Lennon v Herald & Weekly Times Limited
[2021] VSC 147
•30 March 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2020 04146
| PATRICK LENNON | Plaintiff |
| v | |
| THE HERALD AND WEEKLY TIMES LIMITED (ACN 004 113 937) | First Defendant |
| KIEL EGGING | Second Defendant |
| PAUL SHAPIRO | Third Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 March 2021 |
DATE OF JUDGMENT: | 30 March 2021 |
CASE MAY BE CITED AS: | Lennon v Herald & Weekly Times Limited |
MEDIUM NEUTRAL CITATION: | [2021] VSC 147 |
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DEFAMATION – Application by the plaintiff to strike out pleading pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Whether reliance upon an earlier publication in mitigation of damages contravenes the ‘single meaning rule’ – Slim v Daily Telegraph [1968] 2 QB 157 referred to – Cornes v The Ten Group Pty Ltd (2012) 14 SASR 46 referred to – Whether pleading in mitigation of damages goes to “directly relevant background context” – Burstein v Times Newspapers Ltd [2001] 1 WLR 579 referred to and applied – Rush v Nationwide News Pty Ltd (No 2) (2018) 359 ALR 564 referred to – Reputation – Admissibility and relevance – Whether defendants can plead evidence of specific conduct on the part of the plaintiff – Channel Seven Sydney Pty Ltd v Mohammed (2010) 278 ALR 232 referred to – Application granted with leave to replead.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr DP Gilbertson QC with Ms E Nikou Madalin | Harris Carlson Lawyers |
| For the Defendants | Mr A Anderson | Thomson Geer |
HER HONOUR:
The plaintiff (‘Mr Lennon’) is the director and principal lawyer of Lennon Lawyers. The first defendant (‘HWT’) is the publisher of the Herald Sun newspaper and online news service. The second and third defendants, Mr Egging and Mr Shapiro, are journalists employed by HWT.
On 5 October 2020, Mr Egging and Mr Shapiro wrote, and HWT uploaded to the Herald Sun website an article titled ‘Melbourne’s drug crooks: Kristiana Karakostas Jessica Legg and Aravinda Mathuran’ (‘original article’). The subheading to the original article states “They were all high flyers with plum jobs –– until their shady double lives as drug dealers were exposed. See what happened to these disgraced Melbourne professionals.” The original article provides, in part as follows:
An insurance broker, an auctioneer and a former Coca Cola officer are among Melbourne’s business professionals exposed as drug mules.
Some of the former high-flyers are out of a gig and serving jail time after their sentences were handed down in court earlier this year.
Last week, Caulfield North lawyer Patrick Lennon, who has previously represented the likes of underworld figure Mick Gatto and jock Danny Nikolic, was arrested for alleged ice trafficking.
He is set to face court on various drug charges next month.
Here’s some other professionals and business owners who have had their double lives exposed for similar offences.
On 5 October 2020, Mr Egging and Mr Shapiro wrote and HWT uploaded a hyperlink to the original article containing the words ‘The high-flying Melbourne professionals busted for drugs’ (‘hyperlink’).
On or about 5 October 2020, Mr Lennon served a “concerns notice” upon the defendants.
On 7 October 2020, the defendants amended the original article, as follows (‘amended article’):
(a) substituting the words “Last month, Leader reported” for the words “Last week;
(b) after the words “was arrested for alleged ice trafficking” adding the words “in July”; and
(c) after the words “He is set to face court on various drug charges” and before the word “month”, substituting the words “later this” for the word “next”.
Statement of claim
Mr Lennon alleges that the natural ordinary meaning of the original article and the amended article, either alone or together with the hyperlink (collectively, the ‘publications’), was defamatory of him and would be understood to mean that Mr Lennon:
(a) is a drug trafficker;
(b) has trafficked drugs;
(c) is a disgraced professional in that he is a lawyer who is a drug trafficker;
(d) is a disgraced professional in that he is a lawyer who has trafficked illegal drugs;
(e) has led a secret double life as a lawyer and a drug trafficker;
(f) is unfit to practice as a lawyer in that he leads a secret double life as a drug trafficker;
(g) is unfit to practice as a lawyer in that he has trafficked illegal drugs;
(h) is deserving of the opprobrium of the community in which he lives and the profession in which he works by reason of his conduct as a drug trafficker; and
(i) is deserving of the opprobrium of the community in which he lives and the profession in which he works by reason of the fact that he is a lawyer leading a secret double life as a drug trafficker.
Paragraph 12 of the statement of claim provides as follows:
Further, each of the Publications, or alternatively one or more of them, was published in circumstances entitling the plaintiff to an award of aggravated damages.
PARTICULARS
The plaintiff’s hurt, humiliation and harm occasioned by the Publications is and was aggravated by the following matters:
(a) the Publications are sensational in language and tone;
(b)the first defendant has extensive experience in defending defamation proceedings and therefore knew or ought to have known that:
(i)the Publications went beyond merely reporting that the plaintiff had been charged with the commission of an offence; and/or
(ii)the Publications conveyed one or more of the imputations set out in paragraph 10 above;
(c)the Publications were made without the defendants having made any or any proper enquiries of the plaintiff, and without providing him with an opportunity to respond or comment on its contents; and
(d)notwithstanding the service of a concerns notice on or about 5 October 2020, the defendants have:
(i)refused to remove the Hyperlink and the Amended Article from the Herald Sun Website;
(ii)refused to publish a retraction of the Publications or to otherwise amend the Amended Article to address the imputations of concern; and
(iii)refused to apologise to the plaintiff in respect of the Publications.
Defence
The defendants do not plead any substantive defences in their defence filed on 17 December 2020. Paragraph 10 of the defence provides as follows:
a.They admit that the Publications as defined in the Statement of Claim were defamatory of the Plaintiff, but deny that the Publications conveyed or were reasonably capable of conveying the meanings pleaded in sub-paragraphs 10(a) to (i);
b.Say further that the meanings pleaded in sub-paragraphs 10(a) to (i) may only be derived by means of a strained, forced or unreasonable interpretation.
Paragraph 13 of the defence, headed “Mitigation”, provides as follows:
If the Plaintiff suffered any damage as a result of the Publications, the Defendants intend to rely upon the following facts and matters in mitigation of such damage:
a.If (which is denied), the Publications conveyed any of the imputations in paragraph 10, any of the readers of the Publications also read the article hyperlinked in the Original Article and the Amended Article entitled “Patrick Lennon, lawyer for Mick Gatto and Danny Nikolic, charged with alleged drug trafficking” first published on 21 September 2020 (“the Hyperlinked Article”) and none of the imputations alleged in paragraph 10 were conveyed to readers who also read the Hyperlinked Article. A copy of the Hyperlinked Article is annexed hereto and marked “A”.
b.The Plaintiff’s general bad reputation within the legal profession as being that of a lawyer who on 10 July 2020 sent threatening and profane text messages to a witness in a proceeding, Mr James Podaridis, amounting to conduct which County Court judge, Her Honour Aileen Ryan described in open court as disgraceful.
Below the title of the hyperlinked article,[1] the sub-heading reads “A Melbourne lawyer who has represented a well-known underworld figure and served as president of a suburban cricket powerhouse for six years has been busted for alleged drug trafficking”, underneath which is a prominent photograph of Mr Lennon. The article provided, in part, as follows:
A stalwart of one of Melbourne’s biggest suburban cricket clubs and lawyer for a Melbourne underworld figure and a leading jockey will face court next month accused of trafficking ice.
Patrick Lennon, who served as president of Caulfield Cricket Club for six years and has represented underworld figure Mick Gatto and jockey Danny Nikolic, was arrested in South Yarra on July 13.
Stonnington police detective Sergeant Peter Lockman said Lennon was charged with drug trafficking and possessing the proceeds of crime, ad bailed to appear at the Melbourne Magistrates’ Court on October 13.
[1]The hyperlinked article is distinct from the hyperlink, which is found in the original article.
