FEDERAL COURT OF AUSTRALIA
Edwards v Nine Network Australia Pty Limited (No 5) [2024] FCA 422
File number(s): NSD 129 of 2022 Judgment of: WIGNEY J Date of judgment: 26 April 2024 Catchwords: DEFAMATION – where defamatory imputations allegedly conveyed by a television program called “A Current Affair” and accompanying articles about dispute concerning the ownership of a supposedly Instagram famous dog named Oscar – the wondrous life and times of Oscar the cavoodle – where alleged imputations included theft and financial exploitation of Oscar and delay of related court proceedings – whether alleged imputations carried or conveyed by the publications – held that most of the imputations were conveyed
DEFAMATION – defence of justification – whether substantially true that the applicant “stole” Oscar – where the applicant obtained possession of the dog by a deception – whether applicant had an honest claim of right – defence not established – defence of contextual truth – contextual imputations not substantially true and any damage caused by them would not have “swamped” the damage caused by other imputations
DAMAGES – extent of damages for non-economic loss – whether aggravated damages should be awarded – whether pre-publication conduct can be considered for aggravated damages – where defamatory publications damaged applicant’s reputation and caused hurt to feelings and distress to applicant – mitigation or reduction of damages as a result of disreputable conduct on the part of the applicant - applicant awarded compensatory and aggravated damages
Legislation: Federal Court of Australia Act 1976 (Cth) s 51A Companion Animals Act1998 (NSW) ss 7, 12A
Crimes Act 1900 (NSW) ss 117, 118, 132
Defamation Act 2005 (NSW) ss 4, 8, 25, 26, 34, 35
Defamation Amendment Act 2020 (NSW)
Gazette No 250, 9 June 2023, p 15
Cases cited: Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 at 165-66; [1998] NSWSC 4
Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225
Australian Broadcasting Corporation v McBride [2001] NSWCA 322; (2001) 53 NSWLR 430
Burstein v Times Newspapers Ltd [2000] EWCA Civ 338; [2001] 1 WLR 579
Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091
City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477
Corby v Allen & Unwin Pty Ltd (2014) 108 NSWLR 431; [2014] NSWCA 227
Coyne v Citizen Finance Limited (1990 – 1991) 172 CLR 211
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- AGLC
- Edwards v Nine Network Australia Pty Limited (No 5) [2024] FCA 422
- Case
- [2024] FCA 422
- Decision Date
CaseChat Overview and Summary
The court examined whether the defamatory imputations were conveyed by the television broadcasts and articles. It found that most of the imputations, such as Ms Edwards stealing Oscar and exploiting him for financial benefit, were indeed carried by the publications. The court also considered whether these imputations were defamatory and concluded that they were. Moving on to the defence of justification, the court found that Ms Edwards did not steal Oscar as she obtained possession through deception, and she did not have an honest claim of right. The defence of contextual truth was rejected as the contextual imputations were not substantially true, and any damage caused by them would not have overwhelmed the damage caused by the other imputations.
The court awarded Ms Edwards compensatory and aggravated damages, noting that the publications damaged her reputation and caused her hurt and distress. The court considered that the pre-publication conduct of Ms Edwards could be taken into account when assessing the appropriate amount of aggravated damages. However, the disreputable conduct of Ms Edwards resulted in a mitigation of the damages awarded. The final orders included judgment in favour of Ms Edwards in the sum of $150,000, with prejudgment interest, and further orders to be determined at a case management hearing.
Orders
Orders of the court
1. Within 14 days of delivery of this judgment, the parties provide the Court with agreed or competing short minutes of order providing for:
(a) judgment to be entered in favour of the applicant in the sum of $150,000, together with such prejudgment interest (if any) as either agreed or contended by the parties respectively; and
(b) any other order or orders necessary to finalise the matter, as either agreed or contended by the parties respectively, including in respect of any injunctive relief and costs.
2. The matter be for listed for a case management hearing at 9.30 am on 16 May 2024 for the purpose of either:
(a) the entry of judgment in favour of the applicant and the making of final orders if the parties are able to reach agreement as to the outstanding issues and the appropriate final orders; or
(b) the making of procedural orders and the listing the matter for a further hearing to hear and determine argument in respect of any and all outstanding issues.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
TABLE OF CONTENTS
THE PUBLICATIONS
[12]
The first broadcast
[13]
The first article
[23]
The second broadcast
[30]
The second article
[37]
THE ALLEGED DEFAMATORY IMPUTATIONS
[38]
Defamatory imputations allegedly conveyed by the first broadcast
[39]
Defamatory imputations allegedly conveyed by the first article
[41]
Defamatory imputations allegedly conveyed by the second broadcast
[43]
Defamatory imputations allegedly conveyed by the second article
[45]
ISSUE ONE: DID THE PUBLICATIONS CARRY THE IMPUTATIONS?
