O'Hagan v Nationwide News P/L

COUNSEL : A: T Molomby with R Rasmussen R: W Houghton QC with T Blackburn SOLICITORS : A: Messrs. C R Fitzsimons Solicitors & Attorneys R: Messrs Blake Dawson & Waldron Lawyers CATCHWORDS : Defamation - plea of mitigation of damages - admissibility of evidence - whether evidence related to 'relevant sector' of reputation - appeal dismissed. Anderson v Mirror Newspapers (1986) 5 NSWLR 735 Television New Zealand v Prebble Chappell v Mirror Newspapers Marsden v Amalgamated Television Services([1999] NSWSC 1119, unreported, 15/11/99) CASES CITED: Scott v Sampson (1882) 8 QBD 491at 503 Plato Films Ltd & Ors v Speidel [1961] AC 1090 at 1100 Goody v Odhams Press [1967] 1 QB 333 at 34-341 Hibbs v CT Tinling & Co Ltd [1929] 2 KB 1 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 80 DECISION : Appeal dismissed with costs; Cross-Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40535 of 2000 SC - CL 20831 of 1996 MEAGHER JA STEIN JA BROWNIE AJA

Thursday, 20 September 2001 JOHN O'HAGAN v NATIONWIDE NEWS PTY LTD The appellant sued the respondent for defamation arising from a newspaper article, alleging that the article conveyed the imputation "that he arranged with another person, for the price of $10,000, to have a third person murdered". At trial, the defendant entered a plea of Mitigation of Damages on the basis that the appellant's reputation had always been so bad that he had virtually no reputation to lose.

The trial Judge admitted the defendant's evidence regarding mitigation of damages. This formed the main ground of appeal. The appellant also submitted that even if the matters pleaded in mitigation were proved, they did not amount to anything because they only related to the appellant's reputation in three named bodies; the NSW Police Service, the National Crime Authority and the Australian Federal Police, and not his reputation in all other areas of society.

HELD per Meagher JA (Stein JA & Brownie AJA agreeing): (i) It is now clear that evidence may be led by a plaintiff of his good reputation and it has always been held that a defendant may lead evidence to the contrary. This is because the law of libel protects a person's actual reputation. However, the evidence must relate to "the relevant sector" of the plaintiff's reputation and evidence of bad reputation must be limited to general reputation, evidence of specific incidents is inadmissible.

Per Meagher JA (Stein JA & Brownie AJA agreeing): (ii) The "relevant sector" in this case was "conduct as a police officer". The matters of evidence pleaded in mitigation related to this sector. Accordingly, the trial Judge did not breach that rule regarding admissibility of mitigation evidence.

Per Meagher JA (Stein JA agreeing) & Brownie AJA: (iii) The rule relating to the inadmissibility of specific incidents is difficult to apply because there is often one specific incident which of itself can cause a general reputation. The so-called "specific incidents" which the defendant pleaded were foundations of his general reputation, not merely detailed illustrations of that reputation. Per Brownie AJA: If a specific incident relating to a plaintiff is sufficiently notorious to affect his reputation, evidence of it may be led. The incidents led by the defendant in evidence were sufficiently notorious to result in the plaintiff having a bad reputation in the relevant sector.

Per Meagher JA (Stein JA agreeing): (iv) As far as the non-police world was concerned, the appellant was unknown. The plaintiff suffered some loss of reputation in a world in which he was unknown, and in the only world in which he was known, he had little reputation to lose.

ORDERS 1 Appeal dismissed with costs. 2 Cross-appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40535 of 2000 SC - CL 20831 of 1996 MEAGHER JA STEIN JA BROWNIE AJA

Thursday, 20 September 2001 JOHN O'HAGAN v NATIONWIDE NEWS PTY LTD Judgment 1 MEAGHER JA: This is an appeal in a defamation case from a decision by Ireland J. The appellant, Mr O'Hagan, sued the respondent, the publisher of a newspaper called The Daily Telegraph for having conveyed concerning the appellant the following imputation: "that he arranged with another person, for the price of $10,000, to have a third person murdered."