On 27 January 2021, the solicitors for Mr Lennon filed a summons seeking to strike out paragraphs 13(a) and 13(b) of the defence. Accompanying the summons was an affidavit in support sworn by Mr Robin Settle, Mr Lennon’s solicitor, which exhibited correspondence between the solicitors for the parties in December 2020 and January 2021 regarding Mr Lennon’s criticisms of the defence.
Mr Lennon’s submissions
Mr Lennon submitted that paragraphs 13(a) and 13(b) of the defence should be struck out in their entirety pursuant to r 23.02 of Supreme Court (General Civil Procedure Rules 2015 (Vic) (‘Rules’).
In respect of paragraph 13(a) of the defence, Mr Lennon submitted that the meaning of a publication is to be assessed objectively by reference to the entirety of the relevant publication, and that it is necessary for the Court (or, in the current case, a jury)[2] to attribute a single meaning to the publications relied upon by Mr Lennon (‘single meaning rule’).
[2]The writ specifies the mode of trial as being by a judge and jury of six. No trial date has yet been set, and it is not possible at the time of writing to predict when jury trials in civil matters will resume.
Mr Lennon accepted that each of the publications contained a hyperlink, which, if clicked on, directed the reader to the hyperlinked article, but the hyperlinked article was published some weeks before the publications, and the publications do not, in terms, direct the reader to the hyperlinked article. Mr Lennon submitted that he is entitled to rely upon a discrete publication for the purposes of his claim against the defendants, and he has chosen to not rely upon the hyperlinked article.
Mr Lennon submitted that paragraph 13(a) of the defence impermissibly conflates the issues of meaning and mitigation, by seeking to alter the scope and meaning of the publications. Mr Lennon went on to submit that paragraph 13(a) of the defence usurps his entitlement to ‘mark out the playing field’, without pleading that Mr Lennon has unreasonable or unfairly confined the publications, which is the only basis upon which the defendants could rely upon the hyperlinked article.
Mr Lennon submitted if the Court were required to determine whether a different meaning was conveyed to readers who read publications other than those relied upon by Mr Lennon, that would directly contravene the single meaning rule, and would permit the defendants to rely upon a publication that is not pleaded by Mr Lennon on the question of the meaning to be attributed to the publications. Mr Lennon submitted further that paragraph 13(a) suggests that the publications could be capable of meaning one thing to some readers and another thing to others. He submitted that the hyperlinked article would only be relevant if the defendants had expressly pleaded that Mr Lennon’s failure to rely upon the hyperlinked article was unreasonable or an abuse of process. As a result, paragraph 13(a) of the defence raises issues the defendants are not entitled to raise by way of mitigation, and is therefore embarrassing.
As for the defendants’ submission that paragraph 13(a) is permissible because the hyperlinked article is relevant to the question of malice, Mr Lennon submitted that he did not plead that the defendants were actuated by malice, and malice is not relevant to any substantive defence (none having been pleaded by the defendants). Mr Lennon submitted that s 36 of the Defamation Act 2005 (Vic) (‘Defamation Act’) precludes this Court from having regard to the defendants’ state of mind when assessing damages. The defendants have not pleaded that any absence of malice on their part reduces Mr Lennon’s damages, nor have any particulars been provided in relation to this allegation. There is no plea that the defendants acted inadvertently or mistakenly, and it is impossible to understand how mere reference to the hyperlinked article evidences the defendants’ lack of malice, even if that had been properly pleaded.
In respect of paragraph 13(b) of the defence, Mr Lennon noted that it was well settled that a defendant may seek to mitigate damages by showing that the damage to a plaintiff’s reputation is not so great as would first appear, on the basis that the damage sustained depends upon the estimation in which that plaintiff was held prior to the publication of the publications. However, Mr Lennon submitted that there are strict limitations on a defendant’s ability to rely on such evidence, owing to the risk that a fair trial may be prejudiced or otherwise diverted into a trial of collateral issues. A defamation proceeding should not be permitted to devolve into a roving inquiry into a plaintiff’s character or disposition.
Mr Lennon submitted that by reason of the decision in Scott v Sampson[3] (‘Scott’), there is a distinction between general evidence of a plaintiff’s bad reputation and evidence of particular facts tending to demonstrate the plaintiff’s character and disposition. Mr Lennon referred to the decision of Devlin LJ in Plato Films Ltd v Speidel[4] (‘Speidel’) as authority for the proposition that reliance on the latter is impermissible, as follows:
[w]hat is relevant is what sort of reputation the plaintiff has in fact, not whether he ought to have it or not.[5]
[3](1882) 8 QBD 491.
[4]Plato Films Ltd v Speidel [1961] AC 1090.
[5]Ibid 1100.
Mr Lennon submitted that paragraph 13(b) of the defence suffers from this defect, as it refers to a single specific incident which is in no way connected to the subject matter of the publications, being referable to Mr Lennon’s conduct in a civil proceeding before Judge Ryan (‘County Court proceeding’). Mr Lennon referred to the following statement of Meagher JA in O’Hagan v Nationwide News Pty Ltd,[6] (‘O’Hagan’) (citations omitted):
One would therefore have suspected that a plaintiff would always be at liberty to lead evidence about the excellence of his reputation, and a defendant would always be at liberty to lead evidence about the evil reputation of the plaintiff. However, things are not as simple as that. Despite earlier doubts on the matter, it is not clear that evidence may be led by a plaintiff of his good reputation, either by his own testimony or from the evidence of witnesses, and it has always been held that the defendant may lead evidence to the contrary, but, in either case, the reputation evidence is subject to two fundamental rules. The first is that the evidence must relate to “the relevant sector” of the plaintiff’s reputation. Thus, if a plaintiff sues on a libel that he is a dishonest solicitor, it is not to the point that he has a reputation that he is a good golfer. Similarly, if the libel is that he is dishonest, it is not to the point for the defendant to demonstrate he is a reckless motorist.
The other is that evidence of bad reputation must be limited to general reputation, evidence of specific incidents being inadmissible.[7]
[6](2001) 53 NSWLR 89.
[7]Ibid [5].
While Mr Lennon accepted that one specific incident can itself give rise to a general reputation, he observed that such an incident must be of sufficient notoriety to be likely to contribute to that general reputation. Mr Lennon submitted that the defendants do not plead that the facts alleged in paragraph 13(b) are notorious or, of themselves, cause a general reputation. Mr Lennon went on to submit that, even if the matter referred to in paragraph 13(b) of the defence was notorious, it was not of itself sufficient to cause a general bad reputation, and as such, paragraph 13(b) should be struck out.
Mr Lennon submitted that the context of the facts alleged is also a relevant consideration, as noted in O’Hagan,[8] a proceeding in which multiple acts of professional misconduct as a police officer by the plaintiff were said to have blemished the plaintiff’s reputation in that sector in circumstances in which the only environment in which the plaintiff was known was the world of policing. The acts were therefore sufficiently notorious in the circumstances of that case to found the plaintiff’s generally poor reputation within the police force. Mr Lennon submitted that, in the absence of analogous circumstances, a broader application of the reasoning in O’Hagan[9] would deprive the relevant rule of all meaning. Mr Lennon submitted further that, to permit paragraph 13(b) to stand would be to derail the proceeding into a sweeping inquiry about the facts alleged in paragraph 13(b), which is precisely the sort of unfair and impractical outcome the relevant rule was designed to avoid, which would also be contrary to the overarching purpose of the Civil Procedure Act 2010 (Vic) (‘CPA’). Mr Lennon submitted that paragraph 13(b) obfuscates the issues in the proceeding and is consequently embarrassing, vexatious and an abuse of process.
[8]Ibid.
[9]Ibid.
Defendants’ submissions
The defendants referred to the following statement of Derham AsJ in Rowson v Alpass[10] concerning the application of r 23.02 of the Rules:
The power to summarily strikeout or dismiss the whole or a part of a claim under rule 23.02, on the grounds that it does not disclose a cause of action, is to be exercised with caution, especially where it appears to the Court that there is a real question to be tried. Particular caution is warranted where the objections taken are technical and the boundaries of the area of law relied upon to support the pleading are still developing. The Court will not make an order under rule 23.02 where the pleading raises a debateable point of law. The power should only be exercised where, assuming the facts pleaded are established, the claim is so manifestly hopeless that a trial will be a futility.
