Lennon v The Herald and Weekly Times Pty Ltd (No 2)
[2022] VSC 792
•21 December 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2020 04146
BETWEEN:
| PATRICK LENNON | Plaintiff |
| v | |
| THE HERALD AND WEEKLY TIMES PTY LIMITED (ACN 004 113 937) & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 December 2022 |
DATE OF JUDGMENT: | 21 December 2022 |
CASE MAY BE CITED AS: | Lennon v The Herald and Weekly Times Pty Ltd (No 2) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 792 |
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DEFAMATION – Application to further amend defence pursuant to r 36.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Proposed amendment relevant to the plea in mitigation of damage – Plaintiff objects to the amendment on the basis that it is bad in law and would be liable to be struck out – Burstein v Times Newspapers Ltd [2001] 1 WLR 579 referred to – Scott v Sampson (1882) 8 QBD 491 referred to – Whether evidence concerning the plaintiff’s possession of a traffickable quantity of methylamphetamine at the time of arrest amounts to evidence of the directly relevant background context to the publication of the article – Defamation Act 2005 (Vic) ss34 and 38 referred to – Proposed amendment found to raise factual allegations directly relevant to the background context in which the article was published.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D P Gilbertson KC | Harris Carlson Lawyers |
| For the Defendants | Mr A Anderson | Thomson Geer |
HER HONOUR:
Introduction and background
These reasons concern an application brought by the defendants[1] (together, ‘HWT’) to amend their defence in a defamation proceeding brought by the plaintiff, Mr Patrick Lennon, to include an allegation said to be relevant to the quantum of any damages payable by HWT in the event that the Court finds that HWT is liable to Mr Lennon for defamation.
[1]The first defendant, The Herald and Weekly Times Pty Ltd (‘HWT’) is a major media organisation. The second and third defendants are journalists employed by HWT. There is no need to distinguish between the defendants for the purpose of these reasons.
In March 2021, I published reasons with respect to a previous application concerning HWT’s defence (‘first reasons’).[2] The background to the proceeding, and a discussion of some of the legal principles which are also applicable to the current application is to be found in the first reasons, and will not be repeated in full in these reasons.
[2]Lennon v Herald and Weekly Times Ltd [2021] VSC 147 (‘first reasons’).
Mr Lennon, who is the principal of a law firm, commenced this proceeding on 4 November 2020 in relation to an article published by HWT in October 2020 (‘article’), which included the sub-heading “The high-flying Melbourne professionals busted for drugs…”. While the bulk of the article concerned other so-called ‘high-flyers’ who had been convicted for drug trafficking, the article also stated as follows:
Last month, Leader reported Caulfield North lawyer Patrick Lennon, who has previously represented the likes of underworld figure Mick Gatto and jockey Danny Nikolic, was arrested for alleged ice trafficking in July.[3]
[3]The statement of claim also refers to an amended article published later than the article, but the amendments to the article were minor, and irrelevant for the purpose of the current application.
The article contained a hyperlink to a previous HWT story about Mr Lennon’s arrest in July 2020.
Following Mr Lennon’s arrest, Mr Lennon was charged with three offences, as follows:
(a)the accused at South Yarra on 13/07/2020 did traffick a drug of dependence, namely methylamphetamine;
(b)the accused at South Yarra on 13/07/2020 did deal with property namely $5905 in AUD currency suspected of being the proceeds of crime; and
(c)the accused at South Yarra on 13/07/2020 attempted to possess a drug of dependence namely methylamphetamine.[4]
[4]Charge sheet dated 14 July 2020.
The charges above are the subject of a proceeding in the Magistrates’ Court at Melbourne (‘criminal proceeding’). It seems to be common ground that when Mr Lennon was arrested, he was found with eleven grams of methylamphetamine. However, as can be seen from the above, following his arrest, Mr Lennon was not charged with drug possession, but rather the more serious offence of drug trafficking.