This, of course, other things being equal, is an extremely grave libel. To make matters worse, it was prominently displayed, together with both a drawing and a photograph of the appellant. The Daily Telegraph has 1.2 million readers. 2 The defendant, the present respondent, pleaded, pursuant to Part 67 rule 18(2), a plea of Mitigation of Damages. The relevant part was in the following terms: (b) The plaintiff had at the time of publication of the matter complained of a reputation in the New South Wales Police Service, the National Crime Authority and the Australian Federal Police as: (i) A policeman who had pleaded guilty to two NSW Police Service departmental charges of misconduct; (ii) A policeman who had been suspended from duty in 1988 after being charged with conspiracy to pervert the course of justice; (iii) A person who fabricated evidence against persons who had been charged with criminal offences; and (iv) A person who was generally dishonest and corrupt.

Its case was, in effect, that the appellant's reputation had always been so bad that he had virtually no reputation to lose. His Honour substantially (but not entirely) upheld the respondent's plea. 3 His Honour admitted the evidence, which the defendant sought to lead about the matters referred to in the plea of mitigation of damages. This appeal is really about whether his Honour was right in doing so. 4 The question of the admissibility of evidence of reputation is of some importance, although, unlike some other aspects of defamation, not overburdened by authority. The starting point is that expressed by Devlin LJ in Plato Films Ltd & Ors v Speidel [1961] AC 1090 at 1100: "The action of libel is an action for loss of reputation. On the issue of damage, what has to be investigated is not whether in truth the plaintiff is a good or bad man, but whether he is reputed to be a good or bad man. If a man's reputation is already so bad that it cannot be made worse, the man who defames him will, in fact, have done him no further damage." 5 One would therefore have suspected that a plaintiff would always be at liberty to lead evidence about the excellence of his reputation, and a defendant would always be at liberty to lead evidence about the evil reputation of the plaintiff. However, things are not as simple as that. Despite earlier doubts on the matter, it is now clear that evidence may be led by a plaintiff of his good reputation, either by his own testimony or from the evidence of witnesses; Anderson v Mirror Newspapers (No. 2) (1986) 5 NSWLR 735 per Hunt J; and it has always been held that the defendant may lead evidence to the contrary; but, in either case, the reputation evidence is subject to two fundamental rules. The first is that the evidence must relate to "the relevant sector" of the plaintiff's reputation. Thus if a plaintiff sues on a libel that he is a dishonest solicitor, it is not to the point that he has a reputation as a good golfer. Similarly if the libel is that he is dishonest, it is not to the point for the defendant to demonstrate that he is a reckless motorist. (See Plato Films per Lord Denning). 6 The other is that evidence of bad reputation must be limited to general reputation, evidence of specific incidents being inadmissible. 7 In the present case, the appellant's case is that his Honour infringed both these rules. As to the first rule, Mr Molomby SC, who appeared for the appellant, argued that the four enumerated matters contained in the particulars were outside "the relevant sector". If the libel concerned dishonesty, they amounted to allegations of bad motoring. The libel, be it remembered was an imputation that the plaintiff arranged to have another person killed; how can that, so the argument ran, be in the same "sector" as an accusation that he had pleaded guilty to departmental charges of misconduct? It is not easy to ascertain exactly what is "the relevant sector" of a plaintiff's reputation in the case of any libel; nor do the decided cases provide any help in answering that question, although they furnish many examples of extreme cases. The difficulty of the question is demonstrated by the almost comic conclusion of a New Zealand Court of Appeal presided over by Cooke P in Television New Zealand v Prebble (1993) 3 NZLR 513 that in a libel of a politician's probity that to allege that he was "offensive" was outside "the relevant sector" whereas to allege that he was "dishonest" was within "the relevant sector". In this connection, it must be confessed that the decision of this Court in Chappell v Mirror Newspapers Ltd (1984) AustTorts R 80-691 (Moffitt P, Samuels & Priestley JJA) hardly adds lustre to the debate: whilst approving the English decisions culminating in Plato Films, it does not proffer any guidance on how to determine what "the relevant sector" is, either in general terms or in terms relevant to that case; indeed, it leaves one wondering why the Court embarked on a long excursion on the subject. 