The power to strike out a pleading is discretionary. Like all discretions, it must be exercised judicially, that is, by reference to considerations relevant to the particular matter and applying the established applicable law. The discretion has at its starting point the requirement that pleadings and particulars be sufficient to enable the defendants to know what it is they have to meet and the trial judge to conduct a trial which is fair to all parties. In cases of doubt, the Court should refuse to exercise the power.[11]
[10][2017] VSC 401.
[11]Ibid [31].
In regard to paragraph 13(a) of the defence, the defendants submitted that, if (which is denied), the publications convey the alleged imputations, the defendants are entitled to plead HWT’s prior publication of the hyperlinked article in mitigation of damages in two respects:
(a) readers of the publications who also read the hyperlinked article would no longer read the publications as conveying the pleaded imputations, and Mr Lennon’s reputational harm was thereby diminished by the publication of the hyperlinked article; and
(b) publication of the hyperlinked article also evidences an absence of malice on the part of the defendants, in circumstances where Mr Lennon seeks aggravated damages by reference to the state of mind of the defendants.
The defendants acknowledged that they are not entitled to rely on the hyperlinked article as affecting the meaning of the publications. However, the defendants submitted that they are entitled to rely on the fact of publication of the hyperlinked article in mitigation of damages.
The defendants submitted that the meaning of “mitigation” in this context goes to particular facts which show that the relevant injury is not as great as might appear at first blush. The defendants went on to submit that this is what the learned author of McGregor on Damages[12] refers to as the “subsidiary or residual” meaning of the term mitigation, where the measure of damages may be affected by the conduct, character and circumstances of the claimant and defendant.
[12]Edelman J, McGregor on Damages (20th ed, 2018, Sweet & Maxwell) [9-010].
The defendants referred to the decision of the New South Wales Court of Appeal in Gacic v John Fairfax Publications Pty Ltd[13] as authority for the proposition that matters upon which a defendant seeks to rely in mitigation as affecting a plaintiff’s reputation are those which are capable of rationally diminishing the harm to a plaintiff’s reputation by the defamatory imputation.[14]
[13](2015) 89 NSWLR 538.
[14]Ibid [178].
The defendants submitted that the hyperlinked article makes clear that Mr Lennon had been charged with alleged drug trafficking, was bailed to appear at the Melbourne Magistrates’ Court at a later date, and intends to vigorously contest all charges. The defendants went on to submit that the publication of the hyperlinked article is therefore capable of affecting the extent of the damage which would otherwise have been inflicted upon Mr Lennon by the publications but for the hyperlinked article.
The defendants submitted that reliance on the hyperlinked article in this manner does not contravene the single meaning rule, as the question of whether the alleged libel is established will depend on the understanding of the hypothetical referees taken to have a uniform view of the meaning the publications.[15] However, while damages will be assessed having regard to the meaning conveyed to the ordinary reader of the publications, it is permissible for the Court to take into account the fact that the impact on Mr Lennon’s reputation of the publications will have been diminished by the prior publication of the hyperlinked article. The defendants submitted further that to prevent the Court from having regard to the hyperlinked article in assessing damages would be akin to requiring the Court to assess damages wearing blinkers, and would be contrary to the sensible and just resolution of the proceeding.
[15]Referring to the decision of the High Court in Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506.
The defendants referred to the decision of the Court of Appeal in KC v MGN Ltd[16], (‘MGN’) in which the plaintiff (‘KC’), who was the father of a murdered child, sued the defendant for libel in relation to an article published by the defendant which falsely referred to the plaintiff as a sex offender who had previously raped a 14‑year‑old girl. While the article did not name or identify KC, the Court at first instance held that the starting point for assessing damages was £150,000. The defendants in the present matter referred to the following passage from MGN:[17]
“Baby P’s father” is, as Mr Browne put it, simply a “descriptor”. It is for KC to establish that some readers of the article would have been able to identify him as the person supposedly convicted of rape. Mr Dingemans QC argued that KC was widely known as “Baby P’s father”, and that potential readers of the article would know precisely to whom the article was referring….In short, the article, as published, would have left some readers in no doubt that the article was referring to KC, and at least some of those would read it, would have though ill of him as a result. To that extent Mr Dingemans’ submissions is right. Nevertheless it does not follow that a very substantial proportion of those who buy and read The People would have had the slightest idea of KC’s identity, or his link with Baby P or the case which had caused so much public disquiet.
In our judgment there is a considerable force in Mr Browne’s submission that the reasoning on which the assessment of compensation was based attached too much importance to the large circulation and readership figures for The People. That appears to be how the judge expressed himself in paragraph (41) where he directly linked the circulation and readership of the newspaper to his assessment of the appropriate starting point. On this basis, the very limited nature and extent of publication as it might have impacted on the reputation of KC, who was and remained anonymous was not given sufficient focus.[18]
[16][2012] EWCA Civ 1382.
[17]Ibid.
[18]Ibid [47]-[48].
The defendants relied upon MGN[19] in support of their submission that the relevant inquiry concerns the impact of the publications upon the reputation of Mr Lennon, in the eyes of those who have also read the hyperlinked article. Further, while Mr Lennon is entitled to stake out the relevant territory when it comes to the question of liability, the defendants are not so confined when it comes to the assessment of damages.
[19]Ibid.
As for the issue of malice, the defendants referred to the decision of Lord Esher MR in Praed v Graham[20] as authority for the proposition that the jury, in assessing damages, are entitled to look at the whole of the conduct of a defendant from the time the libel was published to the time they give their verdict.
[20](1889) 24 QBD 53 CA, 55.
The defendants submitted further that absence of malice may be demonstrated by their conduct generally, and that anything which shows the defendants acted mistakenly or inadvertently will go to mitigation, as it is possible, where a claim for aggravated damages has been made (as is the case here) that malice on the part of a defendant increases the suffering and humiliation of a plaintiff.
The defendants submitted that Mr Lennon has alleged that the defendants knew or ought to have known that the publications conveyed the pleaded imputations, and as such, Mr Lennon was entitled to aggravated damages. The defendants submitted that the publication of the hyperlinked article is relevant to mitigation as it evidences the lack of malice on the part of the defendants, and establishes that the defendants did not intend to convey the meanings pleaded by Mr Lennon. To the extent that the defendants have not articulated this argument at length in their defence, the manner in which the defendants seek to rely upon the hyperlinked article was now clear enough to Mr Lennon by reason of the submissions made by the defendants in the course of this application.
As for paragraph 13(b) of the defence, the defendants referred to Scott[21] as authority for the proposition that evidence of general reputation is admissible, as the damage suffered by a plaintiff must depend on the estimation in which he or she was previously held.
[21](1882) 8 QBD 491, 503.
The defendants submitted that Mr Lennon has achieved notoriety by reason of the facts alleged in paragraph 13(b), and as such does not have the same reputation as a legal practitioner who has not engaged in such conduct. Accordingly, Mr Lennon is not entitled to have damages assessed as if he was on the same footing as a legal practitioner of good repute.
The defendants referred to O’Hagan[22] as authority for the proposition that, if a plaintiff’s general reputation derives in whole or in part from a particular incident, evidence of that incident may be adduced, and that evidence of specific events which lead to the notoriety of a plaintiff and contribute to bad reputation may be admissible. The defendants referred to the following passage from O’Hagan:[23]
…As to the second rule, that the rule exists in not in doubt. What is difficult is to apply it, because there is often one specific incident which of itself can cause a general reputation. For example if (which, of course, is not the case) the plaintiff had been convicted of murder, presumably he would gain the reputation of “murderer” simply from that incident, in which event evidence could be given of it by a defendant. Conversely, if a plaintiff’s general reputation derives in whole, or in part, from a particular incident, evidence may be given of that incident…In the present case, I am of the view that the so-called “specific incidents” which the defendant pleaded and proved were of that kind: they were the foundations of his general reputations, not merely detailed illustrations of that reputation. [24]
[22](2001) 53 NSWLR 89.
