Before the Court today is a Notice of Motion dated 7 February, by which the defendant takes objection to a number of paragraphs of what is described as the Proposed Third Amended Statement of Claim ('Proposed Pleading') dated 17 February 2022. The Notice of Motion, although directed towards an earlier version, was maintained by the defendant in relation to the newer Proposed Pleading as it was directed towards the same issues. The proceedings are a claim for damages for defamation.
The plaintiff describes herself as a citizen and resident of Australia. She is a family dispute resolution practitioner and accredited in that role with the Commonwealth Attorney General's Department. She describes the defendant, Mr Whittington as an Australian citizen. It is common ground that presently he resides overseas either in Sweden or in Russia. That is of no moment given the fact that he is represented today by counsel, Mr Smartt. The defendant describes himself as having founded a charity, Project Rescue Children.
Originally the defendant did not appear and service proved difficult. That matter was resolved in due course by the intervention of the Court. The New South Wales Bar Association has provided at the request of the Court, two counsel to assist the parties and the Court. Mr Armitage, of counsel today appears for the plaintiff on the motion and Mr Smartt, of counsel appears for the defendant. The Court should appropriately acknowledge the assistance of the New South Wales Bar Association and the two counsel concerned for their generosity and professionalism.
There are other procedural matters to be dealt with in due course, but today given the time available it was proposed I deal with only one matter and that is the various objections to the Proposed Pleading.
Under normal circumstances I would have reserved my judgment, as there are a number of important issues that arise on the pleadings. However, presently I am out of chambers and it is not convenient for me to do so. There has also been some delay which has unfortunately arisen in the matter.
The objections to the Proposed Pleading very largely if not entirely arise because each of the publications concerned was disseminated via the internet. The Proposed Pleading makes tolerably clear that there are 27 matters complained of.
The first of the matters complained of is said to have been published on 29 December 2019. The last matter complained of is said to have been published by the defendant on 21 October 2021. In some instances, the defendant's name is clearly designated or identified in the matter. In some, his connection to the matter is not clear to me, at least having looked at each of the Annexures to the Proposed Pleading which have been provided in a court book.
As these are proceedings in defamation, it is uncontroversial that the tort is constituted by communicating a matter which is understood to be defamatory of and concerning the person to someone other than that person. There are three vital elements in any such cause of action: publication; identification; and, not the least of which, defamatory meaning.
In considering the Notice of Motion today, I am not going to be detained by any question about the identification of the plaintiff. In most instances she is expressly mentioned. I am also not detained today by reason of the form of any of the defamatory imputations that are pleaded, although Mr Smartt, of counsel, for the defendant did not concede that the meanings pleaded all arise in the form that they currently appear.
It cannot be gainsaid that publication is the foundation of the cause of the action for defamation. The law of defamation, as is reasonably obvious, protects a plaintiff's reputation in the eyes of a person other than the plaintiff. Therefore, at common law as I have already said publication consists of the communication of matter of and concerning the plaintiff to some person obviously other than the plaintiff, that is the genesis of many of the pleading points that arise here.
In Dow Jones v Gutnick (2002) 210 CLR 575, the High Court discussed the question of defamation via the internet and indeed, in particular, where the alleged defamation was said to have taken place. Their Honours said at [44]:
In the case of material on the world wide web it is not available in comprehensible form until downloaded onto the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then that will be the place where the tort of defamation is committed.
On the significance of downloading, Katzmann J in Massarani v Kriz [2022] FCA 80 at [53], citing Sims v Jooste (No 2) [2016] WASCA 83 at [18]-[20], stated that:
[A] person who claims to have been defamed by such material must plead and prove facts, which establish that material complained of has been downloaded and viewed by someone.
As has been pointed out in argument today and in written submissions filed on behalf of the defendant, an inference generally will not be drawn from the mere fact that material has been posted on the internet that the material has therefore been viewed and read by someone. The plaintiff instead must plead, as the Court of Appeal made clear in Stoltenberg v Bolton; Loder v Bolton (2020) 380 ALR 145 ('Stoltenberg'), material from which an inference of download can properly be drawn. The Court of Appeal in that case considered the significance in a defamation action based on internet content of a lack of particulars of the readers of a publication, proof of publication and extent of publication, considered in Grounds 1-11 of the appeal. The Court of Appeal in Stoltenberg at [56] approved the primary judgment's acceptance that "the mere fact of posting material online does not lead to an inference that it has been downloaded, referring to Sims v Jooste (No 2) [2016] WASCA 83".
Further, on that issue, Levine J in a decision of Ezzo v Grille [2004] NSWSC 522 at [13] indicated as follows, his Honour said:
It is insufficient particularisation of an allegation of publication by a defendant "on the internet" to assert that the material was on a website and was "downloaded" or otherwise accessed in New South Wales. It is the defendant's role in the matter being uploaded to the website that is critical.
These are not merely technical issues. In conventional cases, for example where the communication is in newspaper, publication is generally speaking fairly easily proved. In a case like this, however, there are from time to time difficulties, which in some instances prove to be insurmountable in terms of the inability on the part of the plaintiff to plead the case appropriately.
A number of objections have been made by the defendant and these objections can be divided into four distinct categories which are identified and dealt with below. The last of the categories, which I shall return to in some little detail in a moment, involves the new and necessary element of the cause of action, namely the serious harm element requirement in s 10A of the Defamation Act 2005 (NSW) as amended.
The first category contains matters where there is insufficient particularisation concerning the downloading of that material from the internet. Matter number 12, which is at [42] of the proposed third further amended statement of claim, is the first of a number of matters complained of. This group also includes the publications identified as matters 13, 15, 16, 17, and 18.
Matter number 12, purports to be an article allegedly published by the defendant on 23 November 2020. Subparagraph (i) indicates that evidence concerning the number of persons who have downloaded the WordPress publication and their places of residence shall be sought by way of notice to produce issued to the defendant. Further, evidence concerning the number of persons who have downloaded the WordPress publication, it is said and their places of residence, and dates of downloading will be sought by way of subpoena to WordPress.
At the moment it is clear that the plaintiff is simply unable to indicate who, if anyone, downloaded those publications and if they have there is then no specificity as to which jurisdiction they have been downloaded in. That level of detail is vital both in terms of determining the elements of the cause of action, but also in fairness to the defendant by way of indicating what, if any, defences might be available depending upon the jurisdiction in which it can ultimately be proved such publication took place.
I would therefore not grant leave to proceed with those matters. Quite simply the plaintiff in relation to those matters cannot plead the necessary material facts. She is unable to indicate to whom, when or more importantly even where, these publications occurred.
The question is whether further leave should be granted in respect of those matters to which the defendant takes objection. I will come to deal with that at the end of my discussion.
There is a second category of matters complained of, starting with what is described as matter 13 complained of, that is at [33] of the Proposed Pleading. Falling into this category are several other matters complained of, which are numbered 5, 8, 10, 11, 12, 19, 20 and 21. Again, a similar formula is used by the plaintiff in each matter. This category again involves matters where there is insufficient particularisation of the downloading of material from the internet, however there is some particularisation of the presence and size of an audience.
In relation to the third matter for example at [33] of the Proposed Pleading, the assertion is that the defendant published, through Facebook, on a page entitled "Child Abduction Recovery" certain materials as at 4 December 2021. It is then asserted the Facebook publication had an audience of 447.
Further evidence concerning the number of persons who have downloaded the publication and the places of residence of those persons who have downloaded the publication has been sought by way of a notice to produce. It is asserted that further evidence of not only the number of persons who have downloaded but their places of residence will be sought by way of a subpoena. At the moment that is as far as the plaintiff can go.
It is again obvious that notwithstanding a good deal of industry on the part of the plaintiff, she is simply unable to identify anyone in the viewing audience who may have accessed the particular item on the Facebook page, and hence which of them downloaded the matter complained of. In other words, she cannot presently show to whom the libel was published which is fundamental. In my view, in relation to the matters that fall into this category, I would likewise refuse leave to proceed with those matters.
