PLEADINGS – QUEENSLAND – pleading of the plaintiff’s
reputation prior to publication of the matter complained of
– pleading of
Source
Original judgment source is linked above.
Catchwords
DEFAMATION – ACTIONS FOR DEFAMATION –PLEADINGS – QUEENSLAND – pleading of the plaintiff’sreputation prior to publication of the matter complained of– pleading ofserious harm – where plaintiff pleads serious harm to his reputation -where an issue in the proceedingisthe nature and extent of the plaintiff’s reputation prior to thepublication of the episode of a Podcast about which he complains– whetherit is sufficient to simply plead that serious harm was caused or is likely to becaused to “the reputationof the plaintiff” – where theenactment of s 10A of the Defamation Act, 2005 (Qld) abolishes anypresumption of a good reputation – whether the plaintiff should giveparticulars of the nature and extent of hispre-publication reputation –the form in which such particulars should be given in the circumstances of thecase so as to complywith pleading rules and to facilitate the determination of
Rostron Carlyle Rojas Lawyers for the plaintiff/respondent Thomson Geer for the defendants/applicants
[2]
[1] During the hearing before me on 29 April 2024 of the defendants' application for the serious harm element to be determined as soon as practicable,1 I raised the lack of particularity in the plaintiff's pleading about his reputation prior to the publication of the Podcast episode over which he sues. I directed the plaintiff to provide particulars of the nature and extent of his reputation so as to comply with
the pleading rules that apply in this Court. I gave a general indication of the form of order that I envisaged and asked the parties to draft a form of order for my consideration.
[5]
[2] The parties have been unable to agree on the form of order. They have provided different drafts. Therefore, I will resolve the appropriate form of order.
[6]
[3] Paragraph 12 of the amended statement of claim filed on 6 February 2024 pleads that the publication of Episode 13 of the Podcast "caused or is likely to cause serious harm to the reputation of the plaintiff". It pleads that serious harm was caused by reason of a number of matters, namely:
[7]
(a) the gravity, seriousness and falsity of the imputation that he murdered Shandee Blackburn;
(b) the extent of publication of Episode 13 to the general public;
(c) the general public's interest in matters involving serious criminal accusations;
(d) the reputation of the first defendant as the provider of high quality and reputable news;
(e) the general notoriety of the second defendant as an investigative journalist;
(f) the explicit identification of the plaintiff within the episode by his name;
(g) the continuing publication of the Podcast by which means it remains freely accessible online; and
(h) the grapevine effect.
[8]
[4] The matters alleged in subparagraphs (a) to (h) concern how the plaintiff infers his reputation was seriously harmed by the relevant episode. They say nothing about what his reputation was prior to the episode's publication. This was my concern and a matter about which I directed particulars be given.
[9]
[5] Before the enactment of s 10A of the Defamation Act 2005 (Qld), it was generally unnecessary for a plaintiff to plead the nature and extent of his or her reputation. The law of defamation is sometimes said to presume that a person has a good reputation.2 Even so, a plaintiff might plead that she or he had a certain reputation, for example, a good reputation in a calling or profession. A defendant might plead, if it had a basis to do so, that the plaintiff already had a bad reputation.
[10]
[6] The enactment of s 10A seems inconsistent with the presumption of a good reputation. The Full Court of the Federal Court in _Selkirk v Wyatt_3 has ruled that any common law presumption of good reputation no longer applies.
[11]
Selkirk v Wyatt[2024] FCAFC 48 at [92] citing Gatley on Libel and Slander (13th ed) 2002, Sweet & Maxwell [34-108] cf Bickel v John Fairfax & Sons Ltd[1981] 2 NSWLR 474 at 483.
[7] In any event, the "serious harm" element of the cause of action requires a plaintiff to plead and prove that the publication of the defamatory matter about the plaintiff "has caused, or is likely to cause, serious harm to the reputation of the [plaintiff]". Therefore, the reputation of the plaintiff is a material fact that must be pleaded with appropriate particulars. So too is the serious harm that has been caused or likely to be caused to the pleaded reputation.
[14]
[8] As to the plaintiff's reputation prior to the publication of Episode 13, paragraph 12 of his pleading simply refers to "the reputation of the plaintiff". It gives no particulars of the nature and extent of his reputation. It does not comply with the rules for pleading and particularisation of material facts contained in the Uniform Civil Procedure Rules 1999 (Qld).
[15]
[9] By an order made in the Supreme Court of Western Australia when this proceeding was before that court, the defendants were not required to file their defence. There is, however, no doubt that the serious harm element of the cause of action is contested. The plaintiff's pleading should be in a form which enables that issue to be determined fairly and without delay. The rules concerning pleadings and particulars make clear that material facts and other matters must be pleaded and particularised to enable the real issues in dispute to be resolved justly and expeditiously and to avoid surprise at trial.4
[10] In a case in which the serious harm element is contested because of the plaintiff's alleged bad reputation prior to and at the time of the relevant publication, an unparticularised reference to "the reputation of the plaintiff" does not inform the defendants of the case they have to meet at trial. Its lack of particularity tends to prejudice or delay the fair hearing and determination of the serious harm issue.
[16]
[11] Particulars of the nature and extent of the plaintiff's reputation and the respects in which, and among whom, that reputation was harmed (or is likely to be harmed) are important in a case in which the nature and extent of the plaintiff's pre-publication reputation are in issue.
[17]
[12] Section 10A(7) of the Defamation Act 2005 (Qld) recognises that in certain cases a judge may determine that the serious harm element is not established "on the pleadings without the need for further evidence if satisfied that the pleaded particulars are insufficient to establish the element". Such a course may be appropriate for a case in which the pleaded imputation is not seriously defamatory and the publication in question was made to only a few individuals who had a settled view about the plaintiff that was unlikely to be affected by the publication. Section 10A(7) serves to confirm the importance of particulars in any case in which the serious harm element might be in issue. To take an extravagant example, ordinarily it would be extremely harmful to report that a person had been convicted of murder. It would not be so harmful if the person who had been convicted was a notorious serial killer who had already been convicted of 10 other murders.
[18]
[13] This case is different. The plaintiff has not been convicted of murder. He was acquitted on the charge of having murdered Shandee Blackburn. However, he was found by a Coroner to have violently killed her. The Coroner's finding was widely publicised. Therefore, the Court that is being asked to determine the serious harm
issue and the defendants are entitled to be informed by appropriate particulars what the plaintiff's case is concerning:
(a) the nature and extent of his reputation prior to the publication of the matter complained of; and
(b) the harm to his reputation caused by the publication of the matter complained of.
[21]
[14] Presently, the Court and the defendants do not know anything about the plaintiff's case concerning his reputation prior to the publication of Episode 13 of the Podcast. For example, was it good in parts of the community who had never heard of the Coroner's findings? Does the plaintiff accept that he had a damaged reputation as a result of the murder charge and the Coroner's finding, at least in certain circles? If so, was his reputation in those circles additionally damaged by Episode 13, and in what respects?
[22]
[15] An intriguing aspect of the plaintiff's pleading is that the defamation is alleged to have occurred in the thirteenth episode of the Podcast. One might think it unlikely, but it may be the plaintiff's case, that many listeners to the thirteenth episode chanced upon Episode 13, having not heard any earlier episodes. If this is the plaintiff's case, or part of it, it should be apparent from his particulars. If, instead, he accepts the inference that most listeners had listened to earlier episodes, what was the state of his reputation amongst those listeners immediately before Episode 13? Was his reputation under a cloud before Episode 13? Had earlier episodes imputed anything about him?
[23]
[16] The law of defamation accepts that there may be different sectors to a person's life and reputation, and that a publication may injure a plaintiff in only one sector.5 A person may have a reputation for hard work and loving his children, as well as a reputation for being an armed robber. An imputation that the person committed another robbery probably would not affect the person's reputation as an armed robber and not affect the person's reputation for hard work and loving his children. But if the plaintiff was not an armed robber and had no reputation for being an armed robber, an allegation of armed robbery would be apt to injure the person's reputation as a law-abiding citizen. It might do so without injuring the person's reputation for hard work and loving his children. Therefore, a defamatory publication may injure a person's reputation generally or in only a certain sector.
[24]
[17] If a publication injures a plaintiff only in a certain sector, then evidence led by the plaintiff of good reputation must relate to the relevant sector. As Meagher JA stated in O'Hagan v Nationwide News Ltd:6
[25]
"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"
[26]
[18] Without being told in his pleading anything about the nature and extent of the plaintiff's reputation, one might surmise that he had (and still has) a good reputation among family, friends and fellow-workers, and in certain parts of the community in
[27]
This is why evidence of bad reputation must relate to the "sector" of the plaintiff's life relevant to the defamation: Farqui v Latham[2018] FCA 1328 at [161]
which he lives and works. He might have had, prior to Episode 13, a poor reputation in other circles, including those who knew of the Coroner's widely-reported findings. He may have had no reputation at all among vast sections of the public. He is not presumed to have had a good reputation throughout the community and is not presumed to have had any particular reputation throughout the community.
[30]
[19] The plaintiff's current pleading of his pre-publication reputation is opaque. It is consistent with his case being that he had a good reputation across the board and across the continent.
[31]
[20] It also is consistent with a case that his reputation was already tarnished by the criminal charges, the Coroner's findings and their reporting, or earlier episodes of the Podcast, and that Episode 13 did his already tarnished reputation serious, additional harm.
[32]
[21] If his case is that he had a good reputation in certain circles, no reputation in some circles, and a bad reputation in other circles, then this should be appropriately pleaded and particularised.
[33]
[22] Irrespective of what his case is about the nature and extent of his pre-publication reputation, it should be apparent from his pleading and particulars.
[34]
[23] The particulars of reputation must relate to the sector of his life relevant to the defamation. While the plaintiff is not required to plead all of the evidence upon which he intends to rely, he is required to provide particulars of his pre-publication reputation. Besanko J (with whom Anderson and O'Sullivan JJ agreed) in Selkirk v Wyatt stated:7
[35]
"In order to show the extent of harm and whether it is properly characterised as 'serious harm', one would ordinarily expect the plaintiff to adduce evidence of his or her pre-exiting reputation."
[36]
[24] The nature and extent of the plaintiff's reputation prior to the publication of the matter complained of should be pleaded, together with further particulars of among whom he alleges his reputation was seriously harmed, and the nature of the harm that was caused. Those particulars are matters that should be pleaded and particularised in accordance with the pleading rules. Particulars of the plaintiff's pre-publication reputation should be sufficient to inform the defendants of the case that they are required to meet and to avoid surprise at the hearing of the serious harm issue. Their proper pleading will facilitate the resolution of the serious harm issue.
[37]
[25] The plaintiff proposes an order that he simply provide further particulars of:
[38]
(a) his reputation prior to the publication of the matter complained of; and
(b) the harm to his reputation caused by the publication of the matter complained of.
[26] The defendants propose an order in the following form:
[41]
(a) the nature and extent of his reputation prior to the publication of the first matter complained of, including:
(i) the extent to which he was reported or reputed to have been the killer of Shandee Blackburn, including by the findings or the publication of the findings of the Coroner;
(ii) the place or places in which the plaintiff enjoyed this reputation;
(iii) the circles in which the plaintiff enjoyed this reputation; and
(b) the harm to his reputation caused by the publication of the first matter complained of.
[42]
What is an appropriate form of order for particulars of reputation in this case?
[43]
[27] In submissions that I invited the parties to communicate by email to my Associate, the plaintiff submits that while the judgment in _Selkirk v Wyatt_8 appears to have abolished the common law presumption of good reputation, it does not go so far as to require the plaintiff "to plead a reputation adverse to himself and beneficial to the defendants, by having to plead that he is otherwise known as the killer of Shandee Blackburn because of the publication of other media reports and/or the coroner's report, prior to the publication of the matter in question". To do so is submitted to go to the crux of the issues of the admissibility of those documents on the question of serious harm, itself being an issue in these proceedings.
[44]
[28] I do not require the plaintiff to plead that he had a reputation for being the killer of Shandee Blackburn because of media reports, the grapevine effect, or any other cause. Therefore, I would not require the plaintiff to plead the publications that led to him having such a reputation (if that be the case) among at least certain listeners of the Podcast.
[45]
[29] The plaintiff's submissions advise that his view is that his reputation, prior to the publication of Episode 13, was that he was known for having been acquitted of the murder of Shandee Blackburn and that he was not known to be the person who killed her. If that is his case, or part of his case, concerning the nature and extent of his reputation prior to the episode being published, then he should plead that matter. I should add that simply pleading that he was known as having been acquitted of the murder charge will not be sufficient to adequately particularise the nature and extent of his reputation prior to the publication of the matter complained of. For example, persons who knew of the findings of the Coroner probably would also have known that he had been acquitted of murder. Persons who did not know of the findings of the Coroner may have known that he had been acquitted of the murder.
[46]
[30] Therefore, persons who knew that the plaintiff had been acquitted of murder may have had a high or low estimation of the plaintiff.
[47]
[31] To simply particularise that the plaintiff was known for having been acquitted of the murder charge does not establish amongst whom this fact was known and what else persons who knew that fact knew or were likely to have known about the plaintiff,
including that, notwithstanding his acquittal, he was later found by a Coroner to have violently killed Shandee Blackburn.
[50]
[32] I conclude that particulars which simply stated that the plaintiff had a reputation for having been acquitted of the murder of Shandee Blackburn would be insufficient to properly plead and particularise the nature and extent of his reputation prior to the publication of Episode 13 of the Podcast.
[51]
[33] In circumstances in which a live issue is the extent to which he was reputed to be the killer of Shandee Blackburn, it seems appropriate to require the plaintiff to make clear whether, on his case, he was reputed, at least in certain circles, to have killed Shandee Blackburn.
[52]
[34] I accept the plaintiff's point that he should not be required to address the extent to which any such reputation was as a result of the findings or the publication of the findings of the Coroner. He should, however, properly particularise the nature and extent of his reputation prior to the relevant publication. This should include the place or places and the circles in which he had a good reputation, the place or places and the circles in which he was reputed to have killed Shandee Blackburn, and the place or places or the circles in which he simply had no reputation.
[53]
[35] Particularising these kinds of matters will inform the defendants and the Court of his case about the respects in which, and the extent to which his pre-publication reputation or a sector of it was harmed by the publication of Episode 13 of the Podcast.
[54]
[36] The plaintiff is not required to particularise that he had a uniformly good or a uniformly bad reputation amongst the persons who came to listen to Episode 13 of the Podcast. If his case is that he had a good reputation among some of those listeners and a tarnished reputation among others before the publication in question, then this should be apparent from his particulars. If he acknowledges that prior to the publication of Episode 13 some listeners understood that he was reputed to have killed Shandee Blackburn, was reputed to be reasonably suspected of having killed her, or had some other reputation concerning her death, then he should particularise his case in that regard. The plaintiff is not being required to admit that prior to Episode 13 he was reputed among listeners to the Podcast to have killed Shandee Blackburn. However, he should particularise what he says his reputation was among listeners before they listened to Episode 13. This is central to his pleading of the reputation that he alleges was seriously harmed.
[55]
[37] It seems possible that, before listening to Episode 13, at least some of the listeners would have understood the plaintiff to be the person who killed or was suspected of having killed Shandee Blackburn, notwithstanding his acquittal. If the plaintiff accepts that this is the case, then the defendants should not be required to prove a non-issue. If the plaintiff does not accept this to be the case, then the defendants will know the case they are required to meet about the plaintiff's pre-publication reputation.
[56]
[38] The purpose of requiring the plaintiff to provide detailed particulars is to be informed in appropriate detail about the nature of his case concerning the reputation or variety of reputations he had among the persons who came to listen to Episode 13.
[39] The defendants should be not taken by surprise if the plaintiff's case is that he had a universally good reputation among those listeners prior to the publication of the matter complained of. The defendants should not be taken by surprise at the forthcoming hearing about the plaintiff's case concerning the nature and extent of his reputation prior to the publication of the matter complained of, and the respects in which the publication of the matter complained of harmed his reputation or various reputations among those listeners.
[57]
[40] I am not satisfied that the plaintiff's proposed form of order is sufficient in the circumstances.
[58]
[41] I accept, however, the plaintiff's submission that I should not make an order in the form proposed by the defendants.
[59]
[42] Therefore, I propose to order that the plaintiff provide particulars of:
[60]
(a) the nature and extent of his reputation prior to the publication of the first matter complained of, including:
(i) if, and the extent to which, he was reputed to have killed Shandee Blackburn;
(ii) the place or places and the circles in which the plaintiff had that reputation;
(iii) any other reputation or reputations that he had prior to the publication of the first matter complained of, and that is alleged to have been harmed by the publication of the first matter complained of;
(iv) the place or places and the circles in which the plaintiff had that reputation;
(v) the reputation or reputations that he had among persons who subscribed to or downloaded and listened to the Podcast prior to their listening to Episode 13 of the Podcast; and
(b) the harm to his reputation caused by the publication of the first matter complained of.