Selkirk v Wyatt

Case [2024] FCAFC 48

FEDERAL COURT OF AUSTRALIA

Selkirk v Wyatt [2024] FCAFC 48  

Appeal from Selkirk v Hocking (No 2) [2023] FCA 1085
File number: VID 830 of 2023
Judgment of: BESANKO, ANDERSON AND O'SULLIVAN JJ
Date of judgment: 15 April 2024
Catchwords:

DEFAMATION — appeal from orders of primary judge dismissing defamation proceeding — where matter governed by, inter alia, s 10A of the Defamation Act 2005 (Vic) where the primary judge identified three separate questions — where the primary judge found that “serious harm” within the meaning of s 10A(1) of the Defamation Act not established — where primary judge did not accept that anyone thought less of the appellant as a result of the publication in circumstances where the appellant admitted she engaged in acts of deception — where primary judge took into account the limited number of persons to whom the article was published — where the primary judge decided not to consider whether the article conveyed one or more of the pleaded imputations

DEFAMATION — consideration of what constitutes “serious harm” within the meaning of s10A of the Defamation Act — consideration of Lachaux v Independent Print Ltd [2019] UKSC 27; (2020) AC 612 — whether the primary judge erred in refusing during the course of the trial the appellant’s application to call three proposed witnesses who has produced written statements — consideration of the interests of justice and s 37M of the Federal Court of Australia Act 1976 (Cth) — whether the primary judge erred in relying on the appellant’s acceptance that she had engaged in acts of deception — consideration of  Colagrande v Kim [2022] FCA 409 and the onus of proof with respect to bad reputation — whether the primary judge erred in not determining the meaning of the publication and whether it gave rise to the pleaded imputations — held: appeal dismissed

Legislation:

Federal Court of Australia Act 1976 (Cth) s 37M

Judiciary Act 1903 (Cth) s 79

Defamation Act 2005 (Vic) ss 10A, 29, 29A, 30

Defamation Act 2013 (UK) s 1  
Cases cited:

Associated Newspapers Ltd v Dingle [1964] AC 371

Banks v Cadwalladr [2023] EWCA Civ 219; [2023] 3 WLR 167

Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474

Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44

Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486

Colagrande v Kim [2022] FCA 409

Faruqi v Latham [2018] FCA 1328

George v Cannell and LCA Jobs Limited [2021] EWHC 2988 (QB); [2021] 4 WLR 145

House v R [1936] HCA 40; (1936) 55 CLR 499

Lachaux v Independent Print Ltd v [2015] EWHC 2242 (QB); [2016] QB 402

Lachaux v Independent Print Ltd [2017] EWCA Civ 1334; [2018] QB 594

Lachaux v Independent Print Ltd [2019] UKSC 27; (2020) AC 612

Matthews v SPI Electricity Pty Ltd (Ruling No 9) [2012] VSC 340

Price v MGN Ltd [2018] EWHC 3014 (QB); [2018] 4 WLR 150

Rader v Haines

Continue reading Selkirk v Wyatt

Sign in free to access the full text

Details
AGLC
Selkirk v Wyatt [2024] FCAFC 48
Case
[2024] FCAFC 48
Decision Date

CaseChat Overview and Summary

Selkirk v Wyatt was an appeal against the dismissal of a defamation proceeding by the appellant, Simone Selkirk, against the respondents, including the publishers of an article. The appeal centred on the primary judge's determination that the appellant had not established the "serious harm" required under section 10A of the Defamation Act 2005 (Vic), and the judge's decision not to consider whether the article conveyed any of the pleaded imputations. The appellant argued that the publication caused her serious harm and that the primary judge erred in several respects, including in the admission and exclusion of certain evidence.

The court had to decide if the primary judge was correct in finding that the appellant had not established "serious harm" as required by section 10A of the Defamation Act 2005 (Vic). Additionally, the court had to consider whether the primary judge erred in not considering whether the article conveyed any of the pleaded imputations and if the judge made errors in the admission and exclusion of evidence. The appellant argued that the limited audience of the article did not negate the seriousness of the harm caused by the defamatory content. Furthermore, the appellant argued that the primary judge should have allowed additional evidence, including witness statements, to support her claim of serious harm.

