Goodall v Nationwide News Pty Ltd

Federal Court of Australia|2010-04-13|Before: Mr J, Gilmour J

REASONS FOR JUDGMENT 1 Mr Travis Goodall, the applicant, applies by motion dated 9 April 2009 for an order extending the time in which to file and serve a notice of appeal from the judgment of Federal Magistrate Lucev given on 24 August 2007. An extension is required because a notice of appeal was not served within the time limited by Order 52 rule 15 of the Federal Court Rules.

Background 2 The background to the present motion can only be described as tragic. The applicant's five children and that of his de facto wife died from carbon monoxide poisoning from the exhaust of the car in which they were found. It was a horrific multiple murder and suicide at the hands of his de facto wife. 3 The applicant, in order to raise funds to pay for his childrens' funeral, agreed relevantly, to a written story with 'New Idea' magazine and allowed some photographs of his children to be used in that story. These photographs appeared in an edition of New Idea published in July 1999. They were, for copyright purposes, the subject of a one-off licence. 4 The applicant was traumatised by these events. By December 2005, however, he seemed to be coping well and at that time he married Rosanne Goodall. 5 Matters took a decided turn for the worse a few months later. On 9 April 2006, the Sunday Times newspaper, without the consent of the applicant, published the same photographs of his five children on the front cover under a story entitled "Special Investigation: Staggering Toll of Domestic Murder Revealed". 6 There were photographs of other children who had also been murdered. The murders of the five children were described as "Australia's largest domestic child killing". 7 In a further photo and text box with the 9 April 2006 Article the front page of the Sunday Times is repeated with the photographs of the victims obliterated by numbers. The numbers relate to the text box under the heading "WA's most heartbreaking list" which is next to the photo box, and in which the following entry for the photographs numbered 2 - 6 appears: 2. Mark Goodall, 8, gassed by mother Barbara Wyrzykowski in a murder-suicide. 3. Sarah Goodall, 5, gassed by mother Barbara Wyrzykowski in a murder-suicide. 4. Luke Goodall, 5, gassed by mother Barbara Wyrzykowski in a murder-suicide. 5. Jessie Goodall, 4, gassed by mother Barbara Wyrzykowski in a murder-suicide. 6. Jade Goodall, 22 months, gassed by mother Barbara Wyrzykowski in a murder-suicide. 8 Despite a complaint made directly by the applicant to the author of the Sunday Times article, in which, as Federal Magistrate Lucev found, it was evident that he was not granting permission to republish the stories, the Sunday Times again republished the photographs of the applicant's children in its 16 April 2006 edition. 9 The article contains a photo box which is a replication of the front page of the Sunday Times from 9 April 2006, but without the bottom row of seven photographs (those numbered 10-16 in the photo box in the 9 April 2006 Article). 10 The primary judge found that as a result of seeing these photographs the applicant, on each of the two occasions, suffered shock and significant distress. 11 Importantly, for the purposes of this motion, the evidence of the applicant as to his subsequent illnesses and medical conditions was not the subject of expert evidence. The primary judge held at [30] that for this reason he could not properly make findings as to the nature or extent of such alleged illnesses said to have been caused by the publication and republication, by the respondent, of the photographs. 12 The applicant unsuccessfully sued for various causes of action but he was successful in his suit for damages for breach of copyright in respect to the re-publication of the photographs in the 16 April 2006 edition of the Sunday Times. 13 The Court awarded damages comprising $250 for each of the five photographs published and additional damages of $7500, under s 115(4) of the Copyright Act 1968 (Cth) for hurt to the applicant's feelings. 14 The Federal Magistrate made no orderas to costs.

The motion: grounds 15 The motion contains the following grounds handwritten by the applicant. Due to my on going medical condition being stress and anxiety due to court proceedings and not having the money to be able to represent myself. I have not been medically fit as well as my marriage break up due to this also new information has come to light proving that the Sunday Times did in fact intentionally defamed myself the reporter lyed about her informants and it did change the outcome of the case drematically my court appointed pro bono lawyer was also at fault. I do have medical reports to proove that I haven't been fit enough. New information has come to light over defamation as it is aggrevated, also my medical condition and damages were never decided also my legal costs were never paid out weighing the damages received. I have been unable to deal with any appeal due to my medical condition and not having money to be represented. (Transcribed without amendment). 16 The motion was supported by the applicant's affidavit affirmed by him on 9 April 2009. It provides as follows: 1. I have not been medically fit to deal with an appeal and also do not have any money to be represented. I do have doctor records to prove this. 2. I have been dealing with Family Court and have been preparing for other various trials. I have been to various courts over 220 times. 3. In the last three and a half years, I have lost my car to being repossessed. My house also, my marriage as well and have suffered multiple nervous breakdowns due to the stress and anxiety I have suffered and I am now unfit for work due to post traumatic stress disorder brought on by the Sunday Times. I own nothing now because and now I can prove aggrevated defamation. 17 The applicant filed a further motion on 9 April 2009 in which he stated that he wished to sue for damages including for "medical, compensation and vicarious liability due to the fresh evidence". This second motion was supported by an affidavit of the applicant also affirmed on 9 April 2009 which annexed a draft notice of appeal containing nine separate proposed grounds of appeal. I will consider each of these in due course. 18 Central to his motion for an extension of time is the proposition that, at the trial before Lucev FM, the applicant's pro bono lawyer failed to adduce relevant expert evidence as to his medical condition resulting from the shock and distress caused by the republication of the photographs.

