Oliver v Nine Network Australia Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Oliver v Nine Network Australia Pty Ltd [2019] FCA 583

File number: NSD 1798 of 2018
Judge: LEE J
Date of judgment: 26 April 2019
Catchwords:

HIGH COURT AND FEDERAL COURT – federal jurisdiction – issue in relation to jurisdiction of Federal Court in defamation matters identified – first duty of Court to determine questions of jurisdiction – jurisdiction established – discussion of jurisdiction of Federal Court in defamation matters generally

DEFAMATION – statements amounting to defamation – particular statements – imputations – television broadcast and website publication – where the applicant alleges that the publications give rise to six defamatory imputations –where the action was tried by a judge sitting alone – whether the alleged imputations or substantially similar imputations are conveyed – two imputations conveyed which are defamatory of the applicant

DAMAGES – general damages – assessment – aggravation – where s 34 of the Defamation Act2005 (NSW) requires damages to bear a rational relationship to harm – no award of aggravated damages warranted – assessment of damages

COSTS – observations on Rule 40.08 of the Federal Court Rules which although not applicable because of size of judgment would apply when a proceeding could have been more suitably dealt with in a non-superior court with a fixed monetary jurisdiction and the importance of giving consideration to the likely quantum of damages when deciding whether to commence a defamation proceeding in the Federal Court

Legislation:

Corporations Act 2001 (Cth) Ch 2B, Pt 2A.2, ss 119, 124, 1378

Evidence Act 1995 (Cth) s 140

Judiciary Act 1903 (Cth) ss 39B(1A)(c), 64

Federal Court of Australia Act 1976 (Cth) Part VB

Defamation Act 2005 (NSW) ss 11, 31, 33, 34, 35, 36

Cases cited:

Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322

Australian Securities and Investments Commission v Edensor Nominees Pty Limited [2001] HCA 1; (2001) 204 CLR 559

Axon v Axon (1937) 59 CLR 395

Briginshaw v Briginshaw (1938) 60 CLR 336

Broome v Cassell & Co Ltd [1972] AC 1027

Browne v Dunn (1893) 6 R 67

Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212

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

Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466

Crosby v Kelly [2012] FCAFC 96; (2012) 203 FCR 451

Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575

Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716

Federated Engine-Drivers and Firemen’s Association of Australasia v The Broken Hill Proprietary Company Limited (1911) 12 CLR 398

Fencott v Muller (1983) 152 CLR 570

Herald and Weekly Times Limited v McGregor (1928) 41 CLR 254

Hockey v Fairfax…

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Details
Case
[2019] FCA 583
Decision Date

CaseChat Overview and Summary

Oliver v Nine Network Australia Pty Ltd involved a defamation claim brought by Mr Oliver against Nine Network Australia Pty Ltd. The dispute centred around defamatory statements made in a television broadcast and a website publication by Nine Network. Mr Oliver alleged that these publications conveyed six defamatory imputations, two of which were found to be defamatory. The case was heard by a judge sitting alone in the Federal Court of Australia.

The primary legal issues before the court were the identification of the defamatory imputations, the jurisdictional powers of the Federal Court in defamation matters, and the assessment of damages. The court had to determine whether the alleged imputations were conveyed and if they were substantially similar to any previously identified imputations. Additionally, the court examined the jurisdiction of the Federal Court in defamation cases and the appropriate assessment of damages in accordance with the Defamation Act 2005 (NSW).

The Federal Court began by confirming its jurisdiction over the matter. It identified that the first duty of the court is to determine questions of jurisdiction. The court established that it had jurisdiction to hear the case, given the nature of the defamation claims. It then proceeded to examine the specific imputations conveyed by the publications. Two imputations were found to be defamatory: that Mr Oliver had coward punched James Stannard and caused him serious injury, and that Mr Oliver had ended Stannard's career as a professional athlete. The court considered the defences of opinion based on true facts and fair report of public proceedings, but found them inapplicable. Regarding damages, the court noted that the amount awarded should have a rational relationship with the harm sustained, and that there was no basis for awarding aggravated damages. The court assessed the general damages based on the extent of harm and the impact on Mr Oliver’s reputation and personal distress.

The court adjourned the proceeding for the hearing of any argument as to costs and the making of final orders. It required the parties to provide an agreed minute of order or their competing positions on costs by a specified time.

Orders

Orders of the court

1. The proceeding be adjourned for the hearing of any argument as to costs and for the making of final orders at 9am on 29 April 2019.