In his statement of claim in this proceeding, Mr Lennon alleges that the natural and ordinary meaning of the article 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.
As noted in the first reasons, HWT has not defended this proceeding relying upon any substantive defences. Rather, HWT admits that the article was defamatory, but that the article did not convey the imputations pleaded by the plaintiff, and relied upon certain matters and events to support its plea of mitigation of damage (‘mitigation plea’), which was to the effect that any damages payable to Mr Lennon should be reduced by reason of his poor reputation. HWT also relies upon those matters to contend that Mr Lennon was less likely than others to have been hurt and embarrassed by the publication of the article, which is also a matter relevant to damages.
The mitigation plea was the focus of a partially successful strike out application in early 2021, which was discussed and determined in the first reasons.
On 30 March 2021, I granted HWT leave to file and serve an amended defence consistent with the first reasons. An amended defence was filed on 20 April 2021. Paragraph 13 of the amended defence provided as follows:
a.The following facts and circumstances as relevant context in which the Publications were made and as relevant to the harm suffered by the Plaintiff as a result of the Publications:
i.The plaintiff was arrested and charged with drug trafficking and possessing the proceeds of crime on or around 13 July 2020 (“the charges”) and bailed to appear at the Melbourne Magistrates’ Court on 13 October 2020;
ii.The plaintiff was contesting the charges;
iii.The reporting of the charges and the plaintiff’s response to the charges in the article first published by the First and Second Defendants on 21 September 2020 entitled “Patrick Lennon, lawyer for Mick Gatto and Danny Nikolic, charged with alleged drug trafficking” which is hyperlinked in the Original Article and the Amended Article (“Hyperlinked Article”).
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 (“Text Messages Incident”) in circumstances where:
i.the Text Messages Incident was notorious within the legal profession;
ii.further or alternatively, the finding of Her Honour Justice Aileen Ryan concerning the Text Messages Incident was an adverse judicial finding itself evidence of the plaintiff’s bad reputation.
After the filing and service of the amended defence in April 2021, the following transpired:
(a) in May and June 2021, the parties conferred regarding two proposed further amendments to the mitigation plea. The plaintiff consented to one proposed amendment[5], but rejected another proposed amendment of a similar nature to the proposed amendment which is the subject of the current application (‘proposed amendment’);
[5]The proposed amendment which Mr Lennon consented to be made provided further detail regarding what is described in the amended defence as the text message incident.
(b) between July 2021 and November 2021 the parties conferred regarding the question of whether this proceeding should be stayed pending the outcome of the criminal proceeding;
(c) on 9 December 2021, HWT’s solicitors sent a letter requesting Mr Lennon’s consent to the proposed amendment. No reply to this letter was forthcoming until April 2022;
(d) the proceeding was held in abeyance pending the hearing and determination of an application by Mr Lennon to stay the criminal proceeding;
(e) on 31 May 2022 orders were made by Baker JR staying this proceeding until late August 2022;
(f) on 1 August 2022, a magistrate made orders granting a conditional stay of the criminal proceeding, which was lifted on or about 5 November 2022. The criminal proceeding has been listed for a two day hearing on 15 May 2023; and
(g) HWT filed its summons seeking leave to further amend their defence on 31 October 2022.
HWT relied upon the above matters to rebut any contention that HWT had failed to make its application to further amend the amended defence promptly. However, Mr Lennon did not oppose the application on this ground.
The proposed amendment
The proposed further amended defence includes the following addition to the mitigation plea in paragraph 13:
13.If the Plaintiff suffered any damages as a result of the Publications, the Defendants intend to rely upon the following facts and matters in anticipation of such damage:
a.The following facts and circumstances as relevant context in which the Publications were made and as relevant to the harm suffered by the Plaintiff as a result of the Publications:
i.The plaintiff was arrested and charged with drug trafficking and possessing the proceeds of crime on or around 13 July 2020 (“the charges”) and bailed to appear at the Melbourne Magistrates’ Court on 13 October 2020;
ii.The plaintiff was contesting the charges;
iii.The reporting of the charges and the plaintiff’s response to the charges in the article first published by the First and Second Defendants on 21 September 2020 entitled “Patrick Lennon, lawyer for Mick Gatto and Danny Nikolic, charged with alleged drug trafficking” which is hyperlinked in the Original Article and the Amended Article (“Hyperlinked Article”).
iv.On or about 13 July 2020, when arrested by police in South Yarra, the Plaintiff was in possession of a traffickable quantity methylamphetamine in contravention of section 73 of the Drugs, Poisons and Controlled Substances Act 1981.
(emphasis added to highlight the proposed amendment)
Mr Lennon opposes the proposed amendment on the basis that it is bad in law and would be liable to be struck out. It is uncontroversial that the Court should not permit an amendment to pleadings where the proposed amendment would be liable to be struck out.
In putting forward the proposed amendment, HWT relies upon what can be described as the Burstein principle, based upon the decision of the Court of Appeal of England and Wales in Burstein v Times Newspapers Ltd[6] (‘Burstein’).
[6][2001] 1 WLR 579.
In the first reasons, I embarked upon an extensive review of the reasons in Burstein,[7] which I will not repeat here. In short, the Burstein principle operates as an exception to the general rule in defamation proceedings that evidence concerning the claimant’s own conduct is inadmissible in reduction of damages.[8] The rationale behind the rule is a pragmatic one, being to prevent defamation proceedings from becoming a roving inquiry into the character and conduct of a successful claimant.
[7]Ibid.
[8]Scott v Sampson (1882) 8 QBD 491.
However, the decision in Burstein[9] stands for the proposition that evidence of the claimant’s conduct is admissible on the question of loss and damage if it is causally connected to the occasion or subject matter of the publication which is said by the claimant to be defamatory.[10] Such evidence may include evidence of a prior defamatory statement by the claimant which provoked the publication complained of by the claimant, which is not relevant to the current application. However, it also may include other evidence which is “directly relevant to the context in which a defamatory publication came to be made.”[11]
[9][2001] 1 WLR 579.
[10]Ibid [24].
[11]Ibid [28].
In Burstein[12], May LJ justified the admission of certain evidence concerning the conduct and disposition of the claimant on the basis that keeping that evidence away from the jury when assessing damages would “put them in blinkers.”[13] Further, evidence of the directly relevant background context in which the defamatory publication came to be made, to the extent that it can be characterised as evidence of the plaintiff’s reputation, may be “directly relevant to the damage which he claims has been caused by the defamatory publication.”[14]
[12]Ibid.
[13]Ibid [41].
[14]Ibid [42].
Lord Justice May summarised the position 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. [15]
[15]Ibid [47].
In Burstein[16], the issue was whether the defendant publisher could rely upon particulars supporting a failed defence of justification in mitigation of damage. Here, no plea of justification has been advanced by HWT. However, it seems to be common ground that the absence of any defence of justification does not preclude a defendant from pleading allegations and adducing evidence of a claimant’s character and conduct in accordance with the Burstein principle.[17]
[16]Ibid.
[17]See Warren v The Random House Group Ltd [2009] QB 600 [78].
In the first reasons, I noted that in Turner v News Group Newspapers Ltd[18] (‘Turner’), the Court of Appeal of England and Wales rejected a submission that the Burstein principle was contrary to established authority, but urged caution in applying the Burstein principle, 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.[19]
[18][2006] 1 WLR 3469.
[19]Ibid, 3485.
As noted in the first reasons, the Burstein principle has been accepted as good law by Australian courts[20], albeit with reference to the need for caution in its application.
[20]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.
By way of example, in Rush v Nationwide News Pty Ltd (No 2)[21], Wigney J, referring to the reasons of May LJ in Burstein[22] observed 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.[23]
[21](2018) 359 ALR 564.
