Barrow v Bolt
[2015] VSCA 107
•21 May 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0001
| DAVID CHARLES BARROW | APPLICANT |
| V | |
| ANDREW BOLT | FIRST RESPONDENT |
| - and - | |
| THE HERALD & WEEKLY TIMES PTY LTD (ACN 004 113 973) | SECOND RESPONDENT |
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| JUDGES: | ASHLEY, KAYE and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 14 May 2015 |
| DATE OF JUDGMENT: | 21 May 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 107 |
| JUDGMENT APPEALED FROM: | Barrow v Bolt & Anor [2014] VSC 599 (T Forrest J) |
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DEFAMATION — Complaint concerning first respondent by applicant to Australian Press Council — Respondents invited to respond to complaints — Email by first respondent to second respondent — Email forwarded to Council — Defamatory imputations conceded — Qualified Privilege — Whether trial judge erred in concluding that applicant had/failed to establish malice — Triviality defence — Meaning of ‘harm’ — Whether includes distress and hurt feelings — Jones v Sutton (2004) 61 NSWLR 614 discussed — Application for leave to appeal dismissed — Defamation Act 2005 s 33.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr Barrow (self-represented) | |
| For the Respondents | Dr M Collins QC | M & K Lawyers |
| Mr S Mukerjea |
ASHLEY JA:
I agree in the reasons of Kaye JA and with the order his Honour proposes.
KAYE JA:
The applicant seeks leave to appeal from the judgment of a judge of the Trial Division[1] dismissing the proceeding, brought by the applicant against the respondents, in which he claimed damages for defamation.
[1]Barrow v Bolt & Anor [2014] VSC 599.
The first respondent, Andrew Bolt, is a journalist employed by the second respondent, The Herald and Weekly Times Pty Ltd. He is the author of the ‘Bolt Blog’, which is accessible via a website owned and operated by the second respondent.
Between 24 November 2011 and 13 December 2011, the applicant made nine direct complaints to the respondents concerning statements made by the first respondent on his blog. Those statements by the first respondent did not relate to the applicant, but, rather, concerned matters about which the applicant was apparently concerned. The substance of the applicant’s complaints was, in some cases, that the particular item, posted by the first respondent in his blog, did not constitute fair, accurate and balanced reporting. In other cases, the applicant’s complaint was that the particular item contained a gratuitous emphasis on racial characteristics of the subject of the item. The respondents did not acknowledge, or respond to, any of those complaints. Nor did the respondents modify the particular article complained about by the applicant. On 13 December 2011, the applicant referred five of the nine complaints to the Australian Press Council (‘APC’). After the APC became involved in the matter, all of the five articles were removed from the Bolt blog by senior management of the second respondent in January 2012.
On 28 November 2011, the applicant made a separate complaint directly to the APC. That complaint concerned a blog post made by the first respondent on 29 September 2011. In that post, the first respondent republished an article from that day’s The Australian newspaper. The article claimed that Professor Robert Manne had expressed the view that newspapers should not express the opinions of average Australians on the issue of climate change. On 1 October 2011, Professor Manne published a letter in The Australian disputing that he had expressed that point of view. The substance of the complaint made by the applicant, to the APC, was that the Bolt Blog was unfair and unbalanced, because it had omitted to publish Professor Manne’s letter, or to seek out and include Professor Manne’s views in the blog.
On 2 December 2011, the APC provided a copy of the applicant’s complaint to the second respondent, and invited it to respond. As a result, on 27 February 2012, the first respondent sent an email to Mr Alan Armsden, who was then the managing director of the second respondent. It is that email that was the subject of the defamation proceeding. On the same day, Mr Armsden, acting on behalf of the second respondent, and in response to the complaint to the APC, forwarded the email to Mr Jack Herman, the executive director of the APC. In the proceeding, it was common ground that the email was only published to Mr Armsden and to Mr Herman.
The email stated as follows:
I did not express an opinion about Mr Manne. I alerted readers to an article in another paper.
Even had I commented on Mr Manne, there is no responsibility on me to contact him first. Indeed, Mr Manne has written many opinion articles about me without once contacting me first. Many of those articles contain disparaging and inaccurate statements, but I do not seek to have him silenced or to bring him to a tribunal for rebuke. I believe it’s part of the cut and thrust of debate, which must be allowed to flourish, and not so dangerous or difficult that it wilts.
Mr Manne never sought to ‘correct’ or clarify his view with a letter to me or a comment on my blog. Nor has Mr Barrow. Had Manne done so, I would have published it. Had Mr Barrow written a comment on my blog, it would almost certainly have been published. We maintain a debate.
It is utterly unrealistic to expect me to see everything published anywhere. I did not see Manne’s letter to The Australian, so thus was not in the position to publish it myself.
Mr Barrow had two options. The first is legitimate, to contribute to debate — and to encourage debate generally — by simply contributing a letter or blog comment challenging the article which we linked to.
