Consideration
24 Under no circumstances should Ms Ryan be required to pay Mr Greiss's costs. She was only a respondent in relation to the claim arising from her tweet (the third matter complained of) and she was wholly successful. Ordinarily, this would mean that she would be entitled to an award of costs in her favour but no such application was made, presumably because her costs were (or were also) Seven's costs.
25 Further, I am unpersuaded by the submission that, had the contextual truth defence been raised earlier, Mr Greiss might have taken a different approach to the compromise of the proceedings. There is no evidence to support it and such evidence as there is, including Mr Greiss's evidence at the trial, suggests it is unlikely. It is true that, in resisting the respondents' application to amend their pleading to raise the additional defence, Mr Greiss submitted that he was prejudiced. But I found the submission to be unjustified (at LJ[82]-[83]). As the respondents put it, Mr Greiss failed to identify any prejudice to his forensic decision-making when given the opportunity to do so.
26 It is also incorrect to say that the respondents only succeeded because of the contextual truth defence, as the facts upon which it was based were in any event relevant to mitigation of damages.
27 Mr Greiss accepted that the award was low. Whether it can be described as substantial is debatable. A more apt description would be modest.
28 There is much to be said in favour of the respondents' position.
29 As I mentioned earlier, there was no dispute that the pleaded imputations (or imputations no different in substance) were conveyed and that each was defamatory.
30 In the case of the first matter complained of (the article) those imputations were that:
(1) Mr Greiss engaged in the vile act of staring down and spitting towards Mr Hayne's rape victim;
(2) Mr Greiss stared down and spat in the direction of Mr Hayne's rape victim;
(3) Mr Greiss is despicable, in that he stared down and spat in the direction of Mr Hayne's rape victim; and
(4) Mr Greiss sought to harass and intimidate Mr Hayne's rape victim by staring her down and spitting at her.
31 In the case of the third matter (the Ryan tweet), they were imputations (2), (3) and (4) above.
32 In the case of the second matter (the Facebook post), they were:
(1) Mr Greiss spat at a rape victim outside court; and
(2) Mr Greiss is despicable, in that he spat at a rape victim outside court.
33 Broadly speaking, the issues in the trial were:
(1) whether the defences of justification, honest opinion and/or contextual truth had been made out; and
(2) if not:
(i) the extent to which any of the matters relied upon to prove those defences mitigates damages;
(ii) whether Mr Greiss had made out a case for aggravated damages; and
(iii) the amount, if any, of damages that should be awarded.
34 The respondents invited the Court to make the following factual findings about Mr Greiss's conduct:
(1) Mr Greiss's attention was focussed on the victim from the moment he stood up to the moment the victim left the court precinct (Fact 1);
(2) Mr Greiss stared at the rape victim (Fact 2);
(3) Mr Greiss pointed at the rape victim (Fact 3);
(4) Mr Greiss made pejorative statements to the rape victim as she passed by him (Fact 4);
(5) at the time Mr Greiss's head made a downward motion on the CCTV, he spat (Fact 5);
(6) Mr Greiss spat in the direction of the rape victim (Fact 6);
(7) Mr Greiss intended for his spit to be a sign of disgust and contempt for the rape victim (Fact 7);
(8) Mr Greiss called the rape victim an escort on two separate occasions and urged the media to publish this allegation (Fact 8);
(9) Mr Greiss intended to harm the rape victim by calling her an escort (Fact 9); and
(10) the conduct referred to in Facts 1 to 9 above is disgraceful (Fact 10).