[23]Ibid.
[24]Ibid [9].
The defendants submitted that they have pleaded that Mr Lennon has a general reputation as a person who sent threatening and profane text messages to a witness in a proceeding which was described by a County Court judge as disgraceful conduct, and that this reputation is derived from the specific incident referred in paragraph 13(b) of the defence. The defendants submitted further that it is implicit in this part of the pleading that the incident is notorious, as the defendants pleaded that the plaintiff has a general bad reputation in relation to the incident.
The defendants submitted further that the publications are intimately connected with Mr Lennon’s role as a lawyer, and Mr Lennon’s pleaded imputations make extensive reference to his status as a lawyer. The defendants submitted that the CPA provides this Court with ample powers to deal justly with Mr Lennon’s concerns that the admission of this evidence in mitigation would cause the proceeding to descend into a roving inquiry into Mr Lennon’s character or disposition.
Reply submissions
In reply, Mr Lennon submitted that the defendants’ submissions rely upon a case which they have not pleaded.
Mr Lennon submitted that this is not a proceeding in which the relevant principles are debatable or developing. Mr Lennon submitted that it is wrong in principle to permit the Court to have regard to a separate meaning in relation to the question of damages, as general damages flow from the effect on the reputation on the plaintiff by the single meaning conveyed by the publication. Mr Lennon submitted that the problem is illustrated in paragraph 13(a) of the defence, as the hyperlinked article is not a publication relied upon in the statement of claim, and the defendants have not pleaded an expanded publication for the purpose of determining the meaning of the publications.
In relation to MGN,[25] Mr Lennon submitted that that case is distinguishable from the current case, as in MGN[26], extrinsic facts were relied upon for the identification of KC, and damages were only payable with respect to those readers who knew his identity.
[25][2012] EWCA Civ 1382.
[26]Ibid.
Mr Lennon submitted further that the defendants have not pleaded any mistake or inadvertence on their part, nor have they pleaded that there was a lack of malice on behalf of the defendants. Finally, Mr Lennon submitted that the facts alleged in paragraph 13(b) are not sufficient to give rise to a general bad reputation on Mr Lennon’s part.
Discussion
There was no dispute between the parties as to the legal principles applicable to the current dispute. In short, the power to strike out a pleading or part of a pleading on the basis that a pleading is contrary to law should be exercised cautiously, particularly where the relevant legal principles are unsettled or are still developing.
I agree generally with Mr Lennon’s submission to the effect that the pleading in paragraphs 13(a) and (b) of the defence does not accurately reflect the way in which the defendants intend to advance their case at trial, at least to the extent that can be ascertained from their submissions in this application, and, as such, those paragraphs of the defence ought arguably be struck out on that basis alone. However, I also consider that with some relatively minor amendments to reframe, clarify and elaborate upon the matters referred to in their pleading of mitigation of damage, the defendants should be able to advance this part of their case without falling foul of the single meaning rule, or the other principles relied upon by Mr Lennon. Rather than striking out the pleading without further discussion, in the interests of efficient case management I will make some observations regarding what would, or would not, be permissible for the defendants to plead by way of mitigation of damage.
Paragraph 13(a) of the defence
I agree with Mr Lennon that, as it currently stands, paragraph 13(a) of the defence infringes the single meaning rule. This was confirmed during the course of the defendants’ submissions, which were to the effect that readers of the publications who had also read the original article would derive a different meaning from the publications than those who had read the publications alone. While I accept the proposition that, as a matter of fact, the first group may well derive a separate meaning from the publications than the second group, and note the judicial commentary to the effect that the single meaning rule is an artificial construct, the single meaning rule is clearly part and parcel of defamation law, and must be applied.
Lord Diplock provided an overview of the rationale for, and application of, the single meaning rule in Slim v Daily Telegraph[27] (omitting footnotes):
[When] words are published to the millions of readers of a popular newspaper, the chances are that if the words are reasonably capable of being understood as bearing more than one meaning, some readers will have understood them as bearing one of those meanings and some would have understood them as bearing others of those meanings. But none of this matters. What does matter is what the adjudicator at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear. That is ‘the natural and ordinary meaning’ of words in an action for libel.
…
The decision as to defamatory meanings which words are capable of bearing is reserved to the judge, and for this reason, and no other, is called a question of law. The decision as to the particular defamatory meaning within that category which the words do bear is reserved to the jury, and for this reason, and no other, is called a question of fact. But the recognition that there may be more than one meaning which reasonable men might understand words to bear does not absolve the jury from the duty of deciding upon one of those meanings as being the only ‘natural and ordinary meaning’ of the words.
Juries, in theory, must be unanimous upon every issue on which they have to adjudicate; and since the damages that they award must depend upon the defamatory meaning that they attribute to the words, they must all agree upon a single meaning as being the “right” meaning. And so the unexpressed major premise, that any particular combination of words can bear but a single “natural and ordinary meaning” which is “right”, survived the transfer from judge to jury of the function of adjudicating the meaning of words in civil actions for libel.[28]
[27][1968] 2 QB 157.
[28]Ibid 173-5.
In Cornes v The Ten Group Pty Ltd[29], Kourakis CJ stated relevantly as follows:
If it were accepted that the law imposed liability when some reasonable people would understand the words to be defamatory even though other reasonable people would not, the law would, as Lord Diplock explains in the following passages, be practically, if not also logically, impossible to apply where a jury had to fix a single monetary award because a number of mutually exclusive imputations causing different degrees of reputational harm might be found. It is hardly necessary to make the point that the common law could not develop differently in those jurisdictions that had abandoned trial by juries and most certainly could not apply differentially in those jurisdictions that retained both modes of trial.[30]
(Emphasis added)
[29](2012) 14 SASR 46.
[30]Cornes [44].
And further:
In cases where words can reasonably bear both an innocent and defamatory meaning there will be people in the community, as Lord Diplock recognised, that will understand the words in their defamatory sense and others who will not. The purpose of the legal fiction embodied in the ordinary person is not to paper over that reality but to allow a judgment to be made as to whether, in ambiguous circumstances, the plaintiff should be compensated for the words uttered or written. In effect, a normative judgment is required to balance the public interest in the freedom of speech with the public interest in the protection of personal reputations from unwarranted imputations. The understanding of the ordinary person, with the attributes now hallowed by a long line of authority, determines where that balance falls. The more inclined the ordinary person is to give words a scandalous meaning, the greater will be the restriction which the law imposes on freedom of speech. The more reserved and cautious the ordinary person is postulated to be, the more likely it is that persons who have had their reputations seriously tarnished will go uncompensated.[31]
[31]Ibid [50].
The Full Court of the Federal Court recently reaffirmed the application of the single meaning rule in ABC v Chau Chak Wing:[32]
Upon the hypothesis that meaning is to be determined objectively, the audience is taken to have a uniform view of meaning. Although different people might in fact have understood the meanings conveyed by a matter in different ways, the Court must arrive at a single objective meaning.[33]
[32](2019) 271 FCR 632.
[33]Ibid [32].
Accordingly, insofar as the defendants seek to rely on the hyperlinked article as going to mitigation of damage because it effectively alters the meaning of the publications, in the sense that readers who read both the publications and the hyperlinked article would understand the publications to have a different meaning than those readers who only read the publications, such reliance contravenes the single meaning rule and is impermissible.
However, it seems to me that if the defendants simply seek to rely on the hyperlinked article as evidence of conduct on the part of Mr Lennon which goes to mitigation of damages, or as evidence of the directly relevant background or context in which the publications were made, the authorities do not preclude the defendants from relying upon the hyperlinked article in mitigation of damage.
Section 38 of the Defamation Act provides as follows:
Factors in mitigation of damages
(1)Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that –
(a)the defendant has made an apology to the plaintiff about the publication of the defamatory matter; or
(b)the defendant has published a correction of the defamatory matter; or
(c)the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or
(d)the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or
(e)the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.
