DEFAMATION – where there are three distinct publications – where the respondent denies that any of the pleaded imputations were conveyed – whether the defamatory imputations alleged were conveyed – where the applicant is not named in the first matter complained of – whether the applicant is identified as the subject of the first matter complained of – Held: identification of the applicant as the subject of the Facebook Post was not made out – the 4th, 5th, 6th and 7th imputations were conveyed
DEFAMATION – defences advanced under theDefamation Act 2005 (NSW) and at common law of justification (substantial truth, s 25); qualified privilege under statute (s 30); qualified privilege at common law under two bases, as a reply to attack and due to the respondent’s relationship to the applicant’s wife; and unlikelihood of harm (s 33) – Held: the 5th imputation that the applicant “harassed a female staffer in his parliamentary office” and the 7th imputation that the applicant “sexually harassed numerous female staff” proven to be substantially true – no basis found for substantial truth for the 4th imputation that the applicant “sexually abused a female staffer in his parliamentary office” and 6th imputation that the applicant “physically assaulted James Ashby in the Great Hall of Parliament House without provocation” – no basis for the defences of qualified privilege at statute and common law and unlikelihood of harm
DAMAGES – where the applicant sought an award of general damages, including aggravated damages – damages awarded in the sum of $250,000 plus interest
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Burston v Hanson [2022] FCA 1235
Case
[2022] FCA 1235
Decision Date
CaseChat Overview and Summary
The case of Burston v Hanson involves a defamation claim brought by Mr Burston against Ms Hanson. Mr Burston alleges that Ms Hanson defamed him in three distinct publications, while Ms Hanson denies conveying any defamatory imputations. The court had to determine whether the alleged defamatory imputations were indeed conveyed and, if so, whether certain defences under the Defamation Act 2005 (NSW) and at common law applied. The imputations in question include allegations of sexual abuse, harassment, and physical assault. The court found that the fifth and seventh imputations were substantially true, while the fourth and sixth imputations lacked substantial truth. The court further found that none of the defences of justification, qualified privilege, or unlikelihood of harm were applicable in this case. Consequently, Mr Burston was awarded damages in the sum of $250,000 plus interest.
The primary legal issues the court had to resolve were the identification of Mr Burston as the subject of the defamation in the first publication and the truth or otherwise of the imputations. The court also had to consider the applicability of various defences, including justification, qualified privilege, and unlikelihood of harm. The court's analysis hinged on the evidence provided by both parties and the witnesses they called. The testimonies presented by both sides were contradictory, and the court had to determine the credibility and weight of each witness's evidence. Ultimately, the court found that the defamatory imputations were indeed conveyed, and the defences were not established.
The court's reasoning was grounded in the evidence presented and the applicable legal principles. In determining whether the imputations were conveyed, the court considered the content of the publications and the context in which they were made. The court also assessed the credibility of the witnesses and the weight to be given to their testimony. Regarding the defences, the court examined whether the imputations were substantially true, whether there was qualified privilege, and whether the harm caused was unlikely. The court concluded that the defences were not applicable, leading to the defamation claim being upheld. The court awarded Mr Burston damages of $250,000 plus interest, reflecting the harm caused by the defamatory publications.
Orders
Orders of the court
1. Judgment be entered for the applicant in respect of the 4th imputation and 6th imputation, being imputations conveyed by the respondent in the Today Show interview of her, broadcast on 29 March 2019.
2. The respondent pay the applicant $250,000 plus interest at half the pre-judgment rate of interest as at the time of judgment, within 28 days.
