Poniatowska v Channel Seven Sydney Pty Ltd (No 4) - [2016] SASC 137

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
PONIATOWSKA v CHANNEL SEVEN SYDNEY PTY LTD & ANOR (No 4)
[2016] SASC 137
Judgment of The Honourable Justice Parker
23 August 2016
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATION - CRIMINAL
DEFAMATION - JUSTIFICATION - TRUTH
DEFAMATION - FAIR COMMENT - FOUNDATION OF FACT
DEFAMATION - PUBLICATION - GENERALLY - INTERNET PUBLICATIONS
This is an action for defamation brought by Ms Poniatowska against Channel Seven Sydney Pty Ltd and Channel Seven Perth Pty Ltd.
On 26 October 2011 the defendants broadcast a story about the plaintiff on the Today Tonight program. The plaintiff alleges that the story gave rise to a number of defamatory imputations including that the plaintiff had cheated Centrelink, was a fraud and was dishonest.
The story arose out of the conviction of the plaintiff for Centrelink fraud. The plaintiff had pleaded guilty to failing to report to Centrelink during the period from August 2005 to May 2007 of receipt of 17 payments she received while employed as a sales consultant with a building company. As a result the plaintiff received payments of the Parenting Payment Single benefit to which she was either not entitled or only partially entitled, totalling more than $20,000.
The conviction was set aside by the Full Court of the Supreme Court. That decision was upheld in the High Court. Following publication of the High Court judgment, the defendants broadcast the story on television in Sydney and Perth. The story was republished on the Channel 7 website. The plaintiff also claimed that the story was published on 33 other television stations around Australia by entities related to the defendants.
The plaintiff sought loss and damages on various bases in the sum of $1.1 million (plus interest). That included a claim for economic loss either on the basis that the plaintiff’s employment prospects were destroyed by reason of the damage to her reputation or because the publication greatly aggravated her pre-existing psychiatric condition.
The defendants accepted that publication was established although internet publication became an issue at trial. The defendants accepted the imputations in part and pleaded six grounds of defence including justification.
Held:
(1) The plaintiff did receive the greater part of the mail sent to her by Centrelink including letters which stated her obligation to declare income.
(2) The plaintiff did not receive the claimed advice from Centrelink, that she was not required to report her earnings from commission payments. The advice was a recent invention of the plaintiff. That plea is not an abuse of process.
(3) There is no special reason operating in the present case to prevent the defendants from advancing a plea of justification to the imputation of fraud.
(4) In light of findings that the plaintiff received notices from Centrelink requiring her to declare her income, the plaintiff could have been found guilty of many, if not all, of the charges brought against her for Centrelink fraud. On that basis she acted fraudulently in the legal sense.
(5) In light of the fact that the plaintiff failed to inform Centrelink, or to inform Centrelink properly, of her income, that resulted in an overpayment of more than $20,000 that was not repaid for several years, she did commit fraud in the popular or lay sense.
(6) In regards to the extent of publication of the story, the story was broadcast by the defendants in Sydney, Perth, Brisbane, Rockhampton and Toowoomba with the average number of viewers being 331,000 in Sydney, 156,000 in Perth, 261,000 in Brisbane, 4,000 in Rockhampton, and 24,000 in Toowoomba. The story was republished on the Channel 7 website and the evidence establishes that there was a maximum of 66 possible occasions when the story was viewed via the link on the website.
(7) The story was neutral on what had happened to the $20,000 which the plaintiff had received from Centrelink to which she was not entitled or only partially entitled. Thus, the pleaded imputations that the plaintiff took money from taxpayers without paying it back and that she was able to keep the overpayment even though she had committed fraud do not arise.
(8) The findings concerning the receipt by the plaintiff of notices requiring her to declare her income combined with the rejection of the commissions advice leads to the conclusion that the defendants have justified the imputations that the plaintiff had defrauded Centrelink, was dishonest and a cheat.
(9) The defence of fair report at common law and the statutory defence under s 27 of the Defamation Act have been made out by the defendants as the story provided information that explained in a simplified but readily comprehensible fashion the nature of the legal proceedings that were ultimately decided by the High Court and was a fair report of proceedings of public concern.
(10) The defence of qualified privilege under s 28 of the Defamation Act has been made out by the defendants as the story presented to the public in a summary fashion the outcome of proceedings on a matter that was of public interest.
(11) The extended constitutional defence of qualified privilege has been made out by the defendants as all four elements of the Lange test have been established.
(12) The defence of fair comment/honest opinion is made out as the facts which are the basis for the comments made in the story have been established.
(13) The allegation of malice has not been established, as the defendants did not act recklessly and the language used in the story was not too violent for the occasion.
(14) While senior counsel for the defendants engaged in a vigorous and extensive cross-examination it did not constitute improper or unjustifiable conduct and was not a basis upon which to award aggravated damages.
(15) The suggestion made by the defendants that the plaintiff had not been accepted as a witness of truth by Mansfield J in Employment Services Australia Pty Ltd v Poniatowska [2009] FCA 821is not a basis for the award of aggravated damages as the matter is relevant to the issue of whether the plaintiff would be able to attract a legal employer.
(16) There is no basis for the plaintiff’s claim for aggravated damages for the defendants’ examination of the contract arrangement the plaintiff had with the builder at her Glen Osmond house.
(17) The defence of the plaintiff’s claim by Channel 7 would have exacerbated the plaintiff’s pre-existing psychiatric conditions to some extent but that had a relatively limited impact on her employment prospects.
(18) The story broadcast by Channel 7 was not the cause of the failure of the plaintiff’s 148 job applications to attract any response from an employer. The operative causes of the plaintiff’s failure to obtain responses from employers include the plaintiff’s relatively poor academic record in her legal studies, the fact the plaintiff had never undertaken any work experience in legal practice, the fact the plaintiff’s prior work experience was not particularly relevant, the substantial oversupply of law graduates in recent years, and the effect of the Global Financial Crisis.
(19) The decision by New Holland Publishers to reject the publication of a manuscript written by the plaintiff was not influenced by the broadcast and had been decided prior to the broadcast.
Criminal Code Act 1995 (Cth) Sch 1 s 135.2; Social Security (Administration) Act 1999 (Cth) s 66A, s 67, s 68, s 74, s 192, s 207, s 208; Sex Discrimination Act 1984 (Cth) s14, s 28B; Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO; Defamation Act 2005 (SA) s 27, s 28, s 29, s 33; Freedom of Information Act 1982 (Cth) s 47E; Evidence Act 1929 s 45A; Commonwealth Constitution s 109; Acts Interpretation Act 1901 (Cth) s 13, referred to.
Brandi v Mingot (1976) 12 ALR 551; Ann Street Mezzanine Pty Ltd v Beck [2009] FCA 333; R v D'Orta-Ekenaike [1998] 2 VR 140, applied.
Bento v Chief Constable of Bedfordshire [2012] EWHC 1525, distinguished.
Jones v Dunkel (1959) 101 CLR 298; Ho v Powell (2001) 51 NSWLR 572; Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; Chakravati v Advertiser Newspapers (1998) 193 CLR 519; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Coleman v Power (2004) 209 ALR 182, discussed.
Briginshaw v Briginshaw (1938) 60 CLR 336; Poniatowska v Director of Public Prosecutions (Cth) [2010] SASC 1; Poniatowska v Director of Public Prosecutions (Cth) (2010) 107 SASR 578; Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408; DPP (Cth) v Keating (2013) 248 CLR 459; Chase v News Group Newspapers Ltd [2003] EMLR 218; Hamilton v Clifford [2004] EWHC 1542; Blatch v Archer (1774) 98 ER 969; AMP Services v Manning [2006] FCA 256; Earle v Castlemaine District Community Hospital [1974] VR 722; SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; Joliffe v Baker (1883) 11 QBD 255; Re London & Globe Finance Corporation Ltd [1903] 1 Ch 728; Skrijel v Mengler [1998] ACLR 255; De Kruiff v Smith [1971] VR 761; R v Henry [1917] VLR 525; Dow Jones & Company Inc v Gutnick [2002] 210 CLR 575; McLean v David Syme (1970) 92 WN (NSW) 611; Sands v Channel Seven Adelaide (2009) 104 SASR 452; Amoudi v Brisard [2007] 1 WRL 113; Steinberg v Pritchard Englefield & Anor [2005] EWCA Civ 288; Loutchansky v Times Newspapers Ltd (No 2) [2001] EMLR 876; Sands v Channel Seven Adelaide Pty Ltd & Anor [2010] SASC 202; Ten Group v Cornes [2012] 114 SASR 106; Sands v State of South Australia (2015) 122 SASR 195; Lewis v Daily Telegraph Ltd [1964] AC 234; Parmiter v Coupland (1840) 6 M & W 105; Sim v Stretch [1936] 2 All ER 1237; Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; Amalgamated Television Services v Marsden (1998) 43 NSWLR 158; Peter Walker & Son Ltd v Hodgson [1909] 1 KB 239; Digby v Financial News Ltd [1907] 1 KB 502; Coyne v Citizen Finance Ltd (1991) 172 CLR 211; Triggell v Pheeney (1951) 82 CLR 497; Poniatowska v Hickinbotham [2009] FCA 680; Poniatowska v Channel Seven Pty Ltd & Anor (No 2) [2014] SASC 123; Ramsay v Watson (1961) 108 CLR 642; Makita v Sproules (2001) 52 NSWLR 705; Poniatowska v Channel Seven Sydney Pty Ltd (No 1) [2014] SASC 95, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Fraud"

PONIATOWSKA v CHANNEL SEVEN SYDNEY PTY LTD & ANOR (No 4)
[2016] SASC 137
Contents
Witnesses
The plaintiff’s explanations for her failure to declare income
Rulings
Ms Poniatowska’s Background
Professional Qualifications
Work History
Hickinbotham Litigation
Mental Health
The Plaintiff’s employment and dealings with Centrelink
Centrelink Litigation
Amendments to the Criminal Code
Today Tonight Story
Current proceedings
The plaintiffs’ pleaded case
The defendant’s pleaded case
The Centrelink records
The plaintiff’s receipt of Centrelink letters
The Post Office box lease
The mail redirection order
Collection of mail from the new tenants of Bundey Street
Letters addressed to Bundey Street
Whether Ms Poniatowska “sanitised” the Centrelink file by removing five letters
Finding as to receipt of mail
Plaintiff’s notification of income
Employment with ESA (Hickinbotham)
Employment with AV Jennings
Centrelink discovers the overpayment
The Legal Services Commission File
The statement printed on 12 June 2009
Conferences with Ms Davison
Negotiations about the Schedule of Facts
Instructions to enter a guilty plea
Actions after instructions to plead guilty
The evidence of Ms Davison
Alleged advice from Centrelink
The Commissions Advice
Annual reconciliation with the ATO
The $38,000 limit
Errors by Centrelink
Fraud
Abuse of Process
Fraud in the legal sense
Was the guilty plea an admission of the ingredients of the offence

Fraud in the general sense
Defamation
Publication
Meaning
Justification
Fair report
Qualified privilege
Extended qualified privilege: Lange
Fair comment/honest opinion
Malice
Damages
Protracted cross-examination
Suggestion not accepted as a witness of truth by Mansfield J
Allegation that failed to pay lawyers
Alleged dishonest arrangement with builder
Injury to feelings
Evidence of Dr Czechowicz
Background
Ms Poniatowksa’s evidence about her mental state
Causation
Factual basis for the evidence of Dr Czechowicz
Ms Poniatowksa’s influence over the content of Dr Czechowicz’s report
Consistency of Dr Czechowicz’s report of 22 December 2011 with his other evidence

Ms Poniatowksa’s capacity to assess material at the time she entered a guilty plea
Effect of Ms Poniatowksa’s mental health on the psychological assessment
Ms Poniatowksa’s capacity to work as a legal practitioner
Findings in relation to the evidence of Dr Czechowicz
Employment Experts
Evidence of Darryl Stillwell
Psychological appraisal
Ms Poniatowska’s employment prospects
Ms Poniatowska’s potential earning capacity