The court found that the primary judge did not err in his determination that the appellant had not established "serious harm." The court noted that the primary judge had correctly considered the limited number of people to whom the article was published and that the appellant had admitted to engaging in acts of deception. The court held that the appellant's acceptance of her deceptive conduct undermined the claim of serious harm. Furthermore, the court found that the primary judge did not err in his decision not to consider the meaning of the publication and whether it conveyed the pleaded imputations, as the primary judge had already dismissed the proceeding on the basis of the "serious harm" requirement. The court concluded that the appeal should be dismissed, and the parties would be heard on costs.

The final orders of the court were to dismiss the appeal and to hear the parties on the matter of costs. The parties were directed to be heard on costs in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The appeal be dismissed.

2. The parties be heard as to costs.

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

The fourth and final ground of appeal is as follows:4. The Court erred at law in denying procedural fairness by:(a)allowing and accepting the fifth respondent’s evidence in the form of expert evidence without prior notice to the applicant and further denying the applicant opportunity to respond with expert evidence in reply;and(b)disallowing the appellant’s business email records, which was material evidence responding to the issue of the scope of publication of the fifth and sixth respondent’s article having a wider audience than ‘3-page views’, which evidence was an exception to hearsay in accordance with section 69 of the Evidence Act 2008 (Vic) (Evidence Act);(c)failing to exercise the discretion under section 67(4) and (5) of the Evidence Act by dismissing, on the first day of hearing, the appellant’s application to rely on the signed (not sworn) Witness Statements, which was material evidence responding to the issue of serious harm caused by the fifth and sixth respondent’s article; andParticularsa.The appellant’s ‘serious harm’ Witness Statements were annexed in final unsigned form to the Affidavit of Simone Selkirk, dated 1 August 2023 for the advance awareness of the fifth and sixth respondent’s, and were again annexed in signed (not sworn) form to the Supplementary Reply Affidavit of Simone Selkirk, dated 21 August 2023 again for the preparation and awareness of the fifth and sixth respondents.(d)dismissing, on the first day of the hearing, the appellant’s application to call the Witness Statement witnesses who were confirmed to be available to give evidence under oath on the first day of the hearing, who were material witnesses who could give direct evidence responding to the issue of serious harm caused by the fifth and sixth respondent’s article;Particularsa. The appellant repeats the Particulars set out in 4(c) above4(b); (c) and (d) being disallowed on the judgement grounds of case management transgression considerations as overriding the interests of justice and the just resolution of the dispute, contrary to Section 37M of the Federal Court Act; and in the premises the Court ought to have exercised its discretion under Rules 1.32 and 1.34 of the Federal Court Rules to allow the appellant’s evidence to be adduced. It is important to note the following matters. First, Grounds 4(b) and (c) in the Notice of appeal were expressly abandoned by the appellant and I say no more about them. Secondly, there was no suggestion by the appellant that her evidence alone was sufficient to establish serious harm. In fact, the appellant went so far as to concede in her written submissions that absent the evidence of the three proposed witnesses she sought leave to call, she could not succeed in meeting the serious harm test (see the appellant’s written submissions in chief at [8] “Critically, without this evidence the applicant was bound to lose the application”; and [10(i)] “The evidence would have been crucial to demonstrating that the publication had caused serious harm”; and [10(iii)] “On the other hand, the prejudice to the Appellant in not allowing the evidence was profound, because without that evidence the Appellant had no means of satisfying the serious harm requirement under section 10A of the Defamation Act”). Counsel for the appellant in his oral submissions reiterated the importance of the three proposed witnesses when he emphasised how critical their evidence was (see p 11 of the transcript of the hearing of the appeal).

Decision

Reasons for decision

The appellant also submitted that it is significant that the statements were not made to a small class of family members, spouses, sporting club associates and similar. Her argument was that Lord Sumption in Lachaux had said that a claimant may not establish serious harm because although the allegation is grave, the publication was only to a small number of people or to people none of whom believed it or possibly to people among whom the claimant had no reputation to be harmed. The argument advanced by the appellant, as far as I understood it, was that the class she identified was the type of class to which Lord Sumption referred and that that was not the class of persons in issue in this case. I do not accept this submission. The question is one of fact, not of defining categories and then concluding that publication to those categories does or does not amount to serious harm. CONCLUSION For these reasons, the appeal must be dismissed, the parties will be heard on costs. I have had the benefit of reading a draft judgment of the learned presiding judge and agree with the orders that he proposes and the reasons given for making those orders. I have had the advantage of reading the draft reasons for judgment of Besanko J. I agree the appeal should be dismissed for the reasons given by his Honour.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.