Hayson v The Age Company Pty Ltd

1. The tender of MFI-5, being an article published in the Daily Telegraph newspaper on 27 June 2006 with the headline "The day racing's credibility went on the line [-] Hayson's calls" be rejected upon the basis that it is not admissible. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 The applicant in this proceeding is Mr Edward "Eddie" Hayson. The first respondent, The Age Company Pty Ltd, is the publisher of The Age, a newspaper principally published in Melbourne, Victoria, but also elsewhere in Australia and online, including in the Australian Capital Territory (as relevant to this Court's jurisdiction). The second respondent, Ms Kate McClymont, is a journalist employed by a company related to The Age. Ms McClymont was the principal author of an article published about Mr Hayson in The Age newspaper on 3 June 2016 with the headline "Match-fixing link to gambler" (matter complained of). 2 In general terms, the matter complained of was about Mr Hayson on the topic of match-fixing for the purposes of improving gambling outcomes in certain rugby league games in the National Rugby League competition in 2015. Mr Hayson alleges that he was defamed by the matter complained of, pleading five imputations. The respondents deny that any of the pleaded imputations were conveyed or were defamatory. In the alternative, the respondents plead contextual truth and mitigation of damages, a defence of qualified privilege having been abandoned in the lead up to the trial. 3 As a part of the respondents' case on mitigation of damages, they plead what may conveniently be described as Mr Hayson's bad reputation in sporting and gaming communities. In aid of proof of that part of their case, the respondents have served two bundles of newspaper articles about Mr Hayson (asserted bad reputation articles) which they wish to have admitted into evidence. At a pre-trial interlocutory hearing on a collateral topic in the lead up to the trial, Mr Hayson foreshadowed an objection to the tender of the asserted bad reputation articles. 4 Mr Hayson has given evidence in chief and is now in cross-examination. Objection was taken to a particular line of cross-examination, which was described by the cross-examiner as challenging Mr Hayson's evidence in chief, but also preparatory to questions going directly to his asserted bad reputation, including by reference to the asserted bad reputation articles. It was therefore convenient at that time to trigger the legal argument and a ruling on the question of whether the asserted bad reputation articles are admissible or not. That was achieved by the tender of a sample 2006 newspaper article published in the Daily Telegraph newspaper. 5 The argument was conducted upon the basis that a ruling on the admissibility of the sample article would be binding in relation to like articles tendered upon the same or any similar basis. The sample article was also about Mr Hayson, on the topic of conversations he was reported to have admitted to having with jockeys prior to horse races, including one race for which heavy gambling was said to have taken place. On its face, the sample article at least implies impropriety on the part of Mr Hayson and to that extent might be some evidence of bad reputation if admissible, albeit in 2006, rather than in 2016. Later articles were said by the respondents to constitute long-running reporting of Mr Hayson's bad reputation going up to 2013 or 2014. I note that the articles in the two bundles in fact cover the period up to and after the publication of the matter complained of on 3 June 2016, but this does not affect the conclusion I have reached. 6 It is convenient first to consider the basis for Mr Hayson's objection to the tender, and then the respondents' argument as to why that objection should not be upheld. The authorities on the admissibility of evidence of bad reputation in mitigation of damages reflect a compromise arrived at between competing public interests, a common feature of the rules of evidence: (1) on the one hand, of allowing evidence of bad reputation to be adduced to ensure that a defamed person having such a reputation does not obtain the same damages as a person without such a blemish; and (2) on the other hand, the interests of justice in confining such evidence so that the tribunal of fact is not diverted into a collateral inquiry into the conduct of some or all of a defamed person's life. 7 Mr Hayson relies upon the decision of Moffitt P, writing for the New South Wales Court of Appeal in Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691. In Chappell, the plaintiff unsuccessfully objected at his trial to the tender and admission into evidence as "Exhibit 9" some 60 adverse newspaper articles about him which had been published five or six years before the matters complained of. The appeal succeeded on a number of grounds, one of which was that Exhibit 9 did not constitute evidence of a bad or diminished reputation and accordingly was not relevant to the mitigation of damages. On this topic, Moffitt P referred to directions given by the trial judge about the use of Exhibit 9 as "some evidence" of bad reputation. 