Evidence of Paul Burgess
Ms Poniatowska’s employment prospects
Ms Poniatowska’s potential earning capacity

Findings on evidence of employment experts
The evidence of Jeremy Cordeaux
The evidence of Patsy Rowe
Conversation outside church
The supermarket incident
Conclusion

Parker J This is a claim for defamation said to arise out of the broadcast and further publication by the defendants of a story on the Today Tonight program in New South Wales and Western Australia and elsewhere and also its re-publication on the internet. The defendants are two separate legal entities; namely, Channel Seven Sydney Pty Ltd and Channel Seven Perth Pty Ltd. For ease of reference I will refer to these entities collectively as Channel Seven.
The story broadcast by Channel Seven arose out of the conviction of the plaintiff, Ms Malgorzata Poniatowska, by a magistrate for offences against the Commonwealth Criminal Code. She had pleaded guilty to failing to report to Centrelink during the period 30 August 2005 to 30 May 2007 receipt of 17 payments received in connection with her employment as a sales consultant with Employment Services Australia Pty Ltd (“Hickinbotham”) totalling $71,502. ESA is a subsidiary of the Hickinbotham Group. As a result she received payments of the Parenting Payment Single (“PPS”) benefit to which she was either not entitled or only partially entitled, totalling $20,162.58.
The conviction was appealed to the Full Court of the Supreme Court. By a majority the Full Court allowed the appeal and set aside the conviction. The Commonwealth Director of Public Prosecutions appealed to the High Court where the majority endorsed the findings of the Full Court and dismissed the appeal. The story was broadcast by the defendants the day the High Court published its decision.
Ms Poniatowska seeks an award for loss and damages on various bases in the sum of $1.1 million (plus interest). She claims damage to reputation and feelings arising from the publication of the story. She also claims economic loss either on the basis that her employment prospects were destroyed by reason of the damage to her reputation or because the publication greatly aggravated her pre-existing psychiatric condition. Ms Poniatowska also claims for the potential economic loss relating to a book that she was working on but which publishers declined to publish.
Witnesses
The trial was conducted in several stages over 17 days. A large part of that time was consumed by an extensive cross-examination of Ms Poniatowska. The cross-examination was very thorough and much of it involved detailed questioning of her about documents obtained from files compiled by Centrelink and the Legal Services Commission (the “LSC”). The cross-examination took more time than might otherwise have been required because Ms Poniatowska often gave non-responsive answers and sought to debate issues with counsel.
While Ms Poniatowska speaks English with a noticeable accent, there was never any suggestion by her or her counsel that she had any difficulty in comprehending questions. That is consistent with the fact that during the 20 or so years that she has lived in Australia she has undertaken extensive tertiary study.
In his closing submissions, counsel for Ms Poniatowska informed the court that for much of the time she had been giving evidence she was suffering from a painful medical condition. I take that fact into account when assessing her evidence but also note that at no time did her counsel express concern. On one occasion she asked for and was given a break during cross-examination. On another occasion she indicated that she was not feeling well. I offered a break but she declined. On a further occasion I noted that she needed a break but she declined my offer. Soon thereafter I directed that a short break be taken. On three other occasions counsel for the defendants suggested that she might want to take a break but she declined.
I consider that the evidence given by Ms Poniatowska about collection of mail and use of a Post Office Box was deliberately untruthful and not attributable to a mistake or a defect of memory. That untruthfulness related directly to the central question of whether or not she had received correspondence from Centrelink that informed her of her obligation to declare her income. This untruthfulness is inconsistent with her innocence of the allegations that form the basis for the plea of justification advanced by the defendants.[1]
[1] Edwards v R (1993) 178 CLR 193 at 208-9 and Zoneff v R (2000) 200 CLR 234 at [16]
I also prefer the evidence of Ms Geraldine Davison on a number of matters relating to the defence of the Centrelink fraud prosecution.[2] I also found that significant elements of Ms Poniatowska’s evidence was inconsistent with documentary evidence produced from the business records of Centrelink and the LSC.
[2] While Ms Davison has been a judge of the District Court for some years, I will not use her judicial title as the relevant events occurred when she was a barrister.
I also prefer the evidence of Ms Patsy Rowe of New Holland Publishers concerning Ms Poniatowska’s attempt to have that firm publish a manuscript that she had written and reject the plaintiff’s contrary evidence. I accept the evidence of Ms Poniatowska’s accountant, Mr Ben Reynolds. I also generally accept the evidence of the broadcaster, Mr Jeremy Cordeaux a friend of Ms Poniatowska, except to the extent that he offered an opinion about the likelihood of a manuscript she had written being published.
There were three expert witnesses, ie Dr Andrew Czechowicz, a psychiatrist, and Mr Daryl Stillwell and Mr Paul Burgess. The latter two witnesses gave evidence about Ms Poniatowska’s employment prospects. I have generally accepted the evidence of Dr Czechowicz but have preferred that given by Mr Paul Burgess to that of Mr Daryl Stillwell in most respects.
In essence, the plea of justification advanced by the defendants asserts that Ms Poniatowska had defrauded Centrelink albeit that her plea of guilty to charges under the Commonwealth Criminal Code had been set aside by the Full Court and a prosecution appeal was dismissed by the High Court. In assessing the weight of any evidence relevant to the allegation of fraud I have applied the Briginshaw gloss. In other words, while the matter is to be decided on the civil standard, because of the very serious nature of the allegations made by the defendants and the gravity of the consequences for Ms Poniatowska of an adverse finding, I must take particular care before I can be satisfied that the defendants have established their defence of justification,[3] particularly to the extent that it is based on allegations of fraud in the criminal sense.
[3] Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J at 361-2.
The plaintiff’s explanations for her failure to declare income