The second is illegitimate — to go to a tribunal or council first, without any warning, to have the debate punished and stifled simply by the process of complaint. Mr Barrow is in my opinion a vexatious litigant in many fora over a long time. Mr Barrow is in my opinion a man who seeks not to promote debate but to close it down. The Press Council should declare his latest attempt vexatious and against the interest of debate. He had better opportunities to correct the record and chose not to take them.
The judgment of the trial judge
The applicant’s claim focused on the contents of the last paragraph of the email. He alleged that it contained six defamatory imputations of and concerning him. The defendants accepted, and the trial judge found, that the email conveyed four defamatory imputations concerning the applicant, namely:
(a) the applicant’s conduct in making a complaint to the APC was vexatious in that he had better opportunities to challenge the accuracy, fairness and balance of the first respondent’s article by writing to the first respondent, or submitting a comment to his blog;
(d) the applicant is a vexatious litigant in many forums over a long time;
(e) the applicant is a vexatious litigant;
(f) the applicant is a man who seeks not to promote debate but to close it down.
The judge further concluded that the defamatory statements were each made on an occasion of qualified privilege. In particular, the email by the first respondent was closely connected to the complaint made by the applicant to the APC, and it amounted to a responsive attack by the first respondent on both the credibility of the applicant and the content of his initial complaint. The judge observed that the applicant did not dispute the contention on behalf of the respondents that the case was a classic example of the duty and interest form of qualified privilege. Rather, the critical question was whether the first respondent had acted with malice when publishing the email.
In that connection, the judge noted that the case of the applicant was that, in sending the email, the first respondent was actuated by a desire to injure him. In that respect, the applicant claimed that the first respondent had a number of potential motives to cause him injury in publishing the email. In addition, the applicant contended that the first respondent knew of the falsity of four statements, each of which appeared in the email, namely
–Mr Barrow is in my opinion a vexatious litigant in many fora over a long time. (The ‘first Bolt Statement’.)
–Mr Barrow is in my opinion a man who seeks not to promote debate but to close it down. (The ‘second Bolt Statement’.)
–Had Mr Barrow written a comment on my blog, it would almost certainly have been published. (The ‘third Bolt Statement’.)
–He [Mr Barrow] had better opportunities to correct the record and chose not to take them. (The ‘fourth Bolt Statement’.)
The judge was prepared to assume, without deciding, that the applicant had proved the existence of the various motives contended for by the applicant. He noted that, taken at their highest, they provided no more than plausible motivations for the first respondent’s email. However, it was equally plausible that the first respondent was motivated by a legitimate desire to respond to the applicant’s complaint to the APC.[2] His Honour further held that he was not satisfied that the applicant had established that the first respondent knew that any of the four Bolt Statements were false.[3] In respect of the fourth Bolt Statement, his Honour concluded:
Mr Barrow argues Mr Bolt knew it was false to say that ‘[h]e [Mr Barrow] had better opportunities to correct the record and chose not to take them.’ There is no evidentiary foundation to this pleading. Mr Barrow had other opportunities to correct the record, which would go some way toward disproving the falsity of the statement. If these and other opportunities were not ‘better’ opportunities, and/or if Mr Barrow did not ‘choose’ not to take them up, there is no evidentiary basis for finding that Mr Bolt knew of those matters.[4]
[2]Barrow v Bolt & Anor [2014] VSC 599, [39]–[41].
[3]Ibid [43]–[52].
[4]Ibid [52].
Accordingly, the judge held that the applicant had failed to prove that the first respondent was actuated by malice in publishing the email.
Although it was not necessary for his Honour to do so, he also found that the respondents had made out a ‘triviality’ defence under s 33 of the Defamation Act 2005, because the circumstances of publication of the email were such that the applicant was unlikely to sustain any harm to his reputation. On the other hand, his Honour rejected a defence relied on by the respondents, that they had made an appropriate ‘offer of amends’ under s 18 of the Act, on the ground that the offer of amends had been served out of time.
Proposed grounds of appeal
In his application for leave to appeal, the applicant seeks to rely on six grounds of appeal, namely:
The trial judge erred in that his Honour:
(1)found that there was ‘no evidentiary basis’ (judgment at [52]) that the first defendant knew the falsity of the defamatory ‘fourth Bolt Statement’ … when there was actually a relevant and necessary evidentiary basis of malice to defeat qualified privilege;
(2)failed to take into consideration relevant and necessary evidence adduced at trial (judgment at [54]) for the inference that the first defendant knew the falsity of the defamatory ‘fourth Bolt Statement’, proving malice to destroy qualified privilege;
(3)failed to find that the standard of proof should be the civil Risbridger standard rather than the higher Briginshaw standard (judgement at [54]), which is an unsettled area of law to be clarified in the public interest;
(4)found that objective harm did not reach the required threshold of being unlikely to cause any harm (judgment at [71]), when his Honour ought to have given weight or sufficient weight to relevant circumstances;
(5)failed to find that the plaintiff’s subjective injury of hurt feelings arising from the defamatory publication was relevant to the required principle of any harm being unlikely (judgment at [66]), which is an unsettled area of law to be clarified in the public interest;
(6)failed to find that subjective harm did not reach the required threshold of being unlikely to cause any harm, when his Honour ought to have given weight or sufficient weight to relevant circumstances.