[47]
Imputations carried by the first broadcast
[53]
Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle
[54]
Ms Edwards, a barrister, stole Oscar the cavoodle for her own financial benefit
[65]
Ms Edwards, a barrister, deliberately delayed a court case about Oscar
[69]
Ms Edwards, a barrister, exploited Oscar for her own financial benefit
[72]
Imputations carried by the first article
[75]
Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle
[76]
Ms Edwards, a barrister, stole Oscar the cavoodle for her own financial benefit
[82]
Ms Edwards, a barrister, exploited Oscar for her own financial benefit
[85]
Imputations carried by the second broadcast
[89]
Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle
[90]
Ms Edwards, a barrister, adopted delay tactics so as to prolong her unlawful possession of Oscar
[94]
Ms Edwards, a barrister, deliberately delayed a court case about Oscar
[97]
Ms Edwards, a barrister, failed to fulfil her obligation to appear in court in relation to her AVO application against Mr Gillespie
[99]
Imputations carried by the second article
[104]
Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle
[105]
Ms Edwards, a barrister, adopted delay tactics so as to prolong her unlawful possession of Oscar
[108]
Ms Edwards, a barrister, deliberately delayed a court case about Oscar
[109]
Ms Edwards, a barrister, failed to fulfil her obligation to appear in court in relation to her AVO application against Mr Gillespie
[110]
Summary of conclusions concerning the imputations
[111]
ISSUE TWO: WERE THE IMPUTATIONS DEFAMATORY?
[118]
ISSUE THREE: WERE THE IMPUTATIONS SUBSTANTIALLY TRUE?
[123]
Relevant statutory provisions and principles
[125]
Overview of the parties’ claims and counterclaims
[131]
The Publishers’ case
[132]
Ms Edwards’ case
[146]
The offence of larceny and stealing
[152]
Witness demeanour and credibility
[162]
Did Ms Edwards steal Oscar?
[175]
Did Mr Gillespie agree with Ms Edwards and Mr Flavell at the outset that they would be co- owners of Oscar?
[178]
Did Ms Edwards and Mr Flavell otherwise acquire ownership or possessory rights concerning Oscar?
[200]
Did Mr Flavell abandon Oscar when he left him in the care and custody of Mr Fidler and Ms Angeli?
[220]
Did Ms Edwards genuinely and honestly believe that she had the legal right to obtain possession of Oscar?
[231]
When did Mr Hodgson give the advice?
[236]
What was Mr Hodgson told by Ms Edwards?
[240]
What advice did Mr Hodgson give Ms Edwards?
[252]
What did Ms Edwards believe about her rights to Oscar following the receipt of Mr Hodgson’s advice?
[265]
Did the account of the facts concerning Oscar that Ms Edwards gave Mr Hodgson include any facts which Ms Edwards knew to be false or misleading?
[267]
Was the belief Ms Edwards held based on Mr Hodgson’s advice honestly and genuinely held?
[281]
Was Mr Hodgson’s advice correct?
[285]
Did Ms Edwards and Mr Flavell obtain possession of Oscar by fraud or deception?
[297]
Did Ms Edwards have an intention to permanently deprive Mr Gillespie of ownership or possession of Oscar?
[308]
Conclusion: Ms Edwards did not steal Oscar
[317]
Did Ms Edwards steal Oscar for her own financial benefit?
[324]
CONCLUSION IN RELATION TO THE PUBLISHERS’ JUSTIFICATION DEFENCE
[330]
ISSUE FOUR: THE PUBLISHERS’ DEFENCE OF CONTEXTUAL TRUTH
[331]
Relevant statutory provisions and principles
[333]
The alleged contextual imputations
[339]
Were the contextual imputations carried by the publications?
[341]
Were the contextual imputations substantially true?
[350]
Did the contextual imputations “swamp” the defamatory imputations?
[356]
Conclusion in respect of the defence of contextual truth
[359]
CONCLUSION IN RELATION TO THE PUBLISHERS’ LIABILITY
[360]
ISSUE FIVE: DAMAGES
[361]
Relevant principles - general or compensatory damages
[362]
Relevant principles – aggravated damages
[370]
Extent of publication
[377]
Damage to Ms Edwards’ reputation
[382]
Hurt and distress suffered by Ms Edwards
[400]
Was Ms Edwards’ hurt aggravated by the Publishers’ conduct?
[410]
Mitigation or reduction of damages
[437]
What is the appropriate award of damages in Ms Edwards’ case?
[450]
ISSUE SIX: OTHER RELIEF
[461]
DISPOSITION AND ORDERS
[463]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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