FEDERAL COURT OF AUSTRALIA
Seven Network (Operations) Limited v Greiss [2024] FCAFC 162
Appeal from: Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98
Greiss v Seven Network Operations Ltd (Costs) [2024] FCA 377File number: NSD 607 of 2024 Judgment of: LEE, CHEESEMAN AND JACKMAN JJ Date of judgment: 11 December 2024 Catchwords: DEFAMATION – where journalist tweeted and media organisation reported that the respondent stared down the complainant and spat at or towards her outside courthouse – where appellants pleaded defences of substantial truth, contextual truth and honest opinion – where primary judge rejected substantial truth defence – whether the respondent spat “towards” or “in the direction of” the complainant – where no error established in relation to central findings – whether substantial truth defence made out in relation to Facebook post – where conclusion that spit was “for” the complainant or “directed to her” sufficient to justify substantial truth of the imputations – cross-appeal – contextual truth – s 26 of the Defamation Act 2005 (NSW) – where primary judge upheld defence in relation to Article and Tweet – where contextual imputation carried “in addition to” pleaded imputations – whether the respondent was “further harmed” by the pleaded imputations – where Court must focus on the facts, matters and circumstances said to establish truth of contextual imputation, rather than terms of contextual imputation – where no compelling reason to depart from intermediate appellate authority – where defence established in relation to all three publications – cross-appeal dismissed – appeal allowed Legislation: Defamation Act 2005 (NSW) ss 26, 26(a), 26(b)
Defamation Act 1974 (NSW) (repealed) s 16(2)(c)
Cases cited: Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228
Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2020] FCAFC 122; (2020) 279 FCR 631
Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157
Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329; (2015) 91 NSWLR 341
Greiss v Seven Network (Operations) Limited (Costs) [2024] FCA 377
Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98
John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; (2001) 53 NSWLR 541
McMahon v John Fairfax Publications Pty Ltd (No 3) [2012] NSWSC 196
Nassif v Seven Network (Operations) Ltd [2021] FCA 1286
Nationwide News Pty Ltd v Weatherup [2017] QCA 70; [2018] 1 Qd R 19
Pallas v Lendlease Corporation Ltd [2024] NSWCA 83; (2024) 114 NSWLR 81
Milmo P and Rogers W V H, Gatley on Libel and Slander (Sweet & Maxwell, 11th ed, 2008) Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 70 Date of hearing: 4 November 2024 Counsel for the appellants/cross-respondents: Mr M Richardson SC…
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Details
- AGLC
- Seven Network (Operations) Limited v Greiss [2024] FCAFC 162
- Case
- [2024] FCAFC 162
- Decision Date
CaseChat Overview and Summary
In the case of Seven Network (Operations) Limited v Greiss, the respondent, Mr Greiss, pursued a defamation claim against the appellants, Seven Network (Operations) Limited, after they published a Facebook post, an Article and a Tweet which alleged that Mr Greiss spat at or towards the complainant, a woman, outside a courthouse. The complainant was a primary Crown witness in a criminal case involving Mr Greiss's friend, Mr Jarryd Hayne, who was being sentenced. The appellants pleaded the defences of substantial truth, contextual truth, and honest opinion. The primary judge dismissed the defences of substantial truth and honest opinion, finding that Mr Greiss's conduct was disgraceful, and awarded the respondent $37,940 plus costs. The appellants appealed and the respondent cross-appealed.
The legal issues before the court were whether the primary judge was correct in rejecting the defences of substantial truth and contextual truth. The court considered whether the defence of substantial truth was made out in relation to the Facebook post, and whether the primary judge erred in finding that Mr Greiss spat towards the complainant. The court also considered whether the defence of contextual truth was made out in relation to all three publications, and whether the respondent was further harmed by the pleaded imputations. The court examined the evidence, the findings of the primary judge, and the relevant statutory provisions.
The court found that the primary judge's findings as to what occurred were not in error, and that the defence of substantial truth was made out in relation to the Facebook post. The court held that the substantial truth defence was made out because the conclusion that Mr Greiss spat "for" the complainant or "directed to her" was sufficient to justify the substantial truth of the imputations. The court also found that the defence of contextual truth was made out in relation to all three publications. The court held that the focus must be on the facts, matters and circumstances said to establish the truth of the contextual imputation, rather than the terms of the contextual imputation itself. The court found no compelling reason to depart from intermediate appellate authority and held that the defence was made out in relation to all three publications. The appeal was allowed and the cross-appeal was dismissed.