Extensions of time to serve notice of appeal 19 An extension of time to file and serve a notice of appeal under Order 52 rule 15(2) require that "special reasons" must be shown. A "special reason" is one that takes the case out of the ordinary: Jess v Scott (1986) 12 FCR 187 at 195. 20 Relevant considerations to the exercise of the Court's discretion are that: (a) applications for an extension of time are not to be granted unless it is proper to do so as the legislated time limits are not to be ignored; (b) there must be some acceptable explanation for the delay; (c) the mere absence of prejudice to a respondent is not enough to justify the grant of an extension; and (d) the merits of the substantial application are to be taken into account in considering whether an extension is to be granted: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9. 21 Even where special reasons can be identified the Court has the discretion to grant or refuse the extension sought. Factors to be taken into account include the importance of the question sought to be raised by the proposed appeal, the bona fides of the proposed appeal, and the prima facie strength of the proposed ground of appeal: Howard v Australian Electoral Commission [2000] FCA 1767 at [7].

Nature of the Appeal 22 The proposed appeal, as one from a decision of the Federal Magistrates Court under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) is not an appeal de novo, nor is it an appeal in the strict sense. As with appeals from a judgment of a single judge of this Court it is by way of a rehearing of the initial application: Murdaca v Accounts Control Management Services Pty Ltd [2007] FCA 577 at [12]. The Court's powers on such an appeal are exercisable only if the appellant can demonstrate that, having regard to the evidence before the appellate court, the judgment under appeal is a consequence of some legal, factual or discretionary error: Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4]. In short, an error by the Federal Magistrates Court would have to be shown: MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1016.

Consideration 23 The delay, which exceeds 19 months, in bringing the motion for an extension of time to file and serve the notice of appeal is substantial. However, I will deal first with the merits of the proposed appeal. 24 The respondent submits that the proposed grounds in the notice of appeal do not disclose any arguable appellable error by the Court below. It submits that even giving each proposed ground the most beneficial interpretation to the applicant (including assuming, which is denied, that the applicant's allegations have some prospect of being made out) none of them gives rise to a tenable or arguable ground for an appeal against the decision below. 25 I have concluded, for the following reasons that proposed grounds of appeal 1, 2, 4 and 6-9 have no prospects of success.

My pro bono lawyer appointed by the Federal Magistrates Court prejudiced my case by not including all of my submissions, leaving me to be self represented This ground is unparticularised and I am unable to discern any appealable error.

De novo - I have new information to prove that the Sunday Times intentionally defamed myself This ground has no prospect of success. Intention to defame is irrelevant. In any event the applicant's defamation claim failed. The primary judge held that the articles of 9 and 16 April 2006 were not defamatory of the applicant: Reasons at [69]-[75]. Furthermore, the applicant has not deposed to the nature of this alleged new evidence.

My legal costs were not recovered due to the shock of being self represented That the primary judge made no order as to costs operated in the applicant's favour, and was the result of a significant concession by the respondent. After judgment was delivered, the Court below heard submissions as to costs. The respondent had put an offer to the applicant to settle the matter, inclusive of costs, on 7 March 2007, two days prior to the hearing, which was substantially in excess of the damages for breach of copyright awarded to the applicant. The applicant received total damages of $8,750. The offer put to the respondent on 7 March 2007 was for $35,000, inclusive of costs, in circumstances where the applicant was for the most part self-represented. The respondent informed the primary judge, correctly in my view, that, whilst it would have been entitled to argue that the costs ought be paid by the applicant, it elected not do so. In those circumstances, that there was no order as to costs was a fortuitous result for the applicant. There is no prospect of success upon this ground.
The reporter Peta Hellard lied about where she got her information and is in contempt of Court which would of changed the outcome

Such allegation does not constitute a tenable ground of appeal. It deals with a different matter, being an alleged contempt of Court. It is a base assertion but, in any event, is irrelevant to the reasons why the defamation and s 52 TPA claims were dismissed.

