Jones v Jackson

District Court of NSW|2023-09-14

The application before the court

These are proceedings for a serious harm ruling brought pursuant to s 10A of the Defamation Act 2005 (NSW) ("the Act").
The proceedings were adjourned for the reasons set out in my earlier judgment of 30 March 2023 (Jones v Jackson [2023] NSWDC 76 at [17]), namely to permit the parties to consider their position concerning a forthcoming Four Corners documentary on cheating in Paralympic sports events ("Gaming the Games: the scandal threatening the Paralympics", broadcast on 3 April 2023; hereafter "the Four Corners broadcast"). The parties had no knowledge of this imminent broadcast until shortly before the section 10A hearing was to commence. The parties learned that reference would be made to the plaintiff in this broadcast as one of the Paralympic athletes involved and accordingly made a joint application to adjourn part-heard.
The parties now advise the Court that the s 10A application is now able to be completed. The plaintiff's counsel, Mr Munro, has stated to the Court that his client makes no further or additional claim in relation to the Four Corners broadcast, either in relation to the defendant or at all, and that these proceedings will continue on the basis of the material already tendered. The defendant has sought to tender the transcript of the Four Corners broadcast and the plaintiff's cycling record on the basis that these are relevant to the assessment of harm likely to be caused.

The parties to this litigation

As was set out in my earlier judgment, the plaintiff and defendant had a brief de facto relationship in 2000 - 2001, which resulted in the birth of a son in January 2001, following which the relationship ended. The plaintiff had some contact with his son until 2012. However, following proceedings under the Family Law Act 1975 (Cth), the plaintiff had no further contact with either the defendant or their son until about 28 November 2021, when his son sent him a message about the award he had just received, saying: "Congrats dad!!! I'm so proud of you! You deserve it." This was in response to the events which resulted in publication of the matter complained of and is one of the pieces of evidence relied upon by the plaintiff to establish serious harm.

"Serious harm" and s 10A

A statement made in States and Territories other than Western Australia and the Northern Territory is actionable only if, and to the extent of, its publication either causing serious harm or being likely to do so. Section 10A of the Act is based on s 1 of the Defamation Act 2013 (UK) and, as O'Callaghan J points out in Selkirk v Hocking (No 2) at [18], a number of the English cases are useful for interpreting the relevant principles to apply. As O'Callaghan J goes on to state at [19] - [28], these principles, set out in Lachaux v Independent Print Ltd [2020] AC 612 at [14], are as analysed by Brereton JA, with whom Macfarlan JA agreed, in Rader v Haines [2022] NSWCA 198 at [27]. In broad terms, "serious" harm involves more than merely "substantial" harm.
One example of the resulting confluence between the principles of law set out in the English and Australian decisions is that, in both jurisdictions, it is acknowledged that serious harm "is not a numbers game" (Selkirk v Hocking (No 2) at [20]; this phrase was coined by Eady J in Mardas v New York Times Co [2009] EMLR 8 at [15]). The limited extent of publication is an important factor in this case. However, as O'Callaghan J sets out in Selkirk v Hocking (No 2) at [19]-[21], this principle must be construed in the context of there being a need for some harm that has actually occurred or is likely to occur.

