Mitigation: identification of sector of reputation
162 The fundamental requirement of evidence of good or bad character is that it "should be directed to that sector of a man's character which is relevant": Plato Films v Speidel (at 1140) per Lord Denning, a proposition accepted by the Court of Appeal in Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 (at 801). As Ipp AJA observed in ABC v McBride (at [17]) by "'character', Lord Denning meant 'reputation'." As the Court explained in Morosi (at 801), "relevant" meant "relevant to the libel".
163 The issue of sector identification was dealt with in ABC v McBride in a manner neither party to this appeal challenged. In that case the ABC sought to plead bad reputation in mitigation of damages in defamation proceedings commenced by Mr McBride in relation to a Four Corners television program broadcasted in August 1988. He pleaded two imputations each of which, in substance, alleged that the matter complained of conveyed that he had endangered his women patients. The particulars (the "reputation particulars") the ABC advanced to assert that Mr McBride did not have a good reputation in the practice of his profession related to matters arising both before and after the date of publication. The particulars fell into two categories: public knowledge and public findings.
164 The public findings relied on were first, a "Committee of Inquiry" finding in November 1988 that Dr McBride had engaged in scientific fraud, secondly findings in 1993 of the Medical Tribunal to the effect that by reason of his scientific fraud, he lacked good character and ordering that his name should be removed from the Register of Medical Practitioners in New South Wales and thirdly, findings in 1996 of the same Tribunal refusing to re-admit him as a medical practitioner in New South Wales. The scientific fraud relied upon related to the testing of drugs used or to be used in the treatment of pregnant women: see ABC v McBride (at [10]).
165 The other category pleaded was what was said to be public knowledge from December 1987 that Mr McBride had engaged in scientific fraud and of his misconduct as a medical practitioner.
166 The ABC submitted the official (or quasi-official) "public findings" referred to in its reputation particulars were analogous to convictions and within the principle which permitted their proof (see [89]).
167 Mr McBride was successful in an application before Levine J to have the reputation particulars struck out. The ABC was given leave to appeal, but the appeal was dismissed because it was held that the reputation particulars did not relate to the "relevant sector" of Mr McBride's reputation. While judgment in ABC v McBride was reserved, the Court delivered judgment in O'Hagan which also considered the issue of sector identification. As Ipp AJA noted (ABC v McBride (at [25])), in O'Hagan, "Meagher JA remarked on the difficulties in determining the relevant sector and the absence in the authorities of reliable guidelines that could assist in the inquiry" - a difficulty Ipp AJA acknowledged (at [28]). Those guidelines were established in ABC v McBride.
168 Ipp AJA first rejected a submission by Mr McBride that the reputation particulars sought to permit the ABC to introduce evidence of justification "through the back door" even though it had not pleaded justification; this, it was submitted, should not be allowed: see [13(a)]. His Honour held (at [14] - [15]) that that argument was answered by May LJ's remarks in Burstein v Times Newspapers Ltd [2001] 1 WLR 579 (at 600 - 601). Fitzgerald AJA reached the same conclusion (see [86]). I will return to Burstein.
169 Ipp AJA then thoroughly reviewed the authorities concerning "[t]he rule that evidence of bad reputation must be confined to the 'relevant sector' of the plaintiff's reputation" which he described (at [16]) as "a particular manifestation of the policy against indiscriminate use of mitigatory material." It is unnecessary to recapitulate that consideration, save as to one point to which I will shortly refer. Suffice it to say his Honour concluded (at [28]) that the rule means "merely that the evidence, to be admissible, must be relevant to that part of the plaintiff's reputation capable of being harmed by the defamatory material." In recognising the difficulty in practical application of that test, his Honour observed (in a passage the primary judge quoted (at [311])):
"29 On the one hand, the exercise of defining a particular 'sector' should not result in the widening of the area of the plaintiff's reputation beyond that which is capable of being harmed by the defamatory material. For example, in determining the sector applicable, the ambit of admissible evidence should not be enlarged artificially by reason of a desire to define the sector merely by reference to easily defined segments of the plaintiff's occupation. On the other hand, the relevant sector should not be limited 'by the artificial construct we now know as an imputation' (per Levine J in Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1119, as applied in O'Hagan v Nationwide News Pty Ltd by Stein JA and Brownie AJA).
30 The essential question in determining the relevant sector remains: what is the scope of the plaintiff's reputation capable of being harmed by the defamatory material?"
170 Despite his reference to the artificial construct of an imputation, Ipp AJA also remarked (as the primary judge recognised (at [314])) that significant weight had to be given to the imputations in applying the rule (at [34]). He identified (at [35]) Mr McBride's imputations as relating to his reputation as a medical practitioner only in so far as that reputation concerned his attitude to and dealings with patients, in the sense of the degree of care, concern, and compassion that he displayed towards them, and his dedication to and compliance with the therapeutic ideals of accepted medical practice. This was in contrast to the reputation of a person as an experimental scientist (at [36]).