35 I found that all but one of these matters (Fact 4) had been proved (LJ[202]).
36 At the trial, despite what he told Ms Ryan shortly after the event, Mr Greiss denied having any interest in the victim. He claimed not to have been looking at her, let alone staring her down, and in his evidence in chief he insisted he did not spit at all, let alone towards or at the victim or in her direction until after the victim had left the court precinct. He also denied pointing at her. He initially denied asking Ms Ryan (rhetorically): "Did you put that she's an escort?" He also denied that he wanted the media to write about the victim, although he ultimately accepted that he did ask the question of Ms Ryan and urged the journalists to report that she was an escort. He claimed to have nothing against the victim. Yet he said he wanted them to report that she was an escort because he believed she falsely accused his friend of rape and was responsible for his imprisonment. He denied that his comment "yeah, exactly" was made in response to his friend, Mr Petras, stating that "he should spit on [Ms Ryan]", although it was uttered immediately after his friend's statement. While video footage confirmed that, immediately before he spat towards Ms Ryan, he said "here's another one for ya", he denied that he was referring to his earlier spit towards the victim.
37 Despite his denials, I was satisfied that Mr Greiss spat towards the victim or in her direction as she left the court precinct. But the justification defence failed because I was not satisfied that Mr Greiss also stared the victim down, although I was satisfied (despite his protestations to the contrary) that he stared at the victim, and because I was not satisfied that Mr Greiss spat at the victim.
38 The contextual imputation pleaded by the respondents was to the effect that Mr Greiss had behaved disgracefully outside court to the woman Mr Hayne had been sentenced for raping. In substance it relied on Mr Greiss staring at the victim (rather than staring her down), spitting in her direction as she passed by him (rather than spitting at her) and his comments on the street in front of the media in which he referred to her as an escort. The particulars were in the following terms:
1. In March 2021, Mr Jarryd Hayne was found guilty of two charges of sexual assault without consent (Hayne Proceedings). Mr Hayne was to be sentenced on 6 May 2021.
2. On 6 May 2021, Mr Greiss attended Newcastle Court House to support Mr Hayne and his family at the sentencing hearing.
3. At the sentencing hearing, Mr Hayne was sentenced to 5 years and nine months in gaol.
4. Mr Greiss did not consider the sentence to be justified, for reasons including that he alleged the Victim was an escort.
5. After the sentencing hearing occurred, Mr Greiss stood with other supporters of Mr Hayne outside of the court building in an area next to a walkway, which walkway hugged the court building (Walkway).
6. When the victim in the Hayne Proceedings (Victim) left the court building, she left via the Walkway.
7. Mr Greiss faced the Walkway and stared at the Victim and spat in her direction as she passed by him to exit the court precinct.
8. After the Victim had left the Court precinct Mr Greiss described her as an "escort" to a member of the media.
9. The imputations pleaded in paragraphs 5(a)-(d), 8(a)-(b) and 11(a)-(c) of the ASOC are substantially true by reason of the facts, matters and circumstances set out in particulars 1 to 8 above.
39 In finding that the contextual imputation was conveyed, I said (at LJ[318]):
Ordinary decent people would regard any expression of contempt for a sexual assault victim as disgraceful, particularly when, as in the case of the first matter, they were informed that the sexual assault was "brutal" and that "the vile act" of Mr Greiss spitting in the victim's direction had occurred "just hours after she declared that [her assailant] had destroyed her life …".
40 I found that the contextual imputation was substantially true (at LJ[327]) and that such of the pleaded imputations which were not found to be substantially true did no further harm to Mr Greiss's reputation. As I said at LJ[328]:
In circumstances in which I am satisfied that Mr Greiss spat towards the victim as a gesture of his contempt for her and publicly denounced her as a prostitute signifying that she was a person of little worth, I am persuaded that no further harm was done to his reputation by the imputation that he stared the victim down. I would add that if I am wrong to conclude that Mr Greiss spat towards the victim, the outcome would be no different as, regardless, I am satisfied that it was a gesture of his contempt for her.
41 Consequently, it is fair to say, as the respondents submitted, that I rejected the substance of Mr Greiss's story. I also made some damning findings about his credibility.