2. Prior to 5.00pm today, the parties provide to the Associate to Justice Lee an agreed minute of order reflecting these reasons and an agreed position as to costs of the proceeding or their competing minutes of order indicating the order for costs for which they contend.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

For reasons I have explained, it would be inappropriate to draw any adverse inferences against Mr Oliver by reason of his failure to be present or in Mr Littlemore not taking up the invitation of the Court to arrange video link evidence. However, this is not the same thing as saying that the deprivation of my ability to assess Mr Oliver giving evidence as to his subjective feelings in person is irrelevant when it comes to a consideration as to whether I have reached the required level of reasonable satisfaction or actual persuasion as to his assertions as to the extent of his hurt and distress.F.3 Evidence Relevant to Damages What might be described as the “high point” of Mr Oliver’s affidavit evidence (affidavit of S Oliver, 21 February 2019 [20]-[30]) as to his injured feelings was as follows:… I was eating dinner in a hotel with my father in Sydney after the court case had been resolved. My first reaction was disgust at the biased report and how it made me look – the man who ruined a sporting hero’s career…… I was upset from the start, when they said the punch I threw was a coward punch. That is totally false. They were saying I was the aggressor and made a cowardly attack on this Aussie hero.…As the item went on to the end, it meant – to me – that I made a cowardly attack on an Aussie sports hero, and ruined his life, and got away with it by lying and saying that I acted in self-defence.I find it hard to describe how hurtful that was. My first reaction was shock, then anger, then frustration …Since the broadcast, I have had to explain myself repeatedly to friends, family members, acquaintances and even strangers and potential employers. It is as if the article has put a question mark next to my acquittal. People ask me “So what really happened?”, “Did he really hit you?”When my Australian family, friends and acquaintances contacted me about the Channel Nine broadcast, I felt a need to explain myself to all of them, which I found very upsetting.It was shared in a group chat I was in with my friends and I saw it.I applied for a job … when I returned to England. Obviously, the person interviewing me had been made aware of my name, because I was questioned by him about the incident in the interview. He mentioned the Australian news item and asked what had actually happened in the incident in Australia. I felt that he had doubts about me and my character. I found that very embarrassing and thought: am I going to have to go through this every time I apply for a job? Mr Oliver’s father gave evidence (affidavit of C Oliver, 26 February 2019 at [5]-[6]) as follows:Sam [that is, Mr Oliver] said words to this effect: “I’m speechless. Dad, I’ve spent months looking over my shoulder and wondering what people are saying about me and now this. What do I have to do to prove I’m innocent? It’s as if Stannard is a celebrity and untouchable to the press here, and I’m always going to be guilty in their eyes.” At first Sam showed no reaction other than agitation. He then became very morose and had tears in his eyes. When we were back in our hotel room, he wept and had a very sleepless night despite my attempts to counsel him through it. For the rest of our stay in Sydney, Sam was very down ... His mental state was such that all I wanted to do was get him home as soon as possible for the family to look after and care for him.

Decision

Reasons for decision

Prior to receipt of submissions, I enquired of the parties as to whether an imputation in the following terms: “That [Mr Oliver] coward punched James Stannard causing serious injury and ending his career as a professional athlete”, would be an imputation not substantially different from any or all of Imputations A, B and/or F. Although Mr Oliver acknowledged that this formulation “synthesised” the defamatory elements, given that Mr Oliver pressed only the five pleaded imputations considered above, any alternative imputation need not be considered further.D.6 Conclusions on Meaning Only two of the meanings pleaded, Imputation A and Imputation B, were conveyed. As noted above, given the respondents accepted that if those imputations were found to have been conveyed they would be defamatory, it is necessary to proceed further to consider any defences and relief.E DEFENCES Two defences were raised and then persisted in by the respondents. The first was the statutory defence pursuant to s 31(3) of the Act that the matter complained of was an expression of the opinion of Mr Stannard, it related to a matter of public interest, and it was based on true facts. The second was that the matter was, or was contained in, a fair report of proceedings of public concern. It was accepted, however (T100), that it was only necessary for me to deal with these defences in the event that as a matter of fact Imputations C, D or E were conveyed. Given that I have rejected the notion that those imputations were conveyed but that Mr Oliver was nonetheless defamed, the only further issue that arises is the question of relief.F DAMAGESF.1 Principles Relevant to Damages The starting point is that s 34 of the Act provides that “[i]n determining the amount of damages to be awarded in any defamation proceeding, 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”. Additionally, s 35 of the Act specifies a cap for non-economic loss which is currently $398,500: Government Gazette (NSW), No 66, 29 June 2018 at 3970. Section 35(2) provides that the cap may be exceeded “if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages”. As Wigney J recently noted in Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 at [338]ff, past authorities shed some light on what might be considered to be the “appropriate and rational relationship” for the purposes of s 34 including Carson v John Fairfax & Sons Limited (1993) 178 CLR 44 at 60, where a majority of the High Court noted that there are three purposes to be served by damages awarded for defamation: first, consolation for the personal distress and hurt caused to the applicant by the publication; secondly, reparation for the harm done to the applicant’s reputation, and thirdly, vindication of the applicant’s reputation. The first two purposes are frequently considered together, whereas “[v]indication looks to the attitude of others to the [applicant]: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the [applicant’s] reputation”: Carson at 61. Further, the parties agree that a convenient summary of the principles is set out in Hockey v Fairfax at 113 [446]; those statements of principle said to be relevant are referred to below, in the context of summarising the submissions of Mr Oliver.

Ratio Decidendi

Legal Principle Established

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