21,090].

While it is not necessary for a plaintiff to lead evidence of good reputation, it is common to do so: see Tobin & Sexton [21,085].

[5-4099] Range of damages in defamation actions under the uniform legislation

A table of all defamation awards made under the uniform legislation is set out in Tobin & Sexton at [60,100].

Despite the setting aside of the claim for special damages in Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154, the increasingly large awards of damages demonstrate that, despite the imposition of a cap on damages, damages awards are increasing generally. This may be due to some or all of the following factors:

  • the increase in the cap in excess of the consumer price index: J Cashen, “Defamation cap rising well above inflation”, Gazette of Law and Journalism, 10 December 2014

  • the change in judicial interpretation of the role of the cap on general damages from being a ceiling (Attrill v Christie [2007] NSWSC 1386) to being merely an indication of the top amount that can be awarded: Cripps v Vakras [2015] VSCA 193 per Kyrou J at [603]–[608]; Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091 per McCallum J at [127]; Sheales v The Age Co Ltd [2017] VSC 380 per John Dixon J at [70]

  • the change in judicial interpretation of the interrelationship between the cap on damages and aggravated damages: Wilson v Bauer Media Pty Ltd [2017] VSC 521

  • substantial claims for special damages: Wilson v Bauer Media Pty Ltd, above, ($3,917,472 awarded to actress for loss of opportunity; set aside on appeal in Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154); Rayney v The State of WA (No 9) [2017] WASC 367 ($1.777 million awarded to barrister for loss of work); and/or

  • the increasing attraction of courts where the absence of jury trials and case management make the proceedings easier for inexperienced parties to conduct the proceedings. Proceedings for defamation appear to be increasingly brought in tribunals (Bottrill v Bailey [2018] ACAT 45), magistrates courts (Walden v Danieletto [2018] QMC 10; Yuanjun Holdings Pty Ltd v Min Luo [2018] VMA 7). Problems arising for the judiciary when dealing with appeals from magistrates courts may be seen in Berge v Thanarattanabodee [2018] QDC 121; Small v Small [2018] ACTSC 231; Ferguson v SA [2018] SASC 90; Sangare v Northern Territory of Australia [2018] NTSC 5 and Sullivan v Greyfriars Pty Ltd [2014] VSC 22.

[5-4100] Costs

The “unique aspects” of defamation actions (G Dal Pont, Law of Costs, 3rd edn, at [12.21]) have resulted in special costs provisions designed to promote settlement. Section 40, modelled on s 40A Defamation Act 1974 (see Jones v Sutton (No 2) [2005] NSWCA 203), provides that in awarding costs, the court has regard to:

  • the way in which the parties have conducted the case (including misuse of a party’s superior financial position);

  • other matters considered relevant: s 40(1).

A significant factor may be whether the failure of a party to “make a settlement offer” or “agree to a settlement offer” (s 40(2)) is reasonable. The definition of “settlement offer” is set out in s 40(3) and, as it means “any” offer to settle, may presumably include invalid offers of compromise or “without prejudice” offers, as well as offers to amend, which are specifically referred to in s 40(3). In Davis v Nationwide News Pty Ltd [2008] NSWSC 946 the court considered that the defendant’s “walk away” offer (withdrawal of the action on the basis that each pay their own costs) was not reasonable at the time that it was made.

While the court still retains a wide discretion on issues of costs, courts in defamation proceedings have often been reluctant to enforce provisions to impose costs on an unsuccessful party who had prolonged a trial by deliberate false allegations, or continued proceedings where there was obviously no hope of success: Tobin & Sexton at [26,615], citing Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354 and Wentworth v Rogers (No 5) (1986) 6 NSWLR 534. In Hyndes v Nationwide News Pty Ltd [2012] NSWCA 349 the plaintiff lost the case, but did not have to pay indemnity costs despite rejecting six offers, all better than the result. Indemnity costs under s 40 may not apply to appeals because of the inherent difference between first instance and appeal costs: Ten Group Pty Ltd (No 2) v Cornes (2012) 114 SASR 106. Costs issues under the UDA take into account the need to promote a speedy and non-litigious method of resolving disputes and avoiding protracted litigation wherever possible: Davis v Nationwide News Pty Ltd, above, at [26]; Haddon v Forsyth (No 2) [2011] NSWSC 693 at [5].