The plaintiff's evidence and the extent of publication

The plaintiff was not aware of the first matter complained of until it was drawn to his attention by Ms Karina Santolin, his massage therapist, who sent it to him about a day later, with the comment: "Ummm, don't know who Leticia Jackson is … but, bitch on legs!". As the screenshot below demonstrates, the response from the plaintiff was "My youngest son's mother…and yes she is":
Ms Santolin told him where it had been posted and suggested he should have it taken down:
Comments on the post were made by three persons: Aiden Sinclair, Haley Hannam and Daniel Anderson. Mr Sinclair, the first commenter, simply says: "Grow up". Daniel Anderson says: "Letitia you are an absolutely pathetic person. Such a foul human being to say that. Truly shows the very little character you have."
The plaintiff expressed concern about the posts made by Aiden Sinclair and Daniel Anderson, people whom he knew personally, as being evidence that they had been affected by what they read, in that they had not contacted him about it. Their comments are critical of the defendant and not of the plaintiff and there is no reason to suppose their true feelings differed from what they wrote. There is no evidence of subsequent encounters or problems.
The post by Haley Hannam, however, is critical of the plaintiff. She responds: "Totally agree lived across the rd [sic] from him for years", adding in a second post that the plaintiff had "said myself & my family were nothing but Housos !!! He can ride a 2 wheel bike with ease." The plaintiff sets out, in his affidavit material, the history of his prior encounters with Haley Hannam and it is clear there is no love lost between them, but this is for reasons unconnected with the defendant's post. A further comment by Ms Hannam ("Go Rexy!") is unable to be explained and appears unrelated.
There is another comment by Deanne Lewis ("Congratulations") which appears to predate the matter complained of.
As is generally the case with social media publications, these posts were made shortly after the post to which their comments were directed. There is no evidence of any other activity or response from any of these persons, negative or otherwise, either at the time of publication or subsequently.
The plaintiff also sets out in his affidavit that there were six 'likes' to the post from his sister, his previous coach, an Institute of Sport dietician and three cyclists. It is unclear whether these persons 'liked' the post about the plaintiff before or after the defendant's publication.
The three comments, the six 'likes' and the forwarding of the post to the plaintiff by Ms Santolin after she had read it add up to a total of ten persons. Apart from Ms Hannam, their contemporaneous responses are critical of the defendant, not the plaintiff.
The publication remained online until 12 June 2022 when, following the Concerns Notice of 1 June 2022, it was taken down. The plaintiff has no Google analytics or other "platform of facts" (Sims v Jooste (No 2) [2016] WASCA 83 at [15]-[20]) to enable him to assert that these comments were disseminated more widely during that period. Proceedings for defamation were not commenced until 5 December 2022.

The evidence of Ms Santolin

The principal evidence of substance as to serious harm is the evidence of Ms Santolin, as set out in her two affidavits. She was not required for cross-examination.
In the first of these affidavits, affirmed 15 March 2023, Ms Santolin states that, while she knew the truth, she was "very concerned that people who don't know him as well would see the comment and either believe her, or no longer support him because of this question to his integrity, or avoid him altogether" (paragraph 14). She spoke to "some of my peers" and to her family as she was concerned about her business name being associated with "someone the community didn't feel they could trust". She did not speak to others as she felt that "giving any further traction to the comments was not in the best interests of anyone" (affidavit, paragraphs 15 and 20). She adds that she was embarrassed because "any kind of negative press tends to cause further judgement on athletes that already struggle" (paragraph 21).
Ms Santolin's second affidavit of 14 July 2023 identifies these "peers" as two persons she worked with, adding that she did not show them the publication of 25 November 2021, although she did show it to her family members. Neither this affidavit, nor her previous affidavit, explain what she meant when she posted "Others bought into it also", but I interpret this as evidence that there were unfavourable comments posted by Ms Hannam.
Both affidavits paint a much gloomier picture than Ms Santolin's initial "bitch on legs" comment. That comment was made, in my view, because she picked up that the attack on the plaintiff related to his personal life as well as to his Paralympian activities. Her affidavit evidence needs to be read in light of this earlier response.
Ms Harris submits that Ms Santolin is hardly a "quality" publishee (Dhir v Saddler [2017] EWHC 3155 (QB) at [55] per Nicklin J). While she expresses fears in those affidavits about how others will respond, she gives no evidence of any adverse response. I consider Ms Santolin has overstated her concerns in her affidavit and that her evidence, such as it is, contributes little support for the claim of serious harm, beyond the fact that she recommended that the plaintiff have the post taken down.

