Poniatowska v Channel Seven Sydney Pty Ltd

Case [2019] SASCFC 111

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

PONIATOWSKA v CHANNEL SEVEN SYDNEY PTY LTD

[2019] SASCFC 111

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Nicholson)

27 September 2019

DEFAMATION - JUSTIFICATION - GENERALLY

DEFAMATION - FAIR COMMENT - IN GENERAL - COMMENT AT COMMON LAW

DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - FURTHER EVIDENCE

In October 2011 the respondents broadcast a story on Today Tonight which depicted the appellant as having defrauded and cheated Centrelink of $20,000 in single parent benefits while working for a building company and having avoided prosecution by finding a loophole in social security law that did not require her to disclose her income to Centrelink. The story was also published on the Channel Seven website.

The appellant had been charged in April 2008 with what became 17 counts of obtaining a financial advantage by omission between August 2005 and May 2007, in contravention of section 135.2(1) of the Criminal Code (Cth). Between February 2005 and February 2006 the appellant was employed by a building company, the Hickinbotham Group. She was remunerated exclusively on a commission basis for the sale of house and land packages which proceeded to the footings stage and received commission payments up to more than a year after entry into package contracts.

The appellant foreshadowed a plea of not guilty to the charges and the matter was listed for trial in the Magistrates Court for July 2009. On the eve of trial the appellant accepted legal advice to plead guilty and she pleaded guilty on the morning of trial. Ultimately she appealed to this Court against her conviction and her appeal was upheld. An appeal to the High Court by the Commonwealth Director of Public Prosecutions was dismissed on the morning of the day on which the Today Tonight story was broadcast.

This Court (and the High Court) held that the appellant could not be guilty of obtaining a financial advantage by omission because section 135.2(1) did not impose a duty to disclose and the prosecution did not contend that any other Commonwealth law required her to disclose her income to Centrelink. This Court held that in addition the charges were misconceived because each count related to a payment made by the Hickinbotham Group to the appellant rather than to a benefit paid by Centrelink to her.

The appellant sued the respondents in the Supreme Court for defamation, claiming that the story depicted her as a welfare fraud and cheat. The respondents relied on defences of justification, fair report, qualified privilege, extended qualified privilege and fair comment. The trial Judge upheld each defence and dismissed the action.

The appellant appeals against the dismissal, contending that the Judge ought to have found additional imputations and made numerous errors in concluding that each defence…

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AGLC
Poniatowska v Channel Seven Sydney Pty Ltd [2019] SASCFC 111
Case
[2019] SASCFC 111
Decision Date

CaseChat Overview and Summary

Ms Poniatowska appealed to the Full Court of the Supreme Court of South Australia against the dismissal of her defamation claim against Channel Seven Sydney Pty Ltd. The appeal concerned the trial judge's findings that Channel Seven had established defences of justification and qualified privilege, and also raised issues regarding the potential admission of new evidence on appeal and an apprehension of bias on the part of the trial judge. Ms Poniatowska also appealed against the costs order made by the trial judge.

The primary legal issues before the Full Court were whether the trial judge erred in finding that Channel Seven had successfully established the defences of justification and qualified privilege. Ms Poniatowska also sought to adduce further evidence on appeal, and contended that the trial judge ought to have disqualified himself due to a prior employment history with the Department of Social Security, which she argued gave rise to a reasonable apprehension of bias.

The Full Court allowed the appeal, setting aside the judgment of the trial judge. The Court reasoned that Channel Seven's conduct in publishing the defamatory imputation was unreasonable. Specifically, the Court found that Channel Seven's sole source of information was the High Court's reasons for judgment, and without knowing what Ms Poniatowska had told Centrelink or what Centrelink knew, they had no grounds to believe the imputation that she had defrauded Centrelink. Furthermore, they took no steps to verify the accuracy of this imputation. Consequently, the Court concluded that none of the defences relied upon by Channel Seven were established, and that Channel Seven was liable to pay damages to be assessed. The Court also noted that it was unnecessary to consider the admission of new evidence or the apprehension of bias grounds, as the appeal was allowed on other grounds.