If only a small amount of damages is awarded, that does not disentitle a plaintiff from an award of costs, although the size of the verdict may be taken into account when considering whether the defendant’s failure to make a costs offer was “unreasonable” (s 40): Holt v TCN Channel Nine Pty Ltd (2012) 82 NSWLR 293 at [51]–[62] affirmed [2014] NSWCA 90, but cf Milne v Ell [2014] NSWCA 407 at [28]–[30]. Almost all Supreme Court verdicts have, in breach of the court’s costs rules, fallen below the District Court jurisdiction limit (as counsel for Nationwide News Pty Ltd pointed out in West v Nationwide News Pty Ltd [2003] NSWSC 767). Following West, defamation proceedings were removed from the category of claims to which this costs rule applied: SCR Pt 52A r 33(1)(v); No 380 of 2003). This exemption has been continued under UCPR Pt 42.

[5-4110] Current trends

As noted at the commencement of this chapter, after decades, or indeed centuries, of relative stability, defamation law is currently undergoing profound change. The majority of publications now sued upon are internet or other electronic publications: North Coast Children’s Home Inc (t/as Child and Adolescent Specialist Programs and Accommodation (Caspa)) v Martin (No 2) [2014] NSWDC 142; Polias v Ryall [2014] NSWSC 1692; Wilson v Ferguson [2015] WASC 15. Social media has had an impact on many aspects of defamation law; for example, in Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674, failure to publish the apology in the newspaper’s Twitter account was one of the reasons for the court finding that the offer of amends was inadequate.

The full impact upon defamation law of electronic publication, human rights legislation and privacy rights in other common law jurisdictions such as the United Kingdom, Canada, New Zealand and the United States has yet to be felt in Australia.

While foreign decisions on some matters, such as whether hyperlinks amount to republication (Crookes v Wikimedia Foundation Inc (2011) SCC 47 (Supreme Court of Canada)), may be able to be absorbed (for example, Cripps v Vakras [2012] VSC 400 (hyperlinks)), Australian courts (Barach v University of NSW [2011] NSWSC 431; Manefield v Child Care NSW [2010] NSWSC 1420; Bristow v Adams [2012] NSWCA 166 at [41]) have, to date, refused to follow decisions such as Jameel v Dow Jones & Co Inc [2005] QB 946 in striking out claims which do not disclose a real and substantial tort, although there are indications that such applications may succeed in the future: Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612 per Basten JA at [5], confirming the correctness of the principles applied by McCallum J in Bleyer v Google Inc (2014) 88 NSWLR 670, which is the landmark decision in this developing area of the law.

The impact of privacy law upon defamation law is another area where significant changes to the law are also likely. While a tort of privacy has received some recognition in Australia (Doe v Australian Broadcasting Corp [2007] VCC 281; Grosse v Purvis (2003) Aust Torts Reports ¶81-706), some judges, such as Davies J, consider it is still “unclear” whether a tort of privacy exists in Australia (Chan v Sellwood [2009] NSWSC 1335 at [37]), although the NSWCA has stated to the contrary: John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364 at [124]; Maynes v Casey [2011] NSWCA 156.

In addition, as the Leveson Inquiry (The Leveson Inquiry: Culture, Practice and Ethics of the Press in the UK) and the Finklestein Report (Report of the Independent Inquiry into the Media and Media Regulation, which was reported to the Australian Government on 28 February 2012) have made clear, the increased ease of electronic surveillance has made profound changes to news gathering techniques, resulting in a shift from complaints about false and defamatory publications to complaints of publication of truthful material which should remain private. The impact of electronic publication in general and social media in particular upon causes of action for defamation in the future will be considerable, and the adequacy of the uniform legislation to deal with limitation and proportionality issues will be strongly tested.

More recently, claims of publication of “fake news” reports of a sensational nature have resulted in the seeking of forms of relief other than damages, such as contempt of court (Doe v Dowling [2017] NSWSC 1037) or prosecution for a criminal offence: Brown v Commonwealth DPP [2016] NSWCA 333 (prosecution under s 474.17 Criminal Code (Cth)).

The release of the Statutory Review of Australia’s uniform defamation legislation, mandated by s 49 of the Defamation Act 2005 (NSW), may lead to further consideration of law reform initiatives capable of considering these complex issues of law and technology.