171 Ipp AJA posited (at [38]) that one way of testing whether the reputation particulars went to the relevant sector was to determine the evidence of good reputation Mr McBride could adduce at trial. While he concluded it would be open to him to lead evidence as to his reputation as a medical practitioner dedicated to the well-being of his patients as relevant to the defamation alleged by the imputations pleaded, it would not be permissible for him to attempt to prove that he had a reputation for integrity in carrying out scientific experiments because that would be irrelevant to the reputation alleged to have been harmed by the defamatory imputations. Accordingly his Honour concluded (at [39]) that the relevant sector was Mr McBride's reputation as a medical practitioner, but limited to his attitude to and dealings with patients.
172 It is relevant to note at this point that in his review of the authorities, Ipp AJA referred (at [22]) to Television New Zealand Ltd v Prebble [1993] 3 NZLR 513 (at 525), where Cooke P said on a strike-out application:
"There is an unacceptable risk that, if allowed to give evidence, purportedly in mitigation of damages, that the plaintiff had a reputation for any of these latter qualities, the defendant might be able to divert the course of the trial from the true issues ." (emphasis added)
173 Ipp AJA regarded this consideration as relevant to testing whether the ABC's reputation particulars were too broad. His Honour concluded (at [44]) that they were because they were capable of allowing the ABC to lead evidence "bearing on aspects of [Mr McBride's] reputation entirely unrelated to the sector that [was] relevant for the purposes of [his] claim for defamation [and]… this might enable the appellant 'to divert the course of the trial from the true issues.' " Accordingly he held (at [45]) the reputation particulars were embarrassing and unfairly prejudicial to the respondent, and were properly struck out. His Honour found support for his conclusion by looking at the matter complained of as a whole to identify the sting of the imputations (see [46] - [50]). His Honour also had regard to the facts recounted in McBride v Walton [1994] NSWCA 199 to conclude (at [56]) that "the relevant sector of [Mr McBride's] reputation is entirely different from that which might be affected by the material in the reputation particulars." Although it was unnecessary to do so, his Honour then considered whether the ABC could rely in mitigation on material occurring after the date of the defamatory publication. This entailed a consideration of Rochfort. I will return to this aspect of the case when dealing with that topic.
174 Fitzgerald AJA (at [97]) regarded the issue as to whether post-publication findings were admissible as one of causation, drawing an analogy between continuing harm to reputation between publication and trial and continuing physical pain and suffering from a personal injury caused by a tort between injury and trial and said the consequences of the intervening events had to be decided on the same principles. He noted with apparent approval both the ABC's submission that "'public findings', like a post-publication conviction, were causally related to McBride's own conduct" as well as the latter's submission that convictions are based on proof beyond reasonable doubt while the "public findings" particularised by the ABC were based only on the balance of probabilities. However his Honour (at [98]) deferred final consideration of this issue pending determination of whether the reputation particulars went to the relevant sector. As his Honour concluded the reputation particulars were properly struck out (and could not be salvaged by an amendment the ABC sought on appeal), he did not express a final opinion on this topic.
175 Fitzgerald AJA concluded (at [105]) that the reputation particulars which depended on " 'public findings' [that Mr] McBride's 'scientific fraud' and 'misconduct as a medical practitioner' related to his falsification of laboratory tests on rabbits to support his theory that a drug was unsafe for use by pregnant women and his persistence in that falsehood for an extended period" were the antithesis of the imputations which he alleged were conveyed by the broadcast. While his Honour accepted there was a relationship between the reputation particulars and the imputations in the sense that both generally related to the medical and scientific sector or sectors of Mr McBride's life, he held that "any public reputation which he had for false claims that a drug was unsafe for use by pregnant women could not rationally diminish the harm to his reputation from imputations" that he had endangered his women patients.
176 Fitzgerald AJA added:
"106 Reference was made in O'Hagan to the imprecision associated with the 'same sector' of activities test which is used in this context. At least some of the difficulty evaporates once its [sic, it's] understood that the 'same sector' test is a negative test to exclude irrelevant matters from proof in mitigation of damages, and that the ultimate test is whether the facts, matters and circumstances affecting a plaintiff's reputation which a defendant seeks to rely on in mitigation could rationally diminish the harm to the plaintiff's reputation from the defamatory imputation."