[22][2001] 1 WLR 579.
[23](2018) 359 ALR 564 [42].
Relevant for the purposes for the current application is the reference to the following statement in ‘Gatley on Libel and Slander’[24] by Buss JA in Coxon v Wilson[25]:
It appears … that a degree of connection between the subject matter of the libel and the Burstein particulars is required, both in terms of similarity of allegation and in terms of closeness in time; or, at least, that the more different the allegations are from the libel, and the further away in time, the less likely the Burstein particulars are to be allowed. That is hardly surprising, because an allegation of some entirely distinct behaviour, especially taking place at a long remove from the matters alleged in the libel, could not easily be described as directly relevant background context.[26]
[24]Mullis and Parkes (Eds), Gately on Libel and Slander, 12th ed, 2013, at [33.36].
[25][2016] WASCA 48.
[26]Ibid [22].
The need for a temporal connection between the matters said to amount to directly relevant context and the publication of the alleged libel was also emphasised in Warren v The Random House Group Ltd.[27]
[27][2009] QB 600 [86].
The dispute between the parties in the current application is whether the proposed amendment falls within or outside the ambit of the Burstein principle: that is, whether evidence concerning Mr Lennon’s possession of a traffickable quantity of methylamphetamine at the time of his arrest in July 2020 is evidence of the “directly relevant context” to the publication of the article.
The parties’ submissions
Mr Lennon made the following observations regarding the ambit and operation of the Burstein principle:
(a) a criminal conviction might be a relevant matter in mitigation of damage, but Mr Lennon has not been convicted of any charges as a consequence of his arrest in July 2020;
(b) the Burstein principle permits a defendant to plead by way of mitigation matters which are directly relevant to the damage said by the plaintiff to have been caused by the defamatory publication;
(c) the decision in Burstein[28] largely concerned the question of whether the conduct of the plaintiff provoked the publication. Other than those circumstances, the Burstein principle represents a limited departure from the strict limits placed upon a defendant’s ability to lead evidence in mitigation of damages, and as a consequence, should be applied with caution; and
[28][2001] 1 WLR 579.
(d) there must be a strong connection between the background matter and the alleged libel; and
(e) Mr Lennon submitted as follows (omitting citations):
“…where the Burstein principle is invoked to put some fact before a jury, that proposal must be subject to careful scrutiny, and there must be a real risk of the jury assessing damages on a false basis if they were kept in ignorance of evidence about that fact.”
(emphasis added)
Mr Lennon submitted that the proposed amendments to the mitigation plea do not amount to directly relevant background context to the publication of the article for the following reasons:
(a) the imputations pleaded by Mr Lennon relate to drug trafficking, not possession or attempted possession of a drug of dependence, or possession of a traffickable quantity of methylamphetamine;
(b) the Court would not be assessing Mr Lennon’s loss and damage “in blinkers” if the proposed amendment was not allowed, because Mr Lennon has not been charged with possession of a traffickable quantity of methylamphetamine;
(c) there is a material difference between ‘possession’ in the ordinary sense, and ‘possession’ within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic); and
(d) Mr Lennon submitted as follows:
What the defendants are endeavouring to do is establish the truth – which would have to be to the Briginshaw standard – of an offence with which the plaintiff has not been charged. That is precisely the sort of roving inquiry into the plaintiff’s character, disposition or conduct that the law will not permit, for reasons of both fairness and case management.
HWT submitted that the proposed amendment should be permitted, because it is at least arguable that the proposed amendment pleads “an act of misconduct on the part of the plaintiff tending to show his character and disposition where it is directly relevant to the background context of the publications complained of.”
HWT submitted that “the fact that [Mr Lennon] was in possession of a traffickable quantity of methylamphetamine on the very occasion referred to in the article giving rise to the drug trafficking charge is a relevant background fact to his character or disposition [which is] relevant to the Court’s assessment of damages”.
HWT accept that the proposed amendment does not address the defamatory “sting” of the article, but the allegation that Mr Lennon was in possession of methylamphetamine at the time of his arrest is a matter which the Court may take into account when assessing damages.
HWT submitted further as follows:
The Court would at least arguably be required to assess damages in blinkers if it not permitted to have regard to the alleged fact that the plaintiff was unlawfully in possession of a traffickable quantity of methylamphetamine when he was arrested on 13 July 2020. The fact is capable of rationally affecting the damages to which the plaintiff would otherwise be entitled. The plaintiff is not on the same footing as a legal practitioner who has not engaged in such misconduct and it not entitled to have damages assessed as if he were.
HWT referred to the principles and authorities governing applications to strike out pleadings, noting that all that HWT needs to establish is that it is at least arguable that HWT would be able to adduce evidence in support of the allegations in the proposed amendment which would be relevant to the assessment of damages. HWT submitted as follows (omitting citations):
The court will not exercise the power [to strike out a pleading] where the pleading raises a debatable point of law and should be careful not to risk stifling the development of the law by summarily rejecting a claim where the boundaries of the law are still developing.
In cases of doubt, the Court should refuse to exercise the power.
These principles apply to defamation cases just as much as other civil cases.
HWT relied upon the decision in Turner,[29] where Keene and Moses LJJ considered that, given damages are awarded for injury to feelings and embarrassment as well as for damage to reputation, evidence of misconduct may well be relevant to the extent of hurt feelings and embarrassment suffered by a plaintiff as a consequence of the defamatory publication, insofar as the evidence is relevant to the particular ‘sector’ of that plaintiff’s life.
[29][2006] 1 WLR 3469.
HWT submitted as follows (omitting citations):
In Coxon, the WA Court of Appeal was called upon to adjudicate on whether the alleged facts which had been struck out from an attempted Burstein plea were “directly relevant background context.” In answering the question Buss JA had regard to a passage in Gatley on Libel and Slander which emphasises the degree of connection between the matters pleaded and the subject matter of he libel in terms of:
(a) the similarity of the allegations
(b) their closeness in time.
There was, at least arguably, a sufficient degree of connection, both in subject matter and temporarily, between the Burstein particulars, on the one hand, and the alleged defamation, on the other.
Murphy JA and Corboy J in Coxon and the Court of Appeal in Turner also considered that material will be directly relevant background context where it is relevant to the sensitivity of the plaintiff in then part of his life the subject of the defamatory publication. The plea should not be struck out where it is arguably relevant to the court’s assessment of injury to feelings.
HWT submitted that the proposed amendment raises matters which are directly relevant background context to the article, because the facts alleged are connected with the subject matter of the article, and there is a temporal connection between the facts alleged and the matters referred to in the article, given that the facts alleged concern the conduct of Mr Lennon at the time he was arrested.
HWT concluded its submissions as follows:
The plaintiff’s unlawful possession of a traffickable quantity of methylamphetamine on the occasion he was arrested on 13 July 2020 is a directly relevant background fact to the context of the publications complained of. It is misconduct of the plaintiff closely connected in time and subject matter. It is also relevant to the court’s assessment of the plaintiff’s hurt feelings and embarrassment. To shut the Court out from consideration of the plaintiff’s misconduct would be to effectively require the Court to assess damages in blinkers. The plaintiff is not entitled to the same damages as someone who had not engaged in such directly relevant misconduct. It is at least arguable and the plaintiff’s attempt to exclude paragraph 13(a)(iv) from the pleading ought not be upheld.
Discussion
The relevant principles governing the question of whether proposed amendment should be permitted were thoroughly and accurately canvassed in the parties’ submissions, and summarised above. The dispute between the parties in the current application is their application to the proposed amendment.
While the parties in their submissions focussed upon the Burstein principle and its application to the proposed amendment, the assessment of damages in defamation proceedings is also governed by the Defamation Act 2005 (Vic) (‘Act’).