(2)Nothing in subsection (1) operates to limit the matters that can be taken into account by a court in mitigation of damages.
Section 38 largely codifies the position at common law, without precluding other evidence being admissible on the question of mitigation of damage. Section 42 of the Defamation Act provides that a document which evidences that a plaintiff has been convicted of a criminal offence is conclusive evidence that the person convicted had committed that offence, which in turn is evidence which may, at common law, be led in support of a plea of mitigation of damage. Other matters which may form the basis of a plea in mitigation include provocation on the part of a plaintiff (that is, where a defendant is goaded by the plaintiff into making a defamatory publication about the plaintiff), and the poor reputation of a plaintiff.
That said, my review of the authorities indicates that the ability of a defendant publisher to plead facts in mitigation is somewhat circumscribed. In particular, a defendant is not entitled to plead facts said to be in support of a plea of justification for the collateral purpose of enabling the admission of evidence in mitigation of damage.[34] However, in the current case, no defence of justification is pleaded.
[34]ABC v Chau Chak Wing (2019) 271 FCR 632 [87].
The question of what evidence is admissible to rebut the presumption that, until defamed by the defendants, a plaintiff had a good reputation, will be discussed further in these reasons. The defendants seem to rely upon the hyperlinked article in support of the proposition that the contents of the hyperlinked article would have diminished Mr Lennon’s reputation in the eyes of those who had read the hyperlinked article, such that the publications would not have caused further harm to Mr Lennon’s reputation. Arguably, the defendants cannot do so, as a publisher cannot plead that a plaintiff’s reputation has been diminished by other publications (whether by the defendants, or another party) concerning the same issue as the publications.[35]
[35]Dingle v Associated Newspapers Ltd [1964] AC 371, 396.
Further, as previously noted, the defendants also cannot rely upon the hyperlinked article to submit that the publications carried a different meaning than that contended for by Mr Lennon. Accordingly, if the hyperlinked article cannot be relied upon for the purpose of determining the meaning of the publication, and probably not be relied upon for the purposes of describing Mr Lennon’s reputation prior to the publications, how can the defendants lawfully deploy the hyperlinked article in support of a plea of mitigation?
In my view, it would be permissible for the defendants to rely upon the hyperlinked article, but only for the purpose of establishing the directly relevant background and context in which the publications were published. The question of whether such evidence would be admissible is answered in the affirmative following the decision of the Court of Appeal in Burstein v Times Newspapers Ltd,[36] (‘Burstein’). As observed by the Full Court of the Federal Court in ABC v Chau Chak Wing,[37] the metes and bounds or indeed the applicability of the Burstein principle remain uncertain,[38] and their Honours indicated that the Burstein principle may be difficult to reconcile with the line of authority commencing with Speidel,[39] where the House of Lords refused to allow the defendant publisher to rely upon “particulars of circumstances under which the alleged libel was published” in mitigation of damage. The Full Court echoed the reservations expressed by the New South Wales Court of Appeal in Channel Seven Sydney Pty Ltd v Mahommed,[40] where McColl JA, with whom the others agreed, referred to “…the need for courts to proceed with some caution in applying Burstein”.[41]
[36][2001] 1 WLR 579.
[37](2019) 271 FCR 632.
[38]Ibid [84].
[39][1961] AC 1090.
[40](2010) 278 ALR 232.
[41]Ibid [263]. See also Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 [313] per Kaye J.
The decision in Burstein[42] concerned an unusual set of facts and circumstances.
[42][2001] 1 WLR 579.
Mr Burstein was a musical composer. In June 1997, the defendant published a short article in The Times newspaper in relation to an upcoming musical performance, which provided relevantly, as follows:
The music is by Keith Burstein, an aggressively self-righteous, rather slushy composer who used to organise bands of hecklers to go about wrecking performances of modern atonal music, particularly anything by Sir Harrison Birtwhistle.
Mr Burstein brought an action for libel against Times Newspapers (‘defendant’), which pleaded by way of defence that the words complained of were fair comment on a matter of public interest, and referred to extensive particulars upon which it submitted the comment was based.
The trial judge held that the words complained of were not amenable to the defence of fair comment, and Mr Burstein subsequently applied for judgment for damages to be assessed.
The defendant applied to the trial judge for summary disposal on the basis that the appropriate sum of damages would not exceed £10,000.[43] In support of its application, the defendant sought to rely on facts which it had pleaded in support of its defence of fair comment (now struck out), in reduction of Mr Burstein’s damages.
[43]See ss 8 and 9 of the Defamation Act 1996 (UK) which confer upon the Court a discretion to grant summary relief. There is no equivalent provision in any Australian jurisdiction.
The particulars upon which the defendant wanted to rely in reduction of damages were, in summary, as follows:
(a) Mr Burstein, along with another composer, Mr Stocken, co-founded a group of militant campaigners against modernist atonal music called “The Hecklers”;
(b) through The Hecklers, Mr Burstein actively and publicly sought to vilify the music which was their target and its composers, notably Sir Harrison Birtwhistle;
(c) such behaviour was deliberately provocative and insulting to composers and all those connected with the performance of such works;
(d) Mr Burstein’s views about modern atonal music and the forcefulness with which he expressed them were bound up with the very high opinion he held of his own music, an opinion which was not shared by most members of the musical establishment, and which caused Mr Burstein great resentment;
(e) The Hecklers published a manifesto in the Evening Standard newspaper, in which they called upon the public to join them in booing at the end of a performance that evening of Sir Birtwhistle’s opera Gawain. The manifesto was written in insulting language and the incitement to readers to join the Hecklers was couched in general terms and not limited to the one concert that was taking place that evening;
(f) that evening, The Hecklers, including Mr Burstein, booed and hissed at the end of the performance of Gawain;
(g) Mr Burstein did not, at that time, dissociate himself from the terms of the manifesto, the views and aims of The Hecklers, or their conduct at the performance of Gawain, and subsequently encouraged the image of himself as a ringleader in those events;
(h) such behaviour must have inevitably marred the enjoyment of those others who attended the performance of Gawain who did not share Mr Burstein’s views; and
(i) Mr Burstein did not publicly apologise for that behaviour nor express any regret for it, and continued to remind the public of his role in those events.
The trial judge held that the pleaded facts were not admissible in reduction of Mr Burstein’s damages, and refused the defendant’s application for summary dismissal. The assessment of damages took place before a jury on limited evidence, including from Mr Burstein and other witnesses. The defendant sought to rely on a number of press clippings, which formed the basis of the particulars summarised above.
Mr Burstein gave evidence, including amongst other things, that he was not associated with the content or publication of the manifesto that appeared in the Evening Standard on 14 April 1994, and he had previously written to The Times disagreeing with The Heckler’s plans to disrupt the performance of Gawain. He was not intending to go to the performance on that day, but was given a ticket and he was not sitting with Mr Stocken. There was no booing or other disruption during the performance. At the end of the performance, the vast majority of the audience applauded and some stood and cheered. A small number, around fifteen or twenty dotted around the venue, booed. Mr Burstein was not intending to boo but was caught up in the atmosphere and booed in a “restrained manner”.
The jury awarded Mr Burstein £8,000. The defendant then appealed.
The key issue before the Court of Appeal was whether the defendant should have been permitted to rely upon the facts pleaded in support of the defence of fair comment in reduction of damages.
Lord Justice May observed that the trial judge’s ruling meant that the jury were required to assess damages without sufficient context. His Lordship stated relevantly as follows:
I have referred to the evidence which was not called or referred to in some detail in part because it needs to be taken into account later in this judgment. The important first point, however, is that the result of the judge’s ruling was that the jury were invited to assess the claimant’s damages in something of a void. They had the text of the diary article which for their purposes contained a single sentence critical of the claimant. They knew that it was to be taken as defamatory of him and that there was no defence to the claim for damages. They knew who the claimant was in general terms. But they knew little or nothing in the context in which the defendants came to publish this defamatory statement. That seems to me to be quite artificial and unhelpful.[44]
[44]Burstein [18].
