Rayney v Reynolds [No 4]
[2022] WASC 360
•31 OCTOBER 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: RAYNEY -v- REYNOLDS [No 4] [2022] WASC 360
CORAM: HILL J
HEARD: 21 - 22 JULY 2020
DELIVERED : 31 OCTOBER 2022
FILE NO/S: CIV 1827 of 2015
BETWEEN: LLOYD PATRICK RAYNEY
Plaintiff
AND
MARK REYNOLDS
Defendant
Catchwords:
Defamation – Publication made by way of statement at presentation – Whether natural and ordinary meaning of imputations defamatory of plaintiff – Innuendo meaning
Defamation – Publication in conversation with attendee immediately after presentation – Whether publication proved – Whether composite or stand-alone publication
Damages – Extent of publication – Effect on plaintiff – Failure to apologise – Whether circumstances of aggravation
Damages – Mitigation – Effect of previous award of damages for defamation – Whether previous award of damages and any public vindication achieved from the reporting of this decision should mitigate damages
Legislation:
Defamation Act 2005 (WA)
Result:
Judgment entered for the plaintiff
Damages of $350,000 awarded
Category: B
Representation:
Counsel:
| Plaintiff | : | M L Bennett & F R Sharbanee |
| Defendant | : | H M Shelby |
Solicitors:
| Plaintiff | : | Bennett |
| Defendant | : | Not applicable |
Cases referred to in decision:
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1
Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345
Avwest Aircraft Pty Ltd as trustee for AVWest Aircraft Trust v Clayton Utz (a firm) [No 2] [2019] WASC 306
Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30
Bauer Media Pty Ltd v Wilson [No 2] [2018] VSCA 154; (2018) 56 VR 674
Bristow v Adam [2012] NSWCA 166
Broome v Cassell & Co Ltd [1972] AC 1027
Browne v Dunn (1893) 6 R 67
Burstein v Times Newspapers Ltd [2001] 1 WLR 579
Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44
Channel 7 v Mahommed [2010] NSWCA 335
Channel Seven Adelaide Pty Ltd v S, DJ [2006] SASC 10; (2006) 94 SASR 296
Consolidated Trust Company Ltd v Browne (1948) 49 SR (NSW) 86
Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211
Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176
Cripps v Vakras [2014] VSC 110
David Syme & Co v Canavan (1918) 25 CLR 234
Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27; (2021) 392 ALR 540
Fairfax Publications Pty Ltd v Kermode [2011] NSWSCA 174; (2011) 81 NSWLR 157
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186
Fazio v Fazio [2012] WASCA 72
Flood v Times Newspapers Ltd [2012] UKSC 11; [2012] 2 AC 273
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gacic v John Fairfax Publications Pty Ltd [2015] NSWCA 99 (2015) 89 NSWLR 538
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
Google LLC v Defteros [2022] HCA 27; (2022) 403 ALR 434
Grubb v Bristol United Press Ltd [1963] 1 QB 309
Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1
Hockey v John Fairfax Publications Pty Ltd [2015] FCA 652
John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291
John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451
Jones v Dunkel (1959) 101 CLR 298
Kelly v John Fairfax & Sons Pty Ltd (Unreported, NSWSC, 25 February 1985)
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Laurendi v Boral Contracting Pty Ltd [2002] WASCA 297
Lewis v Daily Telegraph Ltd [1964] AC 234; [1963] 2 All ER 151
Mirror Newspapers Ltd v Fitzpatrick (1984) 1 NSWLR 643
Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293
Nine Network Australia Pty Ltd v Wagner [2020] QCA 221; (2020) 6 QR 64
Obeid v John Fairfax Publications Pty Ltd [2006] NSWSC 1059; (2006) 68 NSWLR 150
Paterson v The Queen [2004] WASCA 63; (2004) 28 WAR 223
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460
Rayney v The State of Western Australia [No 4] [2022] WASCA 44
Rayney v The State of Western Australia [No 9] [2017] WASC 367
Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496
Sands v State of South Australia [2015] SASCFC 36; (2015) 122 SASR 195
Scott v Sampson (1882) 8 QBD 491
Slim v Daily Telegraph Ltd [1968] 2 QB 157
Smith v John Fairfax & Sons (1987) 81 ACTR 1
The Bell Group Ltd (in liq) v Westpac Banking Corporation Ltd [No 9] [2008] WASC 239; (2008) 39 WAR 1
The State of Western Australia v Edwards [No 7] [2020] WASC 339
The State of Western Australia v Rayney [2013] WASCA 219
The State of Western Australia v Rayney [No 3] [2012] WASC 404
Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497
Turner v News Group Newspapers Ltd [2006] 1 WLR 3469
Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350; (2014) 98 NSWLR 764
Wagner v Nine Network Australia Pty Ltd [2019] QSC 284
Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58
Watson v Foxman (1995) 49 NSWLR 315
Webb v Ryan [2012] VSC 377
Wilson v Bauer Media Pty Ltd [2017] VSC 521
TABLE OF CONTENTS
Factual Background
Presentation
Events subsequent to Presentation
Events subsequent to commencement of proceedings
Delay in judgment
Issues for determination
Procedural rulings
Scope of evidence admissible at trial
Amendment of pleadings during trial
Deemed admissions
Onus and general observations on credibility
Onus and standard of proof
Approach to the evidence
General observations on credibility
Consequences of defendant having not given evidence
Rule in Browne v Dunn
Legal Principles
Publication
Identification
Defamatory meaning
Defence of substantial truth
Context of Presentation
Words spoken during the Presentation (First Comment)
Pleadings
Evidence
Identification
Words spoken in conversation (Second Comment)
Pleadings
Evidence
Is this a stand-alone conversation or a composite publication?
Determination of the natural and ordinary meaning of the words used
Innuendo and extrinsic facts
Are the imputations defamatory?
Plea of Justification - Truth
Damages
Extent of publication and republication
Damages for non-economic loss
Conclusion
HILL J:
On 3 June 2014, Mr Haydn Green gave a presentation to the Western Australian branch of the Australian and New Zealand Forensic Science Society entitled 'Circumstantial Forensic Cases – The State of Western Australia v Rayney' (Presentation). The defendant, Dr Reynolds, attended the Presentation with a number of his colleagues from the Western Australian Police Force.
The Presentation examined the trial of the plaintiff, Mr Rayney, for the murder, alternatively unlawful killing, of Corryn Rayney, his late wife. Mrs Rayney went missing on the evening of 7 August 2007. Her body was discovered nine days later buried in Kings Park. In December 2010, Mr Rayney was charged with her murder, alternatively her unlawful killing. Following a judge alone trial in 2012, Mr Rayney was acquitted of all charges in relation to the death of his wife. The State's appeal against the acquittal was dismissed in September 2013.
Mr Rayney's claim against Dr Reynolds arises from comments said to have been made by Dr Reynolds at this Presentation. The first was an exchange between Dr Reynolds and Mr Green which commenced when Dr Reynolds responded to a question asked by a member of the audience of Mr Green (First Comment). The second was during a conversation between Ms Sandra Toby, who attended the Presentation, and Dr Reynolds (Second Comment) immediately after the Presentation ended. Mr Rayney says that the words used by Dr Reynolds bore the imputation that he had murdered his wife. In addition, and as an alternative plea, Mr Rayney says that the true innuendo of the words used by Dr Reynolds bore the imputation that he had got away with the murder of his wife.
Dr Reynolds admits he said some of the words attributed to him in relation to the First Comment but denies the words used by him bore either of the imputations pleaded by Mr Rayney. In relation to the Second Comment, Dr Reynolds does not admit he made the comments attributed to him and, in any event, denies these words convey either of the imputations alleged.
The words said to have been used by Dr Reynolds did not expressly or literally state the defamatory meaning which Mr Rayney contends they conveyed. The issue is whether the words which Dr Reynolds used or, in respect of the Second Comment, is found to have used, would have conveyed to the ordinary reasonable person the meaning contended by Mr Rayney.
If it is found that the words used by Dr Reynolds in the First Comment conveyed the alleged imputation (or the innuendo meaning), the issue is whether the imputation found to have been conveyed was 'true in fact'.[1]
[1] Amended defence [5].
Mr Rayney seeks an award of damages and aggravated damages. Dr Reynolds says that no award of damages should be made for two reasons.[2] First, because the imputations did not cause any right thinking member of society to have a lower estimation of Mr Rayney. Second, because Mr Rayney has already been adequately compensated by the award of damages in Rayney v The State of Western Australia [No 9].[3]
[2] Defendant's opening submissions [2] - [3].
[3] Rayney v The State of Western Australia [No 9] [2017] WASC 367. Damages were increased on appeal in relation to the interest payable on the award (Rayney v The State of Western Australia [No 4] [2022] WASCA 44).
For the reasons set out below, I have concluded that:
(a)the words used by Dr Reynolds at the Presentation (First Comment) bore the defamatory imputation that Mr Rayney had murdered his wife;
(b)the words that I have found were used by Dr Reynolds in an exchange with Ms Toby immediately after the Presentation (Second Comment) are a composite publication with the First Comment;
(c)the defence of Dr Reynolds that his comments were 'true in fact' cannot be sustained; and
(d)Mr Rayney has established the circumstances of aggravation on which he relied.
In respect of the award of damages, it is my view that Mr Rayney is entitled to damages to compensate him for the personal hurt and distress caused by Dr Reynolds' statements and to vindicate his reputation. I do not consider the award of damages that Mr Rayney received in respect of a separate, significantly earlier defamation mitigates to any significant extent the amount he should receive in this case. In the circumstances of this case, I have determined that the appropriate award of damages for non-economic loss is $350,000.
The detailed basis for my reasons is set out below.
Factual Background
Mr Rayney was a barrister and solicitor admitted to practice in Western Australia until April 2020.
Mr Rayney was married to Mrs Rayney, until her death. They had two children: Caitlyn and Sarah.[4]
[4] ts 107.
On 7 August 2007, Mrs Rayney went missing. On 16 August 2007, her body was found buried in Kings Park.
From the time of her disappearance, the police carried out investigations into Mrs Rayney's death in what was referred to as 'Operation Dargan'. Dr Reynolds was a senior forensic investigator in Operation Dargan.
On 20 September 2007, Mr Rayney was arrested for alleged breaches of the Surveillance Devices Act 1998 (WA). On the same date, Detective Senior Sergeant Lee gave a media conference in relation to the murder of Mrs Rayney. He identified Mr Rayney as the prime and only suspect in the case. It is the statements at this media conference that were the subject of Chaney J's decision in Rayney v The State of Western Australia [No 9].[5]
[5] Rayney v The State of Western Australia [No 9].
On 8 December 2010, Mr Rayney was arrested and charged with the murder, alternatively unlawful killing, of his late wife. On 1 November 2012, after a four month judge-alone trial that commenced in July that year, Mr Rayney was acquitted of these charges.[6] The State appealed against this decision. The appeal was dismissed in September 2013.[7]
Presentation
[6] The State of Western Australia v Rayney [No 3] [2012] WASC 404.