There is a further category of matters complained of, which are numbered 1, 2, 4, 6, 7, 9, 14, 22, 23 and 24.
I will go to the first matter numbered 1, which is at [31]. This and the other matters in this category can be distinguished from those in the first two categories, as there is some evidence of the material being downloaded in specific jurisdictions. The first matter is said to have been a matter published by the defendant on a WordPress site named "Adam Whittington", who is the defendant. The article was removed on 17 February 2021. It was however first published on 27 December 2019. However, in para (b)(ii) and (iii) the matter is said to have been published to 24 persons by them indicating likes, five comments and 10 shares. There was however a total audience which was in the thousands. The plaintiff is unable to say where many of those persons were, except for those who she is able to identify as having "liked" it and that they were located within New South Wales. It seems to me that at least in relation to this publication, where she can specify the particular jurisdiction and that it was downloaded because it was "liked", I would grant leave to proceed with all of the matters which fall into a similar category.
I should say in passing that no question arises today regarding the notices to produce or subpoenas. What I am dealing with today is whether the Proposed Pleading should be allowed in its current form.
I have nonetheless referred the parties to the decision of the Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 a decision of 15 July 2021 and in particular, I have referred the parties to the judgment of the learned Bell P (as his Honour then was) at [80].
I will next move to the serious harm issue. Before I do, I should say this, apart from permitting leave to proceed in relation to certain matters, which do specifically identify a jurisdiction or jurisdictions - and in respect of which I would permit the Proposed Pleading to be filed, I would not grant leave generally otherwise to the plaintiff, because it seems to me that she is currently unable properly to articulate the causes of action, she wishes to bring. This is a third attempt. It is clear that great industry has been put in to attempting to provide all of the material. But I do not consider it is fair on the defendant nor do I consider it is an appropriate use of resources to permit the proceedings on these matters to go any further.
The question of serious harm is dealt with at [85], [86] and [87] of the Proposed Pleading. The serious harm element was introduced into the New South Wales Defamation Act 2005 by an amendment on and from 1 July 2021 and which introduced a section 10A into the Act.
The pleading on this issue is in my view rather confusing. The Proposed Pleading at [86] asserts that in May 2021 the plaintiff considered it necessary to relocate her place of residence into a secure building and in fact did so. The publication of matters described as 23 and 24 constitute part of the basis of an ongoing personal security threat held by the plaintiff. It is further asserted that additionally serious harm to the reputation of the plaintiff is to be inferred from the inherent seriousness of the defamatory imputations and publication by the various imputations via Facebook, and the plaintiff having within Australia both a general reputation and a reputation as a family mediator.
Section 10A of the New South Wales Defamation Act is in the following terms:
(1) It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.
(2) For the purposes of subsection (1), harm to the reputation of an excluded corporation is not serious harm unless it has caused, or is likely to cause, the corporation serious financial loss.
The question whether the serious harm element is established or not is a matter for the judge and not the jury: s 10A(3). The question as to whether the cause of action has or is likely to cause serious harm can be raised by any party or the judge as well: s 10A(4)(a) and (b).
The issue would normally be determined before trial unless special circumstances suggest otherwise and special circumstances may include cost implications, the court's resources and whether the determination of that issue is linked to other issues during the trial: s 10(5) and (6).
The judge is also empowered to determine the issue on the pleadings without the need for further evidence: s 10(7).
It will be necessary to return to a number of these provisions because of s 10A's UK counterpart.
The stated reason [1] for the introduction of this provision (with I may say a suite of other provisions) is said to be that "stakeholders raised significant concerns that defamation law is increasingly being used for trivial, spurious and vexatious backyard claims" and that "the costs and stress of defending a defamation claim can be prohibitive for private individuals". [2] In that regard reference is made to the discussion paper submitted by the Law Council of Australia. The Honourable, the Attorney-General went on to say that stakeholders overwhelmingly supported the introduction of a "serious harm threshold".