42 Still, I accept Mr Greiss's submission that I should not conclude that he brought the proceedings on a knowingly false basis. If that submission were to be made, it seems to me it should have been squarely put to Mr Greiss in cross-examination. While it was put to him in cross-examination that he lied about certain aspects of his evidence, it was never put to him that he brought the proceedings on a knowingly false basis. In any event, it is difficult to accept that Mr Greiss brought the proceedings on a knowingly false basis in circumstances where he succeeded in his claim in relation to the Facebook post. In my opinion, it would not be just to deny him any costs and require him to pay up to 50% of the respondents' costs in circumstances in which he was admittedly defamed in three publications and recovered an award of damages in one. Besides, costs are not awarded by way of punishment of the unsuccessful party but as compensation by way of an indemnity to the successful party: Latoudis v Casey (1990) 170 CLR 534 at 543 (Mason CJ), 562-563 (Toohey J), 566-567 (McHugh J).
43 Moreover, it is incorrect to say that I awarded Mr Greiss "nominal damages". What I said was that I would give him only a nominal sum for the damage to his reputation and as vindication (at LJ[418]). But damages in defamation are also recoverable for hurt feelings and I accepted Mr Greiss's evidence on this subject (at LJ[419]). Thus, while I accept that Ms Ryan should not have to pay any costs, I do not accept the respondents' argument that a costs order should be made in favour of Seven. As Lee J remarked in Palmer v McGowan (No 6) [2022] FCA 927; 405 ALR 462 at [34], "it would be wrong to make an award in favour of the party against whom judgment was obtained, albeit a very modest one". I also take into account the fact that Mr Greiss made an offer of compromise which, though insufficient to give him a prima facie entitlement to indemnity costs, was only about $11,000 more than the judgment sum.
44 On the other hand, I do not think that the circumstances justify the award Mr Greiss seeks.
45 It is true, as Mr Greiss said in his submissions in reply, that the FCFCoA (Div 2) would not have jurisdiction to hear a defamation action unless the Court made an order transferring the proceedings. But it appears to be incorrect to say that the FCFCoA did not have jurisdiction. Section 9(3) of the Cross-vesting Act has the effect of conferring both on this Court and the FCFCoA (Div 1) jurisdiction to hear and determine matters within the jurisdiction of the ACT or Northern Territory Supreme Courts and s 25(1)(c) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides that the FCFCoA (Div 1) has original jurisdiction "as is conferred on the Court … by any other Act".
46 Section 4(2) of the ACT Cross-vesting Act confers jurisdiction on the Family Court in the same terms as s 4(1) confers jurisdiction on this Court. Contrary to Mr Greiss's submission, the reference to the "Family Court" in s 4 of the ACT Cross-vesting Act must be taken to be a reference to the FCFCoA (Div 1) by reason of Sch 5 Pt 2 of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth), s 25B of the Acts Interpretation Act 1901 (Cth) and s 183(2)-(3) of the Legislation Act 2001 (ACT).
47 Even so, assuming that the FCFCoA (Div 1) has jurisdiction to hear defamation actions within the jurisdiction of the ACT or Northern Territory Supreme Courts, however, I simply do not know whether it would be cheaper to litigate such a claim in that Court.
48 At all events, it is unnecessary for me to express a final view as to whether the FCFCoA (Div 1) would have had jurisdiction because there is no good reason why Mr Greiss could not have commenced his action in the District Court of NSW. Had he been wholly successful, it is inconceivable that he would have recovered damages anywhere near its jurisdictional limit of $750,000. His only claim was for non-economic loss and, absent an award of aggravated damages, the maximum award at the time was $459,000.
49 That circumstance alone suggests that costs should be reduced. There is no particular reason why the proceedings should have been filed in this Court. Certainly Mr Greiss did not offer one. I find it difficult to determine a specified amount by which costs should be reduced, as r 40.08(a) requires. In this case it would be arbitrary to opt for a percentage, as Finn J did in Rawley Pty Ltd v Bell (No 3) [2007] FCA 1429. While this was the approach the respondents argued for, they made no attempt to explain why their proposed figure was appropriate or how I might fix a different figure if I were not minded to accept their proposal. In my opinion, the most appropriate order is that Seven pay Mr Greiss's costs on a party and party basis, to be calculated as if the proceeding had been commenced in the District Court.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann.