Hanson-Young v Leyonhjelm (No 4)

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FEDERAL COURT OF AUSTRALIA

Hanson‑Young v Leyonhjelm (No 4) [2019] FCA 1981

File number: NSD 1370 of 2018
Judge: WHITE  J
Date of judgment: 25 November 2019
Catchwords:

DEFAMATION – multiple publications – whether the imputations concerning the Applicant which the Respondent admitted had been conveyed were defamatory of her – whether an imputation which is otherwise defamatory may not be defamatory when published by one politician concerning another politician – whether defamatory imputations were rendered “anodyne” or “drowned out” by the surrounding context – extent to which the publications diminished the Applicant’s reputation – whether the defence of justification established – whether the defence of statutory qualified privilege established – whether evidence and submissions in the proceedings infringed s 16(3) of the Parliamentary Privileges Act 1987 (Cth) and, if so, whether the proceedings should be permanently stayed.

DEFAMATION – defences – justification under s 25 of the Defamation Act 2005 (NSW) – whether the Applicant had in fact made the statement attributed to her by the Respondent on which he had based the defamatory imputations – reliability of eyewitness accounts – qualified privilege – whether the Respondent’s conduct was reasonable – whether the Respondent was actuated by malice.

DEFAMATION – remedies – assessment of damages – whether the Applicant is entitled to aggravated damages – whether hurt and distress suffered by the Applicant derived from an imputation that was not pleaded.  
Legislation:

Australia Constitution s 49

Evidence Act 1995 (Cth) s 136

Parliamentary Privileges Act (1987) (Cth) s 16

Federal Court Rules 2011 (Cth) rr 16.02, 16.03, 16.08, 16.41

Defamation Act 1974 (NSW) ss 15, 22

Defamation Act 2005 (NSW) ss 4, 25, 30, 31, 33, 34, 35, 36, 38

Bill of Rights 1688 Art 9

Cases cited:

Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158

Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223

Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223

Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225

Armstrong v McIntosh (No 2) [2019] WASC 379

Associated Newspapers Ltd v Dingle [1964] AC 371

Austin v Mirror Newspapers Ltd [1984] 2 NSWLR 383

Australian Consolidated Press Ltd v Uren [1966] HCA 37; (1966) 117 CLR 185

Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30

Berkoff v Burchill [1996] 4 All ER 1008

Bolton v Stoltenberg [2018] NSWSC 1518

Broome v Cassell & Co Ltd [1972] AC 1027

Buchanan v Jennings [2004] UKPC 36; [2005] 1 AC 115

Calwell v Ipec Australia Ltd [1975] HCA 47; (1975) 135 CLR 321

Carrigan v Honourable Senator Michaelia Cash [2016] FCA 1466

Carrigan v Honourable Senator Michaelia Cash [2017] FCAFC 86

Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44

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

Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185

Comalco Ltd v Australian Broadcasting Corporation (1983) 78…

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Details
Case
[2019] FCA 1981
Decision Date

CaseChat Overview and Summary

The case of Hanson-Young v Leyonhjelm (No 4) involved a defamation claim brought by Senator Sarah Hanson-Young against Senator David Leyonhjelm. The dispute arose from statements made by Senator Leyonhjelm during a parliamentary sitting, which Senator Hanson-Young contended were defamatory. The Federal Court of Australia was tasked with determining whether the imputations made were indeed defamatory, whether Senator Leyonhjelm's defences of justification and qualified privilege were valid, and whether the proceedings infringed upon parliamentary privileges.

The court had to resolve several legal issues, including the interpretation of the defamatory imputations made by Senator Leyonhjelm, the reliability of eyewitness accounts, and the reasonableness of Senator Leyonhjelm's conduct in making the statements. Additionally, the court needed to determine whether the defence of statutory qualified privilege was applicable and if there was any malice involved. The court also had to consider whether Senator Hanson-Young was entitled to aggravated damages and whether the hurt and distress she suffered derived from the pleaded imputations.

The Federal Court found that the imputations admitted by Senator Leyonhjelm were defamatory of Senator Hanson-Young. The court rejected both the defence of justification and the defence of statutory qualified privilege. It concluded that Senator Leyonhjelm had not established either defence, and therefore, the defamatory imputations were not justified or privileged. The court awarded Senator Hanson-Young damages in the aggregate sum of $120,000 for non-economic loss. The court also noted that the evidence and submissions did not infringe upon s 16(3) of the Parliamentary Privileges Act 1987 (Cth), and therefore, the proceedings would not be permanently stayed.