The application for leave to appeal
Section 14C of the Supreme Court Act provides that in order to be entitled to leave to appeal, the applicant must demonstrate that he has a real prospect of success in respect of one or more of those proposed grounds of appeal.[5] In view of the detailed written submissions filed in support of the leave application, the parties were notified by the court that, if leave is granted, the appeal would be heard at the same time.
[5]See Kennedy v Shire of Campaspe [2015] VSCA 47, [12]–[13] (Whelan and Ferguson JJA).
Proposed grounds of appeal 1, 2
The first two proposed grounds of appeal are concerned with the conclusion by the judge that the applicant had failed to establish that the first defendant knew the falsity of the fourth Bolt Statement, namely, that the applicant ‘had better opportunities to correct the record and chose not to take them’.
The applicant submitted that the email, sent by the first respondent, contained, within it, a definition of what the first respondent conveyed by the phrase ‘better opportunities’. In that respect, he referred to the third and fifth paragraphs of the email, in which the first respondent stated that the applicant could have either written a letter to him or published a comment on the Bolt blog. The applicant submitted that the first respondent was aware that, in the circumstances, neither of those options were ‘better opportunities’ to correct the record than by making a complaint directly to the APC.
In support of that submission, the applicant pointed to the evidence that the applicant had previously sent nine complaints directly to the two respondents, and that the respondents admitted that they had received them. Each of those complaints, together with the complaints sent to the APC, expressly sought that they be remedied by a correction of the article published by the first respondent. None of them were acknowledged, or responded to, by the respondents. Nor did the respondents modify the particular article, which was the subject of the applicant’s complaint, without the involvement of the APC. The applicant also pointed to the evidence that previously not all the comments, previously submitted by him, had been published on the Bolt blog. Based on those facts, the applicant submitted that the judge erred in holding that he was not satisfied that the first respondent knew that it was untrue to allege, in the email, that the applicant had better opportunities to correct the record, and that he had chosen not to take them.
In response, counsel for the respondents pointed to evidence given by the applicant that he knew that the first respondent maintained a section entitled ‘Tips of the Day’ on the Bolt blog, and that, on a number of occasions, he had published material on it. In particular, between 25 March 2011 and 23 May 2011, the applicant had submitted 31 comments to the Bolt blog. Six of them were submitted to, and published on, the ‘Tips of the Day’ section, and 18 of them were published elsewhere on the Bolt blog. Accordingly, the respondent submitted that it was not false (or incorrect) for the first respondent to allege that the applicant had other opportunities to correct the record than by making a complaint directly to the APC, namely, by accessing the ‘Tips of the Day’ section on the first respondent’s blog.
Further, it was submitted that, in any event, the fact that the respondents had not responded to the applicant’s nine previous complaints, did not have the effect that the judge had erred in law in finding that the applicant had failed to prove that the first respondent knew it was false to allege, in the email, that the applicant had ‘better’ opportunities to correct the record than by making a complaint directly to the APC. In particular, the applicant had not established that the first respondent did not believe that the applicant had a better opportunity, to correct the record, by submitting a comment on the blog, than by making a complaint directly to the APC.
The principles, relating to the proof of malice, are well established. For present purposes, the relevant principles may be stated as follows:
(1)In order to defeat a defence of qualified privilege, the plaintiff must establish that the defendant was actuated by malice in publishing the defamatory matter. In order to establish malice, the plaintiff must prove that, in publishing the material complained of, the defendant was actuated by a motive that was foreign, or ulterior, to the privileged occasion.[6]
(2)In order to establish malice, it is not sufficient for the plaintiff to prove no more than that the defendant had an improper motive to make the publication. Rather, the plaintiff must demonstrate that the improper motive was the dominant actuating purpose of the defendant in making the publication.[7]
(3)Proof that the defendant knew that the statement was false, when he or she made it, is ‘almost invariably conclusive evidence ‘of malice.[8] In such a case, the court will infer that the defendant had an improper motive for publishing the material knowing it to be untrue.[9]
(4)However, it is not sufficient, in that respect, for the plaintiff to establish only that the defendant had a lack of honest belief in the truth of the material that the defendant published. Lack of belief in the truth of the communication by the defendant is not treated as, or equivalent to, the defendant having knowledge of the falsity of the publication.[10]
(5)Nor is it sufficient to demonstrate that the defendant was reckless as to the truth of the publication, unless that recklessness was tantamount to wilful blindness by the defendant.[11]
[6]Roberts v Bass (2002) 212 CLR 1, 30–31 [75]–[76] (Gaudron, McHugh and Gummow JJ).