The plaintiff provides a copy of the matter complained of to his son

The plaintiff also contacted his son on or about 28 November 2021:
Mr Munro does not rely upon the plaintiff's publication of the matter complained of to his son as evidence of publication, as publications by a plaintiff to a third party, such as a family member or a lawyer, are generally not regarded as actionable (Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 at 293; Wen Yue He v Chinese Newspapers Pty Ltd [2005] NSWSC 253; Perkins v Floradale Productions Pty Ltd & Ors (District Court of NSW, Walmsley SC DCJ, 28 May 2013, unreported)). It is only when the publication is "compelled" (for example, giving an employee a defamatory reference which he is then obliged to show to future employers: Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364) that publication occurs.
Although there is no authority on this point, I consider that the need to explain such a publication to a member of the family, while not constituting evidence of publication, is nevertheless a factor that could be taken into account in determining the nature and extent of the harm caused if there was evidence of this kind. In the present case, the plaintiff's son needed little explanation from his father. He responded in a mature and sensible fashion.
Ms Harris put to the plaintiff that part of his response included telling his son that he would see posts like this and just "laugh" (Tcpt, 14 September 2023, p 13), which suggested that the plaintiff was not really upset. I accept the plaintiff's evidence that he was putting on a brave face.
Serious harm requires evidence of damage to reputation. There is no evidence that the plaintiff's son reacted in anything other than a supportive way. The fact that the plaintiff was distressed at having to show it to his son and was concerned at the potential for damage to this fragile new relationship, while amounting to some evidence of potential harm, did not translate into harm of any real kind.

The grapevine effect

A feature of the "sticking power" of a defamatory allegation of relevance to the assessment of serious harm is the likelihood of percolation/repetition of the allegation beyond the original publishees, known as "the grapevine effect": Slipper v BBC [1991] 1 QB 283 at 300 per Bingham LJ; Rader v Haines at [41] - [54].
There is scant evidence of the grapevine effect. The plaintiff neither gave nor called such evidence apart from that of Ms Santolin. She said that she thought it wisest not to discuss the matter outside the confines of her office and family and any further publication clearly stopped there. Ms Santolin did not even show the matter complained of to her work colleagues.
Accordingly, I am satisfied that there is no evidence of substance of the grapevine effect.

The delay factor

Although Ms Santolin advised him in November 2021 to have the matter complained of taken down, the plaintiff did not do so until 1 June 2022. This occurred a month after he became aware that the defendant made a second publication which is no longer sued upon.
During this whole period, the plaintiff's Paralympian and other cycling activities continued without incident. Although the plaintiff described his state of mind from November 2021 onwards as being "completely distraught, stressed and anxious" (affidavit, paragraph 46), adding that he feared repetition, these concerns did not lead him to take any further action.
There is also delay in the commencement of proceedings. The proceedings were commenced on 5 December 2022, more than a year after publication, by reason of the extension of the limitation period generated by the issuing of a second (and technically unnecessary) Concerns Notice on 12 October 2022, which gives rise to a 56-day period before the limitation period expires and extends the limitation by reason of the legislation, without requiring any application to the court, from 25 November 2022 to 11 December 2022.
Delay may, in some circumstances such as late service of a concerns notice and/or commencement of proceedings, be relevant as to whether serious harm has in fact occurred: Rader v Haines at [35] - [40] (see also Supaphien v Chaiyabarn [2023] ACTSC 240 at [115]).
There is, however, an explanation here. The plaintiff's son had just contacted him after nearly a decade, and any reluctance the plaintiff felt about sending a solicitor's letter to his former de facto in those circumstances would be understandable. It would also be a factor in the plaintiff's reluctance to commence these proceedings. I draw no inference from the plaintiff's delays in such circumstances.

