Greiss v Seven Network (Operations) Limited (No 2)

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FEDERAL COURT OF AUSTRALIA

Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98

File number: NSD 292 of 2022
Judgment of: KATZMANN J
Date of judgment: 20 February 2024
Catchwords: DEFAMATION – where journalist tweeted and media organisation reported that applicant stared down a rape victim and spat at or towards her outside courthouse following sentencing of her assailant and pleaded imputations were admittedly conveyed and defamatory – where respondents pleaded defences of justification, contextual truth and honest opinion – whether imputations were substantially true – whether, if not, defences of contextual truth and honest opinion made out – whether additional imputation differed in substance from pleaded imputations – whether matters complained of were expressions of opinion rather than statements of fact – whether opinions based on proper material – whether pleaded imputations not found to be substantially true caused no further harm to applicant – whether aggravated damages should be awarded – whether damages should be mitigated because of applicant’s conduct
Legislation:

Evidence Act 1995 (Cth) ss 83, 87, 136, 140(2)

Federal Court of Australia Act 1976 (Cth) ss 37M, 51A(1)

Defamation Act 2005 (NSW) ss 25, 26, 34, 35

Heydon JD, Cross on Evidence (14th ed, LexisNexis, 2024)

Milmo P and Rogers W V H (eds), Gatley on Libel and Slander (10th ed, Sweet & Maxwell, 2004)

Odgers S, Uniform Evidence Law (18th ed, Lawbook Co, 2023)

Macquarie Dictionary (8th ed, Macquarie Dictionary Publishers, 2020)

The New Shorter Oxford English Dictionary (4th ed, Clarendon Press, 1993)
Cases cited:

Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228

Abou-Lokmeh v Harbour Radio Pty Ltd [2017] HCASL 18

Adler v Australian Securities and Investments Commission [2003] NSWCA 131; 21 ACLC 1810; 46 ACSR 504; 179 FLR 1

Ainsworth v Burden [2005] NSWCA 174

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442

Blatch v Archer (1774) 1 Cowp 63; 98 ER 969

Briginshaw v Briginshaw (1938) 60 CLR 336

Bristow v Adams [2012] NSWCA 166

Browne v Dunn (1893) 6 R 67

Burstein v Times Newspapers Ltd [2001] 1 WLR 579

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44

Cassell & Co Ltd v Broome [1972] AC 1027

Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261

Channel Seven Sydney Pty Ltd v Fisher [2015] NSWCA 414; (2016) Aust Torts Reports ¶82-257

Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; 278 ALR 232

Crosby v Kelly [2013] FCA 1343

Dank v Nationwide News Pty Ltd [2016] NSWSC 295

Domican v Pan Macmillan Australia Pty Ltd [2019] FCA 1384

Duma v Fairfax Media Publications Pty Limited (No 3) [2023] FCA 47

Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118

Edwards v The Queen (1993) 178 CLR 193

Fabre v Arenales (1992) 27 NSWLR 437

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Details
Case
[2024] FCA 98
Decision Date

CaseChat Overview and Summary

In the case of Greiss v Seven Network (Operations) Limited (No 2), the plaintiff, Mr Greiss, alleged that the defendants, Seven Network and journalist Leonie Ryan, defamed him by tweeting and reporting that he had stared down and spat at a rape victim outside a courthouse. The defendants admitted to the publication and identification of the defamatory matter but defended the claims by asserting the defences of justification, honest opinion, and contextual truth. The primary legal issues that the court had to decide were whether the imputations were substantially true, whether the defences of contextual truth and honest opinion were applicable, and whether the pleaded imputations caused any harm to Mr Greiss.

The court examined the evidence provided by both parties and found that the defendants had not successfully proven the defence of justification. The imputations were not substantially true as the evidence did not support the claims that Mr Greiss spat at or towards the victim. The court also found that the defence of honest opinion was not applicable, as the opinions expressed were not based on proper material and were not genuinely held. The defence of contextual truth was not successful either, as the additional imputations differed in substance from the pleaded imputations. The court concluded that the defendants' claims were expressions of opinion rather than statements of fact, but they were not based on proper material. Consequently, the defendants failed to establish their defences.

The court found Mr Greiss to be defamed and awarded him damages in the sum of $37,940. The court did not award aggravated damages, as it found that the pleaded imputations not being substantially true caused no further harm to Mr Greiss. The court also did not mitigate the damages awarded due to Mr Greiss's conduct. The final orders of the court were to grant judgment for the applicant in the sum of $37,940 and to reserve costs.

Orders

Orders of the court

1. There be judgment for the applicant against the first respondent in the sum of $37,940.

2. Costs be reserved.

3. Within 28 days the applicant file and serve any evidence and/or submissions in relation to costs, not exceeding five pages.

4. Within 14 days thereafter the respondents file and serve any evidence and/or submissions in response, not exceeding five pages.