8 Bereft, then, of any helpful authority, we shall have to determine for ourselves what is "the relevant sector" in this case. Mr Molomby suggested it was "activities of violence": he was said to have been involved in threatening to kill someone, any other actions (or threats of actions) involving his killing or maiming people would be within "the relevant sector". Mr Houghton SC, for the defendant/respondent, submitted that "the relevant sector" was really "conduct as a police officer". On the whole, I think Mr Houghton is correct. We were shown the defamatory newspaper article, and I must say its effect is the horror it conveys that a police officer, whom one would normally expect to be busying himself in protecting people's lives, would arrange to have someone else murdered. The defamatory impression, which would arise if the same allegation were made of a person outside the police force would be significantly less. 9 So much for the alleged breach of the first rule. As to the second rule, that the rule exists is not in doubt. What is difficult, is to apply it, because there is often one specific incident which of itself can cause a general reputation. For example if (which, of course, is not the case) the plaintiff had been convicted of murder, presumably he would gain the reputation of "murderer" simply from that incident, in which event evidence could be given of it by a defendant. Conversely, if a plaintiff's general reputation derives in whole, or in part, from a particular incident, evidence may be given of that incident: thus, in Marsden v Amalgamated Television Services Pty Limited ([1999] NSWSC 1119, unreported, 15 November 1999) Levine J permitted the plaintiff, Mr Marsden, to have admitted in evidence that he had been President of the Law Society of New South Wales, and it would be difficult to see how he could adduce evidence of a general reputation of excellence as a solicitor without adverting to that specific fact. In the present case, I am of the view that the so-called "specific incidents" which the defendant pleaded and proved were of that kind; they were the foundations of his general reputation, not merely detailed illustrations of that reputation. 10 The appellant submitted at trial, and renewed the submission before us, that, in any event, even if all the four matters pleaded in mitigation were proved, they do not legally amount to anything, because they only relate to the plaintiff's reputation in three named bodies - the New South Wales Police Service, the National Crime Authority and the Australian Federal Police; or, in other words, that his Honour should have treated the plaintiff as having an untarnished reputation, although very serious matters were held against him in the very circles in which he had moved. He was a policeman (for over 35 years, indeed); his son was a policeman (although his father was very concerned that the libel might affect his future in the Force, the son did not offer himself as a witness on his father's behalf); his son's wife was a policeman; at least half of the witnesses he called were either policemen or former policemen. The police force was his life; his reputation was made in, and existed in, that force. Indeed, his case in chief can be gauged by an answer, which his wife gave; "They never had a better policeman that what he was".

As far as the non-police world was concerned, he was unknown and led a near-hermit life. In these circumstances, the position is that the plaintiff suffered some loss of reputation in a world in which he was unknown and, in the only world in which he was known, had little reputation to lose. It was in this context that his Honour said, and surely correctly; "There is, in my opinion, a substantial degree of approbation and reprobation on the part of the plaintiff in this submission. The plaintiff having chosen to conduct his case on the basis of good reputation (as occurred in this case) as a police officer, when faced with credible evidence of bad reputation cannot be heard to say that this aspect of his case is of no importance - and claim that the damage to reputation he suffers rests wholly in a different and separate sector of his life." 11 For these reason I should dismiss the appeal with costs. 12 I should also dismiss the cross-appeal with costs, for the reasons given in the Cross-Opponent's reply. 13 STEIN JA: I agree with Meagher JA and with the orders which he proposes. I wish to add some remarks of my own.