Causation issues

Two factors are relevant to causation in terms of serious harm: 1. The role of the second post made by the defendant. 2. Whether the defendant caused or contributed to the Four Corners broadcast about Paralympic cheating.
The relevant causation issues are: 1. The second post: The Concerns Notice was sent in relation to both the matters complained of. The second post relates to different subject matter and appears to have been the catalyst for the Concerns Notice. 2. The Four Corners broadcast: The defendant cannot be held liable for the consequences of publications other than her own: Dingle v Associated Newspapers Ltd [1962] 2 All ER 737; [1964] AC 371; Lachaux v Independent Print Ltd at [22]-[24]. However, where a plaintiff points to an adverse event as evidence of harm to reputation generally (as well as serious harm), and there are other possible causes of the remark or event, in the form of other publications to the same or similar effect, the Dingle rule has no bearing in determining causation: Economou v De Freitas [2016] EWHC 1218 (QB).
Both these causation issues are the subject of admissions of an appropriate nature by the plaintiff. As to the post published in February 2021, the plaintiff makes no complaint about the attack by the defendant concerning his standing as a lawyer. The causation issues arising from the Four Corners broadcast are, however, more complex, and could have raised very substantial difficulties for both parties, which is why these proceedings were adjourned part-heard. Had there been a connection pleaded, whether there was evidence or not, there would have been real doubt as to whether there should be a serious harm preliminary ruling at all, for the reasons explained in Hun v Aljazeera International (Malaysia) SDN BHD [2023] FCA 1103 at [43]. It is because the Four Corners broadcast issues have been resolved that this application is now "ripe" for determination (Ames v Spamhouse Project Limited [2015] 1 WLR 3409 at [101] per Warby J).
As previously noted, Mr Munro has made his client's position very clear: no claim is made that the Four Corners broadcast has any connection whatsoever to the defendant or to the post (or posts) she has made about the plaintiff. To the contrary, the source for the Four Corners information was clearly identified in that broadcast as being another former girlfriend of the plaintiff, Sandy Kryzius. She identified herself in the broadcast as the source for that information, which was information known to her personally from her relationship with the plaintiff at the time of his accident and after he returned to cycling.
Ms Harris identified another causation issue arising from the events of the past six months since the adjournment, namely what she called the "fallout" from the Four Corners broadcast. The defendant relies on a series of documents demonstrating that the plaintiff's reputation has still not suffered any serious harm despite the Four Corners broadcast, namely: 1. An announcement from the Auscycling website dated 19 July 2023 that the plaintiff is part of the Paracycling Team to compete for Australia in the T2 category for "Paracycling Road" in the World Championship in Glasgow. 2. The "UCI Paracycling Road World Championship 2023 Results Booklet" for 9 - 13 August 2023 showing the plaintiff competed at Glasgow. He was placed 11th out of 15 in the Men's T2 Road Race and 4th out of 15 in the Men's T2 Individual Time Trial. 3. A post from the plaintiff's public Instagram profile dated 9 August 2023 stating: "Tomorrow is the 2023 Paracycling Road World Championships start…Regardless of my result I'm going to enjoy this one…I will be smiling all the way. This one is special. Life is good." 1. A later post reported the result: "got 4th…super happy despite no cigar [smiley face]". 1. A screenshot of the plaintiff's current profile on the Paralympics Australia website.
Ms Harris submits that, despite being given the opportunity to provide further evidence over an adjournment of six months, the only further evidence supplied is an affidavit of Ms Santolin repeating and enlarging upon the evidence that she had already provided. While the plaintiff stated in cross-examination that there was an ongoing investigation into his disability claims, not only is this for reasons unrelated to the matter complained of, but he remains on the team and still holds his awards for sportsmanship.
Mr Munro challenged the admissibility and relevance of this material and of the Four Corners broadcast. I admitted it into evidence (Tcpt, 14 September 2023, p 8 (15) - (17)) because the defendant argues that it demonstrates that the plaintiff has not suffered harm, serious or otherwise, by reason of the similar subject matter. I also consider it is admissible for the reasons explained by O'Callaghan J in Selkirk v Hocking (No 2) at [22] - [23].
In cross-examination, the plaintiff initially blamed both the Four Corners broadcast and the ongoing investigation into whether he was a disabled rider on the defendant's publication. He later resiled from that position: "Q. The matter complained of did not cause the Four Corners episode, did it? A. I can't answer that as a yes or no, I'm sorry. Q. You have no proof that the matter complained of caused the Four Corners episode, do you? A. I can't answer that as a yes or no, I'm sorry." (Tcpt, 14 September 2023, p 23 (20)-(25)).
There is no evidence to support that the matter complained of, which postdates the commencement of the Four Corners investigation, caused or contributed to that investigation coming about or being continued. There is no evidence that the UCI Inquiry commencing in about July 2023 was caused by or contributed to the matter complained of.
A further causation issue which could have arisen if the UCI inquiry had resulted in charges is that, if the inquiry does make adverse findings, that will be as a result of the inquiry procedure, not the matter complained of, which is a break in the chain of causation. In addition, evidence that a plaintiff has no reputation to lose would be admissible on the question of serious harm (Selkirk v Hocking (No 2) at [22] - [23]). This represents a significant change from the admissibility of such evidence under the pre-amendment legislation, for the reasons explained by O'Callaghan J. At present, however, the plaintiff is only under investigation, and this issue does not arise.