5. Within 7 days of receipt of the respondents’ submissions, the applicant file and serve submissions in reply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The respondents admit publication and identification. They also admit that the pleaded imputations were conveyed. They contend, however, that they are not liable, relying on the defences of justification (truth) and honest opinion. In relation to the first and third matters complained of, they also plead the defence of contextual truth. In the event that they fail to establish any of these defences, they argue that no damages should be awarded anyway.UNDISPUTED FACTS The following facts were either agreed or not in dispute. Seven is the distributor of the television programme, Seven News, and the operator and publisher of the content on the website (the 7news website) which is available for download throughout Australia. Seven is also the operator and publisher of content on the Facebook page “Channel 7” (the 7 Facebook account). Ms Ryan is a journalist employed by Seven. On 6 May 2021 Jarryd Hayne, a former star rugby league player, was sentenced at the District Court in Newcastle some six weeks after he had been convicted of two counts of sexual intercourse without consent. Ms Ryan was one of a number of members of the media who attended the courthouse to report on the sentencing hearing. Mr Greiss attended with friends to support Mr Hayne. They were Daniel Petras, Alifeleti Sosefo Mateo and Henry Prince Iuta. At about 3:40 pm, Mr Greiss and other supporters of Mr Hayne left the courthouse and stood together within a courtyard to the right of the entrance to the building. About five minutes later, the victim emerged from the building, escorted by two sheriff’s officers, Andrew Girkin and Scott Weaver. She was part of a small group which also included detectives and the Crown prosecutor. For convenience, I will refer to this group as the victim’s group or the group. As the group left the building, they turned right and walked down a ramp which runs alongside the building to Hunter Street. When he noticed the group leaving, Mr Greiss rose from his seat outside the building and walked towards the ramp, positioning himself at the top of a small staircase which led to the ramp. He looked at the group and noticed that it included the victim. At this time, the members of the media, including Ms Ryan, were standing on the footpath on Hunter Street, at the bottom of a wide set of stairs leading to the courthouse entrance. A few minutes after the victim left the court precinct, Ms Ryan published the Ryan tweet. In the tweet, which was accompanied by a photograph of Ms Greiss, Ms Ryan wrote:Foul behaviour outside court following Jarryd Hayne’s sentence. One of his supporters stared his victim down and spat in her direction.Share far & wide guys.A grub right here.The photograph depicts Mr Greiss holding a mobile phone in front of him giving the impression that he is filming something. The Ryan tweet was retweeted by Tiffiny Genders, a reporter for the Nine Network. A Twitter account apparently operated by Seven under the name “7News Sydney” replied to the Ryan tweet, proclaiming that:The vile act aimed towards Hayne’s victim occurred just hours after she declared he had destroyed her life on the night of the 2018 NRL grand final.

Evidence

Evidence Before The Court

With the exception of the first remark by Mr Greiss (“You’re quick on Twitter”), which is plainly audible and which Mr Greiss accepted he made, the above account is taken from a transcript of the three conversations prepared by the respondents. While counsel for Mr Greiss disputed its accuracy, I have both watched and listened carefully to the footage. I consider that the transcript of these conversations that the respondents prepared is substantially correct, indeed almost word perfect. While the words uttered immediately after the final spit (at about 42 seconds into the compilation video) are not as loud as others, I am satisfied that Mr Greiss did say those words or words to precisely the same effect. Indeed, in cross-examination, immediately after Exhibit 12 had been played, Mr Greiss agreed:MR RICHARDSON: Now, Mr Greiss, I want to suggest that at the last moment played there, you said, “Here’s another for you,” or, “There’s another one for you”?---Okay. I - - -Do you agree with that?---Yes, I agree.The evidence from the witnesses Mr Greiss gave his account of what occurred. He also relied on evidence adduced from two friends and supporters of Mr Hayne, who were with him at the time the conduct the subject of the proceeding took place. They were Mr Mateo and Mr Iuta. Ms Ryan was the first of the respondents’ witnesses to be called. Two other journalists were also called. They were Giselle Wakatama, a journalist with the Australian Broadcasting Corporation, and Ms Genders, a journalist with Channel 9. What follows is a recitation of the salient parts of the evidence or its effect. Although Mr Greiss was the first witness to be called in the proceeding, it is convenient to begin with the evidence of Ms Ryan and the other journalists who were called by the respondents since they bear the onus of proof on the justification defence.Leonie Ryan Ms Ryan sat in a designated media room where the proceedings concerning Mr Hayne were being livestreamed until the sentence was handed down when she left the courthouse and stood at the bottom of the stairs leading from Hunter Street to the front of the building with reporters from various media outlets. Her purpose was to try to obtain a reaction from Mr Hayne’s supporters outside court. Ms Ryan saw a sheriff, followed by others including the victim, leave the courthouse and descend the ramp. She estimated that there were about half a dozen people in the group with the victim. At about the time they started to move, Ms Ryan noticed Mr Greiss stand up from his seat and “almost walk [in] the direction of where the alleged victim was walking” while “staring at her and mumbling”. In cross-examination she clarified that she did not hear him mumbling but saw his mouth moving. She maintained that she could see this movement from where she was standing because his face was “side on” rather than directed away from her. She denied that Mr Greiss’s large beard would have prevented her from being able to see him mumbling.