He went on to explain that as a consequence the s 33 defence of triviality [3] will no longer have any work to do and was to be omitted.
The obvious genesis of s 10A of the NSW Act is to be found in section 1 of the United Kingdom's Defamation Act 2013 (UK). The provision in that Act states:
A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
For the purposes of this section, harm to the reputation of a body that trades for profit is not "serious harm" unless it has caused or is likely to cause the body serious financial loss.
On 12 June 2012, the Lord Chancellor during the Second Reading Speech in the House of Commons [4] said that the question of what constituted serious harm would be a matter for the judge, s 10(3).
It will be immediately obvious that in neither country is the term "serious harm" defined as such. It is also the fact that both sections are in different terms, albeit only slightly.
But the task of defining "serious harm" is considerably assisted by the recent decision of the UK Supreme Court in Lachaux v Independent Print Ltd and another [2019] UKSC 27; [2020] AC 612 ('Lachaux'), to which I will return.
The seriousness or gravity of any defamation has historically been a relevant factor in relation to the award of damages. Numerous other considerations therefore have been thought relevant over time to enable a court appropriately to deal with defamation cases lacking in gravity or seriousness. For example, whether or not a defamation can properly be characterised as either something said in jest or amounting to no more than vulgar abuse are matters that have been taken into account as relevant.
There have been statutory innovations from time to time. For example, s 13 of the Defamation Act 1974 (NSW) was such an innovation. It provided that a defence would arise where the circumstances of the publication were such that the plaintiff or person defamed was not likely to suffer harm, see Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691. That in due course became known as the defence of triviality in s 33 of the Defamation Act 2005 (NSW). Such a defence faced perhaps the inevitable hurdle of the presumption of damage which works in the plaintiff's favour whenever it was proved that a defamatory imputation was published of and concerning the plaintiff, see Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118 at 150 (Windeyer J); Bristow v Adams [2012] NSWCA 166 ('Bristow').
Defendants very often were unsuccessful with such defences in doing much more than limiting the amount of damages payable. In attempting to establish those defences, defendants faced two hurdles namely, first, they bore the burden of proving that the plaintiff was unlikely to suffer harm (or triviality) and, secondly, they faced a presumption the plaintiff had suffered damage because of the defamatory publication. An interesting question arises as to whether the presumption of damage is irrebuttable, but that question has been left open in Australia (see Basten JA at [29] of Bristow) and is not relevant to the determination of today's proceedings.
Section 10A on the other hand places an onus upon the plaintiff to prove as a necessary element in the cause of action that the publication has caused or is likely to cause serious harm to his or her reputation.
Prior to s 10A there were a number of attempts to identify whether the common law itself required a threshold of seriousness prior to a plaintiff succeeding in a defamation action.
In Lesses v Maras (2017) 128 SASR 292 ('Lesses'), the Full Court of South Australia the Court considered the issue of triviality and in particular whether there was a threshold of seriousness ([122] and following). However, although reference was made to earlier English authority, the discussion in that case was in the context of s 31 of the South Australian Defamation Act 2005 (SA) (the defence of triviality).
More relevantly, McCallum J (as her Honour then was) in Kostov v Nationwide News Pty Ltd (2018) 97 NSWLR 1073 considered the common law authorities and the Full Court's decision in Lesses and remarked at [37] perhaps for the first time in this country that the definition of "defamatory" adopted in Australia should comprehend a qualification or threshold of seriousness so as to exclude trivial claims. Her Honour as an alternative would have dismissed the claim on that basis namely that it failed to meet the requisite threshold of seriousness. However, in the appeal from that decision (in Kostov v Nationwide News Pty Ltd [2019] NSWCA 84), the Court of Appeal comprising Bell P (as his Honour then was) and Leeming JA commented that her Honour's comments were obiter and therefore their Honours were not inclined to consider that particular matter of principle.
The 2019 decision of the United Kingdom Supreme Court in Lachaux referred to above although not binding on me or for that matter any other court in Australia is nonetheless a powerful and persuasive analysis of the analogous United Kingdom provision.
