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[2017] VSC 356
Supreme Court of Victoria
2017-07-07
JOHN DIXON J
Original judgment source is linked above.
PLEADINGS - Defamation trial - Applications to have defences of triviality and partial justification removed from jury - Further proposed Hore-Lacy amendments - Defence of justification simpliciter - Defamation Act 2005, ss 22, 25, 33.
1 In the course of the trial of this proceeding, I made several rulings, indicating that I would later publish my reasons for doing so.
2 First, I ruled that I would permit the statutory defence of triviality to go to the jury. Secondly, I ruled that the defence of partial justification, as it was exposed in this proceeding, was an issue for me when assessing damages, if and when that became a task for the court to undertake, and should not go to the jury. Thirdly, I refused certain amendments sought to the defence and allowed others.
4 The defendants pleaded a defence of triviality in respect of each of the eight publications complained of, and the plaintiff applied to have the defence withdrawn from the jury.
5 The defence of triviality is found in s 33 of the Defamation Act 2005:
It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.
6 The defendants' triviality defences were to be put to the jury on the following basis:
(a) The subject matter of the articles concerned the cultivation by the plaintiff of a particular public persona;
(b) Readers of the articles were likely to be cognisant of the fact that actors routinely understate or embellish matters such as their age and background, and also routinely adopt stage names or pseudonyms, in order to cultivate a particular public profile, and more generally to effectively market themselves;
(c) Readers of the articles were likely to be cognisant of the fact that female actors in Hollywood are routinely subjected to ageism in casting and, accordingly, commonly understate their age in order to enhance their prospects;
(d) Accordingly, readers of the articles were likely to view any lies told by the plaintiff about her age and background as merely 'white lies' which are an accepted and uncontroversial aspect of the entertainment industry; and
(e) Having regard to all of the above, readers of the articles were inherently unlikely to view the articles as carrying a serious defamatory sting.
7 Whether the articles are defamatory and, if so, in what meaning, was a quintessential jury question. The triviality defence was inextricably intertwined with the question of meaning and readers of the articles were unlikely to understand the articles as conveying a serious sting. The defendants relied on the tone and substance of each of the articles. A number of the articles used deliberately light language. For example, the first New Weekly online article titled 'Rebel Wilson cries "tall poppy" syndrome over age lie claims' concluded with the statement 'It doesn't matter either way, we still love you Rebel/Melanie, whether you're 29, or 100!' and the second New Weekly online article titled 'Official records reveal Rebel Wilson's real age...' ended on a similarly light note, saying 'Now we can all go back to worrying about whether to have kale or spirulina in our green juice smoothies'.
8 The defendants submitted that whether the circumstances of publication were such that the plaintiff was unlikely to suffer any harm plainly called for a value judgment by the application of community standards. The jury might find that these were a series of inconsequential lies, in circumstances where there was nothing in the plaintiff's pleaded imputations that said that the plaintiff is a dishonest person or something of that nature. 'Serial lies' need not equate to 'serious lies'. It would, therefore, be conducive of incoherence were the question of meaning decided by the jury, but the defence of triviality withdrawn from their consideration.
9 There was evidence on which the jury could reasonably find the triviality defences made out. For example, in her interview with Julia Zemiro as part of the Home Delivery program, the plaintiff made the following admissions (on a view most favourable to the defendants):
(a) Hollywood is judgmental about the age of actresses;
(b) It is common knowledge that Hollywood is judgmental about the age of actresses ("I mean, c'mon people");
(c) She was being a lady by not telling her age when she moved to America, and this was not a crime;
(f) This was not something that people should care about ("I don't know why people care").
10 The plaintiff received advice from her US agent that Hollywood is very ageist. Fellow actor Hugh Sheridan said that he had always encouraged the plaintiff not to disclose her age because it could become an issue for women, if an actor's age was publicly known it could make it difficult to be cast in certain roles and, certainly for women, the older an actress gets the harder it is to get jobs.
11 Journalist Caroline Overington gave evidence that:
(a) A lot of people shave a couple of years off their age or fudge a little bit about their background and it isn't the end of the world;
(d) It was common place in Hollywood for people to use names that were not their own, and she could name half a dozen people who did so.
12 The defendants submitted that because there was evidence on which the jury could reasonably find for the defendant about the seriousness of the imputations, and which was not so negligible in character as to amount only to a scintilla, the triviality defence should not be withdrawn from the jury. The court must attribute to the jury prima facie reasonableness in finding facts and drawing inferences from those facts, and that the jury brings to that deliberation their experience and ordinary sense and fairness.[1]
13 That a triviality defence had not previously succeeded in cases involving mass media publications was not to the point. The extent of publication was simply a factor that the jury could take into account. The application of the defence was not circumscribed by the text of the legislation and is available whatever be the size and circulation of the publication.
14 Finally, the bias of the common law strongly favours receiving the verdict of the jury. Only in a clear case should the judge assume the responsibility of depriving all parties of the jury's verdict and directing or entering judgment in favour of one party.[2]
15 The plaintiff submitted that a jury finding of triviality in respect of any of the articles complained would be perverse. The defence will only apply in unusual circumstances where the defendant must show that the plaintiff was unlikely to sustain any harm.