14 The law of libel operates to protect a person's reputation and therefore it follows that what is to be protected is a person's actual reputation. This basic principle can be found in the judgment of Cave LJ in Scott v Sampson (1882) 8 QBD 491, where at 503: Speaking generally the law recognises in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action. The damage, however, which he has sustained must depend almost entirely on the estimation in which he was previously held. He complains of an injury to his reputation and seeks to recover damages for that injury; and it seems most material that the jury who have to award those damages should know if the fact is so that he is a man of no reputation. To deny this would be to decided that a man of the worst character is entitled to the same measure of damages with one of unsullied and unblemished reputation. A reputed thief would be placed on the same footing with the most honourable merchant… On principle, therefore, it would seem that general evidence of reputation should be admitted.

15 That this is so was confirmed by Devlin LJ in Plato Films Ltd & Ors v Speidel [1961] AC 1090 at 1100 where he said that: The action of libel is an action for loss of reputation. On the issue of damage, what has to be investigated is not whether the plaintiff is in truth a good or a bad man, but whether he is reputed to be a good or a bad man. If a man's reputation is already so bad that it cannot be made worse, the man who defames him will, in fact, have done him no further damage.

16 As a result, a defendant can raise a plea of a plaintiff's bad reputation in mitigation of any damages award, as was here done. The leading of 'reputation evidence' is however subject to two provisos.

17 First, evidence of bad reputation must be limited to general reputation. Evidence of specific events, with the exception of certain serious prior convictions (see Lord Denning in Goody v Odhams Press [1967] 1 QB 333 at 340-341), is inadmissible. This limitation was noted by Cave LJ in Scott v Sampson. The Court of Appeal in England further defined the extent to which evidence of bad reputation can be entertained in Hibbs v CT Tinling & Co Ltd [1929] 2 KB 1 at 17-18 where Scrutton LJ stated that: The defendant may mitigate damages by giving evidence to prove that the plaintiff is a man of bad general reputation, and the plaintiff may rebut it by coming prepared with friends who have known him to prove that his reputation had been good. On the other hand the defendant may not give evidence of rumours at the time of publication to the same effect as the libel, nor may the defendant give evidence of specific facts and circumstances to show the disposition of the plaintiff , as distinct from general evidence that he has that reputation. [emphasis added]

18 In Plato Films Devlin LJ referred to Scott v Sampson and said at 1100: 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. [emphasis added]

19 The confining of evidence to the plaintiff's general reputation was applied in Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 80. This was followed by the Court in Chappell v Mirror Newspapers Ltd (1984) AustTort R 80-691 where it was stated by Moffitt P at 68,951 that: 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 damages … and that evidence of persons who testify directly to a tarnishing of a plaintiff's general reputation in that respect is admissible.

20 At 68,952 the Court in Chappell applied the above statement of Devlin LJ in Plato.

21 Hunt J, in a discussion of general evidence of good reputation being lead by the plaintiff, noted in Anderson v Mirror Newspapers Limited (1986) 5 NSWLR 735 that the defendant is bound by the rule of generality in respect to evidence of bad reputation.

22 As discussed above, evidence of previous convictions may be admissible as towards establishing a plaintiff's bad reputation. Evidence of specific events which lead to the notoriety of a plaintiff and contribute to bad reputation may also be admissible. Lord Radcliffe in Plato Films stated at 1131 that: To begin with, there is a fallacy in supposing that some general phrase can govern the variety of situations that a libel can create, in particular in supposing that the admissible evidence ought to be the same, whether the libel is very particular or very general or whether the plaintiff is a public figure, whose reputation is largely based on notorious incidents, favourable or unfavourable, or a private individual whose affairs may well escape the burden of notoriety altogether. These considerations lead me to the opinion that it would be wrong to hold that general evidence of reputation, which must mean reputation in that sector of a plaintiff's life that has relevance to the libel complained of, cannot include evidence citing particular incidents, if they are of sufficient notoriety to be likely to contribute to his current reputation. Such incidents are, after all, the basic material upon which the reputation rests…

23 This statement was adopted by Salmon LJ in Goody at 342.

24 Meagher JA has set out the four areas of evidence lead by the defendant in mitigation of damages and to which objection to the admission of evidence was taken.