The editor Brett McCarthy is also subject to vicarious liability due to the new evidence and duty of care The applicant sued only the respondent Nationwide News Pty Ltd. This proposed ground has no merit.

The Sunday Times has not published an apology still This proposed ground too is without merit. There was no order of the Court for the publication of an apology. Furthermore, there was no cause of action upon which the applicant was successful where an apology could have been ordered. I should say, in passing, that irrespective of the legal position, an apology would be appropriate.

A verbal contract was never paid as was agreed upon any further publishing This it seems is a reference to the contract claim in the original application which was abandoned. This proposed ground is without merit. 26 However, I have concluded that proposed grounds of appeal 3 and 5, read together, have reasonable prospects of success on the merits for the following reasons:

I still suffer from an ongoing medical condition due to this matter.

My medical condition was not included during the trial in that the evidence was never tendered 27 The primary judge resolved the matter of damages in his reasons at [68] as follows: Given that the Photographs were republished after the Applicant had put the Respondent on notice that it did not have his permission to do so, the Court considers that the infringement was flagrant, and that there is a need to deter similar infringements. The conduct of the Respondent was blaise (sic), and uncaring in respect to the possible effect of the republication of the photographs upon the Applicant, particularly where Ms Hellard had apologised for the first publication of the Photographs. The Court notes that there is no particular benefit shown to have accrued to the Respondent by reason of the infringement. However, it can be inferred that the Respondent perceived that it stood to benefit from the republication of the Photographs in the context of the 16 April 2006 Article. In the circumstances, the Court considers that it is appropriate to award additional damages to the Applicant. The Applicant clearly suffered personal hurt and shock at the republication of the Photographs. Assessing the quantum of damages in a case such as this is extraordinarily difficult. It is clear that the principle hurt and shock was suffered by the Applicant to the initial publication of the Photographs on 9 April 2006. Nevertheless, there was further personal hurt as a consequence of the publication of the 16 April 2006 Article. The Court is cognisant of the nature of the material which was republished, but, once again, observes that it is very difficult to put a value on injuries such as those involved in this case. In all the circumstances, the Court proposes to award the Applicant additional damages of $7,500.00. 28 The evidence of personal hurt and shock relied upon by the primary judge as appears from his footnote number 67 was contained in the applicant's affidavit of 18 December 2006 at [40] which relevantly is in these terms: 40. On the 16th of April 2006 page 10 I was astonished to see these 5 photos again the reporter, Peta Hellard or the Sunday Times did not notify me of this even after knowing my telephone no. I wasent even warned that they would use these images again … by cutting off the bottom line of the photos had just highlighted the images of my children, this was a very sickening attack, not to mention insaulting, they had done this … without care or concern to my mental health or happiness. 29 There were, it seems to me, other paragraphs of the applicant's affidavit which were relevant, but to which it does not seem the primary judge had regard. They are as follows: 48. I had seen a pyscologyist in 2003 he had stated that I was coping well without having any councilling at all but could at any time could suffer post traumatic syndrome in the future from what had happened, now I feel I do suffer from this from what the Sunday Times has done. I also now suffer from obsessive compulsive disorder due to anxiety and stress. 60. The two reports from the Sunday Times with the photos was uncalled for, and unwarranted … these were children that were murdered. I have lived with this huge loss and also have tried suiside on many occasions after my son Cruze was born I reframed from thinking about suicide. I dont even have photos of my children in my house as this creates anxiety and depression. 30 The applicant before me tendered the expert report of Dr Gregory Dear, a registered forensic psychologist, dated 12 October 2009. 31 This was in the nature of further evidence in the proposed appeal. Whether that evidence ought be admitted is a matter for the appellate court but it seems to me that there is a reasonably arguable basis for its admission. Mr Goodall was not represented before the primary judge. He is clearly, on the evidence, a person with at least, serious psychological problems. It is always a difficult question as to the extent to which a court will assist a self represented litigant. However, it does seem to me, arguably, that this was a case where the Court, of its own motion, may have appropriately, in the interests of justice, taken steps to obtain relevant expert evidence by bringing this gap in the evidence to the attention of the applicant and quite possibly suggesting that it would assist the Court if it were to be obtained. This is particularly so when the primary judge at [30] acknowledged the difficulties he confronted in assessing damages because of this very issue. It was after all the only cause of action which the primary judge was prepared to uphold. At a general level the judgment of the Full Court in Wills v Australian Broadcasting Corporation (2009) 173 FCR 284underpins the discretionary nature of such an approach. 