Section 34 of the Act provides as follows:
Damages to bear rational relationship to harm
In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
Section 38 of the 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.
Notwithstanding the terms of s 38(2) above, practically speaking, what a court is permitted to consider in mitigation of damage is limited by the rule in Scott v Sampson[30], which in turn has been modified by the Burstein principle.
[30](1882) 8 QBD 491.
In my view, the proposed amendment raises factual allegations which are directly relevant to the context in which the article was published, and, accordingly, the proposed amendment should be permitted. The allegation that Mr Lennon had eleven grams of methylamphetamine in his physical possession at the time that he was arrested on 6 July 2020 is directly relevant to the subject matter of the article (in that the article reports that he has been charged with drug related offences), and there is a temporal connection between the arrest on 6 July 2020 and the publication of the article only a few months later. Indeed, given that the article refers to Mr Lennon being arrested ‘in July’, the temporal connection between the article and the facts alleged in the proposed amendment is even more direct. The question of whether Mr Lennon was intentionally ‘in possession’ of methylamphetamine within the meaning of the relevant provisions of the Drugs, Poisons and Controlled Substances Act (1981) (Vic), and the impact of the undisputed fact that he was found with that substance at the time of his arrest upon the harm caused by the publication of the article seems to me to be a matter for evidence and argument at trial.
That the proposed amendment refers to possession of a traffickable quantity of methylamphetamine, and the imputations pleaded by Mr Lennon relate to drug trafficking seems to me to be beside the point. True it is that when a defendant to a defamation claim is pleading a substantive defence, they are confined to responding to the imputations pleaded by the plaintiff. But I do not accept that a defendant is so confined when advancing a plea in mitigation of damage. Indeed, such a conclusion is the necessary consequence of accepting that matters pleaded to support an unsuccessful defence of justification or contextual truth can be relied upon for the purpose of mitigation of damage, because the failure of the relevant defence means that the defendant has failed to meet the defamatory “sting” of the publication concerned. The constraint upon a defendant advancing a plea in mitigation is not the manner in which the plaintiff has pleaded the alleged imputations arising from a publication, but rather the requirement that the matters alleged be directly relevant to the context in which the defamation was published, so as not to allow a roving inquiry to be conducted into the character or conduct of a successful plaintiff in a defamation action.
I accept that there is a disconnect in some respects between the imputations pleaded by Mr Lennon (all of which concern drug trafficking) and the matters raised by the proposed amendment (being drug possession). I also accept that being accused of drug trafficking invites a greater deal of moral opprobrium than being accused of drug posession. However, the fact that the mitigation plea might not be successful in reducing the damages payable to Mr Lennon to zero does not mean that the proposed amendment is not relevant to the question of what is the appropriate measure of damages for harm to Mr Lennon’s reputation or for any injury to his feelings which may have been caused by the publication of the article.
Accordingly, in my view, it is at least arguable that if the matters alleged in the proposed amendment are proved at trial, those matters will be material to a jury’s assessment of what amount of damages bears an appropriate and rational relationship with the harm caused to Mr Lennon by the publication of the article. Allowing the proposed amendment would not introduce a ‘diversionary smokescreen’ into the trial of this proceeding[31]. The proposed amendment, in my view, sits comfortably within the ambit of the Burstein principle.
[31]Coxon v Wilson [2016] WASCA 148 [31].
I will order that HWT have leave to file and serve a further amended defence including the proposed amendment, and make orders for the filing of written submissions with respect to the question of costs in due course.
SCHEDULE OF PARTIES
| S ECI 2020 04146 | |
| BETWEEN: | |
| PATRICK LENNON | Plaintiff |
| - v - | |
| THE HERALD AND WEEKLY TIMES PTY LIMITED (ACN 004 113 937) | First Defendant |
| KIEL EGGING | Second Defendant |
| PAUL SHAPIRO | Third Defendant |
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