8 The following parts of Moffitt P's judgment sufficiently illustrate the basis for the conclusion that his Honour reached about the irrelevance and thus inadmissibility of Exhibit 9: (1) at p. 68,951-2, his Honour said: Despite some earlier hesitation and doubt about the matter, it is now settled law that a prior tarnished reputation of the relevant type provides ground to mitigate damage from a defamatory imputation and that evidence of persons who testify directly to a tarnishing of a plaintiff's general reputation in that respect is admissible. Conscious of the need to prevent a rogue being awarded the same damages as a person of unblemished reputation, the law accepted the relevance to damages of a prior tarnished reputation, but, having done so, has been confronted with claims as to the evidence which should be put before a jury to found an inference that a plaintiff bears a bad prior reputation, where, if evidence of some types is admitted, it would be calculated to distract the jury from the real issues in the trial and lead to trials within the trial of the conduct of the plaintiff in the past, in some cases over his entire life. (2) at p. 68,952, his Honour: (a) referred to Scott v Samson (1882) 8 QBD 491, which "confined the method of proof of a prior bad reputation by excluding evidence of specific past acts of the plaintiff"; (b) noted that that approach had been approved by the English Court of Appeal in Hobbs v Tinling & Co Ltd [1929] 2 KB 1, and by both the Court of Appeal and House of Lords in Plato Films Ltd v Speidel [1961] AC 1090 and in Associated Newspapers v Dingle [1964] AC 371; (c) quoted from Devlin LJ in the Court of Appeal in Speidel: What is relevant is what sort of reputation the plaintiff has in fact, not whether he ought to have it or not. Further, the inquiry must be limited to general reputation. If, under the guise of investigating what sort of reputation a man bears, one were to investigate whether he was thought or said to have committed specific acts, the inquiry would soon degenerate into an inquiry about what a man had actually done in his past life as ascertained by rumour and not by fact. (3) at p. 68,953, his Honour said: … all of their Lordships [in Dingle] decided that prior defamatory publications which answered a particular description could not be used to find in mitigation of damages that the plaintiff's reputation had been diminished by the earlier publications. (4) at p. 68,954, after considering the speech of Lord Radcliffe in Dingle, which suggested that the limitation only applied to prior publication of the same incident or subject as the matter complained of, his Honour said: However other members of the House decided the appeal on a wider basis. For example Lord Denning, as well as expressing the view that bad reputation needs to be established by calling a person to prove it, said (at p. 412): "But if you should go beyond these, you immediately get into the realms of reports and rumours, often enough spread by busybodies who know nothing of the man, or indulged in by newspapers for the benefit of their circulation, which they have no material to justify. If you should admit these in evidence, you would indeed be giving countenance to the injustice commonly supposed to exist: 'Give a dog a bad name and you might as well hang him'. Nor can the report of a particular incident, even if it be notorious, be brought up against the plaintiff. If it refers to the same matter as the libel, it tends to prove a justification and is therefore not admissible in mitigation of damages but only in support of a plea of justification. If it refers to something different from the libel, it cannot be admitted because it is specific misconduct which it is not considered fair that you should bring up against him, see Speidel v. Plato Films Ltd. (and see per Lord Morris pp. 416-417). The decision in Dingle and the particular views of their Lordships is against the admission of Exhibit 9 or its use to establish that the appellant had a prior tarnished reputation… 9 Mr Hayson submits that the approach and conclusion reached in Chappell, based on the endorsement in both Speidel and Dingle of the common law rule in Scott v Samson, remains good law. He submits that the legal substratum for the conclusion reached in Chappell is also binding upon a single judge of this Court, citing in particular Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125 at [94] in which it was said: … There are limited circumstances in which a respondent may rely upon facts in mitigation of damage. Those circumstances were referred to by Neill LJ in Pamplin v Express Newspapers [[1988] 1 WLR 116] at p 119-120. They were also referred to more recently by Gleeson JA in the New South Wales Court of Appeal in Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [(2018) 97 NSWLR 547] at [176]-[180] - 176 It is necessary to say something first about the admissibility of evidence of reputation in mitigation of damages in a defamation trial. The starting point is the common law rule in Scott v Sampson. While a defendant may seek to rely upon evidence of the plaintiff's bad reputation in mitigation of an award of damages, evidence of specific acts of misconduct on the part of the plaintiff tending to show his or her character or disposition, as distinct from general bad reputation, is inadmissible. 177 The justification for this exclusionary rule is pragmatism and fairness. It has been said that the exclusionary rule reflects the need to prevent trials becoming extended by the investigation of new allegations about the plaintiff's past life, and also a concern about the lack of relevance of evidence which has "but a very remote bearing on the question in dispute". The concern is "to prevent [defamation] trials from becoming roving inquiries into the plaintiff's reputation, character or disposition". 178 However, there are exceptions or limitations to the exclusionary rule in Scott v Sampson. The exclusionary rule does not apply to evidence of past criminal convictions. 179 Nor does the exclusionary rule apply to evidence of facts directly relevant to the contextual background of the publication. In Burstein, the English Court of Appeal held that evidence of specific acts of misconduct on the part of the plaintiff tending to show his or her character and disposition is admissible where it is directly relevant to the context in which a defamatory publication came to be made. The stated rationale in Burstein for this exception is to avoid the danger that the jury would be required to assess damages in blinkers. 