During the course of the trial the evidence canvassed several different explanations for the failure by Ms Poniatowska to declare, or to fully declare, her income to Centrelink. It is convenient to summarise those explanations at this point and to give them shorthand labels.
Ms Poniatowska relied on two primary explanations for her failure to declare income. The first explanation was that she had been consistently advised by Centrelink staff by telephone and over the counter that she was not required to declare income received by way of commissions. Such payments are assessed differently to salary. Her only obligation was to declare that income in her tax return at the end of each financial year. Centrelink and the Australian Taxation Office (“ATO”) would exchange information and an annual reconciliation would occur between her earnings and her PPS payments. Any over-payment that may have occurred would be dealt with at that time. For convenience I will adopt the description applied to this explanation by counsel for the defendants and refer to it as the “Commissions Advice”.
A second explanation referred to by Ms Poniatowska during the trial was the she was entitled to earn up to $38,000 per annum without affecting her PPS payment. That limit modified her obligation to notify Centrelink of her income. She gave evidence that on two occasions she had notified Centrelink of her estimated annual income. I will refer to this explanation as the “$38,000 limit”.
A third explanation was not relied upon by Ms Poniatowska at trial. However, extensive reference was made to this explanation in the file of the Legal Services Commission (“LSC”) relating to her defence against the Commonwealth prosecution. File notes, statements and letters held in that file contain numerous references to the explanation provided by Ms Poniatowska at that time to her legal advisers to the effect that she had notified Centrelink of her earnings but they had failed to record the information that she had provided. I will refer to this as the “Incorrect Records” defence. The LSC file recorded a qualification on the Incorrect Records defence to the effect that if she had not always disclosed her income that was because she was under considerable stress as a result of the difficulties she was experiencing in her employment at Hickinbotham and the related legal proceedings.
Rulings
During the course of the trial I published several rulings relating to pleadings. The first such ruling related to an application by Ms Poniatowska seeking permission to amend her Statement of Claim and her Reply so as to withdraw the admission that she had been overpaid by Centrelink, to insert a plea that she was not fit to plead when she entered her plea of guilty in the Magistrates Court and to add a plea that she had declared all of her income to the ATO in all relevant financial years. [4] I refused the first two of those amendments on the basis that there had been undue delay and no persuasive reason had been advanced for a substantial change in the plaintiff’s case which would require further cross-examination and evidence thereby prolonging the trial significantly. I granted permission for the third amendment subject to the requirement that the financial years were specified.
[4] Poniatowska v Channel Seven Sydney Pty Ltd & Anor [2014] SASC 95.
The defendants also sought to amend their defence so as to further particularise the defence of justification and to widen the imputations at which that defence was directed. They also sought to widen the imputations at which the defence of fair comment was directed and also to plead that Ms Poniatowska had failed to declare any earnings from AV Jennings. I granted permission for each of those three amendments. They were not likely to require significant further evidence and no significant prejudice was likely to result as counsel would have the opportunity to re-examine the plaintiff.
A second ruling during the course of the trial concerned the admissibility of the evidence that had been received de bene esse from the psychiatrist, Dr Andrew Czechowicz. His evidence was opposed on two grounds. First, a proper evidentiary foundation had not been established. Secondly, his report did not comply with r 160 of the Supreme Court Civil Rules 2006 and Practice Direction 5.4 (as it then stood). I held that his evidence should be admitted.[5]
[5] Poniatowska v Channel Seven Sydney Pty Ltd & Anor (No 2) [2014] SASC 123.
Ms Poniatowska applied to amend her Reply following the close of evidence. The proposed amendment sought to plead that she was mentally unfit to enter the plea of guilty before the Magistrates Court. While I had previously refused permission for such an amendment it was now contended that the evidence given since the time of the earlier ruling had put it into issue her fitness to plead. I refused permission to make the amendment as it was not supported by the evidence.[6]
[6] Poniatowska v Channel Seven Sydney Pty Ltd & Anor (No 3) [2014] SASC 159.
Ms Poniatowska’s Background
Ms Poniatowska was born in Poland in 1967. She completed her schooling in Poland. She then studied law at Warsaw University. Ms Poniatowska practices the Catholic faith and regularly attends Mass.
She married her former husband in 1989. He wanted to move to Australia. Although Ms Poniatowska was reluctant to leave her family in Poland, in 1991 she and her husband emigrated and settled in Adelaide. They separated in 2002 and were subsequently divorced in 2004. Since the separation, Ms Poniatowska has had the custody and care of the two children of the marriage. Her former husband now lives overseas.
Professional Qualifications
From 1986 to 1991 Ms Poniatowska studied towards university qualifications in Poland, being a Bachelor of Canon and Civil Law and a Master of Canon and Civil Law.
After her move to Australia Ms Poniatowska undertook further study. In 1992 she completed a one year TAFE course in English. In 1993 she completed an information technology course and shorter courses in web design and word processing. In 1994 she completed a Graduate Diploma of Business (Administrative Management) at the University of South Australia. In 1995 she completed a small business management course sponsored by the State Government.
Between 1996 and 2002 Ms Poniatowska took a break from study while she was raising her children and working. In December 2005 she completed a Master of Business (Administrative Management) at the University of South Australia. From August 2006 to 2009 she undertook a Bachelor of Laws at the University of Adelaide. In 2010 she obtained a Graduate Diploma of Legal Practice from the Law Society of South Australia. She was admitted as a practitioner of this Court on 12 December 2012.
Work History
While Ms Poniatowska resided in Poland she was not employed due to her fulltime study.
In January 1996, after Ms Poniatowska and her husband had moved to Australia, she commenced work as an administrative services officers in the Department of Immigration and Multicultural and Indigenous Affairs. She worked there until January 1998. Her duties were the processing of applications made to the Department under the Migration Act 1958 (Cth).
Ms Poniatowska then worked for the University of South Australia as a student advisor. She held this position from January 1998 to January 2000. She was responsible for responding to student enquiries about university services and providing information and advice about programs and admissions.
For a period from 1999 onwards Ms Poniatowska also worked at her husband’s second-hand car dealership. Her work included marketing and advertising as well as contacting clients.
From January 2000 to December 2003 she worked as an account manager at the radio station 5DN. Her role involved organising advertising campaigns for businesses and clients of the station.
From 30 January 2005 she was employed by Hickinbotham as a building consultant. Her role involved assisting prospective clients at building display centres who were interested in purchasing house and land packages. Her duties included the preparation of contracts and related documents. She was paid by commission at the end of each month. However, for the first three months of her employment she received the sum of $2,000 as an advance on commission. Payments of commission continued to be made after her employment ceased as contracts were completed. Her payments were credited to her bank account. On 21 February 2006 her employment was terminated for alleged poor work performance. She had made complaints of sexual harassment against several staff members. The circumstances of her departure were the basis for successful legal action by Ms Poniatowska for sexual harassment against Hickinbotham. That issue is discussed below at [37].
After leaving Hickinbotham Ms Poniatowska took up a similar position as a sales consultant with AV Jennings Homes. She held this position from May 2006 to October 2006. As with her previous position, she was responsible for working with prospective clients and preparing contracts and related documents for the sale of house and land packages. She was unable to continue that employment due to mental health issues, discussed below at [46], which are said to have arisen in the course of her employment with Hickinbotham.
After leaving AV Jennings Homes Ms Poniatowska remained out of the workforce.
From October 2010 to December 2011 Ms Poniatowska researched and wrote a manuscript titled “What does not kill you makes you stronger”. The text was based on her experiences at Hickinbotham and the subsequent litigation (discussed below at [37]), as well as her dealings with Centrelink and the ensuing litigation (discussed below at [52]).
Between June 2011 and March 2012 Ms Poniatowska sent a number of letters and emails to various book publishers. While New Holland Publishers expressed some initial interest in her manuscript, she was unsuccessful in having it published.
On 12 December 2012 she was admitted in the Supreme Court as a legal practitioner. Despite her ongoing and repeated attempts she was unable to find employment as a legal practitioner following her admission.
Hickinbotham Litigation
Following her dismissal by Hickinbotham, Ms Poniatowska commenced legal action in the Federal Court that resulted in a substantial award of damages against Hickinbotham. The claim was brought pursuant to the Sex Discrimination Act 1984 (Cth) (SDA) and what is now the Australian Human Rights Commission Act 1986 (AHRCA) but at the time was the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOCA).
Section 46PO of the HREOCA provides that compensation for unlawful discrimination may be awarded by the Court after having regard to all relevant matters including the nature and extent of discrimination, damage flowing from any breach of contract, past and future economic loss, damage to the person, and past and future medical expenses.
Ms Poniatowska’s dismissal for allegedly poor performance took place after she had made a number of complaints alleging several incidents of sexual harassment by certain staff members. At trial Mansfield J found that much of the conduct complained of had occurred and was unlawful.[7]
[7] Poniatowska v Hickinbotham [2009] FCA 680.
In her statement of claim Ms Poniatowska made allegations of three other instances of sexual harassment which Mansfield J found not to be proven to have occurred in the manner alleged. These were that:
·the Chairman of the Hickinbotham Group, Alan Hickinbotham, had told her that she had “two good assets” while staring at her breasts;
·her female supervisor had requested that Ms Poniatowska enter into a sexual relationship to advance a deal being conducted by the Hickinbotham Group; and
·that the Managing Director, Michael Hickinbotham, had kissed her on the mouth at a work function.
Mansfield J held that the first of these allegations was a reconstruction over time by Ms Poniatowska. The second and third allegations were not fabricated but were mistaken.
Ultimately, Mansfield J found that the reasons stated by Hickinbotham for Ms Poniatowska’s dismissal were contrived. His Honour found that the real reason was that:[8]
she had, over a period of time, revealed by what she had done in relation to the May 2005 allegations, the June 2005 allegations and the Lotito allegations, a sensitivity to the conduct of the type to which those allegations related.
[8] Ibid at [283].
Mansfield J delivered judgement on 23 June 2009. His Honour found that two male employees had engaged in sexual harassment, contrary to s 28B of the SDA. His Honour further found that Hickinbotham, by reason of the conduct leading to the termination of Ms Poniatowska’s employment, had engaged in sex discrimination contrary to s 14(2) of the SDA and unlawful discrimination contrary to s 46PO of the HREOCA.
Damages were awarded in the sum of $466,000. This award included $200,000 for past loss of earning capacity, $140,000 for future loss of earning capacity and $90,000 for past and the future disadvantage for pain and suffering. An appeal to the Full Court of the Federal Court was dismissed.[9]
[9] Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92.
Hickinbotham applied for special leave to appeal to the High Court. That was refused on 11 February 2011.
Mental Health
During the Hickinbotham litigation expert evidence from Dr Czechowicz was led as to the mental health of Ms Poniatowska. Mansfield J found that Ms Poniatowska suffered psychiatric conditions brought on by the sexual harassment and sex discrimination she endured while employed by Hickinbotham.
His Honour found that from late 2005 Ms Poniatowska developed depression and anxiety and she continued to suffer quite significant symptoms up until the time of trial. She had sought treatment for this condition.
Mansfield J further found that from at least early 2006 Ms Poniatowska had suffered from an adjustment disorder with mixed anxiety and depression. The depression in particular had been severe.
The effect of her conditions was that she was unable to work in the building industry as a building consultant from at least September 2006. However, Ms Poniatowska remained capable of functioning in her day to day life, including bringing up her children, attending to her personal needs and going out to social occasions from time to time. She had also been able to undertake part-time study towards a law degree at the University of Adelaide.
The Plaintiff’s employment and dealings with Centrelink
Ms Poniatowska received Centrelink payments intermittently from 1995 onwards. While employed by Hickinbotham Ms Poniatowska received fortnightly payments of the PPS. The PPS is a means tested benefit. The defendants allege that Ms Poniatowska was required to inform Centrelink of her income and of any relevant changes to her circumstances.
Ms Poniatowska was employed by Hickinbotham from 31 January 2005 to 22 February 2006. She worked for AV Jennings from 22 May 2006 until October 2006.
Centrelink Litigation
On 11 May 2008 the Commonwealth DPP commenced proceedings in the Magistrate’s Court against Ms Poniatowska. The complaint and summons alleged three counts of obtaining a financial advantage from Centrelink, knowing or believing that she was not eligible for that financial advantage, contrary to section 135.2(1) of the Commonwealth Criminal Code. The conduct in question related to her dealings with Centrelink while she was employed by Hickinbotham and AV Jennings Homes.
Section 135.2(1) provides as follows:
(1)A person is guilty of an offence if:
(a)     the person engaged in conduct; and
(aa)   as a result of that conduct, the person obtains a financial advantage for himself or herself from another person; and
(ab)   the person knows or believes that he or she is not eligible to receive that financial advantage; and
(b)     the other person is a Commonwealth entity.
…
(1A)Absolute liability applies to the paragraph (1)(b) element of the offence.
Ms Poniatowska sought assistance from the LSC. Mr Michael Lutt, a solicitor, was assigned to represent Ms Poniatowska. Subsequently a barrister, Ms Geraldine Davison, was briefed. Early in the trial of this matter I held that Ms Poniatowska had waived legal professional privilege in respect of the advice that she had received from Mr Lutt and Ms Davison.[10]
[10] See [109] below.
On 5 January 2009 Mr Lutt wrote to the prosecutor stating that Ms Poniatowska maintained that, with one exception, to the best of her knowledge she had telephoned Centrelink to report her earnings. She also maintained that the lack of notes in Centrelink’s records of these calls was because the notes were either incorrect or incomplete. Further, if she did not report earnings this was due to an oversight. Mr Lutt referred to a Centrelink file note of 11 August 2006 which recorded Ms Poniatowska’s advice that she was earning $1305.58 per fortnight while employed by AV Jennings Homes.
On 12 February 2009 the prosecutor advised Mr Lutt that the allegations that Ms Poniatowska had incorrectly declared income from AV Jennings would not be pursued. The letter also foreshadowed that the charges would be redrafted to charge one count for every fortnight in which she had failed to declare payment from Hickinbotham.
On 18 February 2009 a second complaint and summons was filed against Ms Poniatowska. This alleged 17 counts of obtaining a financial advantage from Centrelink, knowing or believing that she was not eligible for that financial advantage, contrary to s 135.2(1) of the Commonwealth Criminal Code. The counts covered the period from 30 August 2005 to 30 May 2007. The wording of the first count is indicative of each of the other counts:
1. On or about the 30^th day of August 2005 at Adelaide or elsewhere in the said State engaged in conduct and, as a result of that conduct, obtained a financial advantage for herself from a Commonwealth entity, namely the Commonwealth Services Delivery Agency trading as ‘Centrelink’, knowing or believing that she was not eligible to receive that financial advantage; contrary to section 135.2(1) of the Criminal Code (Cth).
Particulars:
The defendant was not entitled to the said financial advantage, namely part payment of Parenting Payment Single, because the defendant failed to advise Centrelink of payments of commission received by her from Employment Services Australia Pty Ltd (a subsidiary company of the Hickinbotham Group) while she was in receipt of Parenting Payment Single.
Ms Davison and Mr Lutt advised Ms Poniatowska to plead guilty to the charges, which she did on 9 July 2009 in the Magistrates Court. The matter was adjourned for sentencing.
A Statement of Facts was received without opposition at the sentencing hearing.[11] It stated:
[11] See evidence of Ms Davison at [294] below
It is alleged that the defendant failed to declare to Centrelink her income from employment. The defendant has been in receipt of Centerlink payments intermittently since 1995.
During the period of offending the defendant received fortnightly payments of Parenting Payment Single. Parenting Payment Single is means tested and the defendant was required to advise Centrelink of any changes to her circumstances including any income received.
The defendant was employed as a full time sales consultant with Employment Services Australia Pty Ltd (a subsidiary company of Hickinbotham Group) between 30 January 2005 and 21 February 2006. The defendant was paid by way of commission in accordance with the terms of her contract of employment. As the commission payments became payable, the payments were made to the defendant at the end of each month. Following the termination of her employment the defendant continued to receive payments of commission up until the end of May 2007.
In the period from August 2005 until May 2007 the defendant received 17 lump sum payments of commission as set out below. The total amount of those commission payments was $71,502.00. During that period the defendant failed to declare any of those commission payments to Centrelink and as a result received payments of Parenting Payment Single to which she was either not entitled or only partially entitled.
The defendant was reminded on numerous occasions of her ongoing obligation to advise Centrelink of any income she received. These reminders occurred in letters regularly sent to the defendant. She was also put on fortnightly reporting at times before and during the offending period which required her to declare any income earned.
Immediately prior to the offending period an overpayment had been raised as a result of her initial failure to advise of her employment with Employment Services Australia. That overpayment was raised in April 2005 and the defendant was then required to report on a fortnightly basis. On April 05 she reported income of $700 per fortnight, on 12 May 05 she reported fortnightly earnings of $400 and thereafter each fortnight she reported no income. As a result of reporting no income, she was taken off fortnightly reporting requirements in the beginning of September 2005 but was advised of her continuing obligation to report any change in circumstances and income received. Being taken off fortnightly reporting coincided with her commencing to receive substantial lump sums of commission from Employment Services Australia, usually at the end of each month. Those payments (gross) were:
August 05   $ 4200
September 05   $ 4200
October 05   $ 6134
November 05   $ 4200
December 05   $ 600
January 06   $1336
February 06   $ 2900
March 06   $ 2345
April 06   $ 4029
June 06   $12828
July 06   $ 5177
August 06  $ 2766
September 06   $ 5795
October 06   $ 1467
November 06   $ 6381
February 07   $ 3977
May 07   $ 3167