25 Items (iii) and (iv) obviously do not infringe the rule. Items (i) and (ii) are less clear but I have concluded that they do not impinge upon the rule in that they were sufficiently notorious to result in the plaintiff having a bad reputation as a police officer in the relevant sector of his reputation, namely policing.

26 The second proviso upon reputation evidence is that such evidence must relate to the 'relevant sector' of the plaintiff's reputation. This arose out of the judgment of the House of Lords in Plato Films. Lord Denning said at 1140 that : When evidence of good or bad character is given it should be directed to that sector of a man's character which is relevant . Thus, if the libel imputes theft, the relevant sector is his character for honesty, not his character as a motorist. And so forth. It is for the judge to rule what is the relevant sector. [emphasis added]

27 In Morosi the Court affirmed the need to limit evidence to the relevant sector of a plaintiff's reputation, noting at 801 that: In the context of the present case, the respondent's bad reputation was a bad reputation for dishonesty. This is the reputation which the appellant's evidence supported, and no evidence was tendered to support a reputation for promiscuity… 'evidence of general bad reputation must be confined to the sector of the plaintiff's character relevant to the libel. If the libel charges the plaintiff with treachery, evidence that he has a reputation for loose morals would be inadmissible in mitigation of damages': Gatley on Libel and Slander , 7th ed.p542, par 1318; Plato Films v Speidel .

28 In Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1119 (15 November, 2001) Levine J discussed the identification of the relevant sector in which the damage to reputation was said to have been suffered by the plaintiff, a very public figure. The defendant had argued that the relevant sector was that of the plaintiff's 'sexual propensity or behaviour'. Levine J noted the artificiality of such a construct and referred to some of the more extreme examples which assist in the comprehension of the basis on which the relevant sector is determined. After discussing a number of the authorities mentioned above, he noted at paragraph 23 that Another extreme example was that if it was said of a person that that person murdered someone, the only evidence of reputation that could be led … would be in the sector identified of that plaintiff's respect for human life. 24. The statement of Lord Denning as to 'honesty' and the 'motorist' is perhaps the one that captures the reality of the distinction sought to be drawn. One could be inclined to the view that in this litigation, arguably, it would be irrelevant to Mr Marsden's reputation as a motorist that imputations of these kinds were published of him. 25. Lord Denning's example, as I have said, articulates the principle best because of its starkness… 26. It might well be that the artificial construct we now know as an imputation, by its very terms, is confining the sense of sector. But it does not follow as a matter of principle or as a matter of logic that being so confining, evidence is not relevant to other components of a person's general settled reputation. A plaintiff is awarded damages because he was injured in his reputation, because he was publicly defamed.

29 Levine J continued: 31. It would be an extraordinary state of affairs if the principle sought to be relied upon by the defendant could operate to this effect: that a person who is in a position to prove that over a certain number of years that person has developed and enjoyed a settled reputation in various sectors of life, indeed ' as a person' , could not lead evidence as to that on the issue of damages by reason of some artificial constraint imposed by the imputation found by the jury confining the sector to a discrete or particular one. 32. … It seems to me that it must be arguable… that because a person has held three public offices… the reputation he has established and enjoyed was that in which he was amenable to being injured by reason of publication of an imputation in another or additional sector altogether. To put it another way, how can it be argued that a person who has established a reputation publicly in office could not present a case that in that reputation in those ' sectors ' he was injured by reason of the publication of imputations in another ' sector ', a fortiori if the imputations, are of gravity and impute serious personal misconduct.