[7]Horrocks v Lowe [1975] 1 AC 135, 149 (Lord Diplock); Roberts v Bass (2002) 212 CLR 1 [76].
[8]Roberts v Bass(2002) 212 CLR 1 [77]–[78].
[9]Clark v Molyneux (1877) 3 QBD 237, 247 (Brett LJ); Mowlds v Ferguson [1939] 40 SR(NSW) 311, 329 (Jordan CJ).
[10]Roberts v Bass (2002) 212 CLR 1 [87]; Cush v Dillon (2011) 243 CLR 298, 311 [28] (Gummow, Hayne & Bell JJ).
[11]Roberts v Bass, [87]; Horrocks v Lowe [1975] AC 135 [150].
The question, raised by the first two grounds of appeal, is whether the judge erred in law in concluding that the applicant had failed to establish that the first respondent knew that it was untrue to allege, in the email, that the applicant had ‘better opportunities to correct the record [than complaining directly to the APC] and chose not to take them.’
In my view, the submissions made by the respondents, in respect of these grounds of appeal, are sound. First, the fact that the applicant knew about, and indeed had previously accessed, the ‘Tips of the Day’ section on the first respondent’s blog, demonstrates that the applicant had previously been afforded other opportunities to correct entries on the first respondent’s blog, than by directly complaining to the APC. Thus, it was not untruthful for the first respondent to allege that the applicant had other opportunities to correct the article published on the first respondent’s blog (about Professor Manne), and that he had chosen not to take them.
The question whether, in the circumstances such other opportunities were, or were not better opportunities is a matter about which views might fairly differ. While it is true that the respondents had not responded to the previous complaints sent directly to them by the applicant, nevertheless, the fact remains that the first respondent had afforded to the applicant, on other occasions, the opportunity to publish views on his blog that were contrary to the opinions published by the first respondent on that blog. It was a matter of opinion whether, in those circumstances, the submission of a comment for entry on the ‘Tips of the Day’ section of the first respondent’s blog was a ‘better opportunity’ to correct the record, than a complaint directly to the APC. The applicant may well hold the view that the latter course was the ‘better opportunity’ in all the circumstances. However, that does not mean, or prove, that the first respondent did not hold the contrary view, namely, that the submission of such a comment to his blog was a better opportunity to correct the record than a complaint to the APC. In that way, in my view, the judge did not err in holding that there was no evidentiary basis for finding that the first respondent knew that the fourth Bolt statement was untrue.
For those reasons, I do not consider that the first two grounds of the proposed appeal have a real prospect of success. Therefore, I would not grant leave to the applicant in respect of those grounds.
Ground 3
Ground 3 of the proposed grounds of appeal is based on a misapprehension by the applicant as to the judge’s conclusions on the issue of malice. Contrary to the proposition contained in that ground of appeal, the judge expressly held that the applicant had failed to prove malice on the balance of probabilities, without taking into account the principles stated by the High Court in Briginshaw v Briginshaw[12] relating to the proof of serious allegations in a civil proceeding.[13] In the course of his oral submissions, the applicant conceded that the judge, ultimately, did not apply the Briginshaw principle. Accordingly, I would not grant leave to appeal in respect of ground 3.
[12](1938) 60 CLR 336.
[13]Barrow v Bolt & Anor [2014] VSC 599 [54].
Grounds 4, 5 and 6
Grounds 4, 5 and 6 are each directed to the conclusion by the judge that the defendant had established a defence under s 33 of the Defamation Act 2005, namely, that the circumstances of the publication of the email were such that the applicant was unlikely to sustain any harm. Although it was not necessary for his Honour to reach a conclusion in relation to that matter, his Honour (correctly) thought it appropriate to do so. Likewise, notwithstanding the conclusions that I have reached concerning the application for leave to appeal from the judge’s finding that the applicant had not established malice, nevertheless I consider it appropriate, also, to state my conclusions in relation to grounds 4, 5 and 6.
In his reasons for judgment, the trial judge set out four principles, relating to s 33, in terms which are not controversial on the appeal. He then addressed a fifth point, which is the subject of the fifth ground of appeal. That point concerns whether the word ‘harm’, in s 33, is limited to ‘harm to reputation’, or whether, as contended by the applicant, it also includes injury to feelings caused by the defamatory publication. The judge considered the relevant authorities, including the decision of the Court of Appeal of New South Wales in Jones v Sutton[14] and my decision in Szanto v Melville.[15] While acknowledging that, in Szanto, I did not express any concluded view, his Honour nevertheless considered that the matters, discussed by me in that judgment, were ‘compelling’ and he adopted them, as the basis for concluding that, in s 33, ‘harm’ is limited to injury to reputation.
[14](2004) 61 NSWLR 614.
[15][2011] VSC 574.
The judge then concluded that he was satisfied that the circumstances of the publication of the email were such that the applicant was unlikely to sustain any harm to his reputation as a result of it. Accordingly, his Honour held that the respondents had established the defence under s 33 of the Defamation Act.
Ground 4 of the proposed grounds of appeal is directed to that latter finding by the judge. In particular, the applicant contends that the judge erred in holding that the circumstances of the publication were such that he was unlikely to sustain any harm to his reputation as a result of it. Ground 5 is directed to the conclusion by the judge that ‘harm’, in s 33, is confined to injury to reputation, and does not include injury to the feelings of the applicant. Ground 6, in effect, is directed to the fact that the judge did not find that the likely harm to the applicant, including harm to his feelings, satisfied the required threshold.
Ground 4
In reaching the conclusion that the circumstances of the publication were such that the applicant was unlikely to sustain any harm to his reputation, the judge noted that the email was published to two persons. The email made it clear that the first respondent was expressing his personal opinion. Although the email did not contain the factual foundation for that opinion, the recipients of the email were aware of some of that foundation, given that they had each received a number of previous complaints by the applicant relating to the first respondent. In the email, the respondents were responding to complaints about the first respondent made by the applicant. The defamatory imputations were relatively mild. There was no evidence that there was any ‘grapevine effect’ ensuing from the publications. In those circumstances, the judge held that the respondents had proven that the circumstances of publication were such that the applicant was unlikely to suffer any harm to his reputation.
The applicant submitted that the judge failed to give sufficient weight to a number of relevant circumstances in reaching that conclusion. In particular, he relied on the following matters: the two recipients of the email (Mr Armsden and Mr Herman) were not well acquainted with the applicant and did not have knowledge of his reputation; the fact, that the applicant had made complaints to the APC concerning five articles on the Bolt blog, was not a sufficient basis for inferring that Mr Herman had any opinions concerning the applicant; the publication in the email was made in writing, as part of a complaint process, and not in a casual conversation in a social context; and the email was not merely an expression of the first respondent’s personal opinion, but was presented as ‘aggressive statements of facts’.
The basic principles, relating to s 33, were stated by the trial judge, and are uncontroversial. In short, they may be stated as follows.
First, the inquiry, whether the publication was likely to cause harm to the applicant, is directed to the time of publication. The issue, at that time, concerns ‘… the quality of the publication in respect of its proneness to cause harm.’[16]
[16]Chappell v Mirror Newspapers Ltd (1984) Aust Torts Rep 80–691, 68-947.
Secondly, the focus of the inquiry is on the ‘circumstances of the publication’. The critical test is whether those circumstances were such, at the time of publication, that it was unlikely that the applicant would suffer harm.[17] The circumstances include (inter alia) the content of the publication, the extent of the publication, the nature of the recipients and their relationship with the applicant.[18] However, the phrase ‘circumstances of the publication’ is not sufficiently wide to encompass the previous bad reputation of a plaintiff.[19]
[17]Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749, 799.
[18]Jones v Sutton (2004) 61 NSWLR 614, 618 [15] (Beazley JA); Perkins v New South Wales Aboriginal Land Council Supreme Court of New South Wales, Unreported, Badgery-Parker J, (15 August 1997), [27].
[19]Jones v Sutton, (2004) 61 NSWLR 614, 621 [30]; King and Mergen Holdings v McKenzie, 309–310; Chappell v Mirror Newspapers Ltd (1984) Aust Torts Rep 68-948.
Thirdly, the phrase ‘unlikely to sustain any harm’ does not mean that it is sufficient for the defendant to establish that it is ‘more probable than not’ that the plaintiff will not suffer harm. Rather, the defendant must demonstrate that there is ‘the absence of a real chance’, or the ‘absence of a real possibility’, of harm.[20]
[20]Jones v Sutton (2004) 61 NSWLR 614, 624 [45], 625 [49] (Beazley JA).
Fourthly, the defendant is required to establish that, at the time of publication, the circumstances were such that the plaintiff was unlikely to suffer ‘any’ harm. Accordingly, the onus, on the defendant, to prove that matter, is high.[21]
[21]King and Mergen Holdings v McKenzie (1991) 24 NSWLR 305, 310 (Mahoney JA).
Fifthly, the defence, provided by s 33, applies to the publication of ‘defamatory matter’. Thus, s 33 provides a defence where matter, that has been published, is defamatory of the plaintiff. In order to be defamatory, the matter must tend to lower the reputation of the plaintiff in the eyes of ordinary reasonable members of the community. Thus, s 33 contemplates a case in which, notwithstanding that a publication about a plaintiff is defamatory in that sense, nevertheless the ‘circumstances of publication’ were such that the plaintiff was unlikely to sustain any harm as a result.
Based on those principles, I consider that the applicant has failed to demonstrate that there was any error in the conclusion by the judge that the respondents had established that the circumstances of the publication of the email were such that it was unlikely that the applicant would suffer any harm to his reputation.
The publication was limited to two persons. The email was, and would have been understood to be, a response by the first respondent to the complaint made by the applicant about him to the APC. As the judge correctly observed, an ordinary reasonable reader of the email would not have understood the adjective ‘vexatious’, in the email, to bear its technical legal meaning, but, rather, to convey that the applicant was a person who made complaints that were annoying, troublesome and unnecessary.[22] In that sense, the imputations, contained in the publication, were relatively mild. Each of the recipients of the email had already received complaints by the applicant concerning the first respondent, and each of them would have been in a position to have formed their own opinion and judgment about the views expressed by the first respondent in the email. The circumstances of the publication of the email were such that it was not likely that its contents would have been more widely disseminated by any ‘grapevine’ effect.[23] In that respect, the applicant stated that he was concerned that the email would be distributed to the members of the APC. There was, however, no evidence that that would occur. In any event, such a limited distribution would not, in my opinion, come within the ordinary understanding of what is meant by the ‘grapevine’ effect.
[22]Barrow v Bolt& Anor [2014] VSC 599 [15].
[23]Cf Jones v Sutton (2004) 61 NSWLR 614, 625–6 [54].
Based on those matters, in my view, the judge was correct to conclude that the respondents had established that the circumstances of the publication were such that the applicant was unlikely to suffer harm to his reputation as a result of either of those publications.
For the foregoing reasons, I would not grant the applicant leave to appeal in respect of ground 4.
Ground 5
The fifth ground of the proposed appeal raises the issue whether the phrase ‘any harm’, in s 33 of the Defamation Act, includes the distress occasioned to a plaintiff as a result of the publication of defamatory material about the plaintiff to other persons, or whether that phrase is confined to injury to the plaintiff’s reputation. In Szanto v Melville,[24] I described the question of the correct construction of the term ‘harm’ in s 33 as ‘not without difficulty’. I remain of that view.
[24][2011] VSC 574, [161].
In light of the conclusions that I have reached in relation to grounds 4 and 6, it is not necessary for me to express a concluded view about that issue. The state of the law, relating to it, is unsettled. There are competing considerations which require careful consideration. It is undesirable that I should express a concluded view on the matter, unless and until the issue is raised squarely for determination before the Court. However, it might be helpful if I were to outline some of the issues that may need consideration, when the question does fall for determination.
As has been noted in other cases, the state of the authorities in relation to the correct construction of ‘any harm’ in s 33 is quite inconclusive. Section 13 of the Defamation Act 1974 (NSW), on which s 33 is substantially based, was expressed in the same terms as s 33, except that the test, in s 13, was whether the circumstances of the publication were such that the plaintiff was unlikely to suffer ‘harm’ (as distinct from ‘any harm’). In Morosi v Mirror Newspapers Ltd,[25] the defendant sought to rely on s 13, by contending that the plaintiff was generally known to have a bad reputation. The Court of Appeal of New South Wales rejected that submission stating:
Even where defamatory matter which is published to the world at large concerns a person with a generally bad reputation, it is difficult to understand how it could be found that his feelings (as opposed to his reputation) were not likely to be hurt when he found his bad reputation spread across a newspaper.[26]
[25][1977] 2 NSWLR 749.
[26]Ibid 800 (Moffitt P, Hope and Reynolds JJA).
In that case, the defendant also, in support of its defence under s 13, sought to rely on conduct by the plaintiff in which she had attempted to publicly refute the defamatory imputations published about her by the defendant. The court, in rejecting that submission, stated:
The subsequent acts or statements of persons from which it appears, or may be inferred, that the person defamed was or was not upset by the defamatory publication can have only a limited bearing on whether that person’s reputation was likely to be damaged or his feelings were likely to be hurt.[27]
[27]Above, 799.
In those passages, the court clearly considered that ‘harm’ in s 13, included potential harm to the plaintiff’s feelings resulting from the publication of the defamatory matter.
In the present case, the respondents rely on a passage from the judgment of Beazley JA in Jones v Sutton,[28] in which her Honour (with whom Santow JA and Stein AJA agreed) stated:
Whether or not a person's feelings were hurt (and her Honour found the appellant's were not), is not relevant to s 13. That is a matter for damages.
[28](2004) 61 NSWLR 614, 623 [38].
It is important that that passage, from the judgment of Beazley JA, be understood in its proper context. In that case, the appellant complained of three publications about him by the respondent. The jury found that the imputations, alleged by the appellant, were defamatory of him. The trial judge upheld the defence under s 13, and entered a verdict for the respondent. Beazley JA held that the trial judge applied the incorrect test in determining whether the defence in s 13 was established by the defendant. In particular, the judge had considered the question whether the plaintiff did suffer harm as a result of the publication, rather than considering whether the circumstances of the publication were such that the plaintiff was likely to suffer harm as a result.[29] It is in that context that Beazley JA observed that the question, whether the plaintiff’s feelings were actually hurt, is irrelevant to s 13. Thus, properly understood, it is not clear that her Honour did hold that ‘harm’, in s 13, was confined to injury to reputation, and did not include injury to feelings. In that respect, it is noteworthy that, when Beazley JA commenced her discussion of s 13, she quoted the passage from Morosi v Mirror Newspapers Ltd,[30] that I have quoted at paragraph 46 above, and which assumes that harm, in s 13, includes injury to feelings.