32 Dr Dear's report is extensive and contains the following: 17. Mr Goodall described his reactions to the second publication of photos in the Sunday Times on April 16, 2006, in the following terms: an intensifying of all of the distressing thoughts and feelings that he experienced in response to the first publication on April 9; a complete loss of motivation; more pervasive avoidant behaviours (at least as severe as he experienced in 1999) that extended to not being able to go outside the front of his house to collect the mail; a return to very high levels of alcohol use in order block out the PTSD symptoms; anxiety attacks that he termed "panic attacks" and which correspond with the diagnostic criteria for a Panic Disorder (a form of Anxiety Disorder); and a complete breakdown of his coping resources. While Mr Goodall did not describe it in these terms, the impression that I gained from his attempts to describe his thoughts and feelings at that time was that he suffered a more profound loss of trust in the world than he experienced after the first publication on April 9. He seemed to develop an almost paranoid attitude to the world. As best as I can ascertain from the material I have available to me, it was the republication of the photos on April 16, 2009, that gave rise to Mr Goodall's continuing sense of the world as a dangerous and untrustworthy place and that people (journalists, police, and other formal figures of society) are deliberately targeting him. . . . 22. The following diagnoses apply to Mr Goodall's presentation and reported symptoms on my examination of him: Post-Traumatic Stress Disorder (as described in paragraph ); Alcohol Dependence; Sedative/Anxiolytic Dependence; Panic Disorder; Major Depressive Disorder. While Mr Goodall's Panic Attacks and Depression are related to his PTSD, his panic attacks and his fear of further attacks are notdirectly linked to intrusive recollections of either his children'sdeath or the publication of the photos and his depressive symptoms (e.g., persistent negative mood, suicidal thoughts and feelings of worthless and guilt) are of sufficient severity and persistence to warrant the additional diagnoses. It is possible that his anxiety symptoms reflect in part the fact that his daily dose of benzodiazepine medication is being reduced, but that is a factor that aggravates rather than creates his anxiety. … 24. Mr Goodall's symptoms, on his report, but also on my observation of him during interviews, are sufficiently severe to render him unable to function effectively in a work setting. In particular, his depression and anxiety are impairing his capacity to concentrate sufficiently to undertake work and his significantly low energy levels and sense of purpose complicate that impairment further. 27. Mr Goodall reported to me that his reaction to seeing the photos published on the front page of the Sunday times on April 9, 2006, was characterised by significant distress, a collapse of his coping resources, intense anger, and a resurgence of some of his PTSD symptoms that he had previously experienced but by that time (April 2006) he had resolved. He further reported that the republication of the photos the following week aggravated those psychological problems and also led to additional psychological problems as outlined in paragraphs 17 to 19 of this report. In short, Mr Goodall reported a more intense "shock" on seeing the photos on the front page than he experienced in response to the republication a week later, but he reported complications and worsening of his distress and mental injury in response to the republication a week later. In particular his loss of trust in the world, his hypervigilance about being vulnerable to unexpected approaches from reporters (what he termed hounding), and his avoidance of a wide range ofplaces and situations in order to not be accosted by reporters, were all described by Mr Goodall in the context of the Sunday Times having failed to respond to his complaints and to complaints that were made by other members of Mr Goodall's family. A common experience of people with PTSDis a loss of one's sense of security and the development of an exaggerated sensitivity to threats that are similar (either in physical form or thematical1y linked) to the traumatic event. It is apparent from Mr Goodall's description of his thoughts and feelings about the republication on April 16, 2006, that many of his current PTSD symptoms are linked thematically to what he experienced as an invalidating dismissal of his concerns and his wishes about not publishing photos of his deceased children. At one in my interviews with Mr Goodall he mentioned a hope that the Sunday Times might publish an apology for publishing the photos on April 9 and that he had some expectation of such an apology when he looked at the Sunday Times on April 16. 33 This evidence, if admitted, has the potential to alter the conclusion, in the applicant's favour, from that reached by the primary judge, resulting in a significant increase in the damages awarded to him. Apart from the detail which it provides on this important issue it also calls into question the conclusion of the primary judge at [68] that: It is clear that the principle hurt and shock was suffered by the applicant to the initial publication of the photographs on 9 April 2006. 34 In the circumstances of the applicant as a self represented litigant suffering the serious psychological problems which he so clearly does I do not regard his delay in bringing this application as undue or excessive.

Conclusion 35 None of the proposed grounds except grounds 3 and 5 together has any merit. In respect to grounds 3 and 5, however, the applicant has demonstrated substantial merit sufficient to establish "special reasons" why an extension of time to file the notice of appeal should be granted. There will be an order accordingly. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

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