16 The plaintiff accepted that the triviality defence was linked with the question of meaning, fundamentally a question for the jury, but relevantly the meaning that was unlikely to occasion any harm must be that pleaded by the plaintiff or a permissible variant thereof. That must be so because the jury would only consider the defence if it found the plaintiff's meaning or a permissible variant of it was conveyed. The defendants contended that a series of mere white lies that might be an accepted and uncontroversial part of the film industry were trivial and no harm would be sustained. That meaning was not, the plaintiff submitted, a permissible variant of the plaintiff's imputation (that she is a 'serial liar'). The defence could not attach to an imputation that was flatly inconsistent with an assumed jury finding (for this purpose) that the plaintiff's meaning or a permissible variant was conveyed.
17 The plaintiff submitted that the availability of the triviality defence in the present circumstances was at odds with the case law in three particular respects - the severity of the imputation, the extent of the publication and the relationship between the plaintiff and the recipients of the publication.
18 First, two recent Victorian cases, Szanto v Melville[3] and Cunliffe v Woods,[4] support the proposition that serious imputations, where the extent of publication in each case was minimal, will preclude the defendant from establishing the defence. The imputations in Szanto v Melville were to the effect that the plaintiff, a solicitor, had deliberately breached his duties as a lawyer and as an officer of the court. The imputations in Cunliffe v Woods were to the effect that there were reasonable grounds for suspecting that the plaintiff, another solicitor, had sworn and relied upon an affidavit that he knew to be false.
19 The plaintiff submitted that the imputations about her related directly to her reputation for honesty, and were therefore of a character comparable to those in Szanto and Cunliffe, but the gravity of the imputations in issue in this proceeding were even more serious, because if the jury were to find the imputations to have been conveyed, it would have been satisfied that they impute multiple incidents of dishonesty.
20 Secondly, the plaintiff submitted that the present case was in stark contrast to Szanto v Melville, Cunliffe v Woods, Barrow v Bolt and Smith v Lucht, all of which were cases involving publications to tiny audiences. In Barrow v Bolt,[5] the defence succeeded in a case involving 'relatively mild' imputations to a 'minute' audience, which was likely already to have formed views about the plaintiff based on past interactions with him.[6] Smith v Lucht[7] concerned imputations comparing the plaintiff, a solicitor, with 'Dennis Denuto', the fictional solicitor from The Castle. The Queensland Court of Appeal did not disrupt the trial judge's finding that the triviality defence had been established. The 'Dennis Denuto' statements had been made to two members of the plaintiff's family with whom the defendant was in dispute, who were able to make their own assessment of the seriousness of the imputation.[8]
21 This proceeding involves mass media and internet publications. The print edition of Woman's Day, in which the first impugned article appeared, had an estimated readership of 1,514,000. Each of the online articles reached estimated audiences of between 36 and 42,187 people. For the majority of the articles, the defendants did not contend that the plaintiff's imputations, if accepted by the jury, were not defamatory in nature, and the plaintiff submitted that some harm could not be excluded when defamatory imputations, even if trivial, were conveyed to a readership of that magnitude.
22 The plaintiff submitted that print magazines, such as Woman's Day, are permanent records. The plaintiff referred to Ms Overington's evidence in relation to the Australian Women's Weekly, that people go to the national archives to look at old editions of the magazine. She said:
The reason people go and look at The Australian Women's Weekly in the archives is that it is a serious journal? --- Yes.
The publications that are contained in it are not trivial? --- That's right.
They have the capacity to cause harm to people's reputations? --- That's right.
23 A like observation could be made about online articles. At the time of publication, it was to be expected that the articles would remain online, available to be accessed indefinitely. If defamatory, they were a permanent record that had the capacity to continue to cause reputational damage over an indefinite period and to an infinite audience. I pause to note there was no evidence that Woman's Day is collected in the national archives or used as a research resource and the article in the Australian Women's Weekly is not impugned in the proceeding.
24 Finally, in respect of the nature of the relationship between the plaintiff and the recipients of the relevant publication, the present case is in stark contrast with Szanto v Melville, Cunliffe v Woods, Barrow v Bolt and Smith v Lucht, all of which were cases where the plaintiff had a prior relationship of some form with each of the small number of recipients of the publication complained of. Those recipients either already had, or were likely to have, formed views about the plaintiff's reputation and such publications were unlikely to impact on those views. The present publications, in the mass media, were of an entirely different dimension. None (or surely almost none) of the recipients of the publications would have any prior relationship with the plaintiff.
First, the inquiry, whether the publication was likely to cause harm to the applicant, is directed to the time of publication. The issue, at that time, concerns "... the quality of the publication in respect of its proneness to cause harm".
Secondly, the focus of the inquiry is on the "circumstances of the publication". The critical test is whether those circumstances were such, at the time of publication, that it was unlikely that the applicant would suffer harm. The circumstances include (inter alia) the content of the publication, the extent of the publication, the nature of the recipients and their relationship with the applicant. However, the phrase "circumstances of the publication" is not sufficiently wide to encompass the previous bad reputation of a plaintiff.
Thirdly, the phrase "unlikely to sustain any harm" does not mean that it is sufficient for the defendant to establish that it is "more probable than not" that the plaintiff will not suffer harm. Rather, the defendant must demonstrate that there is "the absence of a real chance", or the "absence of a real possibility", of harm.
Fourthly, the defendant is required to establish that, at the time of publication, the circumstances were such that the plaintiff was unlikely to suffer "any" harm. Accordingly, the onus, on the defendant, to prove that matter, is high.
Fifthly, the defence, provided by s 33, applies to the publication of "defamatory matter". Thus, s 33 provides a defence where matter, that has been published, is defamatory of the plaintiff. In order to be defamatory, the matter must tend to lower the reputation of the plaintiff in the eyes of ordinary reasonable members of the community. Thus, s 33 contemplates a case in which, notwithstanding that a publication about a plaintiff is defamatory in that sense, nevertheless the "circumstances of publication" were such that the plaintiff was unlikely to sustain any harm as a result.