Before proceeding further, I note in passing that s 10A or its equivalent has been adopted in New South Wales, Victoria, Queensland, South Australia, Tasmania and the Australian Capital Territory, but has not so far been adopted in Western Australia or the Northern Territory. See s 10A of the Defamation Act 2005 (NSW), Defamation Act 2005 (Vic), Defamation Act 2005 (Qld), Defamation Act 2005 (SA) and Defamation Act 2005 (Tas), and s 122A of the Civil Law (Wrongs) Act (ACT).
Lachaux on the other hand has been considered in a number of decisions in Australia in particular in Western Australia in a matter before Le Miere J in Armstrong v McIntosh [No 2] [2019] WASC 379 where his Honour considers a seriousness threshold (at [75]-[85]). Justice Rares simply noted the new defence in s 10A in Barilaro v Shanks-Markovina (No 3) (2021) 393 ALR 469 at [8] and Judge Gibson in the NSW District Court in Rader v Haines [2021] NSWDC 610 applied Lachaux because the law of the tort in the matter her Honour was hearing was the law of the United Kingdom (at [2]-[6]).
In Lachaux, the plaintiff, a French aerospace engineer, sued a number of British newspapers as a result of defamatory allegations concerning his conduct towards his wife during divorce and custody proceedings whilst they had been expats in the UAE (at 619 [2]).
Lord Sumption traced the historical origins of the notion of serious harm in the UK.
He referred to what he described as two important decisions. One of the Court of Appeal in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 ('Jameel') (at 621 [8]) and the other a decision of a single judge, Justice Tugendhat, in Thornton v Telegraph Media Group [2011] 1 WLR 1985 ('Thornton') (at 621 [9]).
As Lord Sumption pointed out, prior to those decisions there were three basic propositions in libel cases. First, a defamatory meaning was to be detected if at all by an objective assessment through the eyes of the notional ordinary reasonable reader. Secondly, in an action for defamation actionable per se, damage to the claimant's reputation is presumed rather than proved, and thirdly, the presumption is one of law, and irrebuttable (at 621 [6]).
In Jameel, before the UK Court of Appeal, the defendants were the publishers of the Wall Street Journal. It was shown that the publication reached just five people in England and Wales (at 956-957 [17]-[18]) (although the allegation was the claimant had financed terrorism). It was submitted that as a result of the Human Rights Act 1998, English law had to be brought into line with the Convention, in particular article 10 (freedom of expression) which was contrary, indeed incompatible, with a presumption of damage (at 957 [20], 960 [33]).
Whilst the court, as a general proposition, rejected an argument that the conclusive presumption of general damage was incompatible with article 10 of the Human Rights Convention, nonetheless said that the presumption could not be applied consistently with the Convention where the damage was shown to be so trivial that the interference with the freedom of expression could not be said to be necessary for the protection of the claimant's reputation. The Court of Appeal struck out the action "because so little is now seen to be at stake" (at 970 [70]). The effect of the decision was to introduce a procedural threshold of seriousness to be applied to the damage to the claimant's reputation. However it was also clear that the threshold was low but the damage must be more than minimal.
In the second decision of Thornton, the judge, Justice Tugendhadt, the senior media judge, purported to apply some remarks of Lord Atkin in Sim v Stretch [1936] 2 All ER 1237, Jameel and the Human Rights Act 1998 and found that in addition to the procedural threshold recognised in Jameel, there was a substantive threshold of seriousness to be surmounted before a statement could be regarded as meeting the legal definition of "defamatory".
Having referred to those two cases, Lord Sumption in Lachaux turned to the obvious and more pressing question of statutory construction (at 622 [10]).
Again unsurprisingly, the rival constructions were, on behalf of the plaintiff, that the Act leaves unaffected the common law presumption of general damage and the associated rule that the cause of action is made out if the statement complained of is inherently injurious or that it has a tendency to injure the claimant's reputation (at 622 [11]).