The court ordered that the appeal be allowed, the cross-appeal be dismissed, and the primary judgment be set aside and in lieu thereof, that proceedings NSD 292 of 2022 be dismissed with costs. The respondent was ordered to pay the appellants' costs of the appeal. The orders were to be entered in accordance with Rule 39.32 of the Federal Court Rules 2011.
The legal issues before the court were whether the primary judge was correct in rejecting the defences of substantial truth and contextual truth. The court considered whether the defence of substantial truth was made out in relation to the Facebook post, and whether the primary judge erred in finding that Mr Greiss spat towards the complainant. The court also considered whether the defence of contextual truth was made out in relation to all three publications, and whether the respondent was further harmed by the pleaded imputations. The court examined the evidence, the findings of the primary judge, and the relevant statutory provisions.
The court found that the primary judge's findings as to what occurred were not in error, and that the defence of substantial truth was made out in relation to the Facebook post. The court held that the substantial truth defence was made out because the conclusion that Mr Greiss spat "for" the complainant or "directed to her" was sufficient to justify the substantial truth of the imputations. The court also found that the defence of contextual truth was made out in relation to all three publications. The court held that the focus must be on the facts, matters and circumstances said to establish the truth of the contextual imputation, rather than the terms of the contextual imputation itself. The court found no compelling reason to depart from intermediate appellate authority and held that the defence was made out in relation to all three publications. The appeal was allowed and the cross-appeal was dismissed.
The court ordered that the appeal be allowed, the cross-appeal be dismissed, and the primary judgment be set aside and in lieu thereof, that proceedings NSD 292 of 2022 be dismissed with costs. The respondent was ordered to pay the appellants' costs of the appeal. The orders were to be entered in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The appeal be allowed.
2. The cross-appeal be dismissed.
3. Order 1 made on 20 February 2024 entering judgment in favour of the applicant and Order 1 made on 16 April 2024 as to costs be set aside and in lieu thereof order that proceedings NSD 292 of 2022 be dismissed with costs.
4. The respondent pay the appellants’ costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
This is a defamation appeal in relation to a judgment whereby the respondent, Mr Greiss, recovered the modest sum of $37,940 plus an award of costs against the appellants: Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98 (primary judgment or PJ). Although the appellants published three matters being an Article, a Facebook post and a Tweet (which, for convenience, are set out as annexures to these reasons), they were only found liable in relation to the publication of the second matter, the Facebook post. The genesis of the controversy arose from Mr Greiss attending the District Court of New South Wales in Newcastle supporting Mr Jarryd Hayne, who was being sentenced following his conviction for criminal offences (a conviction that was subsequently set aside by the Court of Criminal Appeal of New South Wales). Mr Greiss and other supporters of Mr Hayne left the courthouse and stood together within a courtyard to the right of the entrance. About five minutes later, the primary Crown witness (who I will describe as the complainant) emerged from the building, escorted by two sheriff’s officers and others, apparently detectives and the Crown prosecutor. As the group left the building, they turned right and walked down a ramp. When Mr Greiss noticed the group leaving, he rose from his seat and walked towards the ramp, positioning himself at the top of a small staircase which led to the ramp. He looked at the group and noticed that it included the complainant (see PJ [8]–[9]). What thereafter occurred was controversial at trial. Following a lengthy trial and an exhaustive review of the evidence, the primary judge (at PJ [201]–[202]) made several central findings as to what occurred (central findings) in the course of rejecting aspects of the evidence given by Mr Greiss. These were: (1)Mr Greiss’s attention was focussed on the complainant from the moment he stood up to the moment the complainant left the court precinct;(2)Mr Greiss stared at the complainant; (3)Mr Greiss pointed at the complainant; (4)At the time Mr Greiss’s head made a downward motion on the CCTV, he spat; (5)Mr Greiss spat in the direction of the complainant;(6)Mr Greiss intended for his spit to be a sign of disgust and contempt for the complainant;(7)Mr Greiss called the complainant an escort on two separate occasions and urged the media to publish this allegation; (8)Mr Greiss intended to harm the complainant by calling her an escort;(9)The conduct referred to in 1 to 8 above was disgraceful; and(10)Mr Greiss spoke with a raised voice that was loud enough to attract the attention of the woman walking beside the complainant (and was not speaking quietly, just asking the sheriff a “simple” or “harmless” question or having a polite conversation with the sheriff). The primary judge also found, and it was not in dispute, that the Facebook post carried the following imputations (at PJ [44]): (1)Mr Greiss spat at a rape complainant outside court; and (2)Mr Greiss is despicable, in that he spat at a rape complainant outside court.
Ratio Decidendi
Legal Principle Established
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