In relation to the admissibility of Mr Burstein’s own conduct in reduction of damages in the case before him, May LJ stated relevantly as follows:
Paragraphs 33.44 to 33.46 of Gatley on Libel and Slander, at pp 850-851, explain that the extent to which the claimant’s own conduct is admissible in reduction of damages is limited. It is said to relate principally to activities that can be causally connected to the publication of the libel of which the plaintiff complaints. A defamatory publication is not justified or excused by showing that the claimant himself has been guilty of similar conduct. But where a claimant has made a defamatory publication against the defendant which can fairly be said to have provoked the defamatory publication by the defendant of which the complainant complains, evidence of the complainant’s conduct is admissible. It can sensibly be said in these circumstances that the claimant’s conduct was causally connected with the defamatory publication of which he complaints and that he brought it upon himself.[45]
[45]Ibid [24].
His Lordship stated further as follows:
It seems to me that it is intrinsically just that a court assessing libel damages should receive evidence to the effect that the claimant’s conduct has directly provoked the publication of which he complains. Typically, if there were a heated slanging match between the claimant and defendant, and the publication complained of was in retaliation to a publication by the claimant defamatory of the defendant, there would be no sense or justice in excluding evidence of the claimant’s publication. It would be part of the context in which the publication complained of was made and should normally, depending on the facts, be admitted whether or not it would be likely to reduce the claimant’s award of damages. It may be supposed that a claimant who brings a defamatory publication on himself will normally receive a lower form of damages than a claimant who has been defamed without provocation.[46]
[46]Ibid [25].
In response to the defendant’s submission that Mr Burstein’s conduct was as generally provocative and offensive and therefore evidence of his conduct should be admissible on that basis, his Lordship stated as follows:
If it were necessary, as I think it is not, to confine the question in the present case to provocation by the claimant or conduct which is causally connected to the publication of the libel, I am inclined to think that the ambit of this class of admissible conduct should be confined to exceptional cases in which provocative conduct of the claimant would be admissible even though it did not directly or exclusively provoke the defendant.[47]
[47]Ibid [26].
When discussing the decision in Scott,[48] which prohibited the admission of evidence of the prior blameworthy conduct of a plaintiff, May LJ stated further as follows:
… Cave J was concerned with the doubtful probative value of evidence of this kind. He was also concerned with what today might be called case management problems. Admitting evidence of this kind would give rise to “interminable issues” of questionable help in determining the appropriate award of damages. But it is clear, I think, that the exclusion of evidence of particular facts and circumstances tending to show the disposition of the plaintiff would not extend to particular facts directly relevant to the context in which a defamatory publication came to be made.[49]
(Emphasis added)
[48](1882) 8 QBD 491.
[49]Burstein [28].
His Lordship then referred to the decision of the House of Lords in Speidel[50], in which the plaintiff, who was the Supreme Commander of Allied Land Forces in Central Europe, brought an action against the defendants for libel in relation to a film in which he was depicted as being privy to the murders of King Alexander of Yugoslavia and M Barthou in 1934 and as having betrayed Field Marshall Rommel in June 1944. The defendants sought to adduce evidence in reduction of damages that the impugned publication was part of a film in which the plaintiff was further depicted as having committed other discreditable conduct, the truth of which he did not contest. The defendants wanted to rely on this evidence as:
(a) circumstances under which the alleged libel was published; and
(b) matters relating to the character of the plaintiff.
[50][1961] AC 1090.
In relation to (b), the defendants submitted that the plaintiff was widely reputed to have been, and was in fact guilty of, the conduct alleged against him in the film. The House of Lords held that (a) was inadmissible and ought be struck out and that, in regard to (b), evidence of particular acts on the part of the plaintiff could not be relied upon in reduction of damages where the defendants had failed to justify the libel.
Lord Justice May referred to each of the individual judgments delivered in Speidel[51] and then stated as follows:
I have quoted at length from the speeches in Speidel v Plato Films Ltd to show that a main concern was to prevent libel trials from becoming roving inquiries into the plaintiff’s reputation, character or disposition; that what was held to be inadmissible was particular facts said to be relevant to the plaintiff’s general reputation or disposition; and that the case does not decide that particular facts directly relevant to the context in which a defamatory publication came to be made are inadmissible.[52]
(Emphasis added)
[51]Ibid.
[52]Burstein [35].
His Lordship observed that the question of what constituted admissible evidence was essentially a case management issue, and noted that the admissibility of evidence of reputation in reduction of libel damages will be heavily influenced, if not determined, by questions of procedural fairness and case management. His Lordship stated as follows:
It will, generally speaking, normally be both unfair and irrelevant if a claimant complaining of a specific defamatory publication is subjected to a roving inquiry into aspects of his or her life unconnected with the subject matter of the defamatory publication. It is also in accordance with the overriding objective that evidence should be properly confined, both in its subject matter and its duration, to that which is directly relevant to the subject matter of the publication. Thus under the Civil Procedure Rules, the court now has ample power to deal justly with the problems which, in the main, gave rise to the first and third limbs of the decision in Scott v Sampson.[53]
[53]Ibid [40].
His Lordship held that some parts of the particulars should have been admitted, and stated relevantly as follows:
There was a background context to the defamatory publication. To keep that away from the jury was, I think, to put them in blinkers. To determine the relevant background context and to confine it properly, it is necessary to start with the defamatory publication itself. This was that the claimant “used to organise bands of hecklers to go about wrecking performances of modern atonal music, particularly anything by Sir Harrison Birtwhistle”. Relevant confined direct background context to this publication would, I think, include that there was in 1994 a group who called themselves “The Hecklers”; that the claimant was associated with the group and that he subsequently claims to have been its co-founder; that he dissociated himself from The Hecklers’ boorish tactics of shouting down the opposition in a letter to The Times dated 7 April 1995; that Frederick Stocken, under the name of the Hecklers, encouraged people to join him at the performance of Gawain at the Royal Opera House on 14 April 1994 when they would be booing at the end; that there was no interrupting of Gawain that evening during its performance but that there was a bit of booing at the end; and that the claimant was in the audience and joined in the booing. On the other hand, in my view, much of the rest of the material in the proposed particulars was tendentious and essentially irrelevant to the subject matter of the publication complained of. A proper application of the Civil Procedure Rules would have excluded it.[54]
[54]Ibid [41].
His Lordship stated further as follows:
In my view, permitting the defendants to rely on the directly relevant background context in the way in which I have described would not offend anything said in Scott or Speidel. The material to which I have referred as directly relevant background context was, as I have indicated, recognised in Speidel as being admissible as the circumstances in which the publication came to be made…For practical purposes, every publication has a contextual background, even if the publication is substantially untrue. In addition, the evidence which Scott excludes is particular evidence of general reputation, character, or disposition which is not directly connected with the subject matter of the defamatory publication. It does not exclude evidence of directly relevant background context. To the extent that evidence of this kind may also be characterised of evidence of the claimant’s reputation, it is admissible because it is directly relevant to the damage which he claims has been caused by the defamatory publication.[55]
(Emphasis added)
[55]Ibid [42].
His Lordship rejected Mr Burstein’s submission that to allow reliance on the particulars would allow the defendant to impermissibly plead specific facts in partial justification of the meaning advanced by the plaintiff for the purposes of mitigating damages. His Lordship agreed, but stated that this does not prevent a defendant from seeking to rely in reduction of damages on particulars which the reasoning in Scott[56] and Speidel[57] does not exclude. His Lordship stated relevantly as follows:
If this were not so, there is a danger that the jury would be required to assess damages in blinkers, in ignorance of background context directly relevant to the damage which the claimant claims has been caused by the defamatory publication…Thus, in my view, a defendant, is not prevented from taking the sensible course of accepting that the publication means what it says and that it is not on the facts justified, and yet putting in evidence directly relevant facts which in other circumstances might have been ingredients of a defence of justification. It would, I think, be illogical and unfair if this were not so. Evidence in support of a plea of justification which fails is admissible in reduction of damages. But the very same evidence would not be admissible to a sensible defendant who acknowledges that it will not support a plea of justification. What is not permissible is to plead a defence of partial justification which in truth is no defence at all.[58]
(Emphasis added)
[56](1882) 8 QBD 491.