On 31 July 2009 submissions in mitigation were made on behalf of Ms Poniatowska by Ms Davison. On 17 August 2009 Ms Poniatowska made a lump sum repayment to Centrelink of $17,177.56. That represented the balance of the sum of $20,162.58 that Centrelink alleged Ms Poniatowska had been overpaid. A sum of almost $3,000 had been recovered by Centrelink through deductions from PPS payments. The magistrate was subsequently informed of the repayment.
On 16 October 2009 the magistrate ordered that convictions be recorded on each count and sentenced Ms Poniatowska to imprisonment for 21 months. She was released upon entering into a recognisance in the sum of $10 to be of good behaviour for a period of two years.
Ms Poniatowska appealed to a single judge of this Court against the decision of the magistrate to record a conviction in relation to each count. The appeal was dismissed.[12]
[12] Poniatowska v Director of Public Prosecutions(Cth) [2010] SASC 1.
Ms Poniatowska then briefed Mrs Marie Shaw QC and appealed to the Full Court. Initially the grounds of appeal were confined to sentence. However, the grounds were subsequently revised as follows:
That the conviction of the applicant constitutes a miscarriage of justice in that:
1.1 The complaint is defective in that in relation to each count, the matters pleaded do not relate to or constitute a known offence.
1.2 Alternatively, the complaint is defective in that in relation to each charge, the statement of the offence fails to identify the transaction, act or omission that is the subject matter of the charge, or the factual ingredients of the charge.
1.3 That upon the admitted facts, in relation to each charge in the complaint, the conduct of the applicant could not constitute the offence charged and in law she could not be convicted of the offence charged.
In the Full Court judgment Doyle CJ and Duggan J noted that the Summary of Facts provided to the magistrate alleged that Ms Poniatowska had been advised in numerous letters sent to her that she had an “ongoing obligation” to advise Centrelink of any income she received. Their Honours also observed that it was not clear whether formal notices had been issued under the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) and further noted that Ms Poniatowska denied receiving correspondence from the Department.[13]
[13] Poniatowska v Director of Public Prosecutions(Cth) (2010) 107 SASR 578 at [19].
The Commonwealth DPP informed the Full Court that if notices under the Administration Act had been issued they were not relied upon other than to assist in establishing that Ms Poniatowska knew or believed that she was not eligible for the relevant payments. The Commonwealth DPP also did not rely on any provision in the Administration Act as establishing a duty to disclose. Instead, it was submitted that the obligation to disclose was created by s 135.2 of the Criminal Code which created a duty not to obtain a benefit by means of an omission.[14]
[14] Ibid at [20]-[21].
Doyle CJ and Duggan J (with Sulan J dissenting) held that the conduct charged must be an omission to carry out an obligation imposed by law.[15] Thus, it is necessary to identify a relevant duty or obligation arising under the general law or statute before enquiring whether there has been a breach by way of omission. Section 135.2 did not impose any such duty.[16] For that reason Ms Poniatowska could not have been convicted of the offences charged in the complaint and thus the conviction must be set aside.[17] It also followed that the admitted facts could not support the charges laid in the complaint.
[15] Ibid at [16] and [30].
[16] Ibid at [38].
[17] Ibid at [39].
Doyle CJ and Duggan J also observed that the Administration Act provides for the issue of notices by the Department requiring information and the imposition of penalties of imprisonment for a failure to comply with such notices.[18]
[18] Ibid at [38].
The Commonwealth DPP sought special leave to appeal to the High Court. Mr Michael Abbott QC and Mrs Shaw QC appeared for Ms Poniatowska. The special leave application and the appeal were considered concurrently by the High Court.
The High Court noted that although the statement of facts in evidence at the sentencing hearing before the magistrate had recorded that Ms Poniatowska had been “reminded on numerous occasions of her ongoing obligation to advise Centrelink of any income she received” receipt of correspondence from Centrelink had been put in issue before the Full Court. It was not necessary to resolve this issue as the Commonwealth DPP did not contend that any advice given to her about the asserted obligation was by notice under the Administration Act.[19]
[19] Director of Public Prosections (Cth) v Poniatowska (2011) 244 CLR 408.
On 26 October 2011 the appeal was dismissed by the High Court. French CJ, Gummow, Kiefel and Bell JJ held (with Heydon J dissenting) that the Full Court had correctly concluded that the Criminal Code incorporates “the general law principle that criminal liability does not attach to omission, save the omission of an act that a person is under a legal obligation to perform.”[20] The Commonwealth DPP was unable to identify any relevant act that Ms Poniatowska had been under a legal obligation to perform that she had omitted to perform.
[20] Ibid [29]
The High Court also made significant observations about the social security scheme as follows:[21]
Entitlement to receipt of social security payments is governed by the Social Security Act 1991 (Cth). The qualifications for receipt of the parenting payment are dealt with in Pt 2.10 of the Social Security Act. They include, in the case of a person who is not a member of a couple, that the person has a dependent child. The parenting payment may not be payable to a person who is otherwise qualified to receive it because, inter alia, the person's parenting payment rate, as determined by reference to a statutory calculation would be nil. This result may occur by virtue of a statutory “reduction for ordinary income”, determined by reference to the extent to which a person's ordinary income exceeds that person's “ordinary income free area”. This calculation may also result in a benefit being payable at a reduced rate.
The administration of social security payments is dealt with by the Social Security (Administration) Act 1999 (Cth) (the Administration Act). Under the Administration Act, the Secretary of the Department may by written notice require a person who is a recipient of a social security payment to do certain things within a specified time. The Secretary may require the person to contact the Department and to give information to him or her. Failure to comply with the reasonable requirements of such a notice has the consequence that the social security payment is no longer payable. The Secretary may give a social security payment recipient a notice requiring that the person inform the Department if a specified event or change of circumstances occurs (or if the person becomes aware that such an event or change of circumstances is likely to occur). The person may be required by the notice to give the Department a statement about a matter that might affect the payment of the social security payment. The Administration Act makes detailed provision with respect to the giving and content of statutory notices, including the period within which the recipient is to respond to the notice.
It is an offence under s 74 of the Administration Act for a person to fail to comply with a notice requiring that he or she inform the Department of a specified event or change of circumstances. The Administration Act creates a number of offences relating to the making of claims for, and the receipt of, social security payments. Each is a summary offence that is punishable by a maximum penalty of imprisonment for twelve months.
The Administration Act provides other mechanisms to assist in the detection and prevention of overpayments of social security payments. These include that the Secretary may request, but not compel, a recipient of a social security payment to give a written statement of his or her tax file number. If the Secretary makes such a request and the recipient does not comply with it within a specified period, the social security payment is generally not payable.
(References omitted)
[21] Ibid [7]-[10].
The High Court also noted that a complex income test is applied to determine eligibility for PPS payments.[22]
[22] Ibid at [18].
Amendments to the Criminal Code
After the High Court had reserved its decision, the Commonwealth legislated to impose a general legal obligation on social security beneficiaries to disclose relevant changes in their circumstances. The Social Security and Other Legislation Amendment (Miscellaneous Measures) Bill 2011 received assent on 4 August 2011. A new s 66A was added to the Administration Act. The effect was to preclude persons charged with unlawfully obtaining a financial advantage relying upon the argument advanced by Ms Poniatowska. The High Court held in DPP (Cth) v Keating that this amendment did not operate retrospectively to impose a legal duty to report a change in circumstances.[23] The High Court also held that notices issued under s 67(2) and s 68(2) of the Administration Act were capable of creating a legal duty so that a failure to perform the act required by the notice amounted to engaging in conduct for the purposes of s 135.2(1)(a) of the Criminal Code.[24]
[23] (2013) 248 CLR 459.
[24] (2013) 248 CLR 459.
Today Tonight Story
On 26 October 2011, the day that the High Court dismissed the Commonwealth DPP appeal in the Centrelink case, Ms Poniatowska was contacted by Graham Archer, the Adelaide producer of Today Tonight. Mr Archer congratulated Ms Poniatowska on the outcome of the case and asked her to give an interview.
That same day Channel Seven broadcast in Sydney and Perth a story about the High Court case on the Today Tonight program. Ms Poniatowska had not been interviewed for the story. The story was not broadcast in Adelaide.
The transcript of the story is as follows:
Matt White:       First, this evening, a legal landmark in the High Court has forced Centrelink to close a loophole that will allow people to claim welfare they shouldn’t get.
An Adelaide woman has shot down Centrelink, avoiding prosecution for claiming $20,000 in single parent benefits she wasn’t entitled to. As David Richardson reports, it’s a case that has shifted the goal post, and sent the government back to the drawing board.
Reporter:Every year, Centrelink goes hunting for cheats – 4 million entitlements reviewed, 640,000 payments reduced, 3400 cases convicted. They don’t miss much – until today.
Warren Moore:   Instead of the average person being the winner, you’ve got one woman taking money from the average taxpayer.
Reporter:Meet the cheat who got away: she confessed to defrauding them, then she beat them.
[Footage from news story]
Reporter:Malgorzata Poniatowska was later convicted of defrauding Centrelink of $20,000.
[End footage]
Reporter:Convicted of receiving sole parenting benefits while working for a building company, the High Court ruled Poniatowska had no legal obligation to tell them she was employed and earning income.
Jana Gumbat(*)   She did not have a legal duty to inform Centrelink of her change in circumstances.
Reporter:Between August 2005 and May 2007, she received $21,000 in Centrelink payments. In that time she also received $71,000 in sales commissions while working for a building company.
Warren Moore:   It’s a bit like The Castle in reverse.
Reporter:2GB talkback host Warren Moore is baffled by the decision.
Warren Moore:   Just because the court rules that something’s legal, it doesn’t mean that something is right. I mean this is clearly a problem.
Reporter:The former secretary found a loophole in social security law, claiming there was no law which stated she had to inform Centrelink about her changed employment circumstances.
Jana Gumbat:    The legislation did require people to inform Centrelink of a change of circumstances if Centrelink asked them for the information. It’s just that in this particular instance, because she’d never been asked, she didn’t have to tell them. Once she was asked for the information she did provide it.
Reporter:Lawyer Jana Gumbat says loopholes like this exist just waiting to be exploited.
Jana Gumbat:    She has succeeded in showing that the offence was not proven, and they’ve changed the legislation to ensure that in the future things will be different.
Reporter:Indeed, her actions forced the Gillard government to close the loophole before 16,500 people overpaid by Centrelink in the last decade also made use of the legal catch. The onus is now on you to tell them. The DPP and Centrelink are now preparing to pull the trigger on hundreds of prosecutions, a deluge of fraudsters and cheats soon to sweep our courts. And they come in all shapes, sizes and ages.
This greedy granny ranks as Australia’s greatest cheat. The 66 year old created multiple identities to rip off thousands of dollars of free welfare money every month, caught ripping of the taxpayer to the tune of $372,000.
This mother took us for a ride for $156,000.
Warren Moore:   If Centrelink doesn’t take this as a message that they have to clamp down, that they have to crack down on people, that they have to look at anyone who’s ripping off the system, if this isn’t a message for them then nothing ever will be.
The story was subsequently uploaded onto the Channel 7 website. The link to the story was displayed with an image of Ms Poniatowska and the heading “The Centrelink cheat who got away”. After Ms Poniatowska had commenced legal action by the serving of a rule 33 notice dated 12 January 2012 the story was removed from the website. The last date on which the web page was viewed was on 31 January 2012.
On 27 October 2011 Mr Archer again contacted Ms Poniatowska about the proposed interview. By this time she had seen the story that had been broadcast in Sydney and Perth and placed on the internet. She expressed her dismay about it. Ms Poniatowska gave evidence about certain matters that Mr Archer had allegedly said in a conversation that she had with him at that time. That evidence was objected to on the basis that Mr Archer was not an employee of the defendants and thus his evidence was not relevant. I received the evidence de bene esse on the basis that further evidence may be given to establish Mr Archer’s authority and to overcome the hearsay problem. As that did not occur, I have not admitted the evidence. Ms Poniatowska declined to give an interview to Mr Archer.
Ms Poniatowska sent a letter dated 27 October 2011 to Today Tonight’s Sydney Producer, Mr John Choueifate. In the letter she referred to the broadcast of the story in New South Wales and stated her concern about the “defamatory allegations made on [Today Tonight] in respect of my good name and character”. She described the defamatory allegations as being that she “was cheating Centrelink and/or committed a fraud”. She stated that the judgment handed down by the High Court confirmed that she had not committed fraud and that the decision of the Full Court of this Court to set aside her conviction had been correct. She finished the letter by seeking a public apology, a retraction of the allegations and a public explanation of the “correct legal position” in relation to the court proceedings.
Warren Coatsmith, legal counsel for Channel 7, replied to Ms Poniatowska by letter dated 31 October 2011 on the letterhead for Seven Network (Operations) Limited. He stated that “we do not believe any clarification is required.”
Current proceedings
The plaintiffs’ pleaded case
The plaintiff proceeded on the Third Statement of Claim. The case pleaded is that Channel Seven Sydney Pty Ltd and Channel Seven Perth Pty Ltd, referred to collectively as “Channel 7”, broadcast the story about the plaintiff on the Today Tonight program in Sydney and Perth respectively. In addition the story was republished on the Channel 7 website. The plaintiff also claims that the story was published on 33 other television stations around Australia by entities related to the defendants.
By paragraph 10 of the Statement of Claim the plaintiff claims that the Today Tonight story gave rise to the following imputations:
1the plaintiff was guilty of fraud or alternatively had committed fraud;
2any overpayment from Centrelink did not arise through inadvertence, mistake, stress, or other reasonable explanation, but arose through deliberate and wilful conduct;
3despite being guilty of fraud (or alternatively despite committing fraud) the plaintiff avoided prosecution;
4the plaintiff was able to keep the overpayment even though she had committed fraud;
5the plaintiff was a cheat;
6the plaintiff was dishonest; and
7the plaintiff took money from tax payers without paying it back.
By paragraph 11 of the Statement of Claim the plaintiff claimed that the material uploaded to the internet site gave rise to the following imputations:
1the plaintiff cheated Centrelink;
2the plaintiff committed fraud;
3the plaintiff was dishonest; and
4the plaintiff got away with her dishonesty and or fraudulent behaviour.
The defendant’s pleaded case
In relation to the publication by broadcast the defendants admit in part the first, second and third pleaded imputations and admit in full the fifth and sixth. They do not admit the fourth and seventh imputations as they say they do not arise.
In relation to the internet publication the defendants admit the first, second and third imputations in full and the fourth imputation in part.
In defence of the imputations, the defendants plead and rely on six grounds of defence:
1the pleaded imputations do not arise;
2justification of the imputations that do arise both at common law and under the relevant Defamation Act provisions in the jurisdictions of publication;
3the published words conveying the pleaded imputations represented fair comment at common law and/or honest opinion under the statutes;
4the defence of fair report at common law and under statute;
5the statutory defence of qualified privilege;
6the defence of extended privilege protecting political and government discussion.
A seventh pleaded defence of contextual truth was not pressed at trial.
The defendants admit that of the named stations only those in Sydney, Brisbane, Perth, Rockhampton and Toowoomba are part of the Seven Group. They deny that the other named stations are part of the Seven Group.
The defendants accept that the plaintiff has proved by their admissions the publication by television of the story about Ms Poniatowska. However, the extent of the internet publication became an issue at trial.[25]
[25] See [411] to [420] below.
The Centrelink records
At the interlocutory stage, an issue arose as to access to Ms Poniatowska’s Centrelink records. Section 207 of the Administration Act precluded the defendants from obtaining access to her file. The defendants then pressed Ms Poniatowska to request a copy of her file from Centrelink. The defendants accept that Ms Poniatowska was unable to obtain the entirety of her file under the Freedom of Information Act 1982 (Cth) and that what she did obtain was based upon a limited identification made by the defendants as to what was required. The documents provided to Ms Poniatowska by Centrelink under the FOI Act and then discovered by her were tendered by the defendants as a bundle. Individual documents from that file were then tendered by the defendants as they were put to Ms Poniatowska in cross-examination. The Centrelink documents are clearly business records within the meaning of s 45A of the Evidence Act 1929 (as it stood at the time of the trial) and were received as such.