[7] The State of Western Australia v Rayney [2013] WASCA 219.
On 3 June 2014, a presentation was held at Curtin University given by Mr Haydn Green, the Past President of the Australia and New Zealand Forensic Science Society WA Branch, entitled 'Circumstantial Forensic Cases – the State of Western Australia v Rayney'. Among the attendees at the Presentation were Dr Reynolds, Ms Sandra Toby and Dr Lynnette Milne. It is at this event that it is alleged Dr Reynolds made the First and Second Comments.
Events subsequent to Presentation
On 26 June 2014, the solicitors for Mr Rayney issued a concerns notice to Dr Reynolds pursuant to s 14(2) of the Defamation Act 2005 (WA) (Defamation Act).[8] The concerns notice referred to the response given by Dr Reynolds to the question from the audience to Mr Green concerning a cold case review, as well as the subsequent conversation between Dr Reynolds and Ms Toby. The notice contended the comments conveyed the defamatory imputation that Mr Rayney had murdered his wife. The notice was served on Dr Reynolds on 4 July 2014.[9]
[8] Exhibit 1.9.
[9] Exhibit 1.22.
On 31 July 2014, the then-solicitors for Dr Reynolds responded to the concerns notice.[10] By his solicitors' letter, Dr Reynolds denied using the words attributed to him or that he had made any statements imputing that Mr Rayney was 'guilty of the murder or manslaughter of his late wife'.
[10] Exhibit 1.12.
On 5 August 2014, Mr Rayney's solicitors responded to this letter.[11] On 19 August 2014, the solicitors for Dr Reynolds again denied he said the words attributed to him and refused to apologise 'for something he did not say simply because some persons present at the meeting may have misheard what he said'.[12] The letter enclosed an undertaking signed by Dr Reynolds in favour of Mr Rayney, undertaking that he would refrain from publishing, republishing or causing to be republished or republishing any false or defamatory material in relation to Mr Rayney.[13]
[11] Exhibit 1.13.
[12] Exhibit 1.14.
[13] Exhibit 1.11.
On 2 June 2015, Mr Rayney commenced these proceedings.
Events subsequent to commencement of proceedings
On 15 December 2017, Chaney J delivered his reasons for decision in Rayney v The State of Western Australia [No 9]. Chaney J found that Mr Rayney had been defamed by Detective Senior Sergeant Lee in a media conference on 20 September 2007. His Honour found that the words used at the media conference in their entirety bore the imputation that Mr Rayney had murdered his wife.[14] Chaney J awarded damages of $600,000 for non‑economic loss[15] and $1,249,549 for past economic loss between 20 September 2007 and 8 December 2010.[16] Interest of 4% per annum was awarded on the non‑economic loss from 20 September 2007 until the date of judgment.[17] Interest of 6% per annum was awarded on the economic loss from 8 December 2010 until the date of judgment.[18]
[14] Rayney v The State of Western Australia [No 9] [3].
[15] Rayney v The State of Western Australia [No 9] [4].
[16] Rayney v The State of Western Australia [No 9] [5]; Rayney v The State of Western Australia [No 4] [70].
[17] Rayney v The State of Western Australia [No 4] [74].
[18] Rayney v The State of Western Australia [No 9] [967].
Mr Rayney appealed the quantum of damages awarded by Chaney J. On 12 April 2022, the Court of Appeal allowed the appeal in part.[19] The Court of Appeal held that Chaney J had erred in failing to award Mr Rayney interest on economic loss during the period in which it was found he suffered economic loss. The effect of this decision was to increase the damages awarded to Mr Rayney by $121,831.[20] The appeal was otherwise dismissed.
[19] Rayney v The State of Western Australia [No 4].
[20] Rayney v The State of Western Australia [No 4] [207] - [210].
Delay in judgment
The hearing of this matter took place in July 2020. It has not been possible to complete the reasons for my decision as quickly as I would have liked.
I have taken the following steps to ensure my ability to properly assess the parties' cases and the evidence that was given at trial has not been impaired by the delay between the hearing and the publication of these reasons.
First, the section on general observations on credibility was substantially completed shortly after trial. During the course of the trial, I made contemporaneous notes to assist in completing this section.
Second, I had the benefit of oral closing submissions from counsel for each of the parties. Counsel made submissions on the evidence given by the witnesses, including as to the findings each contends should be made in respect of them.
Third, the Presentation was recorded, and the recording together with a transcript was admitted by consent at trial. The primary dispute in relation to the First Comment was the imputation that arises from the statements made by Dr Reynolds. I have re‑listened to the recording of the Presentation on a number of occasions in preparing my reasons.
Issues for determination
On the pleadings, the issues I am required to determine in this case are:
(a)Does the First Comment bear one or both of the imputations pleaded by Mr Rayney?
(b)Was the First Comment 'true in fact'?
(c)Did Dr Reynolds say the words attributed to him by Ms Toby in their conversation after the Presentation (Second Comment)? If so, is this a composite or standalone publication? If a standalone publication, do these words bear one or both of the imputations pleaded by Mr Rayney?
(d)In the event that Mr Rayney establishes that the First Comment, the Second Comment or both were defamatory of him, what award of damages should be made?
(e)Has Mr Rayney established grounds for an award of aggravated damages?
(f)Should any award of damages be mitigated by the award of damages Mr Rayney received as a consequence of the judgment of Chaney J in Rayney v The State of Western Australia [No 9]?
Procedural rulings
For most of the proceedings, Dr Reynolds was a self‑represented litigant. At the commencement of the trial, Mr Hugh Selby appeared as pro bono counsel on his behalf. The matter was originally listed for trial in January 2020. On 16 December 2019, these dates were vacated on the application of Dr Reynolds following Mr Selby's agreement to appear for him as pro bono counsel.
On 7 and 10 July 2020, Dr Reynolds filed an outline of submissions and list of authorities. The outline of submissions comprised three paragraphs. Until this occurred, Mr Rayney says he was not aware that Dr Reynolds intended to raise certain matters by way of mitigation of damage. These included pre‑publication matters as well as post-publication matters. At trial, counsel for Mr Rayney objected to these matters being adduced in evidence.
During the course of the hearing, I ruled that Mr Rayney's challenge to the pre-publication and post‑publication matters being adduced in evidence should be upheld. In reaching this conclusion, I made it clear that I was not preventing legitimate cross‑examination by counsel for Dr Reynolds of Mr Rayney or his witnesses as to the extent of the injury to his feelings nor any credibility issues that may arise concerning Mr Rayney's evidence. At the time, I gave reasons for the decision that I had reached.
On the afternoon of the first day of trial, Dr Reynolds applied to amend his defence to include a defence under s 38(1)(c) of the Defamation Act. I allowed that application. At the time, I gave brief reasons for this decision.
A summary of the reasons I gave on each these matters is set out below.
Scope of evidence admissible at trial
All litigants, including self-represented litigants, are bound to comply with the Rules of the Supreme Court 1971 (WA) (Rules). The Rules are designed to enhance the efficiency and economy of litigation and reduce the unnecessary expenditure of private and public resources. Order 20 r 8 of the Rules requires all material facts on which a party relies to be pleaded. Order 20 r 9(1) requires a party to plead all matters which, if not pleaded, might take the other party by surprise.
The defence filed by Dr Reynolds did not plead nor did his submissions squarely raise an intention to raise defences of mitigation under s 38 of the Defamation Act. In my view, if a defendant intends to raise matters by way of mitigation, it is necessary to specifically plead them. Dr Reynolds has not done so and, accordingly, unless an amendment is sought and obtained, no evidence can be adduced by Dr Reynolds in respect of matters going to mitigation.
Section 34 of the Defamation Act requires the court to ensure that there is appropriate and rational relationship between the harm sustained by a plaintiff and the amount of damages awarded. The law presumes damage but evidence of whether there has been actual harm to the plaintiff's reputation is relevant and admissible.
General compensatory damages serve three functions: to act as a consolation to a plaintiff for the distress suffered from the publication of the defamation, to repair the harm to their reputation, and as a vindication of their reputation.[21]
[21] Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44; Broome v Cassell & Co Ltd [1972] AC 1027.
Evidence in reduction of damages is admissible on two relevant bases: first, if it demonstrates the plaintiff's bad reputation; and secondly, if it is properly before the court on some other issue.[22]
[22] Channel 7 v Mahommed [2010] NSWCA 335 [83].
In Scott v Sampson,[23] the court held that while general evidence of a plaintiff's bad reputation is admissible in mitigation of damage in defamation actions, evidence of specific acts of misconduct is inadmissible. The rationale for this exclusionary rule is pragmatism and fairness.
[23] Scott v Sampson (1882) 8 QBD 491.
In Burstein v Times Newspapers Ltd, the Court of Appeal in the United Kingdom held that evidence of 'directly relevant background context', in mitigation of damage in a defamation action, is admissible.[24]
[24] Burstein v Times Newspapers Ltd [2001] 1 WLR 579, 598 - 599 (May LJ), 603 (Slade LJ).
In Turner v News Group Newspapers Ltd, Keene LJ, who delivered the judgment of the Court, explained that:[25]
(a)the exclusionary rule in Scott has never been absolute;
(b)the essence of the principle is that generally a plaintiff/claimant cannot be subjected to a roving inquiry into aspects of his or her life unconnected with the subject matter of the alleged defamation, and specific evidence relating to such aspects cannot be called in mitigation of damage;
(c)the position is different in relation to evidence of matters which are directly relevant to the alleged defamation. It has long been established that evidence of 'specific acts properly admitted on such a plea may [nonetheless] be taken into account by the [court] when assessing damages even though the plea has failed';[26]
(d)to be used for this purpose, evidence of matters which are directly relevant to the alleged defamation must relate to 'the relevant sector of the plaintiff's life'. That is, the evidence must relate to the sector of the plaintiff's reputation with which the imputations relied on by the plaintiff were concerned.
[25] Turner v News Group Newspapers Ltd [2006] 1 WLR 3469 [42] - [45].
[26] Turner v News Group Newspapers Ltd [43].
In determining the relevant sector, it is necessary to consider the particular sector to which the defamatory material relates. In identifying the sector, it is necessary to consider the defamatory material and its context, as well as the terms of the imputations pleaded.[27]
[27] Channel 7 v Mahommed [85].
Gatley on Libel and Slander explains the extent of the limitation to which the plaintiff's own conduct is admissible in reduction of damages.[28] It is said to relate principally to activities that can be causally connected to the publication of the libel of which the plaintiff complains.
[28] Gatley on Libel and Slander (Sweet & Maxwell Ltd) (13th ed, 2022) [34-100] - [34-103].
Damages in defamation proceedings can address harm that occurs after publication. Evidence of post-publication material, including judicial findings which are relevant to a plaintiff's reputation (within the relevant sector), is admissible to ensure damages accurately reflect the plaintiff's reputation at the time damages are awarded.
