Stead v Fairfax Media Publications Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15  

File number: NSD 2153 of 2019
Judgment of: LEE J
Date of judgment: 27 January 2021
Catchwords:

DEFAMATION – proceeding against journalist and publisher of Australian Financial Review in respect of five publications – eight imputations alleged to have been conveyed – applicant a former director and head of venture capital at listed company – journalist published multiple articles critical of applicant and her conduct and calling her a feminist cretin – consideration of whether imputations conveyed – consideration of whether meanings not substantially different to pleaded imputations conveyed – where Court determined during course of hearing that certain imputations were conveyed – where defence of honest opinion pleaded pursuant to s 31 of Defamation Act 2005 (NSW) – consideration of relevant principles – whether matters an expression of opinion or statements of fact – whether opinions related to a matter of public interest – whether opinions based upon proper material – whether opinions honestly held – four defamatory imputations conveyed – defence of honest opinion not successful

DAMAGES – where applicant sought general damages for non-economic loss – where applicant sought aggravated damages – assessment of general damages – where alleged unjustifiable conduct said to support award of aggravated damages – consideration of principles concerning construction of s 35 of Defamation Act 2005 (NSW) – where circumstances of publication and conduct of proceeding relied upon as aggravating conduct – where journalist engaged in sustained campaign of offensive mockery and bullying of applicant – where defence of justification abandoned shortly prior to trial yet respondents did not concede truth could not be proved – circumstances relating to publication warrant award of aggravated damages

Legislation:

Corporations Act 2001 (Cth) Ch 7, ss 761G, 761GA

Evidence Act 1995 (Cth) s 131

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

Judiciary Act 1903 (Cth) s 79

Federal Court Rules 2001 (Cth) rr 16.02, 16.06, 16.08, 16.41

Defamation Act 1974 (NSW) s 40A

Defamation Act 2005 (NSW) ss 8, 25, 26, 31, Pt 4 Div 3, ss 34, 35, 37, 39, 40

Defamation Amendment Act 2020 (NSW) s 31

Defamation Practice Note (DEF-1)
Cases cited:

Attrill v Christie [2007] NSWSC 1386

Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632

Axon v Axon (1937) 59 CLR 395

Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; (2018) 56 VR 674

Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183

Briginshaw v Briginshaw (1938) 60 CLR 336

Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091

Channel Seven Adelaide v Manock [2007] HCA 60; (2007) 232 CLR 245

Crampton v Nugawela (1996) 41 NSWLR 176

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135

Feldman v Polaris Media Pty Ltd as trustee of The Polaris Media Trust trading as The Australian Jewish News (No 2) [2018] NSWSC 1035; (2018) Aust Torts Reports ¶82-395

Gardiner…

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Details
Case
[2021] FCA 15
Decision Date

CaseChat Overview and Summary

In the case of Stead v Fairfax Media Publications Pty Ltd, Dr Elaine Stead, a former director and head of venture capital at a listed company, brought a defamation proceeding against Fairfax Media Publications Pty Ltd, the publisher of the Australian Financial Review, and a journalist, Mr Mark Aston, in respect of five publications. Dr Stead alleged eight imputations that were conveyed through these publications, which she claimed were defamatory. The central issue for the court was to determine whether the imputations were indeed conveyed and if they were not substantially different from those pleaded. Additionally, the court had to assess whether the defence of honest opinion, as provided under section 31 of the Defamation Act 2005 (NSW), was applicable and successful. Dr Stead also sought general and aggravated damages for the non-economic loss and the unjustifiable conduct she experienced.

The court examined the evidence provided by Dr Stead and Mr Aston, finding that certain imputations were indeed conveyed. It was determined that four specific defamatory imputations were present in the publications. The defence of honest opinion was rejected by the court as it found that the opinions expressed were not based on proper material and were not honestly held. Furthermore, the court assessed the damages sought by Dr Stead, concluding that the circumstances of publication and the conduct of the proceeding warranted an award of aggravated damages due to the sustained campaign of offensive mockery and bullying directed at her by Mr Aston.

Following the determination of the defamatory imputations and the unsuccessful defence of honest opinion, the court moved to address the damages. Dr Stead's compelling testimony regarding her subjective hurt and the nature of the publication and proceeding led the court to award both general and aggravated damages. The court found that the circumstances of publication and the conduct of the proceeding supported the award of aggravated damages.