26 The power of a judge to withdraw an issue from a jury must be exercised with considerable caution and its exercise demands a full realisation of the difference between a judge's opinion on the merits and the determination of what finding is reasonably open to a jury.[10] Where a plaintiff seeks to have a defence withdrawn from a jury, the question is not whether the quality of the evidence is such that a verdict for the defendant would be unreasonable or perverse. It is whether the defendant has adduced evidence that, if uncontradicted and accepted, would justify a verdict for the defendant on that issue.[11]
27 Once the evidence in support of the defence is isolated in accordance with these principles, the question for the judge is whether, directly or inferentially, that evidence might reasonably satisfy a jury that, on the balance of probabilities, the defence is made out. In considering that question the judge must bear in mind that a conclusion may be reasonable although other reasonable persons may draw an opposite or inconsistent conclusion from the same body of evidence.[12] The judge's role is not that of balancing the weight which he or she would personally attribute to the respective cases of the plaintiff and defendant.[13]
28 There was a great deal of merit in the plaintiff's submissions about the substance of the defence. There are clear flaws in the process of reasoning asked of the jury on the basis that if they come to consider the defence of triviality, they will have already found that the publications were defamatory in the plaintiff's meanings. That reasoning would be that the circumstances of publication, including in mass media and by internet, were so trivial that publication would not cause any harm to the plaintiff.
29 There was, however, also merit in the general propositions that were identified by the defendants regarding the sanctity of taking the jury's verdict and, in the course of the running trial, I thought it prudent to adopt a cautious approach to removing issues from the jury where the finding appeared open on a particular view of the evidence.
30 Accordingly, I permitted the defence of triviality to go to the jury for verdict, but reserved for the plaintiff leave to apply for judgment non obstante veredicto in the event that the jury found the triviality defence established in relation to any of the eight articles sued upon. The jury did not do so.
31 One further matter can be noted. The meaning of the word 'harm' in the context of s 33 is uncertain. On one view, it means any harm, including hurt feelings arising out of the publication of defamatory matter. The alternative view is that harm is limited to the sense of damage to reputation. I instructed the jury on the basis of the alternative view for the following reasons.
32 The Queensland Court of Appeal considered the meaning of the word 'harm' in Smith v Lucht.[14] Mr Lucht had made statements bearing defamatory imputations (the Dennis Denuto comparison) concerning Mr Smith on three occasions. One was in an email to his former wife and the other two occasions were conversations with his former wife and her current husband, Mr Smith's son. The primary judge found that the circumstances of their publication were such that Mr Smith was unlikely to sustain any harm and his defence of triviality under s 33 of the Defamation Act 2005 (Qld) succeeded. On appeal, two of the three members of the court (Philippides JA and Flanagan AJA) concluded that the term 'any harm' in the Queensland equivalent of s 33 was limited to reputational harm.[15] The remaining judge (McMurdo P) doubted, without deciding, the correctness of the view of the other two members of the Court.
33 The meaning of the word 'harm' in this context was earlier considered by the Victorian Court of Appeal in Barrow v Bolt.[16] Kaye JA, with whom Ashley and McLeish JJA agreed, observed that the question was not without its difficulties[17] and appeared (without deciding the point) to favour the view that 'harm' meant either hurt feelings or damage to reputation. The court, however, ultimately concluded that it was preferable that the question be determined when it arose more directly for decision.[18]
34 The NSW Court of Appeal has also considered the s 33 defence in Enders v Erbas & Associates Pty Ltd.[19] The primary judge had observed that 'harm' in this context appeared to encompass both injury to reputation and injury to feelings. The Court of Appeal referred to the decision of Beazley JA in Jones v Sutton,[20] in which her Honour held that hurt feelings were not relevant to the question because that was a matter for damages so that the word 'harm' was confined to injury to reputation. The Court in Jones was dealing with s 13 of the Defamation Act 1974 (NSW), the predecessor of s 33 of the Act, which referred to the circumstances of publication being such that the plaintiff 'was not likely to suffer harm', but s 33 of the uniform law replaced those words with 'was unlikely to sustain any harm'. The Court of Appeal set aside the defendant's successful invocation of the s 33 defence in other grounds, without determining whether the distinction identified in Jones applied to s 33.[21]
36 A trial division court should only depart from an intermediate appellate decision from another jurisdiction if it is convinced that the decision is plainly wrong.[24] It cannot be said that the majority's interpretation of s 33 in Smith v Lucht is plainly wrong. For my part, I am inclined to agree with the reasoning of the majority. Having regard to the evidence considered by the jury and its verdict, I need not now determine this matter.
37 The defendants pleaded a defence of partial justification in respect of three of the articles on which the plaintiff sued.[25] In respect of each publication, the plaintiff's pleaded imputation constituted a single meaning (that the plaintiff was a serial liar) with multiple constituent sub-parts (the different lies that she had told about herself). Although the defendants in each case pleaded justification, in the alternative they alleged partial justification - that the defendants could justify some, but not all, of the sub-parts to the plaintiff's imputations.[26]
38 To illustrate the issue by reference to the Woman's Day Print article, the plaintiff's imputation was as follows:
In its natural and ordinary meaning, the Woman's Day print article was defamatory of the plaintiff and carried and was understood to carry the imputation that the plaintiff is a serial liar who has invented fantastic stories in order to make it in Hollywood in that she has:
39 The defendants' partial justification defence to this publication was pleaded in the following terms:
Further or alternatively, if, which is denied, the Woman's Day print article was defamatory of the plaintiff in the meaning alleged in paragraph 5, then insofar as the article meant (which is denied) that the plaintiff was a serial liar who had invented fantastic stories in order to make it in Hollywood in that she has -
the article was true in substance and in fact, or substantially true and, accordingly, the first defendant has a defence of partial justification at common law.