The duration of the harm

The duration of the harm is a significant determinant, for the reasons explained in Rader v Haines at [36] - [40].
The plaintiff and Ms Santolin were clearly concerned about the publication for a period of time of some weeks after its publication. It was during this period that the plaintiff spoke to his son about it.
However, in January 2022, when the plaintiff was attending the Australian Paralympian Awards, he unexpectedly received the Uncle Kevin Coombs Award for the "Spirit of the Paralympic Games". His racing career continued unabated and he does not give evidence of any events or issues between January to May 2022, from which I infer that the plaintiff was untroubled by the prospect of repetition or damage caused by the matter complained of.
It was not until 10 May 2022 that the plaintiff learned from a friend, Lauren O'Brien, that the defendant had sent a second post, this time to Newcastle Live, stating that the plaintiff was "not a lawyer" but "a lying cheating narcissist". Her post was in response to the 2 February 2022 Newcastle Live Facebook page advertisement stating that the plaintiff would be appearing for an interview in his capacity as a "Paralympian and Lawyer". That interview went ahead without incident, and the plaintiff had continued his successful sporting career, even after he became aware of the post.
Although this post does not specifically refer to Paralympic cheating, the plaintiff stated in his affidavit that, both in November 2021 and following his discovery of this second post in May 2022, he became "concerned about his safety" (affidavit, paragraph 52), adding: "I am really worried that someone is going to see me out on the road, who has seen the post, and I don't know what I am going to cop. I don't know what's going to happen." (Paragraph 53)
In cross-examination, the plaintiff agreed that no such incident had happened (Tcpt, 14 September 2023, p 7).
All of the evidence points to any harm as being of the same short period of a few weeks, as was the case in Rader v Haines. This is a significant hurdle for the plaintiff, for the reasons noted by Brereton JA at [66].

Conclusions concerning the factual evidence

The issue of serious harm "will always be highly fact specific" (Dhir v Saddler at [54] per Nicklin J) and require evidence of harm to reputation of a serious nature. Whether the number of publishees is large or small, as Nicklin J goes on to note, the effect of Lachaux is that the requirement is to show serious harm caused to the reputation of the claimant in the eyes of the publishees, and not damage to the claimant's reputation in the eyes of people generally.
That has not been established here. Despite the plaintiff's distress and fears, as was the case in Rader v Haines (at [49]), all of the evidence points to a publication made to a handful of people who dismissed it. There is no evidence of harm going beyond the few days during which Ms Santolin drew it to his attention, and the plaintiff's decision not to ask the defendant to take it down must have taken the issue of harm into account. As was also the case in Rader v Haines, there was effectively no real evidence of the grapevine effect or of any incident of any kind in the weeks, months and years that followed.
The evidence also confirms that the plaintiff's success as a Paralympian has been wholly unaffected by any publication made by the defendant. While he referred, in cross-examination, to an ongoing inquiry into allegations made by a person other than the defendant, that evidence does not address the critical question of whether that is linked to the publication of the matter complained of, as opposed to "historic harm" or to harm caused by others (Selkirk v Hocking (No 2) at [84]).
The plaintiff's own evidence does not fill this gap. He says that he was "gutted" (Tcpt, 14 September 2023, p 9) by the post but provides no evidence of reputation damage, in circumstances where, on any reading of the evidence, publication was limited to ten or a dozen of individuals, none of whom (except for Ms Hannam, who already disliked him) thought the worse of him.
For the above reasons, each of which I am satisfied would be sufficient on their own, the plaintiff has failed to prove that publication of the matter complained of has caused, or is likely to cause, serious harm to his reputation.
As the plaintiff has been unable to establish serious harm, these proceedings should be struck out and dismissed. Costs should follow the event. I have granted liberty to apply in relation to the costs orders that I have made.

Orders: 1. Pursuant to s 10A of the Defamation Act 2005 (NSW), by reason of the plaintiff having failed to establish serious harm, these proceedings are struck out and dismissed. 2. The plaintiff is to pay the defendant's costs, with liberty to apply. 3. Exhibits retained until further order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 October 2023

At a glance

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Judgment (14 paragraphs)

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Legislation Cited (2)

Cases Cited (10)