During the course of the prosecution, Ms Poniatowska had also been provided with a substantial body of material from Centrelink records. I ruled (see paragraph 109 below) that Ms Poniatowska had waived her privilege in respect of the advice given by Mr Lutt and Ms Davison. The defendants thereby gained access to the file compiled by the LSC. That file included additional Centrelink documents.
Neither the defendants nor Ms Poniatowska called a witness from Centrelink. The clear effect of s 207 of the Administration Act in combination with s 109 of the Constitution is that the defendants were unable to call a witness from Centrelink to give evidence about matters relating specifically to Ms Poniatowska’s dealings with that Commonwealth agency. Section 207 relevantly provides that an officer must not, except for the purposes of the social security law, be required to produce any document or to disclose any matter or thing to a court. By virtue of s 109 of the Constitution that provision prevails over the powers that this Court would otherwise have to compel the production of documents and the giving of evidence. Section 208(1)(b)(ii) of the Administration Act permits disclosure where that is authorised by the person to whom the information relates. Thus, it was open to Ms Poniatowska to authorise a Centrelink officer to give evidence about her dealings with that agency. She declined to do so.
The defendants have sought to justify the defamatory statements published about Ms Poniatowska by establishing that she had failed to declare, or to declare correctly, her income to Centrelink with the result that she received PPS payments to which she was not entitled. Counsel for Ms Poniatowska has submitted that the defendants have sought to reverse the onus of proof by requiring Ms Poniatowska to establish that she did properly disclose her income to Centrelink. Thus, counsel submitted that I should draw an adverse inference under the principle in Jones v Dunkel[26] against the defendants on the basis that they should have called witnesses from Centrelink to support their contentions that Ms Poniatowska had never received the advice that she claimed to have received from that agency. That advice was said to be that it was unnecessary for her to declare payments of commission as they were received, that a reconciliation of her PPS payments would occur after she lodged her annual income tax return with the ATO and that she was not required to declare income until it exceeded $38,000 per annum.
[26] (1959) 101 CLR 298.
It was also contended that the defendants should be subject to an adverse inference in relation to their failure to call Mr Lutt.
Counsel relied upon two English authorities in support of his contentions that the defendants were seeking to improperly transfer the burden of proof on to the plaintiff in relation to the justification defence. The first of the English authorities referred to by counsel was Chase v News Group Newspapers Ltd where Brooke LJ (with whom Rix and Keene LJJ agreed) stated that if the particulars of the defendants plea of justification “were allowed to stand they would have the effect of transferring the burden on to the claimant of making a positive case to disprove them. This the law does not permit.”[27]
[27] [2003] EMLR 218 at [65].
The second English authority relied upon by counsel was the decision of Eady J of the Queen’s Bench Division in Hamilton v Clifford.[28] Eady J observed:[29]
It is necessary to consider what are the facts [the defendant] has pleaded. He relies also upon the fact that the police have been unable to disprove her allegations despite careful investigation. That is a curious way to approach the burden of proof, and I am reminded in this context that in Chase Brooke LJ made the very point that a defendant should not be permitted to plead particulars of justification in such a way as to have the effect of transferring the burden to the claimant of making a positive case to disprove them.
(References omitted)
[28] [2004] EWHC 1542 (QB) at [45].
[29] Ibid at [45].
Counsel for the defendants submitted that the contentions on behalf of Ms Poniatowska misconceive the principle in Jones v Dunkel.[30]
[30] (1959) 101 CLR 298.
JD Heydon points out in Cross on Evidence that “the rule can operate against parties not bearing the burden of proof and parties which do bear it as well”.[31] Heydon relies on the judgement of the New South Wales Court of Appeal in Ho v Powell for that proposition.[32] Counsel for the defendants also placed substantial reliance upon Ho v Powell. Counsel for Ms Poniatowska sought to draw the contrary conclusion from the same authority.
[31] 9^th Australian Edition at [1215].
[32] (2001) 51 NSWLR 572 at [13]-[19].
Ho v Powell was a claim for personal injury arising from a collision between a motor vehicle and a cyclist. The defendant motorist had turned right across the path of an oncoming cyclist. The accident occurred at night and the plaintiff cyclist did not have a front light on his bicycle. The issue was whether the cyclist had been guilty of contributory negligence by not displaying a front light.
The motorist did not give evidence. The trial judge found in favour of the cyclist on the question of contributory negligence. Her Honour inferred from the failure of the motorist to give evidence “that there was nothing that he could say that would have assisted his case”.[33] Her Honour also observed that there were many explanations that might have been given by the defendant motorist as to why the collision had occurred.
[33] Ibid at [9].
On appeal Hodgson JA (with Beazley JA agreeing) referred to the principle stated by Lord Mansfield in Blatch v Archer[34] that “… [A]ll evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”.[35] Beazley JA stated that Jones v Dunkel was a particular application of this principle.[36]
[34] (1774) 1 COWP 63 at 65; 98 ER 969 at 970.
[35] (2001) 51 NSWLR 572 at [15].
[36] Ibid at [16].
Counsel also referred to Schellenberg v Tunnel Holdings Pty Ltd where Gleeson CJ and McHugh J approved a statement[37] by JD Heydon in Cross on Evidence that: [38]
[T]he rule [in Jones v Dunkel] only applies where a party is ‘required to explain or contradict’ something. What a party is required to explain or contradict depends on the issues and the case as thrown up in the pleadings and by the course of evidence in the case. No inference can be drawn unless evidence is given of facts ‘requiring an answer’.
[37] (2000) 200 CLR 121 at 142-3.
[38] 6^th Aust Edn at [1215].
A further authority relied upon by the defendants was AMP Services v Manning[39] where Finkelstein J discussed the application of the rule in Jones v Dunkel when a witness is equally available to both parties. His Honour referred to the judgment of Little J in the Full Court of the Supreme Court of Victoria in Earle v Castlemaine District Community Hospital[40] where his Honour had cited with approval the following passage from the American text Wigmore on Evidence:
The more logical view is that the failure (by both parties) to adduce is open to an inference against both parties, the particular strength of the inference against either depending on the circumstances. To prohibit the inference entirely is to reduce to an arbitrary rule of uniformity that which really depends on the varying significance of facts which cannot be so measured.
[39] [2006] FCA 256 at [48]-[49].
[40] [1974] VR 722 at 728.
Little J had then observed that it would be wrong to lay down any general rule that if a witness was available to both parties no inference could be drawn against either and that it must depend on the facts and circumstances of a particular case. Finkelstein J expressed agreement with that view.[41]
[41] AMP Services Ltd v Manning [2006] FCA 256 at [49].
Both parties accepted that Mr Lutt was a professional person who could be expected to give truthful evidence. While he had been Ms Poniatowska’s solicitor in the Centrelink prosecution, she had waived her legal professional privilege and thus he was available to be called by either side. While he had arranged to travel overseas at a time when it was initially suggested by the defendants that he might be called to give evidence, the trial was adjourned on several occasions and, if necessary, arrangements could have been made for him to attend after his return to Adelaide. However, such a proposal was not advanced by either party.
The LSC file compiled by Mr Lutt was received in evidence. That file contained correspondence sent by Mr Lutt to Ms Poniatowska and to the Commonwealth DPP, file notes of the advice that he had provided to her and also the conferences that he had attended where Ms Davison had given advice to her. Ms Poniatowska asserted in her evidence that in a number of significant respects Mr Lutt had not correctly recorded the information that she had provided to him or had omitted important matters and also asserted that he and Ms Davison had overridden her objections to the making of a guilty plea and ignored her instructions.
I do not consider that the principle identified in the English cases relied upon by counsel for Ms Poniatowska is inconsistent with Ho v Powell or with Schallenberg v Tunnell Holdings. The issue in Chase v News Group Newspapers and Hamilton v Clifford was that a plea of justification could not be made in a fashion that had the effect of transferring the burden on to the plaintiff to disprove the matters pleaded by way of justification. Clearly, the defendants carry the burden of proving their defence of justification. They did not contend otherwise. The point recognised in Schellenberg v Tunnel Holdings is that the Jones v Dunkel principle may be applied where a party who does not carry the onus of proof might reasonably be expected to call a witness or to give evidence but does not do so.
Before determining whether the Court should infer that the evidence of a Centrelink officer or of Mr Lutt would not help Ms Poniatowska it is necessary to determine whether the Jones v Dunkel principle applies in the circumstances of this case.
Once I determined that Ms Poniatowska had waived her legal professional privilege in relation to the advice that she had received from Mr Lutt and Ms Davison, it was open to both the plaintiff and the defendants to call either of those practitioners as a witness. The defendants called Ms Davison. The greater part of her evidence related to advice given to Ms Poniatowska at meetings attended by both Mr Lutt and Ms Davison. Mr Lutt’s evidence about the advice provided at those meetings would only have assisted Ms Poniatowska if it was inconsistent with that of Ms Davison.
In considering whether I should infer that the evidence of Mr Lutt or a Centrelink officer would not have assisted Ms Poniatowska or the defendants it is necessary to consider whether there is any explanation for the failure to call the witnesses and whether it might reasonably have been expected that she or they would call those witnesses. In other words, in whose “camp” was that witness?
It seems to me highly unlikely that individual Centrelink officers who had contact with Ms Poniatowska over the telephone while working in a call centre or over the counter at a Centrelink office could give specific evidence about their conversations. That contact would have occurred in 2005 and 2006, being eight or nine years before the trial. Those officers must deal each day with a great number of people, particularly those in call centres. I also note that the name and contact details of individual officers who recorded file notes relating to their contact with Ms Poniatowska has been deleted from the relevant documents under s 47E(d) of the Freedom of Information Act on the basis that the naming of individual officers would impair the efficiency of Centrelink. Thus, it would not have been possible, at least without the active assistance of Centrelink, to subpoena those officers. The only exceptions were officers who reviewed decisions relating to the overpayment of PPS and officers who prepared witness statements for the prosecution.
It therefore appears to me that save for those exceptions the evidence of Centrelink officers must necessarily have been limited to matters of general practice and procedure. The giving of such evidence would not have been precluded by s 207 of the Administration Act. In fact, counsel informed the Court that the defendants had made considerable efforts to secure the attendance of a Centrelink officer to give evidence of that type and had negotiated with the Australian Government Solicitor to that end. However, those negotiations were not successful. There was no suggestion to the Court that Ms Poniatowska had pursued the attendance of a Centrelink officer.
I do not consider that Centrelink staff lie naturally in either “camp” in this matter. While Ms Poniatowska was not subject to the restriction under s 207, for the reasons I have already given, I consider it very unlikely that it would have been possible to secure the attendance of Centrelink officers who could give evidence about the advice they had or had not given her about the declaration of income and the information that she had provided to them by telephone or over the counter about her income. It was equally open to either party to secure the attendance of a Centrelink officer to give evidence as to matters of practice and procedure. Under the circumstances I do not consider it possible to draw a Jones v Dunkel inference against either the plaintiff or the defendants.
I now turn to the evidence of Mr Lutt. The effect of the evidence given by Ms Poniatowska about her dealings with Mr Lutt is that he ignored her instructions, failed to record correctly what she told him, encouraged her to advance a defence which he knew to be false and then pressured her to enter a guilty plea when she did not wish to do so.
Counsel for Ms Poniatowska referred to an observation made in Earle v Castlemaine District Community Hospital by Little J (with whom Gillard J agreed) that “the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary”.[42] Counsel suggested that Mr Lutt did not stand in the confidence of Ms Poniatowska.
[42] [1974] VR 722 at 728.
I do not accept that contention. Mr Lutt acted as Ms Poniatowska’s solicitor from shortly after the charges being laid by the Commonwealth DPP and throughout the proceedings in the Magistrates Court. He was under a fiduciary duty to act in her best interests. In those circumstances I reject the submission that Mr Lutt was not in the confidence of Ms Poniatowska. As an officer of the court it can properly be expected that upon her legal professional privilege being waived he would give truthful evidence about the instructions that she had provided to him and his advice if called upon to do so.
In Brandi v Mingot the High Court considered the failure of the plaintiff in a personal injury claim to call evidence from his own medical advisers.[43] The High Court observed that a party may reasonably be expected to call his own medical advisers and an adverse inference could be drawn from his failure to do so. I cannot distinguish the circumstances in the present case. In view of the pleading by Ms Poniatowska that she would not have entered a guilty plea to the Centrelink prosecution but for the fact that she had received bad legal advice and the detailed evidence that she gave about her dealings with Mr Lutt, I consider it reasonable to expect that she would have called him to give evidence about those matters. I infer from her failure to do so that his evidence would not have assisted her. As I have said, I do not consider that this conclusion gives rise to a reversal of the onus of proof carried by the defendants to make out their plea of justification.
[43] (1976) 12 ALR 551 at 560.
The plaintiff’s receipt of Centrelink letters
Ms Poniatowska gave evidence that she did not receive a great deal of the correspondence sent to her by Centrelink. Certain of those letters informed her of her legal duty to advise Centrelink of changes in her income. The defendants called three witnesses in relation to that issue.
The Post Office box lease
Ms Poniatowska stated that in 2000 or 2001 she moved to Gladstone Road, Prospect. While living at this address she began “leasing” Post Office Box 288, Prospect 5082 (the “PO Box”).
An electronic printout produced by Australia Post in response to a subpoena was tendered by the defendants. The printout recorded that Ms Poniatowska had leased the PO Box from 29 May 2003. She accepted in cross-examination that this date was most likely to be correct.
The defendants called Mr Kym Sandercock, a regional retail operations coordinator with Australia Post. His responsibilities cover South Australia, Western Australia and the Northern Territory. While the Prospect Post Office is operated by what Mr Sandercock described as a licensee, the staff of the licensee must make entries into the Australia Post database using the electronic payment system. Australia Post maintains the records relating to post office boxes. In that light I reject the apparent suggestion by counsel for Ms Poniatowska that the licensee should have been called rather than a senior employee of Australia Post.
Mr Sandercock stated that a “lease” on a PO Box runs from the date of commencement until 31 March each year. The lease must be renewed annually. Payment is due by 31 March each year. If a lease holder has not paid by 31 March a reminder notice is sent after 14 days. If they have still failed to pay after a further ten days, access to the box is blocked and mail must be collected over the counter at the Post Office. If payment is still not made the lease will be cancelled. That usually occurs in mid-May. The licensee would receive from Australia Post a list of boxes for which the lease has not been renewed. A lease would not renew automatically but only upon payment of the annual fee. The records would show if a lease had been cancelled. A refund is made if the box holder cancels the lease during its term.
The records of Australia Post indicated that Ms Poniatowska would have twice renewed her lease on the PO Box, ie in 2004 and 2005. The lease had lapsed in May 2006. Mr Sandercock stated that the last action taken by Australia Post in relation to her lease was on 12 May 2006.
Mr Sandercock further stated that any uncollected letters in the PO Box at the termination of the lease, and any letters that arrived after termination, would be returned to the sender if their address was shown. If not, the letters would be sent to the Mail Redistribution Centre (ie the “Dead Letter Office”) and opened to try to ascertain the sender.
Ms Poniatowska stated that on 14 February 2004 she moved from Prospect to 13B Bundey Street, Magill. She had ceased to use the PO Box at this time and no longer collected or otherwise received any mail addressed there. When cross-examined she initially denied that she had gone back to collect mail at the PO Box on any occasion. Soon after she stated that she could not remember whether she had returned to the PO Box. She believed that she had cancelled her lease on the PO Box when she had moved from Prospect to Magill. She could not remember when or how she had cancelled the lease and admitted that her evidence about the cancellation was a reconstruction of what she thought she would have done.
Ms Poniatowska stated that when she moved houses she notified various parties, including Centrelink, of her new mailing address. She gave general answers about whom she informed and how she informed them. She had notified Centrelink over the counter and not in writing. The defendants submitted that her account of the steps she had taken to notify of her new mailing address showed that her approach was unsystematic, haphazard and not comprehensively addressed to all likely recipients. Counsel urged the Court to find her evidence to be unpersuasive. I make no finding as to the effectiveness of her efforts to provide notification of her new address. In my view it is not the type of matter where a person could be reasonably expected to have a detailed recollection after so many years.