In this case, the context in which the alleged defamation occurred is as follows. The alleged publications occurred at the Presentation. The Presentation concerned the criminal charges against Mr Rayney arising from the death of Mrs Rayney. The Presentation did not concern the Surveillance Devices Act 1998 (WA) charges, any evidence given in those proceedings, nor any aspect of Mr Rayney's professional life.
The imputations pleaded by Mr Rayney are that the alleged comments by Dr Reynolds meant or were understood to mean that he was a person who was a murderer or, by way of true innuendo, a person who had got away with the murder of his wife.
In my view, the relevant sector of Mr Rayney's reputation was encompassed by the context in which the Presentation occurred and the imputations pleaded - namely that Mr Rayney was a person who was a murderer or got away with the murder of his wife. In my view, matters which stray outside this are not relevant to the issues to be decided.
Amendment of pleadings during trial
On the afternoon of the first day of trial, counsel for Dr Reynolds sought leave to amend his defence to include a plea that:[29]
In the event that the plaintiff is found to be entitled to general damages the defendant pleads, pursuant to s 38(1)(c), that such damages are mitigated by reason of the plaintiff's successful defamation claim against the State of Western Australia.
[29] Email from Mr Selby to Associate to Hill J dated 21 July 2020; ts 95 - 98.
In circumstances where counsel for Mr Rayney had specifically raised this matter in opening, I considered there was no prejudice to Mr Rayney in allowing the amendment and granted Dr Reynolds leave to amend his defence, subject to consideration of the precise wording of the proposed amendment. Ultimately, the precise wording was not the subject of any further submission. For this reason, I have proceeded on the basis that the defence has been amended in the terms set out above.
Deemed admissions
In Dr Reynolds' defence, he does not respond or plead to many of the paragraphs in the statement of claim.
Order 20 r 14 of the Rules relevantly provides that:
(1)Subject to sub rule (4), any allegation of fact made by a party in his pleading is deemed to be admitted by the opposite party unless it is traversed by that party in his pleading or a joinder of issue under rule 15 operates as a denial of it.
(2)A traverse may be made either by a denial or by a statement of non-admission.
(3)…
(4)Any allegation that a party has suffered damage and any allegation as to the amount of damages is deemed to be traversed unless specifically admitted.
I address the relevance of the deemed admissions below where it is relevant to the matters in issue.
Onus and general observations on credibility
Onus and standard of proof
The onus of proof of establishing the First Comment and Second Comment and that the imputations pleaded have arisen rests on Mr Rayney. In respect of the First Comment, Dr Reynolds admits he said the specific words pleaded as the first of his comments at the Presentation, but denies the imputation pleaded arises. Dr Reynolds denies making the Second Comment. In respect of both comments, Dr Reynolds denies that any imputation that arises from these comments has caused a right thinking member of society to have a lower estimation of Mr Rayney.
In respect of the pleading that the words said by Dr Reynolds which comprise part of the First Comment are 'true in fact', Dr Reynolds bears the onus of proof of establishing this.
The standard of proof is, at all times, the balance of probabilities.
Approach to the evidence
This case turns on words that are alleged to have been spoken by Dr Reynolds at the Presentation and shortly afterwards.
As Hammerschlag J stated in John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd:[30]
Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. ... In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved.
[30] John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 [94].
For the following reasons, there is a substantial evidentiary burden on a party whose case relies upon evidence of a conversation between two people.[31]
[31] Webb v Ryan [2012] VSC 377 [22] (Whelan J).
There is a significant risk that conversations have been reconstructed by witnesses. There are dangers in relying on evidence of what may have been a casual observation made to a person who had no reason to remember the exact words used at the time of the conversation.
Human memory of what was said in a conversation is fallible for a number of reasons. Ordinarily, this increases over time, particularly where disputes or litigation intervene. This is because the processes of memory are overlaid, often subconsciously, by perceptions or self‑interest as well as conscious consideration of what should have been said or could have been said. All too often, what is actually remembered is little more than an impression from which plausible details are then, often subconsciously, constructed.[32]
[32] Watson v Foxman (1995) 49 NSWLR 315, 318 ‑ 319 (McLelland CJ in Eq).
The credibility of a witness and their veracity may be tested by reference to objective facts which can be proved independently, in particular by reference to the documents in the case. Often the only safe course in such cases is to place primary emphasis on the objective factual surrounding material, the inherent commercial probabilities and the contemporaneous documents. Documents will often provide more valuable information than the attempted recollection of the facts by witnesses with an interest in the outcome of the litigation. This is particularly the case when the documents are accepted as genuine and were prepared by a person who had no reason to misstate the facts in these documents.
Contemporaneous statements and documents are likely to be a more accurate reflection of events than later statements. This is because false memories can intrude, especially when the person recalling events has tried to assemble recollections logically. In doing so, the person can attempt to have some rational explanation in the person's mind as to what has happened. It is important to keep in mind that memories are both fluid and malleable and are constantly rewritten whenever they are retrieved.[33]
[33] McClellan P, 'Who Is Telling the Truth? Psychology, Common Sense and the Law' (2006) 80 Australian Law Journal 655, 665, quoting Australian Psychological Society, Guidelines Relating to Recovered Memories (2000).
In this case, in determining what was said in the exchange between Ms Toby and Dr Reynolds immediately after the Presentation, it is necessary to assess Ms Toby's oral evidence in the context of contemporaneous documents, facts which have been established objectively (such as the First Comment) and the apparent logic of events.[34]
General observations on credibility
[34] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [31].
Mr Rayney gave evidence at trial and called two other witnesses to give evidence on his behalf: Sandra Toby and Dr Lynnette Milne. Dr Reynolds did not call any witnesses or adduce any evidence at trial.
Sandra Toby
Ms Toby was the first witness called by the plaintiff. Ms Toby is a principal of a media consulting firm. She was made aware of the Presentation through her friend Dr Milne[35] and attended because she is 'interested in all things science but particularly in forensics'.[36] Her evidence was that, until the trial of this matter, she had never met Mr Rayney.
[35] ts 75.
[36] ts 71.
Counsel for Mr Rayney submitted that I should accept Ms Toby as a 'totally honest witness' who gave her evidence in a 'forthright, considered, careful fashion'.[37] In contrast, counsel for Dr Reynolds submitted that Ms Toby was 'self‑evidently anti‑police', given to 'hyperbole' and made 'unsupported claims as to what other people might think'.[38] On this basis, it was contended that I should reject Ms Toby's evidence as 'attention-seeking'.[39]
[37] ts 150.
[38] ts 174.
[39] ts 174.
I accept that, in cross-examination, Ms Toby was somewhat defensive. The impression I formed from the answers she gave to the questions she was asked was that she strongly believed the police had made errors in the investigation of Mrs Rayney's murder. This impression was confirmed by the contents of her record of the events at the Presentation. When she approached Dr Reynolds, to use her own words, Ms Toby was 'furious'[40] or 'very angry' with the comments he had made during question time. At the conclusion of the Presentation, she immediately approached him, stood at the end of the row to prevent him from leaving, and had the exchange with him that gives rise to the Second Comment.[41]
[40] Exhibit 1.6.
[41] ts 72.
In cross-examination, when asked what her 'furiousness' was a result of, Ms Toby's evidence was that:[42]
You may know that there is a history of murders in which people went to prison who were actually innocent. There was Button, there was Beamish, there was Andrew Mallard. Are you aware of these items?
[42] ts 76.
It was clear from Ms Toby's evidence that it was her conduct which caused her exchange with Dr Reynolds to occur and that, at that time, she had a poor view of the Western Australian Police Force.
It was also clear that Ms Toby had formed the opinion that Dr Reynolds was aggressive, had a 'bullying nature' and that he was someone 'at the top of the Western Australia Police',[43] without giving evidence as to the basis for these opinions or how she came to these conclusions so quickly, having never met him before. In cross‑examination, Ms Toby rejected the view that she was biased when she approached Dr Reynolds and said that she was 'ready to hear what he had to say'. She did not accept that she did not need to approach him and said that she went up to him 'because he had made a categorical claim that was unsubstantiated, and in fact, unproven'.[44]
[43] Exhibit 1.6.
[44] ts 80.
I do not accept Ms Toby's evidence that she approached Dr Reynolds with an open or unbiased mind and wanted to hear what he had to say. In my view, Ms Toby confronted Dr Reynolds because she believed Dr Reynolds should agree with the views she held.
A typewritten note was prepared by Ms Toby on 5 June 2014, two days after the Presentation, recording what had occurred at the Presentation.[45]
[45] Exhibit 1.6.
There were a number of discrepancies between Ms Toby's oral evidence in chief, her cross‑examination, her note and the audio recording of the Presentation. First, the question that was asked did not ask when there would be a cold case review but simply asked 'how long before this case is worthy of a cold case review?'. Second, Dr Reynolds identified himself as the forensic senior investigating officer and not the Chief Supervising Officer on the case. Third, Dr Reynolds did not say 'We know who the offender is', as was Ms Toby's evidence in chief, but 'The offender was identified'. In cross‑examination, Ms Toby explained that in her evidence in chief, she 'used a phrase that he actually used later' when she spoke to him directly. Fourth, in cross‑examination, Ms Toby's evidence was that when Dr Reynolds made this statement, 'there was a reaction around the room'. This evidence is not supported by the audio recording of the Presentation.
There are also a number of discrepancies between Ms Toby's note and the audio recording of the exchange as well as the transcript. First, the question that was asked did not refer to the 'Rayney case' or when a cold case review would be opened but simply asked 'how long before this case is worthy of a cold case review?'. Second, as set out above, Dr Reynolds identified himself as the forensic senior investigating officer and not the Chief Supervising Officer on the case. Third, from listening to the exchange, I do not accept that Dr Reynolds shouted any part of his response. I accept that he was relatively emphatic in making the statement but do not accept that he shouted at Mr Green or the audience member.
While I accept that some of these discrepancies are relatively minor, these discrepancies, together with the content of Ms Toby's note and the observations set out above, make it clear that Ms Toby has a strong belief in the innocence of Mr Rayney and the flaws in the police prosecution of him. In my view, these beliefs have coloured her recollection of the Presentation, her view of Dr Reynolds and her subsequent exchange with Dr Reynolds. While I consider Ms Toby genuinely believed she was truthful throughout her evidence, I consider her evidence has been impacted by her strong views about both Dr Reynolds and Mr Rayney. For this reason, in considering the evidence of Ms Toby, I have considered whether her evidence is supported by any other contemporaneous or objective evidence.
Dr Lynnette Milne
Dr Milne is a consultant palynologist and adjunct research fellow at Curtin University in Western Australia. Dr Milne has been a member of the Western Australian branch of the Australian and New Zealand Forensic Science Society for almost 20 years. Dr Milne was a witness for the defence in the criminal trial against Mr Rayney and gave evidence on the soil samples and samples from Mrs Rayney's nasal cavity.[46]
[46] ts 86.