40 During the trial, the plaintiff applied to have the partial justification defence on each of the three occasions that it was pleaded taken away from the jury on the basis that it was an untenable defence, and at its highest raised issues of fact and law relevant only to the determination of damages.
41 The plaintiff submitted that her meaning, although composed of a number of sub-parts, was an imputation with a single sting - the plaintiff was a serial liar. She submitted that where there was a single, indivisible imputation, the defendant must justify the plaintiff's imputation, plead and justify a Hore-Lacy imputation, or plead a defence of contextual truth under s 26 of the Defamation Act. Partial justification is not a defence.
42 In Herald & Weekly Times Ltd v Popovic,[27] Gillard AJA set out well established propositions applying to a defence of justification:
(i) The whole libel that is all the defamatory imputations must be proved as true; it is no defence to prove that part of the defamatory libel is true. The publisher must prove the truth of the defamatory sting. The general rule is that the publisher must prove every injurious imputation which the jury may find in the words complained of.
(ii) The defence is that the words complained of were true in substance and in fact. This means that the publisher must prove the sting or stings of the libel are true. The publisher need not prove an irrelevant comment or any slight inaccuracy in the article is true. Errors or mistakes of no real substance do not defeat the defence provided they make "no substantial difference to the quality of the alleged libel or in the justification pleaded for it". Every fact stated must be proven as true, unless immaterial or trivial and which in no way alters the defamatory sting of the article.
(iii) A publisher may justify part only of the words complained of provided the part sought to be justified contains a distinct and separate imputation. What is important is that the particular defamatory imputation is severable from the other defamatory imputation and conveys a distinct and separate imputation. The plaintiff must not be left in any doubt as to what the defendant seeks to justify. But importantly this partial justification is not a defence to the cause of action, which is the publication of defamatory words. However, it is relevant to the question of damages, and if proven, results in a reduction in damages.
43 In Fairfax Media Publications Pty Ltd & Ors v Kermode,[28] the New South Wales Court of Appeal added:
The defence to which Gillard AJA referred was known as partial justification. Such a defence enables a defendant to seek to justify any one of several distinct defamatory meanings raised by a plaintiff's claim. The defence mitigates the damages the plaintiff might obtain in respect to the unproved material or meaning.
44 The plaintiff contended that the defendants did not plead, as partial justification defences, imputations that were separate and distinct from the plaintiff's imputation. The defendants were not permitted to justify part only of the words published in that circumstance. The extracts from the pleadings set out above concerning the Woman's Day print article make that clear. The indivisible nature of the libel in the Woman's Day print article is evident from the contrast with the Women's Weekly online article. The plaintiff alleged that the latter publication carried two distinct imputations, firstly that the plaintiff lied about her age and, secondly, that what she says about herself cannot be trusted unless it has been independently corroborated. It would be open to the defendants in respect of that publication to justify one imputation, ignore the other, and submit that truth, if established, mitigated the plaintiff's damages in respect of the publication. That was not the case in respect of the articles to which the defence of partial justification had been taken.
45 In this case, the plaintiff submitted, ample evidence had been properly admitted on which the defendants could rely in mitigation of damages assuming failure of their substantial truth defences. It would be open to the defendants to submit in mitigation that they had proved one or another aspect of the imputation pleaded by the plaintiff. The defendants were entitled to, and did, make forensic decisions to test certain aspects of the imputation that the plaintiff was a serial liar and leave other aspects unchallenged.
46 The defendants submitted that Gillard AJA in Popovic had not turned his mind to the question of whether partial justification was a matter relating only to the question of damages and the judgment ought be read as stating the proposition that partial justification is not a complete defence, but a defence nonetheless. Further, Kermode did not stand for the proposition that partial justification is not a defence, but a matter properly going to damages. The defendants developed the submission in the following way.
47 First, the NSW Court of Appeal in Kermode, after quoting Gillard AJA in Popovic, as set out above, stated:[29]
However, it should be noted that the emphasis in Gillard AJA's [decision] is on the publisher having to prove 'the injurious imputation which the jury may find...' - that is to say, not necessarily the imputation pleaded. In Morris v Newcastle Newspapers Pty Ltd, Hunt J explained how a defendant pleading justification at common law could argue that the defamatory matter conveyed only a 'lesser meaning inherent in the [plaintiff's] more serious imputation in anticipation of the jury finding that was the high-water mark of the plaintiff's case, then seek to justify that lesser imputation.
48 The defendants submitted, in relation to the Woman's Day print article, that they were seeking by the partial justification defence to justify the imputation that the jury might find of the defamatory matter conveyed only as a lesser meaning inherent in the plaintiff's more serious imputation. The jury might find that the plaintiff's imputation (that she is a serial liar) had been conveyed with regard to only some of the sub-paragraphs.
49 Secondly, the defendants submitted that justification of part of the defamatory matter may prove the sting conveyed by the publication to be true, which is a matter of defence. Even where it fell short of meeting the whole of the sting, whether there is any justification is a matter relevant to liability, to a defence, and as such, it was properly a task for the jury. The defendants submitted that Kermode clearly characterised partial justification as a defence, rather than a matter only relevant to mitigation, including by its summary of the position at common law:[30]
50 The defendants also submitted that Denning LJ in Plato Films v Speidel,[31] concluded that questions of partial justification must be, at least to an extent, liability questions.