177 The test Ipp AJA posed (at [38]) of testing the admissibility of the reputation particulars against the evidence Mr McBride could lead of good reputation reflected the principle that while evidence may be led by a plaintiff of his or her good reputation, either by his/her own testimony or from the evidence of witnesses, that evidence, like a defendant's evidence in mitigation, must relate to "the relevant sector" of the plaintiff's reputation. Meagher JA illustrated this in O'Hagan (at [5]) as follows:
"Thus if a plaintiff sues on a libel that he is a dishonest solicitor, it is not to the point that he has a reputation as a good golfer. Similarly if the libel is that he is dishonest, it is not to the point for the defendant to demonstrate that he is a reckless motorist. (See Plato Films , per Lord Denning)."
178 Meagher JA observed in O'Hagan (at [6]) that "evidence of bad reputation must be limited to general reputation, evidence of specific incidents being inadmissible." This statement reflects the long-established principle in Scott v Sampson. The appellant briefly submitted that the adverse trial findings did not offend this principle. The respondent did not contend otherwise. I would understand that apparent concession to be on the basis that while the matters the appellant sought to rely upon in mitigation were based on the primary judge's (and Palmer J's) factual findings, it argued that those findings supported the proposition that the respondent had a reputation for engaging in serious dishonesty, both in his dealings with Ms Smith and Tony Steele and in giving evidence before Palmer J and at trial - and that the sting of the matters complained of (and imputations) was, as submitted at trial, the respondent's "honesty in business": see O'Hagan (at [9]) per Meagher JA; (at [22]) per Stein JA.
179 As I have said, however, it was difficult, with respect, to discern what the primary judge regarded as the "relevant sector". His Honour clearly regarded the adverse trial findings as demonstrating the respondent was a liar and therefore affecting his reputation for truthfulness (see [323]). His Honour consistently said when discussing this issue that there was a distinction between lying and stealing (see [326], [328], [330]). It is plain (at [348]) that the primary judge took his adverse trial findings into account in mitigation, but did not consider they could go in mitigation to imputations 1 - 10, the sting of each of which was that the respondent was a thief - or, at least, a person who was prepared to take advantage of a mentally disadvantaged person to obtain her assets.
180 In my view the primary judge did not err in so characterising the relevant sectors to which the imputations related. The contrast between imputations 1 - 10 and 11 - 12 was stark, as his Honour recognised (at [328]). The first group (several of which were identical as to each broadcast) stated, as his Honour found (at [325]) that the respondent was a thief (1, 5, 10), a person who "ripped off" a dementia patient (2, 4, 7), took everything she had to the tune of $1 million (3, 8), swindled her (9) and because of those dealings deserved to spend a lot of time in gaol (6). The notion of the respondent as a thief was reinforced in the first and third matters complained of by the emphatic statement "stolen, stolen, stolen" accompanied by onomatopoeic sound effects (see Mahommed v Channel Seven [2006] NSWCA 213 (at [27])).
181 These imputations conveyed the notion of serious criminality. If I disagree with his Honour, it is only to the extent that he characterised imputations of this class as suggesting "financial dishonesty". That, with respect, tended rather to blur the line between that sector, and the sector to which imputation 12 went - which was clearly that of dishonesty - which his Honour recognised (at [328]).
182 The appellant has repeated its submission at trial (see [330]) - contending that the relevant sector for all imputations is "dishonesty". I would reject that submission. It pitches the relevant sector at too high a level of generality for this case.
183 The illustration Lord Denning gave in Plato Films v Speidel (at 1140), which the appellant sought to invoke in support of its characterisation of the relevant sector, is also pitched at too high a level of generality to be applicable in the present case. His Lordship's observation was by way of example - he recognised that it is for the judge to determine what the relevant sector is. That, as the authorities reveal, is a fact-dependent exercise, requiring careful analysis of the matter complained of, not the mechanistic application of hypothetical illustrations.
184 The characterisation for which the appellant contends does not, in my opinion, accurately identify the scope of the respondent's reputation capable of being harmed by the imputations, as Ipp AJA explained in ABC v McBride. Nor, to apply Fitzgerald AJA's approach, in my opinion, could the adverse trial findings (or, indeed the Steele-Smith adverse findings), rationally diminish the harm deriving from the imputations that the respondent was, in substance, a thief.
185 I would add, applying again Ipp AJA's approach in ABC v McBride, that another way of testing the sector identification issue is by reference to the evidence of good reputation the respondent could have called. It would have been open to him to give evidence, and call witnesses, as to his general reputation for not being a thief. It would not have been open to him to do the same insofar as his reputation for honesty (in the sense of telling the truth) was concerned, because by the time of the trial Palmer J had found that he had lied on oath and made false entries on loan applications.
186 In my view it was open to the primary judge to characterise, and distinguish, the relevant sectors as being that of a person who was a thief and a person who lied.
187 I would reject grounds 5 and 6.