180 Nor does the exclusionary rule apply to evidence properly admitted in relation to a defence of partial justification. In Turner, Keene LJ referred to Pamplin, where the defendants were allowed to rely, in mitigation of damage, on evidence adduced in support of a plea of justification which ultimately failed, and observed that it has long been established that evidence of "specific acts properly admitted on such a plea may [nonetheless] be taken into account by the jury when assessing damages even though the plea has failed". However, Keene LJ also noted that to be used for this purpose, the evidence must relate to "the relevant sector of the plaintiff's life". [footnotes omitted] 10 Mr Hayson urges caution in further extending the exception to the common law rule in Scott v Samson as expressed by Brownie AJA in O'Hagan v Nationwide News Pty Ltd [2001] NSWCA 302; 53 NSWLR 89 at [38], to the effect that, if a specific incident relating to the person defamed is sufficiently notorious to produce an adverse effect upon his reputation, evidence of that specific incident may be led, citing Speidel and Goody v Odhams Press Ltd [1967] 1 QB 333, but making no reference to Dingle. 11 The thrust of the respondents' argument as to why Mr Hayson's objection to the tender of the sample article, and thus of like articles, should not be upheld is the suggestion that the introduction of the Evidence Act 1995 (Cth) changed the rules of admissibility and that, provided evidence tendered is relevant, it is admissible. It is suggested that this asserted change in the law of evidence, coupled with the suggestion in O'Hagan at [38] that proof of specific incidents of sufficient notoriety are admissible, render the newspaper article tendered admissible. I am unable to accept that argument. 12 First and foremost, relevance for the purposes of the Evidence Act in this instance is relevance according to the common law of defamation in Australia. Moffitt P in Chappell excluded Exhibit 9, which apparently comprised of newspaper articles of the same nature as the sample article, sought to be relied upon for the same purpose, upon the ground that it did not constitute evidence of a bad or diminished reputation and accordingly was not relevant to the mitigation of damages. His Honour applied well-established authority on the topic of what is capable of constituting evidence of bad reputation in defamation proceedings. I am unable to discern any relevant change to that measure of relevance brought about by the Evidence Act. 13 Nor do I think that O'Hagan at [38], even if accepted without qualification, does more than apparently broaden the exception in the sense of what may be led from a witness, or otherwise adduced by admissible evidence, to prove bad reputation going beyond general reputation. I note that the conclusion reached in O'Hagan as to an extension of the exception to the common law rule in Scott v Samson was expressed by considering Speidel, but without apparent regard to Dingle and without regard to the application of Dingle in Chappell. Even so, O'Hagan does not effect a change in the way in which a notorious incident may be proven, such as by calling a witness able to give evidence in the usual way, or tendering other admissible evidence to prove the fact that the incident occurred, coupled with any evidence necessary to prove how that incident affected reputation if that was not self-evident: see Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504 at 513B-C. That is, at most O'Hagan might allow for the adducing of evidence of a particular incident that proves notoriety and thus bad reputation, rather than being confined to evidence from a witness of the general bad reputation of the person defamed, but does not go so far as to suggest that this may be proven by otherwise inadmissible evidence. 14 A prior newspaper article is not capable of proving either the fact that a specific incident occurred, or notoriety arising out of such an incident even if not separately proven to have taken place. A prior newspaper article cannot in and of itself prove notoriety and thereby the ultimate conclusion of bad reputation, because it says nothing about the impact of such an article on reputation, let alone reputation at the time of the publication of the matter complained of. A witness must be called to do that, or somehow other admissible evidence led. Sight must not be lost of the long-standing compromise between competing public interest considerations. 15 In relation to the inability of a prior newspaper article to, in and of itself, prove damage to reputation, as McHugh J pointed out in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 99 (in dissent on the issue of the effect of multiple defamatory publications on the assessment of damages in that case, but not in a way that casts doubt on the correctness of the principles his Honour espoused based in part on Dingle): The common law is clear, rightly or wrongly, that the defendant cannot mitigate damages by tendering evidence of other defamatory publications concerning the plaintiff. A fortiori, at common law evidence is not admissible that the plaintiff has recovered damages in respect of other defamatory publications. A defendant must answer for the effect of its own circulation without regard to what others have published. If a defendant wishes to contend that the plaintiff's reputation was already damaged at the time of publication, it can do so by calling witnesses to prove the nature of the plaintiff's reputation at that time. But it cannot tender other publications for that purpose. They may or may not have damaged the plaintiff's reputation. (footnotes omitted; emphasis added) 16 It follows that the tender of the sample article must be rejected. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.