3. The parties have leave to make any application to vary these orders, or for costs, by way of an email and draft agreed or competing procedural and any other orders sent to the associate to Justice Bromwich within 14 days, or such further time as may be allowed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Ms Hanson argues that none of the pleaded defamatory imputations were carried. In the alternative, Ms Hanson relies on the following pleaded defences: (a)justification of substantial truth under s 25 of the Defamation Act;(b)statutory qualified privilege under s 30 of the Defamation Act; (c)common law qualified privilege on two bases:(i)the relationship between Ms Hanson and Mrs Burston and the subject matter being the conduct of Mr Burston; (ii)reply to attack; and(d)unlikelihood of harm under s 33 of the Defamation Act. BACKGROUND, CONTEXTUAL FACTS AND FACTUAL DISPUTES TO BE RESOLVEDBackground Mr Burston is now 74 years old. He grew up in Cessnock, and after starting his career as a boilermaker, qualified as a design draftsman in mechanical and structural disciplines. From 1987 onwards, he became self-employed as a commercial draftsperson, specialising in architectural design. It was around this time Mr Burston developed an interest in politics, serving on the Cessnock City Council for 12 years and subsequently as Deputy Mayor for Cessnock in 1997. Mr Burston became involved with One Nation shortly after this, becoming a member of the party after its inception in around 1998. The party later endorsed him as the lead Senate candidate for New South Wales in the 2016 Federal Election. It was that election where Mr Burston was elected as Senator to represent One Nation for the State of New South Wales. Ms Hanson is a well-known Australian political figure and the incumbent Senator representing Queensland in the Australian Senate since the 2016 Federal Election, having been re-elected in the election on 21 May 2022. In February 1997, she co-founded the right-wing populist political party, One Nation, later also known as PHON. After meeting in 1998 at the One Nation senate pre-selection in Sydney, Mr Burston and Ms Hanson’s friendship grew over time. Mrs Burston also grew close to Ms Hanson, presumably through her working relationship with her husband. Mr Burston gave undisputed evidence of this, as he recounted Ms Hanson attending his wedding with Mrs Burston in 2008 and what he described as many subsequent outings, including dinners and lunches. This friendship continued, until the falling out between the two in mid-2018, as detailed below. This culminated in Mr Burston announcing his resignation from One Nation on 14 June 2018, to sit in the Senate as an independent and later joining the United Australian Party (UAP), until he lost his seat in the 2019 Federal Election. As noted above, I am unable to accept that any inference can be drawn that the friendship between Ms Hanson and Mrs Burston continued after Mr Burston left One Nation; and in particular, I am not satisfied that there was any such friendship as at the time that Ms Hanson sent the Text to Mrs Burston on 14 February 2019, nor that Ms Hanson had any basis for believing that there was any such continuing friendship at that time. The events giving rise to this proceeding developed from antipathy between Mr Burston and Ms Hanson, as well as antipathy between Mr Burston and Mr Ashby.Mr Burston’s Senate staff
Evidence
Evidence Before The Court
Greater weight is naturally to be given to documents that are themselves the manifestation of actions or communications, such as a text or email, than records created in order to achieve an objective, such as a complaint or document created to achieve a particular objective. That said, contemporaneous accounts of events can be corroborative of oral testimony on the same events, but must be approached with some caution due to the possible agendas being deliberately advanced.Overview of witness evidence The witness evidence given and called by Mr Burston and called by Ms Hanson ended up being largely directed to a competing narrative of key events and the context in which those the events took place, especially those the subject of the pleaded imputations, the pleaded justifications, and seeking to counter such justifications, including by seeking to explain the non-witness evidence. The following witnesses gave evidence at the trial and were cross-examined:(a)in Mr Burston’s case, him and his wife, Mrs Burston;(b)in Ms Hanson’s case, Ms Vairy, Ms Leach, Mr Bainbridge and Mr Ashby. Ms Hanson elected not to give evidence, upon the basis conveyed by her counsel that she saw no need to do so, relying instead upon the witnesses that she called. That meant that she was inherently reliant upon the testimony of Mr Ashby and the acceptance of his evidence in relation to what he told her, and what her state of mind was as a result as relevant to the justification defence of qualified privilege that she relied upon. The problem with that strategy is that Mr Ashby’s testimony was cast at a level of generality inadequate for the task of discharging the necessary burden of proof and he ended up being a witness of doubtful veracity in key respects, especially in relation to events in which he was personally involved, such as the altercation with Mr Burston. These reasons reflect the substantial challenge posed in the assessment of contradictory evidence about the disputed events. In any trial, some witnesses may simply be obviously sound and give evidence which can therefore be accepted without reservation, while other witnesses may be inherently unsound such that their testimony has to be approached with caution. Sometimes, a Court as the tribunal of fact is faced with having to decide upon facts as deposed to by a skilled liar against an account given by a bad teller of the truth. Lesser versions of that stark dichotomy are more common. The evidence of a particular witness may be wholly accepted or wholly rejected, but it is more common that there is a spectrum with different degrees of evidentiary weight or acceptance. The High Court has cautioned against drawing conclusions about the acceptance or rejection of witness evidence based upon demeanour alone: Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] per Gleeson CJ, Gummow and Kirby JJ. The sounder approach is to examine key testimony carefully and by reference to the logic and sequence of events about which evidence is given, as aided by contemporaneous and objective evidence.