Mr Burgess also considered that a majority of employers would also be concerned by articles available on the internet about the Hickinbotham litigation. They would be much less likely to engage an employee so publically involved in such a dispute. Some details of the Hickinbotham litigation would also cause concern, such as her major depressive disorder and the employer allegedly terminating her employment due to customer complaints. Mr Burgess accepted that some female practitioners would admire the fact that Ms Poniatowska had brought and succeeded in a claim for sex discrimination and had raised two children by herself after the breakdown of her marriage.
In Mr Burgess’ opinion the description by Mr Stillwell of Ms Poniatowska as a “high risk appointment” understated the likely concerns of an employer. He believed that the South Australian legal community and potential employers would likely be aware of her from the coverage given to the Hickinbotham litigation. That case involved a topical and very high award for discrimination.
Mr Burgess considered that because the Today Tonight story was not aired on television in South Australia and had been removed from the internet in mid-January 2012 it would not affect her employability after this time as it would not be available to a recruiter conducting a search.
Ms Poniatowska’s potential earning capacity
Mr Burgess disagreed with Mr Stillwell’s estimates of the salary that Ms Poniatowska could obtain as a commercial lawyer. He considered that it was implausible that she could find employment in a larger firm. He considered that, if she were to find employment, the following salary ranges would apply for a commercial lawyer in a small to mid-tier firm:

Duration

Salary Range

Starting salary

$45,000 to $55,000 per annum including superannuation

After 2-4 years

$50,000 to $75,000 per annum including superannuation

After 5-10 years

$70,000 to $110,000 per annum including superannuation

Partner

$150,000 per annum including superannuation

Mr Burgess could not foresee whether Ms Poniatowska could become a partner but that this has become increasingly difficult to attain. If she did achieve partnership then he agreed with Mr Stillwell that the remuneration would be $150,000 per annum including superannuation.
Mr Burgess disagreed with Mr Stillwell’s opinion that salaries for first tier firms are 20-30% higher. He gave the following salary estimates for first tier firms in Adelaide:

Duration

Salary Range

After 2 years

$57,000 to $73,000 per annum including superannuation

After 3 years

$66,000 to $85,000 per annum including superannuation

After 4 years

$74,000 to $102,000 per annum including superannuation

After 5 years

$83,000 to $123,000 per annum including superannuation

Mr Burgess stated that it is difficult to provide meaningful figures after the five year point because promotion became harder to achieve and was based on merit.
Mr Burgess agreed in part with Mr Stillwell that senior executive and legal roles within corporations can have a salary range of $200,000 to $600,000. However, he stated that most roles only pay around $200,000 and that very few pay above $250,000. There was very strong competition for such roles. In his experience when recruiting for high status corporate clients only lawyers with top-tier local or national or global firms obtain interviews. It was highly unlikely that Ms Poniatowska could secure such a role in the short to medium term and unlikely that she could achieve it in the long term.
Mr Burgess did not agree with Mr Stillwell that mature age candidates generally receive 5% to 10% above the suggested rates. In his experience law firms have parity levels which they apply to lawyers of the same level, with almost no variation at first year, some small variation at second year, around 5% to 10% at third year and with more variation thereafter. The variation was said to take account of stronger than expected performance rather than candidates of mature age.
Mr Burgess also did not accept that a psychologist would be better qualified to assess Ms Poniatowska’s prospects in the legal market. He also rejected the suggestion that someone who had met her outside the courtroom (which he had not) would necessarily be better able to assess her prospects. That is because the initial assessment of a candidate typically relies only on the application. He did accept that because Mr Stillwell had met her he was better placed to assess her verbal reasoning skills and qualities such as drive and motivation.
Mr Burgess stated that the vast majority of Adelaide law firms do not undertake a psychological assessment when engaging graduate or junior lawyers. Those firms that use such testing would only do so at the end of the recruitment process. Thus, he considered that the results of the psychological assessment were not relevant to Ms Poniatowska’s prospects of securing work as a lawyer.
In any event, Mr Burgess said that the results of Ms Poniatowska’s psychological assessment fall well short of the expected level. He would expect to see results for corporate and commercial lawyers well above average, and even in the 90^th percentile, particularly in verbal reasoning. A score in the 10^th percentile would cause serious concern about the applicant’s verbal ability. Her score in the 46^th percentile after allowing extra time would also cause serious concern. For numeric ability, a score in the 43^rd percentile would cause concern. A score in the 67^th percentile after extra time would also be lower than most law firms would prefer to see in ordinary time.
Mr Burgess disagreed with Mr Stillwell that it was reasonable to suggest that Ms Poniatowska could work as a commercial lawyer in a corporate environment in Adelaide. Given that other lawyers in similar roles would have far higher verbal reasoning skills, Mr Burgess believed that she would be competing with other applicants and employees with far greater ability. Ms Poniatowska would struggle in such a role and would not be given more time to complete tasks because most law firms operate to strict budgets and use time based billing.
Mr Burgess agreed with Mr Stillwell that the Today Tonight broadcast, if viewed by a potential employer and when taken alone and out of context, would be counterproductive to Ms Poniatowska’s employment prospects. However, in any event, Mr Burgess did not believe that she would have been able to find employment as a lawyer or in the commercial roles to which she aspired. In his opinion it was debatable whether or not, once she had obtained a role, the broadcast would affect her career. The program was broadcast some time ago and there remained a very large volume of negative information about Ms Poniatowska publicly available on the internet that was unrelated to the Today Tonight story.
Mr Burgess agreed with Mr Stillwell that potential employers would contact referees and would enquire into any concerns those referees may have about a candidate. However, Mr Stillwell believed that two rather than three referees would be contacted. These would usually be direct supervisors in the last two roles held by the applicant. The omission of references from Hickinbotham and AV Jennings could create some concern.
Mr Burgess largely disagreed with the final summary offered by Mr Stillwell in his report that Ms Poniatowska would be seen as a “high-risk appointment”. Mr Burgess considered that she would be seen as more than a “high-risk appointment” and would be considered an inappropriate candidate for a law firm, other legal employer or large commercial entity
Findings on evidence of employment experts
I generally prefer the evidence of Mr Burgess to that of Mr Stillwell. Mr Burgess specialises solely in the recruitment of lawyers and operates extensively in the Adelaide market. While Mr Stillwell is undoubtedly a very successful management and executive employment consultant, legal recruitment comprises only a very minor proportion of his work. Mr Burgess spoke with much greater authority and knowledge about the approach taken by Adelaide law firms to the recruitment of recent graduates.
Mr Stillwell suggested that the results of the psychological testing undertaken by his firm would be attractive to an employer. I prefer the evidence of Mr Burgess that the performance of Ms Poniatowska in the psychological assessment was generally less than that required to meet the needs of commercial law firms and major corporate employers in the commercial sector. I also recognise that Mr Burgess conceded that he was not able to assess other personal qualities that might attract an employer.
I have inferred from the evidence of Dr Czechowicz that the psychological testing of Ms Poniatowska would have been adversely affected by her mental health at the time of testing. While it was not advanced as an explanation by either of the employment experts, some of the email messages sent by Ms Poniatowska and also her additions to statements prepared by Mr Lutt suggest the possibility to me that insufficient allowance may have been made for the fact that English is not her first language. Regardless of the explanation for her performance, an employer would rarely have capacity to allow substantial additional time for the completion of tasks, particularly a law firm using time based costing. That would also be true of major corporate employers.
Ultimately, I do not consider that the results of the psychological testing would significantly affect Ms Poniatowska’s employment prospects one way or the other. I prefer the evidence of Mr Burgess that if law firms use psychological assessments at all, that would not occur until the final stages of the recruitment process. The problem for Ms Poniatowska is attracting initial interest from a prospective employer rather than the results of a psychological assessment.
Mr Burgess was very critical of the quality of Ms Poniatowska’s job applications. I found his evidence to be a little pedantic in some respects, eg his criticism of her use of ideograms to depict a telephone number. Nevertheless, I accept the fundamental tenet of his evidence that her applications would not have sufficed to attract even initial interest from a legal or corporate employer. The quality of the applications was much below the expected standard for a person seeking employment in a highly competitive professional field.
I have also inferred from the evidence of Dr Czechowicz that Ms Poniatowska’s mental health may possibly have adversely affected the quality of her employment applications to some extent.
I also accept the evidence of Mr Burgess that, leaving aside the quality of her job applications, Ms Poniatowska faced a number of inherent barriers to finding employment in her preferred fields of commercial law or work with major commercial corporations or in legal work generally. These barriers included her relatively poor academic record in her legal studies, the fact that she had never undertaken any paid or unpaid work experience in legal practice, the fact that her prior employment experience was not particularly relevant, the very substantial oversupply of law graduates in recent years and the effect of the Global Financial Crisis at the time she was seeking work.
Mr Burgess suggested that a particularly serious barrier to Ms Poniatowska gaining employment was her negative Internet “footprint”. The Internet material had been published before, at the time of and after the Today Tonight story. I accept his evidence that it is quite common practice for employers to check the Internet for references to a prospective employee. I also accept his evidence that the Internet references to the Hickinbotham litigation and to the Centrelink fraud prosecution would deter a great many employers even though her position was ultimately vindicated by the courts in both matters. Notwithstanding her success in the Hickinbotham litigation, the references in media reports available on the Internet to her major depressive disorder and alleged customer complaints would deter many employers. Against that, as Mr Burgess acknowledged, some legal employers would applaud her success in a significant sexual harassment case. I also accept the correctness of Mr Burgess’s view that reports of her initial guilty plea to the fraud charges would deter legal and corporate employers. A further barrier to her winning employment, particularly in Adelaide, was the fact that both the Hickinbotham case and the Centrelink case were widely publicised at the time and would be well known to the Adelaide legal community.
There is no evidence that Ms Poniatowska sought employment anywhere other than Adelaide. The Today Tonight story was not broadcast in Adelaide and the only evidence in relation to the publication on the Internet established only four “hits” in South Australia. Two of those hits were apparently recorded when Ms Poniatowska, and later her and Mr Cordeaux, accessed the Channel 7 website to view the story. While her counsel’s submissions referred to the “grapevine” effect in relation to the broadcasts in other jurisdictions, because Ms Poniatowska has not sought employment elsewhere that is of little significance. Moreover, the evidence of Mr Burgess establishes that any possible grapevine effect from the story is vastly outweighed by the ongoing negative Internet “footprint”.
I accept the evidence of Mr Burgess that Ms Poniatowska’s difficulties in the legal employment market went beyond being a “high risk appointment” as Mr Stillwell had suggested. I am not persuaded that the Today Tonight story was the cause of the failure of Ms Poniatowska’s 149 job applications to attract any response from an employer. I consider that the numerous and highly significant barriers to her employment identified by Mr Burgess combined with the poor quality of her applications were the operative causes.
The evidence of Jeremy Cordeaux
Ms Poniatowska pleaded at paragraph 16.3 of her Statement of Claim that a journalist, Jeremy Cordeaux, had contacted her by telephone shortly after the program was broadcast. He told her that he had seen the story and said words to the effect that it had caused immense damage to her reputation. If he had not known the true details of what had happened but had just seen the story he would have formed the impression that she was a crook, dishonest, bad, immoral and exploitive. He said to her that if he was an employer he would not have employed her.
Ms Poniatowska stated in her evidence in chief that Mr Cordeaux had telephoned her after viewing the program and said that if he had not known the full story he would think that she was a crook and would never employ her.
Mr Cordeaux gave evidence about his viewing of the program and also the attractiveness to a publisher of the manuscript written by Ms Poniatowska and her employability. Mr Cordeaux stated that he had been a journalist for some 50 years and had won a Walkley Award. He was also the principal of two companies. One company developed programs for radio and television and the other dealt with advertising, particularly through radio stations. He is also a radio announcer. He had formerly worked for the Seven network and made occasional appearances as a panellist or a commentator, including on the Today Tonight program. He had also worked at different times for channels Two, Nine and Ten.
Mr Cordeaux stated that he had not seen the program on television. He had been contacted by Ms Poniatowska within some days of the broadcast. He had then viewed the program with her at home on a laptop computer. He observed that she was distraught, upset and humiliated.
Mr Cordeaux had worked with Ms Poniatowska at radio station 5DN in Adelaide. She worked as a sales representative but was described as an account manager. He described her as a very effective sales representative and the station was reluctant for her to leave.
Mr Cordeaux also stated in his evidence that he had presented a book review segment on his radio program from 1976. He still presented such a segment on a weekly basis. He said that he generally did not read the books that were reviewed but relied upon an employee of a bookstore. He did generally familiarise himself with the content of books that were to be reviewed.
Mr Cordeaux stated that he had read the whole of Ms Poniatowska’s manuscript. His evidence on the attractiveness to listeners of Ms Poniatowska’s manuscript was subject to objection on the basis that it was opinion and he was not qualified as an expert. While I disallowed the objection on the basis of Mr Cordeaux’s long history as a broadcaster, I indicated that I was inclined to attach little weight to that evidence. The focus of Mr Cordeaux’s evidence was upon subject matter that may be of interest to listeners to his radio program. He has no experience as a publisher of books and his evidence did not, and nor could it, offer any opinion on the attractiveness of the manuscript to a publisher. The effect of the evidence given by Mr Cordeaux was simply that Ms Poniatowska had shown heroism in facing the adversity of the Hickinbotham proceedings and the Centrelink prosecution. He considered that to be of interest to his listeners. The relevant question in these proceedings is the attractiveness of the manuscript to a publisher. In that respect I prefer the evidence of Ms Patsy Rowe to that of Mr Cordeaux.
The evidence of Patsy Rowe
Ms Poniatowska gave evidence that she had submitted three chapters of her “book” to New Holland Publishers (NHP) in June 2011. After about three months Patsy Rowe from NHP had contacted her by telephone. Ms Rowe said that the book was “really good” and she was “very enthusiastic about the whole story”. She had made a note of her conversation with Ms Rowe. Ms Rowe asked her to send her “a book”. She had sent the book to Ms Rowe on 6 October 2011 with a covering letter. On 6 December 2011 she received an email from NHP rejecting her “book”.
The defendants called Ms Patsy Rowe. Her evidence in chief was provided by way of an affidavit. Ms Rowe stated that she was an author and corporate speaker and also employed by NHP as an author manager. She had written ten books and also worked as a keynote speaker. NHP is the producer, publisher and promoter of non-fiction books.
Part of the duties of Ms Rowe with NHP involve her spending about three days each month in Sydney considering unsolicited manuscripts forwarded to NHP by authors hoping to have their book published. Authors are required to forward the first three chapters of their manuscript for consideration. On the three days each month that Ms Rowe does this work she would read approximately 20-25 manuscripts. She was careful to draw a distinction between a manuscript that has been submitted in the hope of publication and a book, ie something that has been published.
The role of Ms Rowe with NHP is to vet manuscripts and to provide those that she thinks may be published by NHP to the publishing committee. She has authority to reject manuscripts so that they are not referred to the publishing committee for consideration. However, she has no authority to approve manuscripts for publication. If she thinks that a manuscript is worthy, or potentially worthy, of publication by NHP she contacts the author and asks for the balance of the manuscript to be provided to her at her Queensland office.
Ms Rowe described the administrative procedures followed by NHP when a manuscript is received. The receptionist enters details of the manuscript and its fate into a spreadsheet. A note is made on the spreadsheet of the date on which the manuscript is acknowledged and what, if any, further action is taken in relation to it. For example, it would be recorded that more information has been requested or that the manuscript is rejected as being unsuitable for publication by NHP.
The manuscript is provided to Ms Rowe for her to read. After she has read the first three chapters she decides whether to ask for the remaining chapters of the manuscript or whether to reject it. If she believes that it may be worthy of publication she reads the entire manuscript once the additional chapters have been supplied at her request.