... [C]ounsel for the appellants argued that, in principle, specific misconduct should be admitted in mitigation of damages. He put this instance: Suppose a newspaper said of a man: "He has been convicted six times for dishonesty", but, on being sued, the newspaper finds that he has in fact only been convicted twice. The newspaper cannot justify, he said, because it cannot prove the words were true. Nor can it bring forward the two convictions in mitigation of damages because they are specific misconduct. So the plaintiff will get damages on the footing that he has never been convicted at all. If such were the law, I would agree with counsel that it would be most unjust and ought to be remedied. But it is not the law. Although the newspaper cannot justify in whole, it can justify in part. It can plead that, in so far as the words meant that he had been convicted twice, they were true and thus bring the two convictions before the jury. In Clarkson v Lawson, Sergt Wilde put the very case: "If the defendant charges the plaintiff with stealing three horses, can he not justify as to one?", and Park J said he could. "It was the common practice", said Sir James Scarlett in one of the cases cited to your Lordships,
if a defendant could not justify all, to justify a part of the libel, and produce witnesses to prove the part justified, as a ground of mitigation and reduction of damages;
This rule is based on sound sense. Seeing that the law does not permit a defendant, in mitigation of damages, to adduce evidence which tends to justification, it must permit him to adduce the self-same evidence when pleaded in partial justification. If it were not so, the plaintiff would recover damages for a character which he did not possess or deserve; and this the law will not permit.
51 In summary, the defendants submitted that the jury must first resolve the question of whether or not those parts of a publication to which they plead partial justification were true or not, before the judge would come to consider the remaining unresolved issues of fact and law (relating to quantum and mitigation). It would be for the jury to determine, solely as a matter of fact, the meaning of the articles and what parts of the meanings they find to have been justified. Armed with the jury's findings in that respect the court could then determine the question of damages. Further, the defendants submitted that the partial justification was directed towards the plaintiff's pleaded imputation. It was not, in that sense, an alternative. The jury questions ought be tailored to properly reflect that.
52 Section 22 of the Defamation Act governs the division of the questions in a proceeding for the judge or jury to decide. That section relevantly provides:
22 Roles of judicial officers and juries in defamation proceedings
(1) This section applies to defamation proceedings that are tried by jury.
(2) The jury is to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established.
(3) If the jury finds that the defendant has published defamatory matter about the plaintiff and that no defence has been established, the judicial officer and not the jury is to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount.
53 Section 25 of the Act states the defence of justification and it provides that it is a defence to the publication of defamatory material if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. The Act, apart from express exclusions, does not displace any other defences including those under common law.[32] But the common law does not assist the defendants as the common law position, summarised in Kermode consistently with Popovic, is that the whole libel, that is, all of the particular defamatory imputations must be proved as true. It is not a defence as such to prove that part of the defamatory libel is true. It would not amount to a defence if the jury found that a publication carried a defamatory imputation, presumed to be false and to have inflicted damage, that had not been met by the defendants' justification plea. It cannot be said that the plaintiff's case must succeed in part only. Rather, the evidence led in support of the justification defence could be relied on in mitigation of damage.
54 The defendants' submissions mischaracterise partial justification in the circumstances. The pleading in paragraph 5D of the defence, and equivalent pleadings for the other two articles in question, was not a defence of justification for the jury to resolve. The defendants' partial justification is the same imputation as that pleaded by the plaintiff, but with less supporting lies. Because the defendants do not seek to justify the whole of the plaintiff's separate and distinct imputation, the plea of partial justification is a plea in mitigation of damage, and an issue reserved to the judge.
55 An imputation that essentially mirrors the plaintiff's one single imputation but with fewer constituent parts to it is a Hore-Lacy meaning that ought be pleaded accordingly.[33] In the present context it would require a separate jury question - whether the defendants' alleged imputation, consisting of fewer distinct lies, was not substantially different from, or more serious than, the imputation they might find for the plaintiff. Depending on their answer, they might then be entitled to consider whether the defendants' truncated version of the imputation was defamatory of the plaintiff and, if so, whether it is substantially true.
56 The issues raised by the plea of partial justification are properly viewed as questions of fact, or of fact and law, relevant to the assessment of damages, particularly mitigation. Section 22 of the Act requires that the judge, not the jury, consider such matters. Accordingly, I ruled that the question of partial justification, as it was exposed in this proceeding, was an issue for me when assessing damages, if and when that becomes a task for the court to undertake, and that the issue should not go to the jury.
57 Following this ruling regarding partial justification, the defendants immediately sought leave to amend their defence to plead an alternative Hore-Lacy meaning along substantially the same lines as their partial justification meaning on each occasion when it had been pleaded. The amendment was opposed.
58 The defendants submitted that the jury may contemplate that within the plaintiff's pleaded meaning in respect of the Woman's Day print article three of the nine lies were sufficient to satisfy the sting of 'serial liar'. The question was how many individual lies would satisfy the jury that the meaning of 'serial liar' was made out. The defendants wished to allege that three 'lies' could carry that consequence. The defendants submitted that an amendment to include a Hore-Lacy imputation could meet the sting of the plaintiff's pleaded imputation - that she is a 'serial liar'. As the same particulars as support the partial justification defence would be relied on, there could be no prejudice in allowing the amendment
59 The defendants rejected the contention that they were 'cherry-picking' with regard to the Woman's Day print article. The subject matter of the proposed Hore-Lacy imputation was only those three lies - name, age and background - as these were the only matters that the article set up as stories told by the plaintiff that were contradicted by evidence.
60 It would be open to the jury to be satisfied that matters other than those the defendants sought to justify - for example, in the case of the Woman's Day print article the events that occurred when the plaintiff was in Africa - were not conveyed by the article as lies or did not substantially affect the sting of the plaintiff's imputation. In those circumstances the proposed meaning was apt to be pleaded as an alternative Hore-Lacy imputation.
61 The plaintiff did not complain of potential prejudice from the proposed amendment, rather she submitted that the amendments were futile. First, she objected that the proposed Hore-Lacy imputation went to a lesser meaning than that contended for by the plaintiff and, being a lesser meaning, was aptly described as something less than complete justification. The proposed imputation was not one that the jury could properly find to constitute the natural and ordinary meaning of the relevant publication. Proving the substantial truth of the Hore-Lacy imputation could only ever partly justify the plaintiff's alleged imputation. Put simply, an imputation that sought to meet only three of the nine particulars of being a 'serial liar', could never establish the substantial truth of the plaintiff's imputation that the plaintiff is a serial liar because of the nine articulated lies. The defendants were cherry-picking a meaning for no coherent reason other than their decision to avoid those matters that they cannot prove to be substantially true.
62 Secondly, it was not a permissible variant of the plaintiff's meaning to plead as a Hore-Lacy imputation a lesser meaning that was substantially different. It would be perverse for the jury to find that the defendant's proposed meaning, for example in respect of the Woman's Day print article as extracted above, was not substantially different from the plaintiff's pleaded imputation. So much becomes clear when observing that the evidence that would go to justification of three instances of lies would be different from the evidence going to the proof of nine instances of lies.
63 The plaintiff had earlier foreshadowed that the existing Hore-Lacy imputations pleaded[34] were not permissible variants on the basis that the plaintiff's imputation was that the article meant she is a serial liar. The defendants' purported Hore-Lacy imputation was in the nature of embellishment and was substantially different. Adding 'a touch of fantasy in order to make it in Hollywood' could not be equated to being a serial liar who says one thing when she knows the truth is very different.
64 I agreed with the plaintiff's contentions and accordingly, I refused the defendants' application for leave to amend. I was not persuaded that it was tenable to submit to the jury that the defendants' proposed alternate imputation was not substantially different from the plaintiff's pleaded imputation.
65 The defendants then proposed further amendments to their defence, having considered their position overnight in light of my earlier ruling. They proposed two alternate forms of amendment, each of which the plaintiff opposed.
66 The defendants' primary and preferred position was to plead justification simpliciter under s 25 of the Act and at common law to the imputation alleged by the plaintiff in respect of the Woman's Day print article. If allowed, equivalent defences would be raised to other publications, but for the purposes of the argument counsel focussed on the proposed amendment to paragraph 5 in respect of that particular publication. The proposed new defence was as follows:
5AA Further or alternatively if, which is denied, the Woman's Day print article was defamatory of the plaintiff in the meaning alleged in paragraph 5, then in that meaning it was true in substance and in fact, or substantially true and, accordingly, the defendants have a defence at common law and pursuant to section 25 of the Defamation Act 2005 (Vic) (Act) and its cognate provisions in each other state and territory in Australia.
The first defendant refers to and relies on the particulars set out in the Schedule to this defence.
If the amendment were allowed, the existing paragraphs 5A and 5B would be removed.
67 By this plea, the defendants proposed to justify the sting of the plaintiff's imputation by reference to all of the matters in their particulars, which had been in place since the beginning of the trial (with one proposed addition, to which I will return). The defendants contended that the plaintiff was impermissibly seeking to build a barrier around her meaning by relying on a compounded pleading of nine different lies as part of the single imputation. The sting of the imputation of 'serial liar' could be met on the defendants' particulars that identified multiple occasions on which the plaintiff has allegedly lied about certain matters, a sufficient basis for a finding of a series of lies. While the particulars did not refer to all of nine specific lies as alleged by the plaintiff, the defendants could prove a series of lies, albeit only in relation to four of the topics identified by the plaintiff. To do so was simply to re-frame the matters already in issue in support of the Hore-Lacy alternative imputations and the partial justification defence, so the plaintiff could not claim any relevant prejudice.
68 Alternatively, if I were not minded to allow the proposed justification simpliciter defence, the defendants proposed a further Hore-Lacy imputation. As I had refused an amendment seeking to justify three of the nine lies in the series pleaded by the plaintiff in respect of the Woman's Day print article, the defendants proposed the following imputation consisting of a series of four lies:[35]
5C. Alternatively to paragraphs 5A and 5B, above, if, which is denied, the Woman's Day print article was defamatory of the plaintiff, then in its natural and ordinary meaning the article meant and was understood to mean that the plaintiff is a serial liar who had invented fantastic stories in order to make it in Hollywood in that she has -
and in this meaning the article was true in substance and in fact, or substantially true and, accordingly, the first defendant has a defence of justification at common law.
The first defendant refers to and relies on the particulars set out in the Schedule to this defence.
69 The defendants submitted that Setka v Abbott[36] required that the proposed meaning must be judged against the publication in question, rather than the plaintiff's meaning, when considering whether it is indeed a permissible alternative meaning:
Whilst it is true that a defendant's imputations must not be different in substance from the plaintiff's imputations, and be no more serious, it does not follow, in the context of H-L justification, that each plaintiff's imputation and each defendant's imputation must be set up for comparative purposes one with the other ...
In the present case, when saying, as he did in his second judgment, that he thought there was no real doubt as to which of the defendants' imputations related to which of the plaintiff's imputations, and then engaging in a cross-referencing exercise, the judge really made the point that a requirement that a singular plaintiff's imputation and a singular defendant's imputation be set up one against the other was not apt - if ever it could be - in the present case.
The plaintiff challenged the correctness of the judge's statement that "Hore-Lacy defences are not defences to imputations". In our opinion, the criticism was unwarranted. It is true that a plaintiff must plead imputations, and that a defendant's imputations, by an H-L justification defence, must be permissible variants thereof, but it does not follow that a plaintiff sues on other than the publication of defamatory matter, or that a defendant is confined to pleading H-L justification by reference to the plaintiff's meanings rather than those which arise from the publication.
70 The defendants submitted that it would be open to the jury to find that some of the alleged particular lies might be considered to be insignificant matters. The alleged sting of the Woman's Day print article was that the plaintiff is a serial liar, which is what the defendants have sought to justify by their particulars. The particulars do not confine or give precision to the alternative meaning but were relevant to its justification. Relying on Setka, the particulars need not confront the plaintiff's imputation, but were properly tied to the defendants' alternative meaning that was, in any case, closer to the actual language in the article.
71 Similar amendments were proposed in relation to the first Woman's Day online article and the first OK Magazine article.
72 As I noted, the defendants also sought to add a further particular of justification as follows:
39A. During the course of the Chocano Interview, the plaintiff told Ms Chocano that her family "were basically carnies" who travelled around the continent selling pet products from a yellow caravan.
(c) the plaintiff and her family did not live the life of carnival people.
73 In support of this particular, the defendants relied on the evidence of the plaintiff and her mother, when compared with Ms Carina Chocano's article following an interview with the plaintiff for the December 2013 edition of Elle Magazine in Australia. The article was said to be admissible evidence of the journalist's observations of what the plaintiff had said during the interview and was, additionally, consistent with what the plaintiff told the jury because the statements on which the defendants proposed to rely appeared in the article in quotations. That use of punctuation identified the words used by the plaintiff. Because the particular arose out of evidence during the course of the trial it could not have been foreseen and pleaded earlier.
74 The plaintiff opposed the defendants' amendment to plead justification simpliciter. Whether at common law or under statute, the plaintiff's pleaded imputation must be a matter of substantial truth. The particulars that were relied upon could, at best, establish the substantial truth of four of the nine particulars of lies upon which the plaintiff relied. Even if the jury were satisfied that the defendants had established that four of the nine matters that formed part of the plaintiff's imputation alleged as carried by the Woman's Day print article were substantially true, the defence could not succeed because the justified imputation would be substantially different from the plaintiff's pleaded imputation.
75 As Gillard AJA identified in Herald & Weekly Times Ltd v Popovic,[37] it would not be open to the jury to find that five of the nine component parts of the plaintiff's imputation were immaterial and trivial and in no way altered the defamatory sting.
The defence is that the words complained of were true in substance and in fact. This means that the publisher must prove the sting or stings of the libel are true. The publisher need not prove an irrelevant comment or any slight inaccuracy in the article is true. Errors or mistakes of no real substance do not defeat the defence provided they make "no substantial difference to the quality of the alleged libel or in the justification pleaded for it". Every fact stated must be proven as true, unless immaterial or trivial and which in no way alters the defamatory sting of the article.
His Honour's statement of the rule was adopted by the NSW Court of Appeal in Kermode.[38]
76 The plaintiff submitted that a justification simpliciter defence could not be successful where the defendants could not justify every material part of the imputation pleaded by the plaintiff, which was precisely why the defendants had pleaded a partial justification defence in the first place.
77 Turning to the defendants' alternative amendment proposing different Hore-Lacy meanings, the plaintiff submitted that the second application took the defendants no further and failed for the same reasons. An imputation that identified four out of the nine lies was, for the same reasons, substantially different from the plaintiff's imputation.
78 The proposal to add a further particular about the plaintiff's gypsy upbringing raised matters that were said to support the substantial truth of that part of the imputation but which had not been admitted. The defendants had not put to the plaintiff in cross-examination that she had told Ms Chocano that her family were 'basically carnies' who travelled around the continent selling pet products from a yellow caravan. The amendment was too late and would be unfair.
79 Finally, the plaintiff submitted that by parity of reasoning with my previous ruling in respect of the additional Hore-Lacy imputation, the defendants' existing Hore-Lacy imputation contained in paragraph 5A of the defence should also be removed from the jury's considerations. The particulars said to prove that imputation went no further than three of the nine lies - four, were I to allow the amendment - that were component parts of the plaintiff's imputation. That imputation was therefore substantially different from the plaintiff's imputation for the same reasons. The existing Hore-Lacy imputation pleaded in paragraph 5A bore no relationship to the ordinary sense of a lie as alleged by the plaintiff. Rather, the sting was in the sense of adding a touch of fantasy to stories that the plaintiff tells. If those words were referring to a lie it would be in the nature of embellishment or exaggeration, some kind of poetic license. That was substantially different from the plaintiff's imputation.
80 The dispute whether the defendants ought be permitted to plead justification of the plaintiff's imputation by the amendment constituting paragraph 5AA of the proposed pleading, is resolved by applying the statement of principle from Popovic.
81 I concluded that it would be open to the jury to find that the matters that are the subject of the categories of lies not directly addressed in the particulars - the suggestion that the plaintiff lied about her background in relation to dog training or to the four different categories that relate to the plaintiff's time in South Africa - were what Gillard AJA referred to in Popovic[39] as 'irrelevant comment or slight inaccuracies'.