[29]Ibid 622 [33]–[34], [36], 623 [40].
[30][1977] 2 NSWLR 749.
For the purposes of completeness, in Szanto v Melville,[31] I discussed the question of the meaning of ‘any harm’, in s 33, but did not come to any concluded view relating to that question.[32] Subsequently, in Enders v Erbas & Associates Pty Ltd,[33] Tobias AJA also considered the meaning of the phrase ‘any harm’ in s 33, but, in the circumstances of that case, he did not find it necessary to determine that question.[34]
[31][2011] VSC 574.
[32]Ibid [164].
[33][2014] NSWCA 70 (with whom Ward and Leeming JJA agreed).
[34]Ibid [107].
As a matter of statutory construction, the question, as I have already observed, is not without its difficulties. The use of the term ‘the harm’, in s 34 and s 36 of the Act, militates in favour of the view that the phrase ‘any harm’, in s 33, does include injury to feelings and distress resulting from the publication of the defamatory material to other persons. On the other hand, the use of the term ‘harm’ in s 11(3)(c) of the Act tends to support the opposite conclusion.
Ultimately, the determination of the question will involve some consideration of the fundamental basis of a claim for damages for defamation. A cause of action in defamation is based on the publication of matter about a person, that would injure the reputation of that person in the eyes of ordinary members of the community. However, the harm, that is recompensed by an award of damages, extends beyond compensation for the damaged reputation. In a frequently cited passage, Windeyer J in Uren v John Fairfax & Sons Pty Ltd[35] stated:
It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is because he was publicly defamed. For this reason, compensation by damages operates in two ways — as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation here is a solatium rather than a monetary recompense for harm measurable in money.[36]
[35](1966) 117 CLR 118, 150.
[36]Cassell & Co Ltd v Broome & Anor [1972] AC 1027, 1071 (Lord Hailsham); Coyne v Citizen Finance Ltd (1991) 172 CLR 211, 235 (Toohey J); Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 69 (Brennan J).
It is for that reason that it has been long recognised that an important component of an award of damages in an action for defamation consists of compensation for the distress, embarrassment and humiliation occasioned to a plaintiff as a result of the publication to other people of the defamatory material about that plaintiff.[37]
[37]See, for example, Coyne v Citizen Finance Ltd (1991) 172 CLR 211, 216 (Mason CJ and Deane J); Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 60 (Mason CJ, Deane, Dawson and Gaudron JJ); McCarey v Associated Newspapers Ltd & Ors(No 2) [1965] 2 QB 86, 104 (Pearson LJ), 107 (Diplock LJ); Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, 76–77 [379]–[380] (Gillard AJA).
Thus, in Carson v John Fairfax & Sons Ltd,[38] Mason CJ, Deane, Dawson and Gaudron JJ, in their joint judgment, stated:
Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that ‘the amount of a verdict is the product of a mixture of inextricable considerations’. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant’s personal and (if relevant) business reputation and vindication of the appellant’s reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant.
[38]Ibid 60.
In Ali v Nationwide News Pty Ltd,[39] Tobias and McColl JJA, in their joint judgment, emphasised the significance of the concept of compensation for injured feelings in an award for damages. Their Honours stated:
The harm caused to the plaintiff by the publication of the defamation often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him. Thus ‘[a] solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large part in the [general compensatory] damages’: Cassell & Co Ltd v Broome [1972] AC 1027, 1124 (per Lord Diplock)’.[40]
[39][2008] NSWCA 183.
[40]Ibid [72].
Accordingly, it is now an entrenched part of defamation law that the harm, for which damages are awarded, include hurt and distress suffered by a plaintiff arising from the publication of the defamatory matter about him or her.
As I stated, it is not necessary for me to reach a concluded view about this question on this appeal. It is undesirable that I express my views concerning the resolution of the question, since it is preferable that the issue ultimately be determined in a case in which it arises directly for decision. As I earlier stated, I have referred to the matters that I have set out above as, it seems to me, they (among other matters) may require some consideration, when the issue ultimately falls for determination.
Ground 6
Ground 6 of the proposed grounds of appeal is contingent on the applicant succeeding on ground 5. For the reasons that I shall shortly outline, I do not consider that the applicant would succeed on ground 6, even if his appeal on ground 5 were upheld.
The effect of ground 6 is that the judge should have held that the respondents had not established a defence under s 33 of the Defamation Act, if the judge had correctly concluded that the phrase ‘any harm’, in that section, included injury to the applicant’s feelings as well as injury to his reputation.