Legislation

  • Broadcasting Services Act 1992 (Cth), Sch 5 cll 3, 91

  • Civil Procedure Act 2005

  • Criminal Code (Cth) s 474.17

  • Defamation Act 2005 ss 6(2), 9, 10, 14(2), 15, 16, 17, 18(2), 21, 22(3), 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 35, 38, 40, 42

  • Evidence Act 1995 s 135

  • Health Care Complaints Act 1993 s 96

  • Law Reform (Miscellaneous Provisions) Act 1946

  • Limitation Act 1969 s 14B

Rules

  • UCPR rr 5.2(2)(a), 14.22, 14.31, 14.32, 14.33, 14.34, 14.35, 14.36, 14.37, 14.38, 14.39, 14.40, 15.1, 15.21, 15.22, 15.23, 15.24, 15.25, 15.26, 15.27, 15.28, 15.29, 15.30, 15.31, 29.2, 29.2A, Pt 42

Practice Note

  • Supreme Court Practice Note No SC CL 4 — Defamation List (commenced 5 September 2014)

  • District Court Practice Note No 6 — Defamation List (commenced 9 February 2015)

Further references

  • T Tobin, M Sexton, J Gibson (Bulletin author), G Corish (editor, LexisNexis), Australian Defamation Law and Practice, LexisNexis, Sydney, 1991–

  • P Milmo et al, Gatley on Libel and Slander, 11th edn, Sweet & Maxwell, London, 2010

  • P George, Defamation Law in Australia, 3rd edn, LexisNexis, Sydney, 2017

  • M Collins, Law of Defamation and the Internet, 3rd edn, Oxford University Press, 2010

  • Gazette of Law and Journalism (e-newsletter). There are also e-newsletters in other common law jurisdictions such as Inforrm (United Kingdom) and the Media Law Prof Blog (United States)

  • R Brown, Brown on Defamation (Canada, United Kingdom, Australia, New Zealand United States), 2nd ed, Carswell, Canada, 1994–

  • D Rolph, “Irreconcilable Differences? Interlocutory injunctions for defamation and privacy” (2012) 17 MALR 170-200

  • G Dal Pont, Law of Costs, 3rd edn, LexisNexis, Sydney, 2013

  • L Mullins, “Open justice v suppression orders: tales from the front line”, Gazette of Law and Journalism, August 2017

  • J Cashen “Defamation cap rising well above inflation”, Gazette of Law and Journalism, 10 December 2014

  • NSW Law Reform Commission, Protecting privacy in NSW, Report 127, 2010; Access to personal information, Report 126, 2010; Privacy principles, Report 123, 2009 and other reports on defamation and privacy issues (see <http://www.lawlink.nsw.gov.au/lawlink/lrc/ll_lrc.nsf/pages/LRC_reports>, accessed 14 February 2013)

  • Australian Law Reform Commission, Unfair Publication: Defamation and Privacy, ALRC Report 11, 1979 (<www.alrc.gov.au/report-11>) and For Your Information: Australian Privacy Law and Practice, ALRC Report 108, 2008 at <www.alrc.gov.au/publications/report-108>, accessed 14 February 2013

  • Report of the Independent Inquiry into the Media and Media Regulation, led by the former Justice of the Federal Court of Australia, Mr Ray Finkelstein QC, which was reported to the Australian Government on 28 February 2012 at <www.dbcde.gov.au/digital_economy/independent_media_inquiry>, accessed 14 February 2013

  • The Leveson Inquiry: Culture, Practice and Ethics of the Press, led by Lord Justice Leveson at <http://www.levesoninquiry.org.uk/about/the-report/>, accessed 14 February 2013

  • International Forum for Responsible Media, Inforrm Blog, Table of Media Law cases, at <http://inforrm.wordpress.com/table-of-cases-2/>, accessed 14 February 2013

  • K Gould, “Hyperlinking and defamatory publication: a question of ‘trying to fit a square archaic peg into the hexagonal hole of modernity’?” (2012) 36 Aust Bar Rev 137

  • M Paltiel, “Navigating cyberspace — Australian precedent regarding internet liability” (2013) 16(2) INTLB 26

  • K Barnett, “Trkulja v Google LLC”, High Court Blog, The University of Melbourne, 3 July 2018

  • J Gibson, “Adapting defamation law reform to online publication” (2018) 22 MALR 119

  • The Council of Attorneys Generals’ Review of Model Defamation Provisions Discussion Paper, 22 February 2019, at www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/Final-CAG-Defamation-Discussion-Paper-Feb-2019.pdf, accessed 6 November 2019.



[7] The Council of Attorneys Generals’ Review of Model Defamation Provisions Discussion Paper, 22 February 2019, at www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/Final-CAG-Defamation-Discussion-Paper-Feb-2019.pdf, accessed 6 November 2019.