If, after she has read the entire manuscript, Ms Rowe considers that it has potential for publication she prepares a “review and report” document for submission to the publishing committee. The committee meets weekly and decides whether or not to publish a manuscript. The final decision rests with the managing director of NHP.
If Ms Rowe decides to reject a manuscript it is either returned to the author (if a self-addressed envelope has been provided) or it is destroyed. Even if she decides to reject the manuscript, she usually telephones the author as she knows as an author herself how hard it is to be rejected. Where possible, she seeks to offer the author some constructive feedback. Ms Rowe stated that this procedure is followed in respect of every manuscript submitted to NHP.
Ms Rowe stated in her affidavit that the records of NHP record that a transcript was received from Ms Poniatowska on 9 June 2011. Annexed to her affidavit was the relevant page of the spreadsheet which recorded that information.
The entry relating to the manuscript submitted by Ms Poniatowska records that it was acknowledged by NHP on 9 June 2011. It was then rejected on 30 September 2011 and again on 6 December 2011. She stated that it is not usual for two rejection dates to be noted in respect of a manuscript.
Ms Rowe stated that she had been advised by the solicitor for the defendants that Ms Poniatowska had alleged that she had telephoned Ms Rowe on 29 September 2011. She was asked to comment upon the note that had allegedly been prepared by Ms Poniatowska to record the details of her discussion with Ms Rowe.
The note recorded that Ms Rowe was extremely enthusiastic about the book, was impressed by the true story and liked the book. The note further recorded that the book suited NHP’s current publishing schedule and they would like to publish it. Ms Rowe wanted to read the whole book as the chapters she had read were very good and the book was very inspirational.
Ms Rowe stated that she could not recall speaking to Ms Poniatowska but said that she would have done so before the email was sent on 30 September 2011. She stated that it was very unlikely that the conversation would have taken the form that had been suggested in the notes of Ms Poniatowska. She stated that she would not say that NHP “would like to publish it” in respect of three chapters of a manuscript. She did not have authority to accept a manuscript for publication.That decision was to be made by the publishing committee. She only had authority to reject a manuscript on behalf of NHP. She added that she could not refer a manuscript to the publishing committee until she had read the complete manuscript and not just the first three chapters, and written her review.
Ms Rowe also stated that she would not describe a manuscript as suiting the “current publishing schedule” of NHP. She may use that phrase in a negative sense to say to an author that the submission “unfortunately does not suit NHP’s current publishing schedule” so as to ameliorate the effect of her rejection of their manuscript. She would never say that it does suit NHP’s current publishing schedule.
Ms Rowe further stated that she would not refer to what had been submitted to her as a “book”. The term “book” is only used in the publishing industry once a manuscript has been published.
Ms Rowe also stated that she did not believe that she would refer to a manuscript as “inspirational”. That is not an adjective that she likes or uses. She had found very, very few if any, manuscripts that she had read in her twelve years in her current role as inspirational. Even if she thought that a manuscript was very good, she would not say that in her initial conversation as that would make it more difficult to reject the manuscript if she subsequently believed that the balance of the document was not as good.
Ms Rowe stated that the records of NHP showed that a rejection email had been sent to Ms Poniatowska on 30 September 2011, being the day after Ms Poniatowska alleges that she spoke to Ms Rowe. She produced a copy of the rejection email. The email stated that the manuscript had been considered at a recent publishing meeting. However, after much deliberation, NHP had decided not to pursue Ms Poniatowska’s proposal “as it does not suit our current publishing schedule”. The email went on to wish Ms Poniatowska success in finding a suitable publisher.
Ms Rowe stated that although the email of 30 September 2011 stated that the manuscript had been considered at a recent publishing meeting, that had not occurred as she had not submitted the manuscript to the meeting. The phrase “it does not suit our current publishing schedule” was used by NHP “to let writers down gently and so that the writers do not blame or berate the individual who rejected the manuscript”. She added that three chapters would never be submitted to the publishing meeting.
Ms Rowe stated that the records of NHP indicated that on 11 October 2011 a further three chapters of the manuscript were received from Ms Poniatowska. She produced a copy of an email she had received from Ishbel Thorpe who had been the NHP receptionist at that time. Ms Rowe stated that although the email indicated that the manuscript had been considered at a recent publishing committee meeting that had not happened as she had not submitted the manuscript.
The email from Ms Thorpe also referred to three notes that Ms Rowe had made on the top of the original manuscript provided by Ms Poniatowska. While a search had been undertaken of NHP’s records, the original manuscript and her notes could not be found. Nevertheless, on the basis of the notes as they have been described by Ms Thorpe, Ms Rowe believed that she had rejected the original manuscript because of possible legal issues. It was the policy of NHP not to publish any manuscript which may raise legal issues or require vetting by a lawyer. That was because of the risk and expense involved which NHP could not afford as a small firm. The note “ask for more” suggested to Ms Rowe that when she began reading the manuscript she was initially interested but by the time she had completed reading three chapters in September 2011 she had decided to reject the manuscript because of potential legal issues.
Ms Rowe had no recollection of what had happened following the email sent by Ms Thorpe on 11 October 2011. However, based upon the records of NHP, she believed that a second rejection message was sent to Ms Poniatowska on 6 December 2011. She did not recall whether she had read the second submission of three chapters but she believed that the second rejection message was sent so that Ms Poniatowska was under no misapprehension that NHP were considering publication of her manuscript. Ms Rowe had not seen a broadcast by Channel 7 of a program involving Ms Poniatowska. She stated that the decision had been made to reject the manuscript well before the relevant program was broadcast on 26 October 2011. The decision to reject the manuscript was not based upon any publicity concerning Ms Poniatowska.
Counsel for Ms Poniatowska suggested to Ms Rowe in cross examination that the email that she had said was sent to Ms Poniatowska on 30 September 2011 notifying that her manuscript was not to be published was a “fake”. The basis for that suggestion that the copy of the email annexed to Ms Rowe’s affidavit did not include details ordinarily included on an email message to indicate by whom it had been printed. Ms Rowe was cross examined extensively about her communications with Ms Poniatowska and the suggestion that the email of 30 September 2011 was a forgery. She agreed to forward a copy of the email of 30 September 2011 to Ms Poniatowska’s solicitor and also provide a printed copy to the defendants’ solicitor.
The matter was adjourned for several months soon after Ms Rowe gave evidence. Ms Poniatowska sought to call an expert to give evidence about the provenance of the email of 30 September 2011. The expert report was only provided to the defendants’ solicitor on the day that the trial resumed. Ms Poniatowska’s solicitor had not followed up with Ms Rowe about her failure to forward a copy of the email. The solicitor gave evidence about that issue and also the very late provision of the expert’s report to the defence.
I then delivered a ruling on the admissibility of the expert evidence. I noted that the email dated 30 September 2011 had been received into evidence as a business record of NHP. Upon Ms Poniatowska challenging the veracity of the business record the onus lay on her to establish that the document was, in the words of counsel, “a fake”. While her solicitor had been dilatory in pursuing the matter with Ms Rowe, there had also been a failure to comply with the rules regarding the provision of expert reports. It was clear from the evidence of the solicitor that soon after Ms Rowe had given her evidence some form of preliminary report had been obtained from an expert. While it was not known why Ms Rowe had not forwarded a copy of the email[122] the fact was that the failure to comply with the rules had placed the defendants at a real disadvantage due to the difficulty of engaging an expert on short notice in such a specialised field. I therefore refused to receive the expert report.
[122] Although I note that the Court had been informed at the time she gave evidence by videolink that she was seriously ill.
The end result was that there was simply a suggestion by counsel for Ms Poniatowska that the email dated 30 September 2011 informing Ms Poniatowska of the first rejection of her manuscript was a fake.
I accept the evidence of Ms Rowe that NHP did reject the manuscript on 30 September 2011. I also accept the evidence of Ms Rowe that while she initially informed Ms Poniatowska that she was interested in the story she quickly changed her view because of her concern that the manuscript could give rise to defamation issues which NHP, as a small publisher, did not have the resources to manage. I further accept the evidence of Ms Rowe that she did not make the comments that Ms Poniatowska has attributed to her in her purported file note of their conversation. Ms Rowe was very firm in her evidence about the approach she invariably takes in dealing with aspiring authors when she informs them that their manuscript is not to be published by NHP. I find that the decision by NHP to reject the publication of Ms Poniatowska’s manuscript was not influenced by the broadcast and had been decided prior to the broadcast. Ms Poniatowska had been informed of that fact prior to the broadcast but for reasons that are not clear sent three further chapters of the manuscript to NHP on 6 October 2011. That caused Ms Thorpe of NHP to send a further rejection message by email on 6 December 2011.
At best, the file note purportedly prepared by Ms Poniatowska to record her conversation with Ms Rowe was fundamentally inaccurate as it misstated in all important matters what had been said by Ms Rowe. I prefer the evidence of Ms Rowe in all respects where it conflicts with that of Ms Poniatowska. I do not go so far as to find that Ms Poniatowska deliberately concocted evidence in the form of her note for use in this trial.
Conversation outside church
Ms Poniatowska alleged in her Third Statement of Claim that after attending Sunday Mass at the church used by the Polish community on King William Road, Unley, she overheard a conversation amongst a group of people who said that they had seen the program and that she was a cheat. They were laughing. In her evidence, Ms Poniatowska simply repeated the statement of claim and did not say when this incident occurred other than it was shortly after the publication. No other witness to the conversation was called. Because the story was not broadcast in this State and internet access was apparently minimal I am not satisfied that the people she overheard were referring to the publications that are the subject of these proceedings. They may possibly have been referring to other adverse material published about her. The evidence of Mr Paul Burgess established that much of the extensive publicity about the Hickinbotham and Centrelink proceedings still remained accessible through the internet up until the time of trial.
The supermarket incident
Ms Poniatowska also alleged in her Third Statement of Claim that an unknown woman approached her in a supermarket and called her a “cheating cow”. The demeanour of the woman caused her to fear that she might be assaulted. Once again, she merely restated the pleading in her evidence. There was nothing at all in her evidence to link this alleged incident to the publication by the defendants. She was the subject of extensive adverse publicity by others that might have prompted the woman’s alleged remark.
Conclusion
I find that the material referring to Ms Poniatowska in the Today Tonight story published by the defendants was defamatory. I also find that the defendants have made out the several defences upon which they rely, in particular the defence of justification. I dismiss the plaintiff’s application.

Duration	Salary Range
Starting salary	$45,000 to $55,000 per annum including superannuation
After 2-4 years	$50,000 to $75,000 per annum including superannuation
After 5-10 years	$70,000 to $110,000 per annum including superannuation
Partner	$150,000 per annum including superannuation

Duration	Salary Range
After 2 years	$57,000 to $73,000 per annum including superannuation
After 3 years	$66,000 to $85,000 per annum including superannuation
After 4 years	$74,000 to $102,000 per annum including superannuation
After 5 years	$83,000 to $123,000 per annum including superannuation