In support of ground 6, the applicant referred to evidence given by him as to the distress which he suffered when he read the email, and as a result of his understanding that the email would be published to other persons. In particular, the applicant relied on evidence, that he gave at trial, that he had a longstanding and difficult background with an untreated bipolar illness for some 18 years between 1989 and 2007, until it was appropriately treated with medication. In addition, with the leave of the Court, the applicant relied on an affidavit by him as to his emotional vulnerability in respect of the imputations conveyed by the email. He also relied on evidence that he had studied philosophy at the university, as part of attaining a Bachelor of Arts degree (with Honours), and thus it was particularly hurtful to him that it would be suggested that he was a person who would try to stifle a debate. The applicant stated, in his evidence, that he was concerned that the email would be published to others as part of the process of the APC dealing with the complaint that he had made to it.
I have no doubt that, as a result of the publication, the applicant suffered the distress that he described to the trial judge. However, as I have already noted, s 33 of the Defamation Act is concerned with the circumstances of the publication at the time of the publication. The Court must determine whether the defendant has established that, at that time, those circumstances were such that it was unlikely that the plaintiff would suffer harm.
It follows that subsequent events and circumstances, including the plaintiff’s experience of feelings of distress and hurt, can only have, at most, a limited relevance to the determination of that question.[41] At best, such evidence might fortify a conclusion, based on the circumstances at the time of the publication, that those circumstances were in fact such that it was likely that the plaintiff would suffer distress to his feelings as a result of the publication.[42]
[41]Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749, 799; Jones v Sutton (2004) 61 NSWLR 614, 622 [33]–[34] (Beazley JA); Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70, [6], [107].
[42]Cf Willis v The Commonwealth (1946) 73 CLR 105, 116 (Dixon J).
In the present case, the email was only published to two persons. As I have already stated, the imputations contained in the email were relatively mild. Notwithstanding that those imputations were defamatory to the applicant (in the sense that they would have tended to lower his reputation in the eyes of the ordinary reasonable reader of the email), nevertheless, for the reasons that I have stated, I consider that the judge was correct in holding that the circumstances of the publication were such that the applicant was not likely to suffer any harm to his reputation as a result of the publication. In a claim for damages for defamation, a successful plaintiff is entitled to compensation for distress and hurt arising from his or her knowledge or understanding that the defamatory matter has been published to other persons.[43] Thus, the fact that the circumstances of the publication were such that it was unlikely that the applicant would suffer harm to his reputation would, at the least, weigh significantly in favour of a conclusion that it was improbable that the circumstances of the publication were such that the applicant would sustain injury to his feelings as a result of the publication of the email to two other persons.
[43]See Ali v Nationwide News Pty Ltd [2008] NSWCA 183, [72] (Tobias and McColl JJA).
In support of ground 6, the applicant has submitted that the ‘circumstances of the publication’ include the fact that he had had a longstanding difficulty with his bipolar illness, which ultimately he had overcome, and that he was a person who had been committed to the free interchange of ideas and debate. The applicant submitted that, in those circumstances, the circumstances of publication were such that the respondents would not be able to establish that he was unlikely to sustain harm to his feelings as a result of the publication of the fourth Bolt statement.
As I have already stated, the phrase ‘the circumstances of the publication’ has been considered, in previous cases to include the content of the publication and extent of the publication, the nature of the recipients of the publication, and their relationship with the plaintiff. Each of those circumstances are objective facts, tied to the acts of publication.[44] As stated by the New South Wales Court of Appeal in Chappell v Mirror Newspapers Ltd,[45] ‘the quality of the circumstances of the publication must be the factor which renders it unlikely that the person defamed will suffer harm’. In my view, the phrase ‘the circumstances of the publication’ as thus far
interpreted by the courts, does not include individual characteristics of the plaintiff, at least insofar as they are unknown to the defendant at the time of publication. Such circumstances are not sufficiently connected to the act of publication to be part of the ‘circumstances of publication’. However, and in any event, I do not consider that the personal matters relied on by the applicant — his previous psychological ill health, and his interest in philosophy — would alter my conclusion that the circumstances of the publication were such that the plaintiff was unlikely to sustain any harm, even if such individual characteristics are relevant to that question.
[44]Chappell v Mirror Newspapers Ltd 1984) Aust Torts Rep, 68-948.
[45]Ibid, 68-947.
Conclusions
For the foregoing reasons, I would not grant the applicant leave to appeal in respect of the proposed grounds 1, 2, 3 and 4. If I had come to a contrary conclusion in respect of grounds 1, 2 or 3, I would have granted the applicant leave to appeal on grounds 4, 5 and 6, but, for the reasons that I have already stated, I would have dismissed the applicant’s appeal on grounds 4 and 6, thus rendering it unnecessary to determine ground 5.
Accordingly, the application for leave to appeal should be refused.
McLEISH JA:
I agree with Kaye JA, for the reasons he gives, that leave to appeal should be refused.
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