Orders

Orders of the court

1. The proceeding be adjourned to 9am on 3 February 2021 for the making of final orders.

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

Having found these imputations were conveyed in relation to Dr Stead and they were defamatory, it is necessary to examine the only defence that was pressed: the statutory defence of honest opinion. But before doing so in detail, it is convenient to deal with some aspects of the evidence. C THE EVIDENCE OF DR STEAD AND MR ASTON GENERALLY It will be necessary below to make specific findings when it comes to considering the defence and the question of damages. But it is well to commence by making some general findings about the credit and aspects of the evidence of the main protagonists, Dr Stead and Mr Aston; and also explain how it is necessary to deal with one aspect of the evidence.C.1 Dr Stead Dr Stead presented as a witness of the truth. Save for two aspects of her evidence which I will deal with below, I generally found her evidence to be impressive. She was responsive and presented as someone doing her best to give honest answers. Dr Stead obviously (and unsurprisingly) felt the weight of this litigation heavily and her testimony as to her subjective hurt was compelling. I will return to those specific aspects of her evidence when I deal with damages. It is worth commencing by mentioning two (to an extent connected) aspects of Dr Stead’s personal and business life that received a good deal of attention during the course of the evidence. The first was that Dr Stead had been, well prior to 2019, an enthusiastic and, at least in some respects, indiscriminate user of social media. This had caused some disquiet within Blue Sky and some criticism in the AFR. For example, in a Rear Window article written by Mr Aston on 28 May 2018 (“For Blue Sky, plausibility remains illusive”), the following appeared: Blue Sky’s VC boss Elaine Stead remains the worst (remaining) enemy of the company’s negligible plausibility … To Future Fund chief executive David Neal’s comments last week that he wanted to put more capital into “global grade” Australian VC managers, Stead tweeted (to the headline, not the words in the article itself, naturally) that “no there’s not” any shortage of local VC capital. Gold, given Neal’s next line, that “it’s not in our interests or the interests of the taxpayer I don’t think for us to be investing in organisations that don’t meet that grade”. Better still, though, were her thought bubbles on Sunday. “Lowest of lows today,” she admitted at 3:19pm.“OMFG I just heard the best news but it’s a secret!” she tweeted at 6:54pm, turning on a dime, like a parody of a tween at a slumber party.The only reassuring part of this unhinged drivel is just how late Blue Sky brings its VC chief into VC deals. Could there yet be financial redemption across the caravan parks of the Sunshine State?Oh, and then she tweeted: “Yep, pretty sure I’ve lost my passport.”(Emphasis in original). Devoid of any context (a topic to which I will return), the sending of these tweets does seem unusual conduct for a public company director in the midst of an existential crisis for the company on whose board she sat. Perhaps unsurprisingly, the next day, a shareholder and Ord Minnett investment advisor communicated with Blue Sky’s then interim Chief Executive Officer, Mr Kim Morison in the following terms: Someone kindly should perhaps take Dr Elaine Stead’s mobile off her to stop tweeting… see below… is this for real? If this is real…this only damages Blue Sky credibility further… if not, take Mr Aston to court. Cheers

Decision

Reasons for decision

It is necessary to put out of mind the content of the Second Matter for the purpose of seeking to ascertain the meaning conveyed by the tweet. Considered solely on its own account, on balance, I do not believe it conveys the meaning that Dr Stead deliberately and shamelessly lost other people’s money. The sting of the tweet is obvious and the message is conveyed provocatively. The difficulty is that deliberately and shamelessly losing the money of others is conduct that would be considered by an ordinary reasonable reader as wicked, and not merely irresponsible or stupid conduct. The audience or readership of the tweet, composed of ordinary decent persons, of unexceptional intelligence, experience and education, would consider the tweet as conveying the notion that the Premier was making an inexplicable decision worthy of criticism by insisting on the continuing involvement with the SAVCF of someone said to be incompetent. The Eighth Alleged Imputation is pitched too highly, and given it is the only pleaded meaning of the publication, Dr Stead must fail in this aspect of her case.B.4 Conclusions as to Meaning It follows from the above, that on 7 December 2020, orders were made recording findings that the following imputations were conveyed: (1)as to the First Matter, that: (a)Elaine Stead is a cretin (Imputation 1A); (b)Elaine Stead rashly destroyed capital causing enormous losses to unitholders (Imputation 1B);(c)Elaine Stead is a venture capitalist, who made stupid investments in two worthless companies, Shoes of Prey and Vinomofo, which had no prospects of success (Imputation 1C); (2)as to the Second Matter, that Elaine Stead is an untrustworthy venture capitalist who fails to deliver on her promises to shareholders and investors (Imputation 2). Having found these imputations were conveyed in relation to Dr Stead and they were defamatory, it is necessary to examine the only defence that was pressed: the statutory defence of honest opinion. But before doing so in detail, it is convenient to deal with some aspects of the evidence. C THE EVIDENCE OF DR STEAD AND MR ASTON GENERALLY It will be necessary below to make specific findings when it comes to considering the defence and the question of damages. But it is well to commence by making some general findings about the credit and aspects of the evidence of the main protagonists, Dr Stead and Mr Aston; and also explain how it is necessary to deal with one aspect of the evidence.C.1 Dr Stead Dr Stead presented as a witness of the truth. Save for two aspects of her evidence which I will deal with below, I generally found her evidence to be impressive. She was responsive and presented as someone doing her best to give honest answers. Dr Stead obviously (and unsurprisingly) felt the weight of this litigation heavily and her testimony as to her subjective hurt was compelling. I will return to those specific aspects of her evidence when I deal with damages. It is worth commencing by mentioning two (to an extent connected) aspects of Dr Stead’s personal and business life that received a good deal of attention during the course of the evidence. The first was that Dr Stead had been, well prior to 2019, an enthusiastic and, at least in some respects, indiscriminate user of social media. This had caused some disquiet within Blue Sky and some criticism in the AFR. For example, in a Rear Window article written by Mr Aston on 28 May 2018 (“For Blue Sky, plausibility remains illusive”), the following appeared: Blue Sky’s VC boss Elaine Stead remains the worst (remaining) enemy of the company’s negligible plausibility … To Future Fund chief executive David Neal’s comments last week that he wanted to put more capital into “global grade” Australian VC managers, Stead tweeted (to the headline, not the words in the article itself, naturally) that “no there’s not” any shortage of local VC capital. Gold, given Neal’s next line, that “it’s not in our interests or the interests of the taxpayer I don’t think for us to be investing in organisations that don’t meet that grade”. Better still, though, were her thought bubbles on Sunday. “Lowest of lows today,” she admitted at 3:19pm.“OMFG I just heard the best news but it’s a secret!” she tweeted at 6:54pm, turning on a dime, like a parody of a tween at a slumber party.The only reassuring part of this unhinged drivel is just how late Blue Sky brings its VC chief into VC deals. Could there yet be financial redemption across the caravan parks of the Sunshine State?Oh, and then she tweeted: “Yep, pretty sure I’ve lost my passport.”(Emphasis in original).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.