Decision

Reasons for decision

It was not suggested that leave should be refused because other litigants would be adversely affected if the amendments were to be allowed. Mr Greiss made no submissions on this question. In circumstances such as this, where no application was made or foreshadowed for the hearing dates to be vacated and the hearing would not be prolonged as a result of the amendments, no detriment to other litigants could arise.Conclusion Taking all relevant factors into consideration and weighing them in the balance, I was satisfied that the best way to promote the overarching purpose was to allow the respondents’ amendments and require the respondents to pay the costs of the application.ISSUES It follows that the remaining issues concern:(1)whether the defences of justification, honest opinion and/or contextual truth have been made out; and(2)if not:(i)the extent to which any of the matters relied upon to prove justification, honest opinion and/or contextual truth mitigates damages;(ii)whether Mr Greiss has made out a case for aggravated damages; and(iii)the amount, if any, of damages that should be awarded.THE JUSTIFICATION DEFENCEThe law Section 25 of the Defamation Act provides that it is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. A defendant who raises such a defence must prove that each of the imputations and every material part of those imputations was substantially true at the time of publication: Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; 278 ALR 232 at [138] (McColl JA, with whom Spigelman CJ (at [1]), Beazley JA (at [2]), McClellan CJ at CL (at [283]) and Bergin CJ in Eq (at [284]) agreed). There is no defence of partial justification: Kumova v Davison (No 2) [2023] FCA 1 at [96] (Lee J). “Substantially true” is defined in s 4 of the Defamation Act to mean “true in substance or not materially different from the truth”. It is unnecessary for a defendant to prove that every part of an imputation is literally true; it is enough that its gravamen or “sting” of the imputation is true: Mahommed at [138]. In considering whether imputations that require an evaluative assessment of Mr Greiss’s conduct (such as the imputations that his conduct was “vile” or “despicable” or that he behaved “disgracefully”), it is necessary to consider whether ordinary decent people, that is, reasonable people of ordinary intelligence, experience and education, bringing to bear their general knowledge and experience of worldly affairs, would come to that conclusion: Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31 at [54]–[56] (Gummow, Hayne and Bell JJ). If the justification defence fails, however, evidence led in support of that defence may mitigate damages. Thus, if the respondents fail to prove that one imputation or a material part of an imputation is not substantially true but prove that another is, the substantial truth of the other may reduce the damages “perhaps almost to vanishing point”: Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 120 (Neill LJ).The scope of the factual dispute

Ratio Decidendi

Legal Principle Established

The application was listed for hearing on the first day of the trial. After hearing argument, I informed the parties that I would allow the application and give my reasons later. Counsel for Mr Greiss then indicated that reasons for that decision were not required “for the purpose of the trial”. At the time, I had the impression that reasons were not required at all. On reflection, however, I considered my impression may well have been wrong. Consequently I record the reasons below. As the amendments concerned multiple aspects of the respondents’ defence, it is convenient to set out my reasons for allowing them before turning to the substantive determination of this matter.The relevant considerations Rule 16.53 of the Federal Court Rules 2011 (Cth) (Rules) requires that any party wishing to amend a pleading after pleadings have closed must apply for the leave of the Court. Rule 1.41 provides that, if a party makes an application, the Court may grant or refuse the order sought or make a different order. The Court’s discretion is at large, save that, like any power conferred by the Rules, it must be exercised in the way that best promotes the overarching purpose of the civil practice and procedure provisions of the relevant legislation, including the Rules, set out in s 37M(3) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). That purpose is the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: FCA Act, s 37M(1). Various factors are relevant to the exercise of the power. The respondents relied on the uncontroversial summary contained in the judgment of Besanko J in Roberts-Smith v Fairfax Media Publications Pty Limited (No 5) [2020] FCA 1067, drawn from a number of authorities listed at [15] of that judgment. They are:(1)the nature and importance of the amendments to the party applying for them;(2)the extent of the delay and the costs associated with it;(3)the explanation for the delay;(4)the prejudice that might reasonably be assumed to follow from the amendment and that which is shown;(5)the parties’ choices to date in the litigation and their consequences; (6)the detriment to other litigants in the court if the amendments are allowed; and(7)the potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification.The proposed amendments The respondents wished to amend their defence by:(1)adding a defence of contextual truth under s 26 of the Defamation Act 2005 (NSW) (Defamation Act) to the first and third matters, including a new particular 8; (2)amending particular 7 of their justification defence; and (3)amending their particulars of mitigation to enable them to rely on the substantial truth of the contextual imputations in mitigation of damages in the event that their substantive defences were not made out.The amendment to the particulars of the justification defence It is convenient to deal first with this aspect of the amended defence.