FEDERAL COURT OF AUSTRALIA
Selkirk v Hocking (No 2) [2023] FCA 1085
File number(s): VID 429 of 2022 Judgment of: O’CALLAGHAN J Date of judgment: 13 September 2023 Catchwords: DEFAMATION – s 10A(1) of the Defamation Act 2005 (Vic) – where order previously made that the “serious harm element” of the cause of action for defamation brought against fifth and sixth respondents by the applicant be heard separately from any other questions pursuant to s 37P of the Federal Court of Australia Act 1976 (Cth) and r 30.01 of the Federal Court Rules 2011 (Cth) – where order also made that the extent of publication of the online article (article) also be so determined – meaning of phrase “serious harm to the reputation of the person” considered – Lachaux v Independent Print Ltd [2020] AC 612 applied – where applicant admitted she had committed multiple acts of deception – where no evidence anyone thought less of applicant by reason of the publication of the article – where limited publication of article – held: applicant had not proven publication of the article caused or was likely to cause serious harm to her reputation – proceeding dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 37M
Judiciary Act 1903 (Cth) s 79
Crimes Act 1900 (NSW) ss 192E, 193C, 254
Defamation Act 2005 (Vic) s 10A(1)
Evidence Act 1995 (NSW) s 191
Transport Accident Act 1986 (Vic) s 93
Defamation Act 2013 (UK) s 1
Cases cited: Ames v Spamhaus Project Ltd [2015] 1 WLR 3409
Banks v Cadwalladr [2023] 3 WLR 167
Lachaux v Independent Print Ltd [2018] QB 594
Lachaux v Independent Print Ltd [2020] AC 612
Mobilio v Balliotis [1998] 3 VR 833
Newman v Whittington [2022] NSWSC 249
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
Rader v Haines [2022] NSWCA 198
Scott v Sampson (1882) 8 QBD 491
Selkirk v Director of Public Prosecutions [2020] NSWSC 1590
Selkirk v Hocking [2023] FCA 432
Stoltenberg v Bolton [2020] NSWCA 45
Division: General Division Registry: Victoria National Practice Area: Other Federal Jurisdiction Number of paragraphs: 96 Date of hearing: 4-5 September 2023 Counsel for the Applicant: Mr TJ Sowden Counsel for the Fifth and Sixth Respondents: Mr JA Castelan Solicitor for the Fifth and Sixth Respondents: MST Lawyers ORDERS
VID 429 of 2022 BETWEEN: SIMONE SELKIRK
Applicant
AND: SEAN HOCKING
First Respondent
NAMEBRIGHT.COM INC
Second Respondent
NATHAN HOWARD (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
O’CALLAGHAN J
DATE OF ORDER:
13 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The proceeding be dismissed.
2.The fifth and sixth respondents file submissions on costs, not exceeding three pages, by no later than 4:00pm on 20 September 2023.
3.The applicant file submissions on costs in reply, not exceeding three pages, by no later than 4:00pm on 27 September 2023.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’CALLAGHAN J
INTRODUCTION
By her…
Continue reading Selkirk v Hocking (No 2)
Sign in free to access the full text
- AGLC
- Selkirk v Hocking (No 2) [2023] FCA 1085
- Case
- [2023] FCA 1085
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the publication of the article had caused or was likely to cause serious harm to Ms Selkirk’s reputation, as required by s 10A(1) of the Defamation Act 2005 (Vic). The court examined the evidence provided by Ms Selkirk to assess the impact of the publication on her professional reputation as a solicitor. It noted that Ms Selkirk admitted to multiple acts of deception over a significant period, despite the convictions being quashed. The court had to determine if these admissions negated any serious harm caused by the publication of the article.
The court concluded that Ms Selkirk had not demonstrated that the publication of the article had caused or was likely to cause serious harm to her reputation. Despite her claims that she faced difficulties in finding employment and that her professional reputation depended on her integrity, the court found the evidence insufficient to establish serious harm. The court relied on the principles from Lachaux v Independent Print Ltd [2020] AC 612, where it was held that the harm must be a consequence of the publication and not the publication itself. The limited publication of the article and the admissions by Ms Selkirk further supported the court’s decision that she had not proven the necessary element of serious harm.
The court dismissed the proceeding and ordered the fifth and sixth respondents to file submissions on costs by a specific deadline, followed by the applicant's reply. The final orders were to be entered in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The proceeding be dismissed.
2. The fifth and sixth respondents file submissions on costs, not exceeding three pages, by no later than 4:00pm on 20 September 2023.
3. The applicant file submissions on costs in reply, not exceeding three pages, by no later than 4:00pm on 27 September 2023.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
I should also add that Ms Selkirk filed written submissions which she prepared herself, but they were not referred to by her counsel in his closing submissions (or at all). I therefore put them to one side. Her counsel also made no particular reference to Ms Selkirk’s affidavit evidence either, other than to make this submission:So the serious harm, your Honour – there is some evidence as to impact on the applicant herself. She gives evidence that she was shunned in terms of applying for jobs. Some of that is still left in. Some of it is out. I think it would be open for your Honour to draw an inference that, as a professional, as a solicitor and given the importance of honesty and integrity in the profession, that it would have a deleterious impact on her reputation and a serious one at that. I don’t – in my submission, direct evidence that people, for example, shunned her is not needed, although, there’s some evidence of that left in her affidavit … CONSIDERATION The only particular or serious harm alleged by Ms Selkirk about which any evidence was led was that her “professional reputation depends on her integrity as an admitted member of the legal profession and to have an unblemished reputation”; that the “imputations as alleged pose a serious risk to [her] ability to obtain gainful employment in a legal or executive role” and are matters which are “likely to prejudice [her] ability to obtain such employment”. See paragraph [10] above. The immediate difficulty with the plea, and with the evidence led in support of it, is that neither address the critical question of whether the publication of the article caused any, let alone any serious, harm to Ms Selkirk. As Lord Sumption said in Lachaux v Independent Print Ltd [2020] AC 612 at [14]: “… [t]he reference to a situation where the statement ‘has caused’ serious harm is to the consequences of the publication, and not the publication itself. It points to some historic harm, which is shown to have actually occurred. This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. The same must be true of the reference to harm which is ‘likely’ to be caused”. Here, the evidence goes no further than vague assertions by Ms Selkirk that between February 2022 and September 2022, when she obtained employment in her field, the process of finding a job did not go very well, offers went cold and a number of referees were not contacted. Even if those things were attributable to the publication of the article – and I emphasise, there is no evidence of that whatsoever – I do not accept that those things constitute “serious harm” within the meaning of s 10A(1) of the Defamation Act, in any event. Further, Ms Selkirk has admitted through her counsel, before the Magistrate and on appeal, and in the witness box before me, that on 17 separate occasions over a very significant period of time (more than two years), she engaged in the acts of deception set out at paragraph [70] above. In those circumstances, I do not accept that even widespread publication of the article telling the tale of her convictions and of her intention to appeal them, could have caused her reputation to be made worse. It is true that the convictions were quashed on grounds that included that the Crown had not proven “dishonesty” within the meaning of the statute, but where Ms Selkirk conceded that what she did was nonetheless deceitful, in my view she proffered a distinction without a relevant difference.