[57][1961] AC 1090.
[58]Ibid [47].
In Turner v News Group Newspapers Ltd[59] (‘Turner’), the Court of Appeal rejected a submission to the effect that the Burstein principle was contrary to established authority, and thus Burstein[60] was wrongly decided. However, the Court of Appeal urged caution in applying the Burstein principle, stating as follows:
…one should guard against extending too creatively the concept of “directly relevant background”. The Court of Appeal in Burstein’s case was concerned to avoid jurors having to assess damages by wearing blinkers. If evidence is to qualify under the principle spelt out in Burstein’s case, it has to be evidence which is so clearly relevant to the subject matter of the libel or the claimant’s reputation or sensitivity in that part of his life that there would be a real risk of the jury assessing damage on a false basis if they were kept in ignorance of the facts to which the evidence relates.[61]
[59][2006] 1 WLR 3469.
[60][2001] 1 WLR 579.
[61][2006] 1 WLR 3469, 3485.
The Burstein principle has been accepted in Australian law,[62] with some caveats, in that its application, particularly what amounts to “directly relevant background context”, has been said to produce uncertainty, and be difficult to apply in particular cases.
[62]See for example Tsamis v Victoria (No 7) [2019] VSC 826; Rush v Nationwide News Pty Ltd (No 2) (2018) 359 ALR 564; Fairfax Digital Australia New Zealand v Kazal (2018) 97 NSWLR 547; Coxon v Wilson [2016] WASCA 48; Gacic v John Fairfax Publications Pty Ltd (2015) 89 NSWLR 538.
In Rush v Nationwide News Pty Ltd (No 2),[63] Wigney J stated as follows:
[63](2018) 359 ALR 564 (‘Rush’).
In Warren v Random House Group Ltd, the Court of Appeal of England and Wales explained the Burstein principle in the following terms:
The decision of this court in Burstein v Times Newspapers Ltd, cited above, established two important interlocking propositions. (a) In relation to the court’s assessment of damages for libel it is open to a defendant to seek to rely upon such facts as fall within the “directly relevant background context” to the defamatory publication. See in particular the judgment of May LJ, at para 42. (b) It is illogical and undesirable that a defendant can seek to rely upon such facts in relation to such assessment only if he has presented them as part of a substantive defence to liability, in particular within a plea of justification of the publication. He can rely upon them as freestanding matters pleaded as relevant only to the assessment of damages: see in particular the judgment of May LJ, at para 47.
That rather simple statement of the propositions flowing from Burstein somewhat belies the uncertainty that has arisen concerning the application of those propositions. That uncertainty mainly revolves around the vague and unhelpful expression “directly relevant background context”. Judges are often rightly sceptical when the tender of evidence is sought to be justified on the basis that it provides “background” or “context”. Those words often conceal or obscure, rather than explain, whether or why the evidence is relevant. Careful attention to what was actually decided in Burstein, however, tends to remove some of the uncertainty.[64]
(Emphasis added)
[64]Ibid [32]-[33].
Wigney J then referred to the decision of May LJ in Burstein and stated further as follows:
It is tolerably clear, when paragraphs [42] and [47] of the judgment of May LJ are read in context, that the expression “directly relevant background context” is a reference to evidence of misconduct on the part of the claimant which, while not sufficient to make out a defence of justification, nevertheless was conduct which was in the same sector of the claimant’s life as the defamatory publication and was therefore directly relevant to his or her reputation. The example given by Lord Denning in Speidel is a classic example of such evidence. “Directly relevant background context” does not include rumours or mere allegations that the claimant had done what was charged in the libel. That type of evidence is properly excluded by what was said in Scott v Sampson. Nothing said by May LJ in Burstein suggested that Scott v Sampson did not continue to apply in the case of such evidence.
His Honour went on to refer to the statements of the Court of Appeal in Turner[65] extracted at paragraph 81 of these reasons, and went on to say as follows:
Moses LJ explained the difficulties in the following way (at [87]–[90]):
The purpose of the approach taken by the Court of Appeal in Burstein’s case is clear; it was to ensure that the claimant was properly vindicated and fairly compensated. Exclusion of the facts identified by Sir Christopher Slade, at paras 59 and 60, would not have achieved that result. The problem, as in so many branches of the law, lies in the expressions used to identify and describe the principle deployed to admit that evidence. May LJ referred to “relevant background context”: para 41 or “background context directly relevant to damage”: para 47. Ever forgetful of the need not to read judgments as if they were statutes, the words “directly relevant background context” have been used as a label to be stuck on by a defendant or ripped off by a claimant. But the words themselves are no substitute for the reasoning of the court in Burstein’s case.
Those passages from Turner support the proposition that the facts which are able to be pleaded and proved in the mitigation of damages pursuant to the Burstein principle must concern specific conduct that is directly relevant to either the subject matter of the alleged defamatory statement, or the claimant’s reputation in the part of his or her life the subject of the defamatory publication. The rationale for permitting evidence of such facts being led is that otherwise damages may be assessed on a false basis. It is equally clear that courts, including this Court, must proceed with caution in applying Burstein, should guard against “extending too creatively” the concept of “directly relevant background”, and should subject the proposal to adduce facts under the Burstein principle to careful scrutiny. Mere resort to the label “directly relevant background context” will not suffice.[66]
[65][2006] 1 WLR 3469.
[66]Rush [44]-[45].
Examples of the application of the Burstein principle in practice follow.
In Turner,[67] (see paragraph 81 above), a successful claimant in a proceeding concerning a publication accusing him of exploiting his ex-wife for sexual purposes appealed against a decision of a trial judge allowing into evidence the claimant’s membership of a private club which hosted “fetish nights”,, his role as the manager/agent of his ex-wife for the purpose of producing pornography, and his earlier approach to tabloid newspapers to publish allegations he made against his ex‑wife. The appeal was unsuccessful, on the basis that the evidence was relevant to the assessment of the injury to his feelings by the defamatory publication, his reputation, and to what was described as his “self-invited exposure”.
[67][2006] 1 WLR 3469.
In Holt v TCN Channel Nine Pty Ltd,[68] the claimant, the subject of a television broadcast about his conduct during his late wife’s terminal illness, was partially successful in establishing that the broadcast was falsely defamatory of him, but received only derisory damages by reason of the mitigatory effect of unflattering evidence concerning his unsatisfactory behaviour during his wife’s illness. The New South Wales Court of Appeal held that the trial judge was correct to admit this evidence, and rejected the submission that the trial judge had engaged in an “impermissible roving inquiry” into the claimant’s character and conduct.
[68][2014] NSWCA 90.
Conversely, in Fairfax Digital Australia New Zealand v Kazal,[69] a claimant obtained judgment in his favour with respect to a publication implying that the claimant was corrupt, in that he improperly sought to advance his interests and the interests of his family by providing lavish travel and entertainment to public officials. The publisher appealed a decision to strike out certain particulars said to be directly relevant background and context consistent with the Burstein principle. The particulars concerned included details of the claimant’s family business interests, meetings with public officials, and a dispute between a family member and the Child Support Agency. The appeal was dismissed, on the basis that the particulars were vague, obscure and lacked precision, and did not provide support for their asserted effect, did not disclose a reasonable plea in mitigation of damage, and had the tendency to cause delay.
[69](2018) 97 NSWLR 547.
Similarly, in Rush,[70] Wigney J rejected an application by the publisher to amend its defence to incorporate particulars of what it said were facts directly relevant to the core subject matter of the relevant publications, being allegations of inappropriate behaviour of a sexual nature on the part of the claimant. The application was rejected, on the basis that the proposed particulars did not directly concern conduct on the part of the claimant that could rationally harm his reputation, and amounted to little more than hearsay statements about allegations which had been made, or amounted to rumour and innuendo. It is apparent from his Honour’s reasons that case management considerations loomed large in his determination of the application, as illustrated by his observation that the defendant publisher was “quick to publish, but slow to defend”.