Dr Milne knew Dr Reynolds prior to the Presentation as she lectured him in the 'early 2000s'.[47] They had also some interactions after this date in various forensic investigations.[48] Although Dr Milne was cross‑examined about these interactions, counsel for the defendant did not put to her that she had an animus towards Dr Reynolds or that these interactions impacted the evidence she gave.
[47] ts 86.
[48] ts 89 - 93.
Counsel for the plaintiff submitted that I should accept the evidence of Dr Milne who gave her evidence 'carefully', 'openly, frankly'.[49] Counsel for the defendant agreed that 'at face value', Dr Milne was a 'somewhat better witness'.[50] However, he submitted that Dr Milne's evidence 'fell over' as a result of the second of the matters I refer to below.[51]
[49] ts 152.
[50] ts 174.
[51] ts 174.
In my view, there were two aspects of Dr Milne's evidence that impact on her credibility. The first was her evidence that after Dr Reynolds answered the question about a cold case review, 'there was a murmur. A bit of a gasp' from the audience.[52] As set out above, this evidence is not supported by the audio recording of the Presentation.
[52] ts 87.
The second was the evidence she gave when she was recalled by counsel for Mr Rayney to give evidence of 'what occurred when she and Ms Toby left this courtroom at lunchtime'.[53] Dr Milne's evidence was that when she and Ms Toby left the court room and went to exit the court building, Dr Reynolds was 'leaning against the – the gates that we have to walk through'.[54] Her evidence was that they asked security to escort them out of the court building, which after a short period of time, they did. Shortly after this, Dr Reynolds exited the court building. In cross-examination, Dr Milne agreed that it appeared Dr Reynolds was on the phone and that he could not see Dr Milne or Ms Toby.
[53] ts 98.
[54] ts 99.
At the request of counsel for the plaintiff, I gave leave to the parties to inspect the security footage. After reviewing the footage, counsel for the plaintiff did not seek to recall Ms Toby, tender the footage, amend the plaintiff's statement of claim to raise the matter as a ground of aggravation, or make any further submissions on this matter. From these failures, I draw the inference that the security footage did not support any inference being drawn that Dr Reynolds' presence near the exit of the court building was to intimidate Dr Milne and Ms Toby. In my view, Dr Milne's perception of what had occurred was influenced by her preconceived views on Dr Reynolds, even when that perception was not borne out by objective facts. That said, I do not consider that her views of Dr Reynolds would cause her to make up the conversation she had with Ms Toby nor was it put to her in cross‑examination that this was the case. In my view, her views of Dr Reynolds have affected her perception of the events that occurred as opposed to whether these events occurred at all.
For these reasons, in assessing the evidence of Dr Milne, I have considered whether her evidence is supported by any other contemporaneous or objective evidence.
Lloyd Rayney
Mr Rayney's evidence in the proceedings was of a fairly limited scope. He was not at the Presentation. He was informed subsequently, in early June 2014, of what occurred at the Presentation, including the First and Second Comments. His evidence in chief was limited to his reaction to the First Comment and the matters relied on as aggravating conduct by Dr Reynolds. Much of the cross‑examination of Mr Rayney concerned the continuing media interest in the matter, including these proceedings, and his involvement in that, as well as the various comments he has received from members of the public following his acquittal. This included his evidence that even after his acquittal, there are members of the public who doubt his innocence of involvement in the death of his late wife.[55]
[55] ts 119.
Mr Rayney answered the questions asked of him honestly and made appropriate concessions (such as the one detailed above) where required. I find that Mr Rayney was an honest witness and accept his evidence in its entirety.
Consequences of defendant having not given evidence
The defendant did not give evidence at trial. Much was made of this by counsel for the plaintiff in closing submissions.
Where there is an unexplained failure of a party to give evidence, the rule in Jones v Dunkel[56] applies. The scope and operation of the principle in Jones v Dunkel was explained by Heydon, Crennan and Bell JJ in Kuhl v Zurich Financial Services Australia Ltd in the following terms:[57]
The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn.
[56] Jones v Dunkel (1959) 101 CLR 298.
[57] Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 [63].
In Australian Securities and Investments Commission v Hellicar, the High Court summarised the application of this principle in the following terms:[58]
Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led. Principles governing the onus and standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard. But both the circumstances in which that may be done and the way in which the absence of evidence may be taken to account are confined by known and accepted principles which do not permit the course taken by the Court of Appeal of discounting the cogency of the evidence tendered by ASIC.
Lord Mansfield's dictum in Blatch v Archer that “[i]t is certainly a maxim that all 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” is not to be understood as countenancing any departure from any of these rules. Indeed, in Blatch v Archer itself, Lord Mansfield concluded that the maxim was not engaged for “it would have been very improper to have called” the person whose account of events was not available to the court.
This court's decision in Jones v Dunkel is a particular and vivid example of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used. The essential facts of the case, though well known, should be restated. The personal representative of a driver who had died in a collision with another vehicle brought an action for damages on her own behalf and on behalf of the deceased driver's dependants. The plaintiff's case depended upon demonstration that the other driver's negligence was a cause of the accident. The plaintiff sought to demonstrate negligence by having the tribunal of fact (in that case a jury) infer from facts concerning the road and the two vehicles involved that the collision had occurred when the defendant's vehicle was on the wrong side of the road. One of the defendants, the surviving driver, did not give evidence at the trial. The court divided about whether the inference which the plaintiff sought to have the jury draw about where the collision occurred was an inference that was open on the evidence. But the court held “that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence”. (citations omitted)
[58] Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 [165] - [167].
In Fazio v Fazio,[59] Murphy JA referred with approval to the observations of the majority of the High Court in RPS v The Queen:[60]
It is necessary to keep at the forefront of consideration that the mode of reasoning which is described proceeds from the premise that the person who has not given evidence not only could shed light on the subject but also would ordinarily be expected to do so.
...
In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party's camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party's case and that:
'where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference'. (emphasis in original) (footnotes omitted)
[59] Fazio v Fazio [2012] WASCA 72 [135].
[60] RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [25] - [26].
Murphy JA concluded:[61]
The authorities point to the need for the trier of fact to evaluate the whole of the evidence, drawing such inferences of fact as are appropriate from the direct evidence. In the evaluation of the evidence and its sufficiency, the judge should consider whether a party could and would ordinarily be expected to give or call certain evidence on an issue. The failure to call such evidence may (not must) allow the judge to infer that the omitted evidence would not have assisted that party's case on the issue, and to:
• take that matter into account in deciding whether and to what extent to accept other evidence on the issue;
• more confidently or readily draw inferences of fact adverse to that party which might otherwise be open on the issue.
Rule in Browne v Dunn
[61] Fazio v Fazio [138].
The plaintiff also sought to rely on the rule in Browne v Dunn.[62]Counsel for the plaintiff contended the defendant failed to challenge the evidence of Ms Toby or Dr Milne in relation to a number of factual matters in relation to the Second Comment.
[62] Browne v Dunn (1893) 6 R 67.
The rule in Browne v Dunn is not simply a rule of professional practice; it is necessary to ensure a trial is conducted fairly and to enable the court to determine where the truth lies. It gives a witness the opportunity to deal with evidence to be given by other witnesses or inferences that are sought to be drawn from it. It also enables a party the opportunity to call evidence to corroborate their explanation or to contradict the evidence or inference that is sought to be drawn.[63]
[63] The Bell Group Ltd (in liq) v Westpac Banking Corporation Ltd [No 9] [2008] WASC 239; (2008) 39 WAR 1[1024] - [1026] citing with approval Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1, 16. See also Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 [37]; Laurendi v Boral Contracting Pty Ltd [2002] WASCA 297 [28] - [29]; Paterson v The Queen [2004] WASCA 63; (2004) 28 WAR 223 [197].
Relevantly, unless notice has been clearly given, it is necessary to put to an opponent's witness in cross‑examination the case on which it is proposed to rely in contradicting the witness' evidence. However, as was noted by Vaughan J in AvWest Aircraft Pty Ltd as trustee for AVWest Aircraft Trust v Clayton Utz (a firm) [No 2], notice of an opponent's case can be given in a number of ways, including from the opening or from the general manner in which the case was conducted.[64]
[64] Avwest Aircraft Pty Ltd as trustee for AVWest Aircraft Trust v Clayton Utz (a firm) [No 2] [2019] WASC 306 [152].
I have considered the application of the rule in Browne v Dunn when addressing the Second Comment.
Legal Principles
There are three elements to a cause of action for defamation: publication, identification and defamatory meaning.
Publication
Publication is a bilateral act by which a person (the publisher) makes material available and a third party has it available for comprehension. What is required for publication has been the subject of a number of recent High Court decisions.[65]
[65] See, eg, Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27; (2021) 392 ALR 540; Google LLC v Defteros [2022] HCA 27; (2022) 403 ALR 434.
The requirements were recently summarised by Kiefel CJ and Gleeson J in Google LLC v Defteros in the following terms:[66]
The majority in Voller also considered more broadly what the law requires for there to be a publication and for a person to be liable as a publisher. Publication was explained as the actionable wrong in the tort of defamation by which harm is occasioned to a person's reputation. Publication was described as a technical term, which is to be understood as a bilateral act by which the publisher makes the defamatory material available and a third party has it available for their comprehension. It may be understood as the process by which a defamatory statement or imputation is conveyed. Adopting Webb v Bloch, any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher, regardless of their knowledge or intent. So understood, a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher. (citations omitted)
Identification
[66] Google LLC v Defteros [21].
It is necessary for a plaintiff to prove the defamatory comments were about them. In doing so, it is not necessary for the plaintiff to be specifically named in the defamatory material; it is sufficient if the words would be understood by reasonable people to refer to the plaintiff. This is subject to the qualification that where the words are published to persons who have special knowledge, the issue will be decided by reference to what reasonable persons possessing that knowledge would have understood by them.[67]
Defamatory meaning
[67] David Syme & Co v Canavan (1918) 25 CLR 234, 238 (Isaacs J).
In the absence of a jury, the judge is required to determine the ordinary and natural meaning of the words that are proved to have been spoken.
The meaning of the words is not determined by evidence from the plaintiff as to what he understood the words to mean, nor of the defendant as to what the defendant intended the words to mean. The meaning of the words is to be ascertained by the sense in which fair‑minded ordinary reasonable members of the general community would understand the published words. In Lewis v Daily Telegraph Ltd,[68] Lord Reid said:
The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.
The ordinary reader does not formulate reasons in his own mind: he gets a general impression and one can expect him to look again before coming to a conclusion and acting on it. But formulated reasons are very often an afterthought.
[68] Lewis v Daily Telegraph Ltd [1964] AC 234, 258; [1963] 2 All ER 151, 154.
The ordinary reasonable person does not interpret the publication in a precise manner, but rather forms a general impression of the meaning from the words used.[69]
[69] Lewis v Daily Telegraph 285.
In relation to the alternative plea of 'true innuendo', this plea was described by the plurality in Radio 2UE Sydney Pty Ltd v Chesterton in the following terms:[70]
When a true innuendo is pleaded evidence may be given of special facts, known to those to whom the matter was published, such as would lead a reasonable person knowing those facts to conclude that the words have another, defamatory, meaning. The essential requirement of the plea is that the matter is not one within the general knowledge of the hypothetical referees. (citations omitted)
[70] Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460 [51] (French CJ, Gummow, Kiefel & Bell JJ).
An essential element of the plea of true innuendo is that the alleged extrinsic facts are not within the general knowledge of those to whom the matter was published. The rationale for this, as was explained by Wigney J in Rush v Nationwide News Pty Ltd (No 7), is that:[71]
[M]atters of general knowledge can in any event be considered in determining whether the alleged imputations were conveyed by the natural and ordinary meaning of the words used in the publication. This was explained by Lord Morris of Borth-y-Gest in Jones v Skelton at 1370-1371:
The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v Daily Telegraph Ltd. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense.
[71] Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 [94].
A true innuendo must be based on an existing fact.[72] It cannot rely on facts that occur or become known after the publication to support the innuendo.[73]
[72] Grubb v Bristol United Press Ltd [1963] 1 QB 309, 328 - 329, 338 - 339.
[73] Gatley on Libel and Slander 11th ed (2008), p 114-115.
There can be only one innuendo meaning.[74]
Defence of substantial truth
[74] Slim v Daily Telegraph Ltd [1968] 2 QB 157, 172 (Diplock LJ); Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, 506 (Brennan J) (Gibbs CJ, Stephen, Murphy & Wilson JJ agreeing).
The defendant relies upon the defence of truth.[75] This defence arises both at common law and pursuant to s 25 of the Defamation Act. The defence particularises the defence in the following terms:
The plaintiff was identified as the offender by investigating police soon after the death of Corryn Rayney. The making of that announcement had no connection with the defendant. The forensic work subsequently supervised/managed by the defendant took place against that claim. The question from an audience member about a cold case review arose because the seminar presenter had failed to make clear to the audience that it was NOT the task of the forensic investigation to identify an offender, nor did it purport to do so.
[75] Amended defence [5].
Counsel for the plaintiff contends that this plea is 'bad at law' as it does not seek to justify the meaning by reference to the First Comment in its entirety, nor does it seek to justify the defamatory imputation of the First Comment.
As was stated by Gillard AJA in Herald & Weekly Times Ltd v Popovic:[76]
[T]he publisher must not only prove the truth of the words complained of in their literal meaning but also the truth of the defamatory sting. The defence must meet the sting of the matter complained of. In Howden v Truth v Sportsman Ltd, Dixon J said:
The defence depends upon the substantial truth of the defamatory meaning conveyed by a libel. Every material part of the imputations upon the plaintiff contained in the words complained of must be true; otherwise the justification fails as an answer to the action. (citations omitted)
[76] Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1 [274].
In this case, the tests for the defence of truth at common law and under s 25 of the Defamation Act are not relevantly different. For both, it is necessary for Dr Reynolds to prove that the imputation is substantially true (or true 'in substance').[77]
[77] See Defamation Act s 4 (substantially true means true in substance or not materially different from the truth).
In Fairfax Publications Pty Ltd v Kermode, McColl JA summarised the defence in the following terms:[78]
In summary, a defendant seeking to justify the defamatory matter under the 2005 Act may take the following courses of action, some statutory, some based on the common law:
(a)prove that the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true: s 25;
(b) prove that rather than the defamatory imputations pleaded by the plaintiff, the defamatory matter carries nuance imputations which are substantially true;
(c)to the extent that the defendant fails to establish all the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true, rely on those proved to be true in mitigation of the plaintiff's damages: partial justification; and
(d)to the extent the defendant cannot prove that the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true, prove that it carries contextual imputations that are substantially true, by reason of which the defamatory imputations do not further harm the reputation of the plaintiff: s 26.
[78] Fairfax Publications Pty Ltd v Kermode [2011] NSWSCA 174; (2011) 81 NSWLR 157 [86] (McColl JA; Beazley & Giles JJA agreeing). See also the specific summary in relation to the position at common law at [59].
Context of Presentation
At the time of the Presentation, Mr Rayney had been charged with his wife's murder, alternatively unlawful killing, faced a trial by judge alone, and was acquitted of these charges. The State's appeal against the acquittal had been dismissed.
At approximately 6.00 pm on 3 June 2014, the Western Australian branch of the Australian and New Zealand Forensic Science Society hosted the Presentation which was given by its Past President, Mr Haydn Green.
Mr Green spoke for approximately 1 hour and 20 minutes. At the conclusion of his Presentation, members of the audience asked questions. It is during the question time that Dr Reynolds is alleged to have made the First Comment.
Words spoken during the Presentation (First Comment)
Pleadings
The statement of claim pleads that the second question from the audience came from an unknown member of the audience who asked 'Haydn, how long before this case is worthy of a cold case review?'. Mr Green initially responded by saying 'Before it's worthy of a cold case review? Umm, you'd have to ask the Commissioner of Police that. Can I, can I answer in that way?'
Dr Reynolds then rose to his feet and said 'Haydn, I'll answer that'.
After introducing himself as the forensic senior investigating officer for the Dargan Enquiry, Dr Reynolds said:[79]
There is no need for a cold case review the offender was identified.
[79] Amended statement of claim [6].
Dr Reynolds admits he said these words.[80]
[80] Amended defence [2].
The statement of claim sets out the question and answer session in full, which included lengthy exchanges between Dr Reynolds and Mr Green. The exchange concluded with the statement of Dr Reynolds:[81]
None of this talk about, 'Hey someone else did it'.
[81] Amended statement of claim [6].
Dr Reynolds does not specifically plead to the remainder of this exchange. As a consequence, by reason of O 20 r 14(1) of the Rules, Dr Reynolds is deemed to have admitted the exchange in the terms pleaded occurred.
Mr Rayney contends that the First Comment referred to and was understood by the audience to refer to him for the following reasons: first, due to the title of the Presentation and how it was advertised; second, the references that were made by Mr Green to Mr Rayney during the course of the Presentation; and third, as a result of facts that were 'notorious to the public' at the date of the Presentation as to Mr Rayney being charged, tried and acquitted of the murder of his wife.[82]
[82] Amended statement of claim [6] [Particulars of identification].
Mr Rayney pleads that in their natural and ordinary meaning, the First Comment meant and was understood to mean that he murdered Mrs Rayney.[83]
[83] Amended statement of claim [7].
Mr Rayney also pleads a further and alternative meaning, by way of true innuendo, that the First Comment meant and was understood to mean that he got away with the murder of Mrs Rayney.[84] Two extrinsic facts are relied upon by the plaintiff in support of his true innuendo plea, namely that on or about 1 November 2012, Mr Rayney was acquitted by Martin AJ of the wilful murder, alternatively, the unlawful killing of Mrs Rayney for the reasons set out in The State of Western Australia v Rayney [2012] [No 3] WASC 404 and that on or about 23 September 2013, the State's appeal from this decision was dismissed for the reasons set out in The State of Western Australia v Rayney [2013] WASCA 219.
[84] Amended statement of claim [8].
Dr Reynolds denies that either of these imputations arise from words that were spoken.[85]
Evidence
[85] Amended defence [3] - [4].
Both Ms Toby and Dr Milne attended the Presentation and gave evidence about what occurred. Ms Toby and Dr Milne sat in the front row.[86] Ms Toby's evidence was that 'there were a lot of people there' and guessed there were 80 to 100 people, possibly more.[87] Dr Milne's evidence was that it wasn't overflowing but that there 'were probably about 110 there'.[88]
[86] ts 71.
[87] ts 72.
[88] ts 86.
A copy of the RSVP list for the Presentation was in evidence before me. The evidence of Ms Toby is confirmed by the RSVP list which records that more than 80 people signed in for the session.[89] On this basis, I accept that at least 80 people attended the session, possibly more. The attendees included lawyers, people from various government instrumentalities (including the WA Police and ChemCentre), professionals engaged in forensic analysis, and students at Curtin University.
[89] Exhibit 1.1.
Ms Toby's evidence was that she was angered by an answer given during question time which was:[90]
Well, somebody in the room asked, “When will there be a cold case review?” What happened in response was that a gentleman stood up, I turned around to look, and he said, “I am Mark Reynolds. I was the chief supervising officer on the case and there will be no cold case review. We know who the offender is.”
[90] ts 71.
Prior to this, Ms Toby had not met Dr Reynolds and was not aware who he was. Her evidence was that from this answer 'There was a clear inference that Mr Rayney was the only offender being investigated'.[91]
[91] ts 79.
Approximately two days after the Presentation, Ms Toby made a typewritten record of the responses from Dr Reynolds. She recorded the exchange in the following terms:[92]
At the end of the talk, during question time, I was shocked at what I heard; someone in the audience asked “When will a cold case review be opened in the Rayney case?”, and an immediate response came from another audience member who shouted out “I'll answer that question, Haydn. My name is Mark Reynolds and I was the Chief Supervising Officer on the case. There will not be a cold case review. The offender has been identified”. He shouted this very emphatically as other audience members will remember.
[92] Exhibit 1.6.
In evidence in chief, Dr Milne's evidence was that she had a 'fairly clear' recollection of the presentation by Mr Green and a vivid recollection of what occurred in the question and answer session.[93] Her evidence in chief was that:[94]
There was a number of questions, and – and somebody behind me, a male, asked Haydn if he thought there was going to be a cold case review. And then I heard Dr Reynolds. I turned around and recognised him, and he said that he would answer that question. That there would be no cold case review as the offender had been identified.
What did you understand him to say – to mean by that?‑‑‑I understood that he was saying that despite four judges finding Mr Rayney not guilty that he thought Mr Rayney was guilty.
[93] ts 87.
[94] ts 87.
Dr Milne prepared notes after the Presentation on 6 June 2014 after being asked to do so.[95] The notes also contained an extract from Eventbrite of the invitation for the seminar. Dr Milne's notes record that Dr Reynolds said:[96]
[H]e had been the senior investigating officer for the Rayney case, and … "There is no need for a cold case review. The offender has been identified."
[95] ts 88.
[96] Exhibit 1.7.
A copy of the powerpoint presentation used at the Presentation,[97] an electronic recording of the Presentation[98] as well as a transcript of the recording of the Presentation[99] were admitted in evidence. I have listened to the electronic recording on a number of occasions and have compared it against the transcript. As set out above at [74] ‑ [76], there are a number of discrepancies between Ms Toby's oral evidence and the audio recording of the Presentation. Where Ms Toby's evidence is not supported by the audio recording, I reject it. In my view, the electronic recording of the Presentation is the best evidence of what occurred at the Presentation. Having listened to the electronic recording and compared it to the transcript, while the transcript is not, in my view, accurate in every respect, it is broadly accurate.
[97] Exhibit 1.3.
[98] Exhibit 1.4.
[99] Exhibit 1.5.
In particular, I find that the transcript accurately records Dr Reynolds making the following statement at the Presentation. At the commencement of the questions from the audience, in answer to a question from the audience of 'Haydn, how long before this case is worthy of a cold case review?', Dr Reynolds identified himself as the forensic senior investigating officer for the Dargan Enquiry and then said the words 'There's no need for a cold case review. The offender was identified'. I do not accept that there was any discernible reaction from the audience in response to this comment.
Identification
For the following reasons, I accept and find that the words used by Dr Reynolds referred to Mr Rayney.
First, the title of the Presentation was 'Circumstantial Forensic Cases – The State of Western Australia v Rayney'.
Second, the invitation for the presentation from Eventbrite referred to Mr Rayney having been charged with the wilful murder of his wife at their home in Como and that he was granted a trial before a judge sitting alone.[100] It states that 'The presentation looks at the aspects of the case that are instructive and informative to the work of forensic practitioners and criminal investigators. Particular emphasis will be placed on lessons arising from the trial and the subsequent State's appeal'.[101]
[100] Exhibit 1.7.
[101] Exhibit 1.7
Third, the subject of the Presentation concerned Mr Rayney's trial on the charge that he murdered, alternatively unlawfully killed, Mrs Rayney.
Fourth, at the commencement of the Presentation, Mr Green stated that all the criminal charges concerned with the death of Mrs Rayney were finished, 'so we're over that sub judice hurdle'.[102]
[102] Exhibit 1.4.
Fifth, Mr Green referred to Mr Rayney by name on 24 occasions during the Presentation. This included in the context that the prosecution had identified Mr Rayney as the alleged offender.
Sixth, the Presentation concluded with Mr Green stating that:
[T]here was nothing that tied Mr Rayney to the assault on the deceased. There was nothing that tied Mr Rayney to the deceased's car on the night on which she disappeared. There was nothing that tied Mr Rayney to the burial.
Mr Rayney also relies on the following matters which he says were notorious as at the date of the Presentation. On this basis, he contends that he need not prove the existence of extrinsic facts on which he relies for the purposes of identification.[103] The matters which are pleaded to be notorious or of general knowledge, including by reason of the number of statements provided by the police and reports published in the electronic television radio and print media, are the following:[104]
[103] Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30, 54 referring with approval to Consolidated Trust Company Ltd v Browne (1948) 49 SR (NSW) 86, 91.
[104] Amended statement of Claim [6.3.4].
(a)Mrs Rayney went missing on the evening of 7 August 2007 after leaving a boot scooting class in Bentley;
(b)on or about 14 August 2007, Mrs Rayney's car was located in Kershaw Street, Subiaco;
(c)on or about 15 August 2007, Mrs Rayney's body was located off a bush track in Kings Park;
(d)Mrs Rayney's funeral was held on 1 September 2007;
(e)on or about 20 September 2007, Detective Senior Sergeant Lee, the officer in charge of the major crime squad, held a press conference during which he named Mr Rayney as the 'prime suspect' and the 'only suspect'. These statements were the subject of Mr Rayney's defamation action against the State of Western Australia;
(f)on or about 8 December 2010, Mr Rayney was charged with the wilful murder of Mrs Rayney alternatively her unlawful killing;
(g)on or about 16 July 2012 the trial of Mr Rayney commenced;
(h)on or about 1 November 2012, Mr Rayney was acquitted of wilful murder, alternatively the unlawful killing of Mrs Rayney for the reasons set out in the The State of Western Australia v Rayney [No 3];
(i)on or about 22 November 2012, the State of Western Australia filed an appeal against Mr Rayney's acquittal;
(j)on or about 6 and 7 August 2013, the Court of Appeal heard the appeal;
(k)on or about 23 September 2013, the State's appeal was dismissed for the reasons set out in The State of Western Australia v Rayney.
Apart from admitting certain words were spoken by him, Dr Reynolds does not plead to the remainder of [6] of the amended statement of claim in his amended defence. As a result, Dr Reynolds is deemed to have admitted these matters.
Even if there had not been a deemed admission of these matters, it is my view that, subject to the following, these matters are properly described as having been notorious and matters of general knowledge for the purpose of identifying Mr Rayney at the time of the Presentation. Each of these matters was the subject of substantial and sustained media articles, commentary and television broadcasts. As at the date of the Presentation, it was generally known by most people in Western Australia who watched television broadcasts or read print media that Mrs Rayney had gone missing and had been murdered, Mr Rayney had been identified by the Western Australian Police as the prime and only suspect in the death of his wife, Mr Rayney was charged with her murder, had been acquitted after trial by judge alone, and the State's appeal against this decision had been dismissed. This was confirmed by Mr Rayney in his evidence.[105] However, I do not accept that the specific dates on which each of these matters occurred, the detailed reasons for the acquittal of Mr Rayney, or the dismissal of the State's appeal were matters that were of general knowledge or notoriety. In my view, the general knowledge of these matters does not extend to this level of detail.
[105] ts 120.
Given these matters, I find that an ordinary sensible person in the audience at the Presentation would have reasonably believed that the use of the words 'the offender had been identified' was a reference to Mr Rayney, as the only person who had been identified by the police or linked to the murder of Mrs Rayney.
Words spoken in conversation (Second Comment)
Pleadings
Immediately after the conclusion of the Presentation, Ms Toby had a conversation with Dr Reynolds. The plaintiff pleads that the following exchange occurred between them:[106]
Ms Toby: How can you know who the offender is? It wasn't proven in court.
Defendant: You heard the evidence. Those seed pods in her hair were from Como.
Ms Toby: Okay, even if they were from Como, even if the victim was attacked there, that still doesn't prove who it is that murdered her. You must retain some doubt that you know the attacker, some fraction of a doubt that's greater than 0%.
Defendant: No. We know who the offender is.
Ms Toby: No, no, there must be some doubt, at least some that's greater than 0%.
Defendant: No. We know who the offender is. I'd stake my kids' lives on it.
[106] Amended statement of claim [10].
The plaintiff pleads that the Second Comment is either a composite publication with the First Comment or a stand-alone publication.[107]
[107] Amended statement of claim [13].
The plaintiff pleads that in its natural and ordinary meaning, the Second Comment meant that the plaintiff murdered Mrs Rayney.[108]
[108] Amended statement of claim [14].
Mr Rayney also pleads a further and alternative meaning, by way of true innuendo, that the Second Comment meant that he got away with the murder of Mrs Rayney.[109] Mr Rayney relies on the same two extrinsic facts in support of his plea of true innuendo in respect of the First Comment.[110]
[109] Amended statement of claim [15].
[110] Amended statement of claim [15.1].
Dr Reynolds admits that he spoke with Ms Toby after the Presentation but does not admit he used the words pleaded.[111] He denies that either of the pleaded imputations arise.[112]
Evidence
[111] Amended defence [7].
[112] Amended defence [8] - [9].
Ms Toby's evidence was that at the end of the Presentation, she was feeling very angry 'about the statement that was made' because 'WA Police have often picked on someone and ruined their life, even if – whether they were or were not the culprit'.[113] She left her seat as soon as the Presentation ended and went up the aisle towards the row where Dr Reynolds was sitting with his colleagues. As Dr Reynolds' colleagues filed out of the row, she 'stepped in, which stopped him stepping away, because I wanted to question him'.[114] In cross‑examination, Ms Toby denied she accosted Dr Reynolds but accepted she went up to him when he was still in his row of seats because she was angry he had a 'biased view of the case'.[115] She also denied that she approached Dr Reynolds wanting to have an argument. Her evidence was that:[116]
I was looking for him to state that they did not 100 per cent know, that there was a degree of doubt. He was adamant in his response.
[113] ts 72.
[114] ts 72.
[115] ts 80.
[116] ts 84.
In examination in chief, Ms Toby's evidence was that she then had the following exchange with Dr Reynolds:[117]
I said to him, “How can you say there will be no cold case review? You cannot be completely sure that you know who the offender is.” He said, "We know who the offender is." But I persisted. I twice more – actually, what he said was, "The seed pods found in her hair were from Como." I said, "Even if they were that doesn't prove who committed the crime." He said, "We know the offender." I asked again, I said, "You cannot say without any doubt that there is zero per cent chance that you could be wrong." And he said, "We know who the offender is." And then he said, emphatically, "I would stake my kids' lives on it."
[117] ts 72 - 73.
Ms Toby recalled there were a 'number of people' around them at the time of this exchange who were in the process of leaving the Presentation.[118]
[118] ts 73.
Her recollection was that Dr Reynolds said these words:[119]
Very strongly and emphatically. In fact, I noted afterwards that it felt quite bullying. He – I felt like he was shouting me down, especially when he made that last comment, "I would stake my kids' lives on it." I mean, I walked away in some disgust, but I felt it was quite confronting. He was close to me, he was tall, and it felt even a little threatening.
[119] ts 73.
After this, Ms Toby went back to Dr Milne where she 'told her the full conversation'. Dr Milne told her to make a note of what had occurred. Ms Toby's evidence was that she made a handwritten note 'almost immediately' and 'typed them up forthwith'.[120]
[120] ts 73.
In cross-examination, Ms Toby insisted that Dr Reynolds shouted at her 'I would stake my kids' lives on it'.[121] She accepted that people who deal in death do not make light of it but denied that she made this up or that nobody else witnessed or heard this exchange.[122]
[121] ts 82.
[122] ts 83.
Ms Toby maintained that Dr Reynolds was aggressive and almost threatening towards her during this conversation. This was because he was considerably taller than Ms Toby and was stepping towards her.[123] While Ms Toby accepted that Dr Reynolds was wanting to leave the row he had been sitting in and the Presentation and that she had approached him, which had the effect of stopping him from leaving, she maintained that he was bullying her.[124] Specifically, her evidence under cross‑examination was that:[125]
Now, when you said he had a bullying nature, what was it about this man who was trying to leave the room that led you to say he was "bullying"?‑‑‑He was raising his voice, he certainly raised his voice when he said, "I would stake my kids' lives on it", and he was taller than me and he was stepping towards me in order to push me away to – virtually push me away so he could leave. That's what happened at the end of that conversation.
So now you're telling us – when you say, "He was pushing – to push me away", "He was virtually pushing me away" ‑ ‑ ‑?‑‑‑He did not touch me.
No. He didn't. Did he?‑‑‑Correct.
He didn't put his hands out towards you?‑‑‑No.
[123] ts 83.
[124] ts 83 - 84.
[125] ts 84.
In this case, the offer that is relied upon by the plaintiff, being an offer dated 14 February 2019, was also made in accordance with the principles of Calderbank v Calderbank.[219]
[219] Calderbank v Calderbank [1975] 3 All ER 333.