The court ordered the matter to be adjourned to allow further submissions on interest, injunctive relief, and costs. The hearing was set for 2 December 2019 in Adelaide, with the option for the parties to appear via videolink. The court emphasized that the entry of orders would be governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The matter is adjourned to Monday 2 December 2019 at 2:15pm (ACDT) in Adelaide for submissions with respect to interest, the application for injunctive relief and costs.

2. There be liberty to the parties to appear at that hearing by videolink.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons which follow, I am satisfied that:(a)the imputations admitted by the respondent to have been conveyed by the impugned matters were defamatory of the applicant;(b)the respondent has not established the substantive defences of justification or statutory qualified privilege; and(c)the applicant is entitled to an award of damages in the aggregate sum of $120,000.An evidence issue The Court directed that the evidence in chief of each witness, including of the parties, be provided by way of affidavit. The respondent’s affidavit was made on 11 December 2018. The applicant objected to numerous paragraphs within that affidavit and the Court directed senior counsel to confer with a view to seeing whether agreement for the resolution of the objections could be achieved. Following that conferral, the parties informed the Court that they were agreed that the objections with respect to [18]‑[46] of the respondent’s affidavit should, with one or two exceptions which are not presently material, be addressed in final submissions. The respondent’s affidavit was then received into evidence on that basis. However, in the final submissions, neither counsel sought a ruling on the objections. Counsel for the applicant submitted only that the Court could take the view that it did not need to decide the objections because, having regard to the content of the impugned paragraphs, it could decide to give them no weight. Counsel for the respondent did not contend that all of the paragraphs to which objection was taken should be received. The position is unsatisfactory. The Court should have been told those paragraphs on which the respondent sought to rely and, in the event that the applicant persisted with an objection to them, a ruling sought. I resolve this unsatisfactory state of affairs in this way. The only paragraphs of the respondent’s affidavit on which counsel for the respondent relied in closing submissions were [12], [21]‑[22], [27]‑[29], [49]‑[51] and [54]‑[56]. I uphold the applicant’s objection to [49]‑[51] (save for a passage in [49] which was admitted as evidence only of the respondent’s belief) and overrule the applicant’s objection with respect to the remaining paragraphs to which objection was taken and on which the respondent relied in the closing submissions. I indicate now that I have attached relatively little weight to those paragraphs, preferring instead to rely on the oral and documentary evidence received in the trial. I have not received the remaining paragraphs in the respondent’s affidavit to which the applicant took objection. Even had I admitted them, I would have attached little, if any, weight to them. Factual setting Thursday, 28 June 2018 was the last sitting day of the Senate before it adjourned for the winter recess. The Senate commenced sitting at 9.30 am. At about midday, the Senate moved to consideration of motions put forward by individual Senators. One such motion was from Senator Anning. It is reported in Hansard under the heading “Prevention of Violence Against Women”. The motion proposed that the Senate note certain matters and accept that “access to a means of self‑protection by women in particular would provide greatly increased security and confidence that they will not become just another assault, rape or murder statistic”.

Decision

Reasons for decision

If that understanding be correct, then the submission must be rejected. The premise upon which it proceeds does not exist. Conclusion on s 16(3) For these reasons, I conclude that the evidence and submissions advanced by the parties in these proceedings do not involve infringement of s 16(3) of the PP Act. This is not a case in which the Court should, in order to protect its own process from abuse, take the relatively extreme step of granting a permanent stay of the proceedings. Injunctions The applicant has also sought injunctive relief. However, in their final submissions, the parties asked that this aspect of the claim be deferred until after the Court has published its findings. Accordingly, I will hear from the parties further with respect to that aspect of the applicant’s claims.Summary In summary, I find that the applicant has established that the impugned matters did convey the imputations defamatory of the applicant which she has claimed; that those imputations were defamatory of her; that the respondent’s defences of justification and qualified privilege fail; and that an award of damages of $120,000 is an appropriate award of damages by way of non‑economic loss. I will hear from the parties with respect to interest, the application for injunctive relief and costs.

Ratio Decidendi

Legal Principle Established

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