On the other hand, the publishers submitted that the provision introduced an additional condition to be satisfied before the statement could be regarded as defamatory, on top of the words being inherently injurious, namely that it must be shown to produce serious harm in fact (at 622 [11]).
The Court decided that the 2013 Act not only raises the threshold of seriousness envisaged in Jameel and Thornton, but required its application to be determined by reference to the actual facts about its impact and not just to the meaning of the words (at 622 [12]).
In addition, the Court decided (at 623-624 [13]-[15]):
1. Although the background to the Act was the common law, the section introduced a new threshold of serious harm which did not previously exist, and that the plaintiff bore an onus to demonstrate as a fact that the harm caused by the publication complained of was serious.
2. That the section also meant that a statement which would previously have been regarded as defamatory because of its inherent tendency to cause some harm to reputation is not to be so regarded unless "it has caused or is likely to cause" harm which is serious.
3. One must read s 1(1) with s 1(2). The measure of harm referred to here, namely "financial loss" is not damage to reputation, but must be "loss" that the harm has caused and must exceed the threshold of seriousness.
4. That the section had abolished the common law rule that damage was to be presumed and not proved. Serious harm must be proved by evidence of the actual impact of the publication.
The first question is what impact does the reasoning in Lachaux have on a Court in New South Wales? More to the point, what impact does s 10A in the NSW Act have on the common law?
A philological exercise of contrasting s 10A as opposed to s 1 of the 2013 UK Act expresses in my view no material difference. There are slight differences and we do not have the Human Rights Act 1998 (UK).
Given the slight differences in the legislation I would respectfully adopt much of what Lord Sumption had to say, notwithstanding again some differences in the respective development of the common law in the two countries and of course without a European backdrop.
That said it is clear that a plaintiff must prove serious harm as a necessary element of the cause of action in New South Wales since the introduction of s 10A. By parity of reasoning, I am of the view that s 10A, like its UK counterpart has the effect of abolishing the common law rule that upon the publication of a defamation, damage is to be presumed. The plaintiff is therefore obliged to prove serious harm as a fact in every case. Further in my view in that regard the general law on that matter has been changed either expressly by reason of the very terms of s 10A or by necessary implication (see s 6(2) of the Defamation Act 2005 (NSW)).
In Lachaux, on the hearing as to serious harm, the plaintiff and the other witnesses had given evidence. The Court also received print runs of the readership of the publications and of the user numbers of online publications. The scale of the publication was taken into account, as was the fact at least one person in the UK knew of the publication and there was a likelihood there were others.
Here the hearing has been conducted only on the pleadings and in such a case it is to be assumed that the factual assertions relevantly made by the plaintiff are true. However I do not consider it clearly articulates an arguable case especially by reference to events which precede the two matters relied upon. I would strike it out in its present form. Given however the novelty of the point I would grant leave to the plaintiff to replead these paragraphs.
In summary then I would not grant leave to proceed with matters 12, 13, 15, 16, 17 and 18. Nor would I grant leave in relation to matters 3, 5, 8, 10, 11, 12, 19, 20 and 21. I would however grant leave to the plaintiff to replead matters 1, 2, 4, 6, 7, 9, 14, 22, 23, and 24 insofar as she is able to specify the jurisdiction or jurisdictions in which the matters were published. In addition although I would not permit the plaintiff to proceed with her current pleading in relation to serious harm, I would permit her to replead her case in that regard.
oOo
[2]
Endnotes
New South Wales, Parliamentary Debates, Legislative Assembly, 29 July 2020 (the Honourable M Speakman SC, Attorney General) .
New South Wales, Parliamentary Debates, Legislative Assembly, 29 July 2020, 3.
See Defamation Act 2005 (NSW) s 33; Defamation Amendment Bill 2020 (NSW) sch 1 [32] Section 33 Defence of triviality.
United Kingdom, Parliamentary Debates, House of Commons, 12 June 2012, vol 546, col 177 (Kenneth Clarke, The Lord Chancellor and Secretary of State for Justice).
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Decision last updated: 10 March 2022