The factors a court should consider in assessing the reasonableness of an offer to settle a dispute are not closed. However, it is commonly accepted that the following factors should be taken into account:[220]
(a)the stage of the proceeding at which the offer was received;
(b)the time allowed to the offeree to consider the offer;
(c)the extent of the compromise offered;
(d)the offeree's prospects of success, assessed as at the date of the offer;
(e)the clarity with which the terms of the offer were expressed; and
(f)whether the offer foreshadowed an application for indemnity costs in the event that the offeree rejected it.
[220] Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435 [25].
Disposition
Who should pay the costs of the proceedings?
The starting point is that the plaintiff was the successful party in the proceedings. As a general rule, as the successful party, the plaintiff is entitled to an order that the defendant pay his costs of the proceedings.
The defendant says that, in the circumstances of this case, the plaintiff's lawyers should be responsible for the plaintiff's costs of the proceedings. The matters on which he relies in support of this submission are the plaintiff's misuse of his superior financial position and the email from the plaintiff's solicitors to the Chief Justice on 29 June 2022. I address both of these matters below.
For the reasons set out below, I am not satisfied that either of these matters is a good reason for the defendant not to be required to pay the plaintiff's costs of the proceedings. I turn then to consider whether these costs should be paid on a party-party basis or an indemnity basis.
Should the costs be on an indemnity basis?
In this case, the plaintiff relies on both limbs of s 40(2)(a) of the Defamation Act in support of his application for indemnity costs.[221] He contends that:
(a)the defendant unreasonably failed to agree to a settlement offer proposed by the plaintiff; and / or
(b)the defendant unreasonably failed to make a settlement offer, in that the offers made by the defendant fall outside of the definition of 'settlement offer'.
[221] Plaintiff's submissions [18].
The defendant disputes both matters and contends he made both a settlement offer and responded reasonably to the plaintiff's settlement offer.[222]
Did the defendant unreasonably fail to agree to a settlement offer by the plaintiff?
[222] Defendant's revised submissions [3(b)] of 'Overview'.
The plaintiff made an offer on 14 February 2019 to resolve the proceedings on the basis that the defendant pay the plaintiff $120,000, as well as the plaintiff's costs to be assessed if not agreed.[223] This offer was stated to be 'in accordance with the principles identified in Calderbank v Calderbank [1975] 3 All ER 333 as adopted in this State, inter alia, by Ford Motor Company of Australia v Lo Presti [2009] WASCA 115'.
[223] Affidavit of Fabienne Rebecca Sharbanee filed 31 October 2022, 'FRS-6'.
In considering this issue, there are two questions for the court to consider. First, whether this offer was a settlement offer, within the terms of s 40(3) of the Defamation Act. Second, if the offer was a settlement offer, whether the defendant's rejection of the offer was unreasonable.
Was this a reasonable 'settlement offer'?
In answering this question, and taking into account the factors outlined above at [15], I have had regard to the following matters.
First, this letter was sent approximately three weeks after the defendant's defence was filed in these proceedings. I do not consider this was either at an unreasonably early stage of the litigation when the defendant had not had time to consider the claims made against him or his response to it,[224] nor an unreasonably late stage, on the eve of the trial.
[224] Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302 [22].
Second, the time allowed to the defendant to consider the offer was 14 days. I note that this is the time period that has commonly been considered as appropriate by the courts.[225] In considering whether this is a reasonable period, I have also had regard to the time period provided in O 24A of the Rules, which requires an offer to be open for 28 days. Although an offer of compromise under O 24A of the Rules and a settlement offer under s 40 of the Defamation Act both are settlement offers, the focus of each is different. An offer of compromise under O 24A focuses on the outcome that is achieved at trial and whether this outcome is more or less favourable than the offer that was made. In contrast, s 40 of the Defamation Act focuses on the conduct of the parties and, in particular, their conduct in relation to settlement offers made in the course of the proceedings.[226] For this reason, while O 24A r 3(3) of the Rules requires an offer to be open for no less than 28 days, I consider the period in which the plaintiff's offer was open for acceptance was reasonable for the purposes of s 40 of the Defamation Act.
[225] Financial Integrity Pty Ltd v Farmer (No 4) [2014] ACTSC 145 [29].
[226] See Nationwide News Pty Ltd v Weatherup [2017] QCA 70; [2018] 1 Qd R 19 [72].
Third, the offer was to settle the entirety of the proceedings, including the costs of the proceedings.
Fourth, at the time the plaintiff made his offer, on the material then known to the defendant, the plaintiff had strong prospects of success in relation to the publications complained of. In my view, the publications were clearly defamatory of the plaintiff and the imputations were serious.[227] The offer did not require the defendant to apologise.
[227] Reasons [208] - [211].
Further, I consider that at the time the offer was made, the quantum of the offer was reasonable. While I accept this assessment should not be affected by the benefit of hindsight, in my view an offer of $120,000, given the then statutory maximum of $398,500[228] and the strength of the plaintiff's case, was a reasonable assessment of the minimum amount of damages that was likely to be awarded in the event the plaintiff was successful.
[228] Defamation (Damages for Non-economic Loss) Order 2018 (WA).
Sixth, the terms of the offer were expressed clearly and foreshadowed that an application for indemnity costs may follow in the event the defendant rejected it.
For these reasons, I consider the plaintiff's letter of 14 February 2019 was reasonable and constituted a 'settlement offer', within the meaning of that term in s 40 of the Defamation Act.
Did the defendant unreasonably reject this settlement offer?
It is not in dispute that the defendant did not accept this offer.
The defendant submits that his response to the plaintiff's offer in February 2019, as well as his offers in March 2019 and July 2019, were justified because of his impecuniosity and, as a consequence, 'reasonable'.[229] It is important to note that in responding to the plaintiff's offer, at no stage did the defendant offer to apologise for his defamatory statements.
[229] Defendant's revised submissions [5] of 'Factual matters', [2] of 'Legal Considerations'.
The plaintiff contends the defendant's financial circumstances are irrelevant to the assessment of the defendant's conduct under s 40 of the Defamation Act. In support of this position, the plaintiff relied on the decision of the High Court in Northern Territory v Sangare where the court stated, in relation to the relevance of impecuniosity to costs orders, that:[230]
As a practical matter, difficulties arise in determining the level of impecuniosity at which it would become a relevant consideration. There would also be substantial practical difficulties in determining, after the conclusion of the litigation, the unsuccessful party's financial standing. In point of principle, it is basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party. That consideration of basic justice does not lose its compelling force simply because the successful party happens to be wealthy: the successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation. The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant-in-person.
[230] Northern Territory v Sangare [27].
The cases to which the plaintiff referred in support of this position differ significantly from the facts of this case. Those cases concern the pursuit of unmeritorious litigation by an impecunious litigant-in-person who has rejected one or more settlement offers from a defendant during the course of the litigation. In this case, the plaintiff has pursued ultimately successful litigation against a defendant litigant-in-person who says he is impecunious and told the plaintiff of this at an early stage.
In my view, I consider that the question as to whether a defendant is unable to pay the amount sought by a plaintiff may be relevant in assessing whether the defendant's conduct was reasonable or unreasonable. However, there is no evidence before the court to support the contention that the defendant's financial circumstances at the time of this offer or since that date were such that his rejection of the offer was reasonable. While I accept that the defendant has submitted to the court he 'is without funds and have been for some years', there is no evidence on which I could make any finding of fact as to whether this is an accurate statement.
In considering whether the defendant unreasonably rejected the plaintiff's offer, I also have had regard to the fact that there is no suggestion the conduct of the plaintiff in the course of the litigation can be said to have caused or contributed to the defendant's impecuniosity.[231]
[231] See Northern Territory v Sangare [31]; Llewellyn v Bustfree Pty Ltd [2012] QCA 354, 4.
In the absence of any evidence as to the defendant's impecuniosity, I find that the defendant unreasonably failed to accept the plaintiff's settlement offer on 14 February 2019. Given this finding, it is strictly not necessary to consider the alternative limb relied upon by the plaintiff. However, in the event I am wrong in my conclusion on this first limb, I address the alternative basis for the plaintiff's claim below.
Did the defendant make a 'settlement offer'?
The plaintiff says that at no stage of the proceedings did the defendant make a settlement offer within the terms of the Defamation Act. Specifically, the plaintiff says the offers made by the defendant on 5 March 2019 and 22 July 2019 do not meet the definition of a 'settlement offer' within s 40(3) of the Defamation Act. If this submission is accepted, the plaintiff says that court must conclude the defendant 'unreasonably failed' to make a settlement offer to the plaintiff.[232]
[232] Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2 [54].
The requirements of what constitutes a reasonable settlement offer by a defendant within s 40(3) of the Defamation Act were considered by Quinlan CJ in Jensen v Nationwide News Pty Ltd [No 13].[233] Notably, Quinlan CJ expressed the view that:[234]
an assessment of whether a settlement offer is a reasonable offer in the context of a defamation claim will include consideration of whether the offer indicates any preparedness to apologise or correct any information in the publication complained of.
March 2019 offer
[233] Jensen v Nationwide News Pty Ltd [No 13] [2019] WASC 451 (S).
[234] Jensen v Nationwide News Pty Ltd [No 13] [39].
On 5 March 2019, the defendant's then pro bono solicitors wrote to the plaintiff's solicitors. The letter outlined the defendant's financial circumstances, which were described as including the fact that bankruptcy was inevitable, and made a counter-offer of $10,000 inclusive of legal costs to settle the proceedings.[235]
[235] Affidavit of Fabienne Rebecca Sharbanee filed 31 October 2022, 'FRS-7'.
For the following reasons, I do not consider the offer contained in the defendant's solicitors letter of 5 March 2019 is a 'settlement offer' for the purposes of s 40 of the Defamation Act.
First, in this correspondence, the defendant does not give any indication of any intention or willingness to apologise to the plaintiff. In my view, the failure of the defendant to indicate any preparedness to apologise to the plaintiff weighs heavily against this offer being a reasonable offer, particularly given the quantum of the offer that was made.
Second, I accept that a payment of $10,00, inclusive of legal costs, would not have reimbursed the plaintiff for the legal costs he had already incurred at that time which must have been known to the defendant. This is because as at March 2019, the proceedings had been ongoing for almost four years. The plaintiff had filed a writ, a statement of claim, filed an application for substituted service, attended three directions hearing (at which the defendant had been ordered to pay costs of almost $2,000), requested the court issue a subpoena, and filed an affidavit of discovery. The effect of the offer, if accepted, would have been that the plaintiff would receive nothing by way of damages and almost certainly would have been out of pocket for his legal fees that had accrued to date. In my view, this outcome, in the absence of any offer of apology, is not a reasonable offer, and accordingly is not a settlement offer within the terms of s 40(3) of the Defamation Act.
July 2019 offer
On 22 July 2019, the defendant sent a letter to the plaintiff's solicitors proposing the proceedings be dismissed on the basis that 'each party pay its own costs'. The letter did not contain any offer to pay any amount for damages, to pay any amount towards the plaintiff's costs of the proceedings, or to apologise to the plaintiff.[236] In fact, the letter states that 'There was no defamation by [the defendant] of [the plaintiff]', said there was no evidence that the defendant's 'remark' had any defamatory imputations, and described the proceedings as 'misconceived'. The letter concluded by stating the defendant 'could not apologise for an alleged defamatory utterance of which I had no recollection', and that with the benefit of the audio, there was no reason to apologise for an 'utterance which was true'.
[236] Affidavit of Fabienne Rebecca Sharbanee filed 31 October 2022, 'FRS-8'.
For the following reasons, I also do not consider this offer falls within the definition of a 'settlement offer' for the purposes of s 40 of the Defamation Act.
First, an offer that would have the effect that the plaintiff would receive nothing by way of damages and would be required to bear the costs he had incurred is a significant factor that weighs against the reasonableness of the offer.[237] In this case, it is clear that had the plaintiff accepted this offer, this would have been the result.
[237] Armstrong v McIntosh [No 4] [22], [28]; Jensen v Nationwide News Pty Ltd [No 13] [39], [43].
Second, at the time the defendant made his offer, on the material then known to the defendant,[238] the defendant ought to have known that the plaintiff had strong prospects of success at least in relation to the First Publication. The First Publication was recorded, it was defamatory of the plaintiff and the imputations were serious.[239] As such, an offer that proposed the plaintiff would receive no damages and would bear his own costs to date, without any apology, was unreasonable.
[238] Including the plaintiff's summarised response to the defendant's defence in the plaintiff's settlement offer of 14 February 2019: Affidavit of Fabienne Rebecca Sharbanee filed 31 October 2022, 'FRS-6'.
[239] Reasons [208] - [211].
Third, in this letter, for the first time, the defendant acknowledged he said the words 'the offender was identified'. Until this time, the defendant had denied saying these words or had no recollection of uttering these words.[240] Notwithstanding this concession, the defendant continued to maintain these words were not defamatory of the plaintiff. The defendant did not offer to provide a satisfactory apology to the plaintiff. This conduct weighs against any finding that the letter of 22 July 2019 was a reasonable offer.
[240] Affidavit of Fabienne Rebecca Sharbanee filed 31 October 2022, 'FRS-2'; Affidavit of Fabienne Rebecca Sharbanee filed 31 October 2022, 'FRS-8' [10], [14] of 'Background Facts'.
For these reasons, I am not satisfied that either offer made by the defendant was a reasonable offer or a settlement offer for the purposes of s 40 of the Defamation Act.
Was the defendant's failure to make a settlement offer unreasonable?
The question then arises whether the defendant's failure to make a settlement offer to the plaintiff was unreasonable. The mere fact that the defendant was unsuccessful in the action, without more, does not mean that the defendant unreasonably failed to make a reasonable settlement offer.[241]
[241] McMachon v John Fairfax Publications Pty Ltd (No 8) [2014] NSWSC 673 [25].
In considering this issue, I have had regard to the matters which were in contention between the parties at this time, the plaintiff's prospects of success, the hazards of litigation, and the costs of litigation.[242]
[242] Trkulja v Yahoo! Inc LLC (No 2) [2012] VSC 217 [25]; McMachon v John Fairfax Publications Pty Ltd (No 8) [2014] NSWSC 673 [26].
The publications were found to be defamatory.[243] In my view, at all times, the defendant's pleaded defence of justification was bound to fail. Ultimately, no evidence was presented to substantiate that the defamatory imputation was substantially true.[244] Given the plaintiff had an audio recording of the First Publication, the primary issue between the parties was whether this publication was defamatory. Given the seriousness of the defamatory implications and the fact that the defendant did not have an arguable defence, I consider that all times, the plaintiff's prospects of success were strong.
[243] Reasons [208] - [211].
[244] Reasons [212] - [217].
Importantly, at no stage did the defendant offer to make a proper or effective apology to the plaintiff which unreservedly and unconditionally withdrew the suggested imputations, said they were unfounded and apologised to the plaintiff. In circumstances where the defendant's financial position prevented him from making any substantial offer of damages, in my view it was critical for the defendant to make an offer which contained a proper and effective apology. This did not occur.
In these circumstances, I am satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff. As a consequence, the plaintiff is prima facie entitled to his costs on an indemnity basis and the court is required to order the plaintiff's costs be taxed or assessed on an indemnity basis unless the 'interests of justice' require otherwise.
Do the interests of justice require otherwise?
The defendant submits that, given the conduct of the plaintiff's solicitors in this litigation, it is in the interests of justice that the court deprive the plaintiff of indemnity costs and says that the plaintiff's solicitors should be responsible for the plaintiff's costs in these proceedings.[245]
[245] Defendant's revised submissions [3(a)], [3(c)] of 'Overview', [3] of 'Legal considerations'.
The defendant relies on the terms of s 40(1)(a) of the Defamation Act and submits that the plaintiff, or his solicitors, misused his or their superior financial position.
In support of his claim, the defendant refers to an email from the plaintiff's solicitors to Quinlan CJ on 29 June 2022. In this email, the plaintiff's solicitors expressed a concern that, due to the length of time between the trial and the upcoming judgment, the defendant had time to potentially place assets outside of the reach of the plaintiff in the event my decision was favourable to the plaintiff. The defendant claims that this statement was wilfully misleading given the plaintiff's 'full knowledge' of his financial circumstances.
It is not clear in the written submissions of the defendant whether he contends that any alleged misuse hindered the early resolution of the proceedings. This is necessary as the assertion of misuse of a superior financial position is a composite concept. That is, a party is required to establish not only that the other party had a superior financial position, but also that the superior financial position was misused by hindering the ability for the remaining party or parties to resolve the proceedings prior to litigation.[246]
[246] Haddon v Forsyth (No 2) [2011] NSWSC 693 [37].
I turn first to the email from the plaintiff's solicitors to Quinlan CJ on 29 June 2022. For the following reasons, I do not accept this email is evidence that the plaintiff misused his superior financial position. First, this email was not sent to me. I only became aware of its existence when the defendant annexed it to an affidavit in support of his application to recuse myself. Second, at the time this email was sent, the trial had concluded and judgment had been reserved for some considerable time. At this stage, it is difficult to understand how any communication from the defendant's solicitors to the court could hinder the ability of the parties to resolve the matter; they were simply awaiting judgment.
Turning then to the remaining submissions, while I accept the plaintiff had a superior financial position to the defendant, for the following reasons, I do not accept the plaintiff misused this superior position, or that this hindered the early resolution of the matter.
First, in circumstances where the plaintiff was ultimately entirely successful in the claim he brought, it is difficult to accept that his conduct was misconduct, a misuse of his superior financial position or that this hindered the early resolution of the proceedings.
Second, I accept that if a defendant is unable to make an offer which includes an offer to pay a substantial amount for damages together with an offer towards costs, this may hinder the early resolution of the matter. However, this does not mean that if a plaintiff proceeds with the claim against a defendant in this position, a plaintiff is misusing their superior financial position.
Third, the failure of the defendant to make any apology to the plaintiff is a significant factor in assessing whether there has been any misuse of the plaintiff's superior financial position and whether this hindered resolution of the matter. In this case, the defendant never made any offer which included an apology. Given the purpose and policy of the Defamation Act, I consider it is unlikely (in the context of a defamation claim) that it is the misuse or use of any superior financial position that has hindered settlement. I consider the absence of a defendant making an appropriate apology that is more likely to have caused the plaintiff to proceed to trial and judgment.
In any event, where aspects of the defendant's conduct of the litigation have been improper and unjustifiable, or if they have unreasonably prolonged the litigation and added to the costs, this weighs against the interests of justice requiring the Court to depart from the obligation of the court under s 40 of the Defamation Act.[247] In this case, I have found that the defendant avoided service of the proceedings. In addition, until he was provided with the audio recording of the presentation, the defendant denied, or denied any recollection of, saying the words which gave rise to the plaintiff's claim.[248] Even after being provided with a copy of the audio recording, the defendant failed to acknowledge the words were defamatory of the plaintiff. In my view, the conduct of the defendant unreasonably prolonged the litigation and failed to narrow the issues in dispute. These matters also weigh against the Court departing from the prima facie position set out in s 40 of the Defamation Act.
[247] Armstrong v McIntosh [No 4] [79].
[248] Affidavit of Fabienne Rebecca Sharbanee filed 31 October 2022, 'FRS-8' [14] of 'Background Facts'.
In my view, none of the matters raised by the defendant support a finding that the 'interests of justice' weigh against the court departing from the prima facie position set out in s 40 of the Defamation Act.
Futility of an indemnity costs order
The defendant submits the plaintiff incurred unnecessary costs in circumstances where the plaintiff had actual knowledge of his inability to pay any costs of the proceedings, no matter how costs are assessed. I understand from this submission that the defendant is contending it would be futile for the Court to impose a costs order in the form proposed by plaintiff.
In my view, there are three primary reasons that impecuniosity, in and of itself, will not usually be sufficient for the court to depart from the ordinary rules as to costs. First, in almost all cases, there is no relevant connection between the unsuccessful party's impecuniosity and the litigation or the conduct of the successful party. That is the position in this case. Second, if impecuniosity were a bar to an order for costs there would be no disincentive for impecunious parties to bring or defend proceedings which lacked merit. Third, such a departure from the ordinary rule would require courts to assess the level of impecuniosity of the unsuccessful party in order to determine if it was sufficient to justify the Court making no order as to costs. This process would be unnecessarily time-consuming and costly.[249]
[249] JB v Northern Territory (No 2) [2019] NTCA 3 [15].
The courts have consistently rejected the suggestion that a costs order should not be made against an impecunious party because it would be futile to do so.[250] The fact that a person may not presently, or even foreseeably, be able to meet an order for costs has not been regarded as a reason to regard the creation of the debt as an exercise in futility.
[250] Northern Territory v Sangare [35].
On this basis, an assertion that the defendant has 'no means to pay costs' carries little weight in the exercise of my discretion as to what is the appropriate costs order in this matter.
As the High Court stated in Northern Territory v Sangare:[251]
Whether a party is rich or poor has, generally speaking, no relevant connection with the litigation. It may be said, by way of qualification to that general proposition, that a party's financial position may be relevant to the extent that it may inform the structure of a costs order. For example, impecuniosity may justify providing for the payment of costs over time in order to avoid inflicting unnecessary hardship while at the same time improving the likelihood of compliance with the order.
[251] Northern Territory v Sangare [32].
Conclusion
For the reasons set out above, the order as to costs will be that the defendant pay the plaintiff's costs of and incidental to the proceeding on an indemnity basis, to be assessed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
FD
Associate to the Honourable Justice Hill
5 APRIL 2023
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