Hanson-Young v Leyonhjelm

Introduction 1 In 2018, both the applicant and the respondent were members of the Senate in the Australian Parliament. The applicant was then, and is now, a member of The Australian Greens political party elected as a Senator for the State of South Australia. The respondent was a member of the Liberal Democrats political party, and until 1 March 2019, an elected Senator for the State of New South Wales. 2 The applicant alleges that she was defamed by statements made or published by the respondent on four occasions: (a) in a media statement published by the respondent on a blogging platform, Medium.com, on 28 June 2018 and republished on 29 June 2018 on the respondent's personal Facebook Page and on the Facebook Page of the Liberal Democrats; (b) in the Sky News Australia program "Outsiders" broadcast on 1 July 2018 which was republished on 1 July 2018 on the Sky News Australia website, on 10 July 2018 on YouTube and on 11 July 2018 by the respondent himself; (c) in the "Sunday Morning" program of Radio 3AW broadcast on 1 July 2018; and (d) in the ABC program "7.30 with Leigh Sales" broadcast on 2 July 2018, which was republished later that same day on the ABC website, the ABC News Facebook Page and the ABC News Twitter page. 3 The applicant alleges that each of the second, third and fourth publications of the respondent conveyed the following defamatory meanings: (i) the applicant is a hypocrite in that she claimed that all men are rapists but nevertheless had sexual relations with them; (ii) the applicant had, during the course of a Parliamentary debate, made the absurd claim that all men are rapists; and (iii) the applicant is a misandrist, in that she publicly claimed that all men are rapists. 4 In relation to the first publication published on 28 and 29 June 2018, the applicant alleges that it conveyed the first and second of these meanings only. 5 The applicant claims damages, including aggravated damages, in respect of the defamatory publications alleged as well as injunctive relief. 6 The defence of the respondent to the applicant's claim underwent some development and refinement as the proceedings progressed. 7 The filed defence of the respondent did not admit that he had "published" any of the four publications of which the applicant complains. Instead, the respondent admitted that he had "disseminated" the media statement on or about 28 June 2018 by "posting it" on the Medium.com website and that he "spoke and thereby disseminated" the words identified as spoken by him in each of the second, third and fourth publications of which the applicant complains. However, in the trial, the respondent did not dispute that he had published each of the impugned matters. In any event, that was established by the evidence. The respondent admitted, for example, that his interviews on the Sky News and Radio 3AW programs were "live" and that he had known at the time of each that the interview would be broadcast live on the Sky News Channel and on Radio 3AW respectively. He can be taken in these circumstances to have known of the further publication of his words as that was the natural and probable consequence of his conduct. 8 In his filed defence, the respondent denied that any of his publications had conveyed the meanings alleged by the applicant. However, in the opening submissions at the trial, senior counsel for the respondent accepted that the imputations conveyed were as "averred" by the applicant. He said, however, that his statements had not defamed the applicant. 9 The filed defence of the respondent raised the following substantive defences: (a) justification under s 25 of the Defamation Act 2005 (NSW) (the Defamation Act) and its State and Territory counterparts; (b) qualified privilege under both s 30 of the Defamation Act and its State and Territory counterparts and under the common law; (c) extended qualified privilege (the so-called Lange defence) to which the respondent referred as "constitutionally protected free speech"; (d) honest opinion under s 31 of the Defamation Act and its State and Territory counterparts; and (e) fair comment on a matter of public interest; 10 However, in his opening submissions at trial, the respondent withdrew the defences of honest opinion and fair comment on a matter of public interest. Moreover, in closing submissions, senior counsel conceded that, if the respondent's defence of statutory qualified privilege did not succeed, he could not advance any basis on which the defences of common law qualified privilege and the Lange defence could succeed. Senior counsel then accepted that it was not necessary for the Court to deal with those two defences if the defence of statutory qualified privilege failed. 11 The respondent contended that, if defamatory meaning was established and his substantive defences failed, the applicant should be awarded only "nominal or derisory damages". His filed defence contained pleadings said to support this conclusion. 12 In addition to his substantive defences and the position just mentioned concerning damages, the respondent pleaded that, by reason of the publications impugned by the applicant being either a repetition of, or responsive to, statements made by the applicant and him in the Senate Chamber, they could not be adjudicated upon in this Court without infringing s 16 of the Parliamentary Privileges Act (1987) (Cth) (the PP Act). That being so, he contended that the Court should, in the exercise of a discretion, stay the proceedings permanently. For reasons which will become apparent, the application of s 16 of the PP Act and the respondent's application for a permanent stay were argued in the trial itself. 13 Accordingly, the issues in the trial were: (a) does s 16(3) of the PP Act mean that the Court cannot hear all the evidence and submissions otherwise appropriate in the proceedings and, if not, should the Court grant a stay of the proceedings? (b) are the admitted imputations defamatory of the applicant? (c) if so, has the respondent established the defence of justification? (d) alternatively, has the respondent established the defence of statutory qualified privilege? (e) if these issues are resolved in favour of the applicant, what are the damages to which she is entitled? 14 Because the provisions in the Defamation Act are the model law provisions which are replicated in the Defamation Acts or provisions concerning defamation in the other States and Territories, I will hereafter refer only to the Defamation Act. 15 I indicate now my satisfaction that the conduct of the proceedings did not involve an infringement of s 16(3) of the PP Act and that a permanent stay of the proceedings on that basis is not appropriate. It is convenient, however, to address the other issues in the trial before expressing my reasons for that conclusion. 16 For the reasons which follow, I am satisfied that: (a) the imputations admitted by the respondent to have been conveyed by the impugned matters were defamatory of the applicant; (b) the respondent has not established the substantive defences of justification or statutory qualified privilege; and (c) the applicant is entitled to an award of damages in the aggregate sum of $120,000.