The Court ordered that the appeal be allowed, the judgment of the trial judge be set aside, and judgment be granted in favour of Ms Poniatowska for damages to be assessed. The parties were to be heard on the question of whether the Full Court should assess damages or remit the matter to a single judge for assessment.

Orders

Orders of the court

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Background

Background to the litigation

Ms Poniatowska appeals against the dismissal, contending that the Judge ought to have found additional imputations and made numerous errors in concluding that each defence was established. She also seeks to adduce new evidence on appeal comprising copies of four Centrelink letters. She also contends that, because the Judge had previously worked for the Department of Social Security, the Judge ought to have disqualified himself from hearing the matter. She also appeals against the costs order.Background Ms Poniatowska was born in Poland in 1967, married in 1989 and emigrated with her husband to Australia in 1991. Her daughter was born in 1992 and her son was born in 1995. At some point Ms Poniatowska commenced to receive family tax benefit and at some point she commenced to receive child care benefit. Evidence was not adduced as to when these different payments commenced but it is likely that family tax benefit, if not also child care benefit, commenced in July 2000 when they were introduced[7] and that Ms Poniatowska was receiving a predecessor of family tax benefit, if not also child care benefit, in the 1990’s after her children were born. [7] Family tax benefit: A New Tax System (Family Assistance) Act1999 (Cth): see [192] below. Child care benefit: A New Tax System (Family Assistance) Act1999 (Cth): see [192] below. In January 2002 Ms Poniatowska commenced employment with radio station 5DN as an account manager selling advertising. Her remuneration was a combination of salary and commission. She was then living with her husband and two children in a house at Prospect (the Prospect house). In November 2002 Ms Poniatowska’s husband left her and their children and later moved overseas. In November 2002 Ms Poniatowska signed a claim form for Parenting Payment Single (parenting payment) which is normally paid fortnightly by Centrelink. She signed further claims in April 2003 and November 2003. None of these claims were tendered at trial. Ms Poniatowska commenced receiving parenting payment in November 2002. In May 2003 Ms Poniatowska leased a post office box at a post office at Prospect (the Prospect PO box). The lease was for the balance of the post office box year which always ends on 31 March (in this case 31 March 2004). In August 2003 Ms Poniatowska gave to Centrelink an estimate that her annual income was $30,000. At that point she was receiving family tax benefit and parenting payment paid fortnightly if not also child care benefit (which is usually received by fee reduction rather than cash payment).[8] [8] See [221] ff below. In December 2003 Ms Poniatowska resigned her employment with 5DN to complete her Master of Business Administration. In February 2004 Ms Poniatowska moved from Prospect to a house at Magill (the Magill house). On 31 March 2004 the Prospect PO box lease came up for renewal. Ms Poniatowska gave evidence that she did not recall renewing the lease and had no reason to do so given that she had moved to Magill. The trial Judge found based on Australia Post computer records that she had in fact renewed the lease.

Evidence

Evidence Before The Court

The Judge erred in finding that the various defences relied on by Channel Seven were established. The Judge should have concluded that none of those defences were established and Channel Seven was liable to pay damages to be assessed to Ms Poniatowska.New evidence on appeal As noted above, Ms Poniatowska seeks to adduce new evidence on appeal comprising copies of four Centrelink letters. The Court received the four letters de bene esse pending a ruling whether they would be admitted as new evidence on appeal in the exercise of its discretion. The affidavits of Ms Poniatowska, Ms Repasky, Ms Sandford, Ms Grant and Mr Cursaro were relevant to the exercise of the Court’s discretion whether to admit the four letters as new evidence on appeal. Channel Seven opposed the admission of the four letters as new evidence on appeal and contended in any event that their admission could not affect the result of the appeal. The four letters were relevant only to the issue of justification. Because I have concluded that the trial Judge should have found that the justification defence was not established on the evidence at trial, it is unnecessary to consider whether the four letters should be admitted as new evidence on appeal. Apprehension of bias Ms Poniatowska tendered evidence on appeal that the Judge was employed by the Department of Social Security for sixteen years from 1974, commencing as an unemployment benefit assessor and finishing as an Assistant Director in charge of appeals. Ms Poniatowska contends that the Judge’s employment at the Department, which he did not disclose prior to or during the trial, gave rise to a reasonable apprehension of bias because the Judge might be perceived as having sympathy to Centrelink and as having esoteric knowledge of Centrelink procedures as a result of his former employment. Because I have concluded that the appeal must be allowed on other grounds, it is unnecessary to consider this ground of appeal.Assessment of damages As noted above, the Judge did not assess damages. The Judge did make certain findings relevant to the assessment of non-economic loss and economic loss, and concluded that Ms Poniatowska was not entitled to aggravated damages. Ms Poniatowska identifies the alternatives of this Court assessing damages or remitting the matter to a single Judge to assess damages. She expresses a preference that this Court assess damages. Channel Seven submits that the assessment of damages should be remitted to a single Judge. In the circumstances, I would hear the parties on the question whether this Court should assess damages or remit the matter to a single Judge to assess damages.Conclusion I would make the following orders: 1. Appeal allowed. 2. Judgment of the Judge set aside.3. Judgment be granted in favour of the plaintiff for damages to be assessed. I would hear the parties whether this Court should assess damages or remit the matter to a single Judge for assessment. NICHOLSON J: I would allow the appeal for the reasons given by Blue J. I agree with the orders his Honour has proposed.

Decision

Reasons for decision

The question whether Channel Seven’s conduct was reasonable in the context of this defence is essentially the same as the question whether their conduct was reasonable in the context of the statutory qualified defence. Their conduct was unreasonable for the same reasons as it was unreasonable in the context of the statutory qualified defence. In particular, because their only source of information concerning Ms Poniatowska was the High Court’s reasons for judgment and they did not know what Ms Poniatowska told Centrelink or what Centrelink knew, they had no grounds for believing the defamatory imputation that Ms Poniatowska defrauded Centrelink and took no steps to verify the accuracy of that imputation.Conclusion on liability The Judge erred in finding that the various defences relied on by Channel Seven were established. The Judge should have concluded that none of those defences were established and Channel Seven was liable to pay damages to be assessed to Ms Poniatowska.New evidence on appeal As noted above, Ms Poniatowska seeks to adduce new evidence on appeal comprising copies of four Centrelink letters. The Court received the four letters de bene esse pending a ruling whether they would be admitted as new evidence on appeal in the exercise of its discretion. The affidavits of Ms Poniatowska, Ms Repasky, Ms Sandford, Ms Grant and Mr Cursaro were relevant to the exercise of the Court’s discretion whether to admit the four letters as new evidence on appeal. Channel Seven opposed the admission of the four letters as new evidence on appeal and contended in any event that their admission could not affect the result of the appeal. The four letters were relevant only to the issue of justification. Because I have concluded that the trial Judge should have found that the justification defence was not established on the evidence at trial, it is unnecessary to consider whether the four letters should be admitted as new evidence on appeal. Apprehension of bias Ms Poniatowska tendered evidence on appeal that the Judge was employed by the Department of Social Security for sixteen years from 1974, commencing as an unemployment benefit assessor and finishing as an Assistant Director in charge of appeals. Ms Poniatowska contends that the Judge’s employment at the Department, which he did not disclose prior to or during the trial, gave rise to a reasonable apprehension of bias because the Judge might be perceived as having sympathy to Centrelink and as having esoteric knowledge of Centrelink procedures as a result of his former employment. Because I have concluded that the appeal must be allowed on other grounds, it is unnecessary to consider this ground of appeal.Assessment of damages As noted above, the Judge did not assess damages. The Judge did make certain findings relevant to the assessment of non-economic loss and economic loss, and concluded that Ms Poniatowska was not entitled to aggravated damages. Ms Poniatowska identifies the alternatives of this Court assessing damages or remitting the matter to a single Judge to assess damages. She expresses a preference that this Court assess damages. Channel Seven submits that the assessment of damages should be remitted to a single Judge.

Ratio Decidendi

Legal Principle Established

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