[70](2018) 359 ALR 564.
Accordingly, despite the concerns expressed in the earlier authorities regarding the ease of application of the Burstein principle, the authorities above, along with a number of other decisions not canvassed in these reasons,[71] demonstrate that the Burstein principle has been used on occasion to admit evidence of the factual and background context capable of rationally affecting the harm to a successful claimant’s reputation, but there are also occasions where excessive or unfair reliance upon the Burstein principle has been successfully restrained.
[71]See, for example, Gacic v John Fairfax Publications Pty Ltd (2014) 86 NSWLR 96; Wilson v Coxon (No 2) [2015] WASC 197; Coxon v Wilson [2016] WASCA 45; Dank v Nationwide News Pty Ltd [2016] NSWSC 295; Tsamis v Victoria (No 7) [2019] VSC 826.
Turning now to the application of the Burstein principle to the current case, I should preface my remarks by saying that the question of admissibility of evidence is quintessentially a question for the trial judge. However, the issue of whether the defendant is entitled to raise by way of mitigation the hyperlinked article (or, more accurately, the subject matter of the hyperlinked article) has been squarely raised in this application, and here I am only required to determine whether the hyperlinked article may be deployed as part of a viable pleading, rather than determine whether the hyperlinked article or related evidence will ultimately be admissible at trial.
On that basis, it seems to me to be permissible for the defendants to put forward a pleading to the effect that the charging of Mr Lennon for alleged drug trafficking, the nature of the charges, his response to the charges, and the reporting of those charges is evidence of the relevant context in which the publications were made, and that those facts and circumstances are relevant to the harm suffered by Mr Lennon as a result of the publications. In particular, the subject matter of the hyperlinked article and the publications is substantially the same. He is referred to as a lawyer both in the hyperlinked article and the publications, and it is clear from the statement of claim that he has put in issue his reputation as a lawyer. The pleading of the hyperlinked article cannot, of itself, open up a wide ranging inquiry into the conduct and character of Mr Lennon in areas unrelated to the subject matter of the publications.
The defendants also seek to rely upon the hyperlinked article on the question of malice. I note that there is no express reference in paragraph 13(a) of the defence to malice, or to an assertion that the publications were published inadvertently. Arguably, it is not necessary for the defendants to do so, as they have not relied upon any defences which would be negatived by malice. I also agree that Mr Lennon, by making a claim for aggravated damages, has put the defendants’ state of mind in issue. However, if the defendants do wish to rely upon the hyperlinked article for the purpose of meeting an argument that Mr Lennon should be awarded aggravated damages, it would be good practice for the defendants to expressly plead their assertions in that regard in their defence. However, it seems to me to be a stretch to say that, because a past publication in respect of the similar subject matter was not malicious, a later publication upon which the defendants were sued was also not actuated by malice. That said, given that I will permit the defendants to rely upon the hyperlinked article in their defence, the use to which the defendants can put the hyperlinked article can probably be left to the trial judge after all of the evidence is in.
Accordingly, while paragraph 13(a) of the defence in its current form offends the single meaning rule, and therefore ought to be struck out, it is open to the defendants to reformulate a plea of mitigation relying upon the hyperlinked article, and the matters referred to in the hyperlinked article, in conformity with the Burstein principle.
Paragraph 13(b) of the Defence
Turning now to paragraph 13(b) of the defence, it is, as submitted by Mr Lennon, well settled that it is not permissible to plead specific facts for the purposes of supporting a contention that a plaintiff should have a poor or less than stellar reputation. Further, in order to plead a plaintiff’s poor reputation in mitigation of damage, a defendant must plead that the plaintiff had in fact a poor reputation in what is described as the relevant sector of their reputation, not simply that the plaintiff had engaged in conduct which should adversely affect their reputation.[72] Evidence of specific incidents of conduct on the part of a plaintiff is generally inadmissible unless the defendant can demonstrate that it had a direct impact upon the plaintiff’s reputation in the relevant sector. The object of the rule is to prevent defendants initiating a free‑ranging inquiry into a plaintiff’s character and conduct.
[72]In accordance with the principles in Scott and Speidel as applied in O’Hagan.
I accept the defendants’ submissions that the incident, being that Mr Lennon had been chastised by a County Court judge for what she said was disgraceful behaviour, was connected with the reputation Mr Lennon intends to defend in this proceeding, which includes his reputation as a lawyer. Accordingly, the “sectoral” test is met, at least for pleading purposes, in that it is at least reasonably arguable that the incident referred to in paragraph 13(b) of the defence had the capacity to affect his reputation as a lawyer. Further, there is a temporal connection between the incident referred to in paragraph 13(b) of the defence and the publications: the incident occurred on 10 July 2020 (it is not clear when it was reported, but presumably soon after that), and the original publication was published on 5 October 2020. Therefore, it could not be said that any enquiry sparked by this incident would traverse matters which are too remote, whether in terms of time, subject matter, or the relevant area of Mr Lennon’s reputation. In any event, the trial judge will have a number of case management tools at their disposal to confine any excesses.
Rather, the difficulty with the pleading of paragraph 13(b) of the defence in its current form is that it focuses upon an incident, rather than expressly alleging that the incident was notorious in the legal profession, and as such had the consequence of diminishing the reputation of Mr Lennon in the eyes of the community, and, more specifically, the legal profession and possibly the judiciary. It is apparent from the observations in O’Hagan[73] that a poor reputation may be founded upon a specific incident or incidents. Whether a single incident was notorious and could of itself have a significant impact upon the reputation of Mr Lennon in the relevant “section” of his reputation seems to me to be a matter for trial, noting for present purposes that the matters raised concerning Mr Lennon’s alleged conduct in connection with the County Court proceeding are, on their face, quite serious, and occurred only a few months before the publication of the publications. However, while the allegation as it is currently pleaded cannot stand as a valid plea in mitigation of damage, it requires only minor amendment to be put into an acceptable form.
[73](2001) 53 NSWLR 89 [9].
For completeness, while ultimately the question of whether the incident referred to by Judge Ryan in the County Court proceeding is sufficiently notorious to materially diminish Mr Lennon’s reputation in the legal profession is a matter for trial, I note that evidence of adverse findings in a civil proceeding is admissible for the purpose of establishing that a plaintiff has a bad reputation. In Channel Seven Sydney Pty Ltd v Mohammed,[74] the New South Wales Court of Appeal held that judicial findings which are in the public domain may be admissible as evidence in mitigation of damage. McColl JA, with whom the others (together, constituting a bench of five) agreed,[75] stated as follows:
In my view, such findings, if relevant in the senses already discussed, should be admissible. Save as to the standard of proof, they appear otherwise to stand on much the same footing as convictions: they took place in open court and can be regarded, accordingly, as matters of public knowledge. The tribunal of fact should not be kept in the dark about the plaintiff’s reputation at the time it comes to consider the award of damages.[76]
[74](2010) 278 ALR 232.
[75]Beazley JA agreed, but referred to the need for caution, given the lower standard of proof in civil proceedings, and particularly where the adverse finding is based upon a demeanour based credit finding.
[76]Ibid [254].
It is not possible from the material before me to know whether Judge Ryan’s reference to Mr Lennon’s conduct was made in a written judgment, orally in open court, or, given the timing, during a virtual hearing. The circumstances and the context in which the remarks were made may be relevant to the weight they are ultimately afforded upon the question of reputation. However, for present purposes, it is permissible for the defendants to rely upon the judge’s adverse findings in the County Court proceeding in a properly formulated plea in mitigation of damages.
Conclusion
Accordingly, I will strike out paragraphs 13(a) and 13(b) of the defence, with leave to replead. I propose to make the following orders:
(a) paragraphs 13(a) and 13(b) of the defence filed on 17 December 2020 be struck out; and
(b) the defendants have leave to file and serve an amended defence consistent with these reasons.
I shall hear further from the parties on the precise form of order and the question of costs.
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