30 Although in Marsden Levine J was addressing whether or not the plaintiff was entitled to lead evidence of his good reputation in respect of the quantum of damages, his comments are pertinent to the current instance, where the defendant sought to mitigate the damages by leading evidence as to the plaintiff's bad reputation.

31 The imputation in this appeal was described by counsel for the appellant as referring to the sector of 'activities of violence', however the gravity of the imputation extended beyond such an artificial construct to his reputation in the sector addressing his conduct as a police officer. Indeed, as noted by Meagher JA, the gravity of the imputation is in part due to the appellant's position as a police officer.

32 The appellant had been a policeman for over 35 years, members of his family were police officers, and indeed the majority of the witnesses he called at trial were serving or former police officers. The police service formed his dominant life force. The appellant conducted his case, as noted by the trial judge 'on the basis of good reputation… as a police officer'. It follows that the sector identified by the appellant as relevant, that area in which he felt his reputation was damaged, was his conduct as a police officer. 33 BROWNIE AJA: I have had the advantage of reading the judgment of Meagher JA, where the facts and issues are summarised. 34 His Honour refers to two rules which are now relevant: first, that a defendant in a defamation case may lead evidence of the plaintiff's bad reputation, in mitigation of damages, but only if the evidence refers to the relevant sector of the plaintiff's reputation; and secondly, that the evidence must be limited to the plaintiff's general reputation, and not related to specific incidents. Each of these rules is the product of the courts wrestling with competing policy considerations, so that each of the rules is commonly expressed in generalities, so as to preserve flexibility, and to permit a judge in any individual case to best achieve a just result. 35 The meaning to be attributed to the expression "the public sector" in relation to a plaintiff's reputation, is not immediately obvious. In Plato Films Ltd v Speidel [1961] AC 1090 at 1130 Lord Radcliffe said:- "So far as the ordinary man enjoys a public reputation at all, it is a reputation, favourable or unfavourable, in respect of particular aspects or sectors of his life, and, of course, he is likely to have a good reputation in some aspects and a bad reputation in others." 36 Although some of what his Lordship said on that occasion represented a minority view, this expression appears to be consistent with the general trend of authority, and in my respectful view, it enables one to focus more clearly upon what is in question. In the present case, like Meagher JA, I consider that the relevant sector or aspect of the plaintiff's reputation was his reputation as a member of the police force. "The sting of the libel" complained of was sharper because, in the publication in question, the appellant was identified as Detective Senior Sergeant O'Hagan, and as a suspended police officer; and a substantial part of the evidence adduced by the appellant concerned his reputation as a policeman. 37 Meagher JA gives examples where the distinction in question would be easy to see, but other cases present problems where there is no compelling answer available, or even any particularly attractive answer available. In this case, the answer that Ireland J and Meagher JA have given, whilst perhaps not obvious at first glance, seems to me to be the correct one. Looking at the whole of the evidence, I do not consider that there is any other aspect or sector of the plaintiff's reputation that one can properly describe as the relevant one; and this one is relevant. In particular, I do not think it is proper to approach the case by considering the reputation of the appellant in terms of activities of violence. The matter published is capable of being analysed in terms suggesting that the appellant acted violently, in that he arranged to have another person murdered, but that does not mean that it is proper to examine the reputation of the appellant in that limited way. 38 As to the second rule, the question posed now is not what the rule is, or what it should be, but how it should be applied. The cases establish that, if a specific incident relating to a plaintiff is sufficiently notorious to produce an effect upon his reputation, evidence of that specific incident may be led: Plato, and Goody v Odhams Press Ltd [1967] 1 QB 333. 39 Meagher JA has set out the relevant part of the respondent's defence. Matters (i) and (ii) relate to specific incidents. In my judgment each of those incidents was intimately related to the appellant's reputation as a policeman, and within the limited area of the New South Wales Police Force, the National Crime Authority and the Australian Federal Police, those incidents were sufficiently notorious to result in the plaintiff having, relevantly, a bad reputation. 40 I agree with the orders proposed by Meagher JA.

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.