82 I was satisfied that the jury might find that those matters were a slight inaccuracy or 'fluff' comments that did not affect the real sting of the plaintiff's imputation, which was based on the four substantial lies identified in the subject matter of the article. By that path of reasoning, the jury might be satisfied that the sting of the plaintiff's imputation was established and that the imputation was substantially true. That question was a matter for the jury as was the issue of what the ordinary reasonable reader would understand the phrase 'serial liar' to mean in relation to the article. It would not be so perverse for the jury to reach the conclusion advocated by the defendants that it must necessarily be fanciful and be removed from scope of their deliberation.
83 I was satisfied that there was a path, albeit a narrow one, by which the jury might conclude that establishing the truth of the four key lie allegations, and in some way explaining away as irrelevant or insubstantial the five other lie allegations did not vary the defamatory sting of the article about which the plaintiff complained.
84 For that reason I permitted the defendants to amend their defence in the following way:
(a) The defendants were given leave to serve a second further amended defence that includes, in relation to the Woman's Day print article, as paragraph 5A what is currently shown in the draft as paragraph 5AA and that paragraphs 5A, 5B, and the proposed 5C are either struck out or do not appear in the amendment;
(b) The corresponding position in relation to the first Woman's Day online article will be that paragraph 7AA will now stand as paragraph 7A and the existing paragraphs 7A, 7B and 7C are either struck out or do not appear in the amendment;
(c) The corresponding position in relation to the first OK Magazine article will be that paragraph 17AA will now stand as paragraph 17A and the existing paragraphs 17A, 17B and 17C are either struck out or do not appear in the amendment.
85 Turning to the proposed amendments to paragraphs 39A and 42C of the schedule, I do not accept the defendants' contention that they would not be seeking to rely upon these particulars regarding an aspect of the plaintiff's gypsy upbringing but for the plaintiff's mother, Ms Bownds, giving contrary evidence to that of the plaintiff. That proposition requires that it was only the evidence of the plaintiff's mother that made relevant the statements in the Chocano article. The defendants had the Chocano article in their possession and I infer they made forensic decisions about cross-examination of the plaintiff in respect of it. I am not satisfied that this matter did not arise until Ms Bownds gave evidence.
86 In any case, the defendants relied on the fact that particular parts of the article appeared in quotation marks, together with the evidence of other journalists (not Ms Chocano) that they believed generally, and not in respect of the article in question, that quotation marks meant that the interviewee spoke those words to the journalist, from which it was open to infer those were words that were actually spoken by the plaintiff. That inference was not reasonably open to the jury in the absence of evidence from Ms Chocano or more specific evidence of the reliability of a particular journalistic practice. Further, the use of particular language - the statements in quotes - in her interview with Ms Chocano was not acknowledged by the plaintiff. I was also not persuaded that the accounts given by the plaintiff and her mother in their evidence about the 'gypsy upbringing' were as starkly different as the defendants contended. Accordingly, the defendants' application in relation to paragraphs 39A and 42C was refused.
87 Otherwise, the defendants proposed amendments which were not in contest between the parties, including the abandonment of the contextual truth defences and amendments to the qualified privilege defence, were allowed.
Defendants' proposed amendments to schedule of particulars
88 The plaintiff next submitted that as a result of my rulings on the amendments to the defence, the schedule of particulars still contained a number of irrelevant matters that ought to be struck out. The plaintiff submitted that it was not acceptable that the defendants' amendments to plead justification simpliciter continued to be particularised by reference to 'all of the particulars' in the defendants' schedule. Parts of those particulars necessarily were only relevant to abandoned allegations and the particulars ought be cut down to only those particulars that were relevant to the amended truth defence.
89 The defendants revised the particulars overnight but one issue remained unresolved between the parties.
90 The plaintiff complained that particulars regarding the names of two of the plaintiff's siblings, her sister Annalise (or Anarchy), and her brother Ryan (or Ryot), were maintained. The plaintiff referred, by way of example, to paragraph 5A of the further amended defence, which now pleaded the truth simpliciter defence in respect of the Woman's Day print article. The only part of the plaintiff's imputation with regard to that article that called into question the plaintiff's name was the second of the lies listed, being that 'the plaintiff lied about her name by using the fake name Rebel Wilson when in fact her name is Melanie Elizabeth Bownds'. No aspect of the plaintiff's imputation called into question anything to do with the names of her siblings, which had been relevant only to the Hore-Lacy imputations.
91 Part E of the schedule of particulars was concerned exclusively with the names of the plaintiff's siblings. Even if the defendants were able, taking their case at its highest, to prove the substantial truth of the matters set out in Part E that would not be probative of the truth or falsity of the plaintiff's imputation in respect of the Woman's Day article because that imputation had nothing to do with the names of her siblings. The same could be said for the balance of the pleadings wherever Part E was referred to.
The plaintiff submitted that references to the siblings names, even if accepted as proved, could not be probative of the conclusion expressed about the plaintiff's name.
93 The plaintiff objected to references in the balance of the pleading to Part E of the particulars and those sub-parts of the Part D particulars for statements about the siblings' names.
94 The defendants submitted that the issue of the siblings' names was intrinsically part of the alleged central falsehood that the plaintiff's real name was 'Rebel'. The defendants made two submissions in support of these particulars.
95 First, the withdrawn Hore-Lacy defence had been particularised by reference to the schedule and had not been previously challenged on the basis of the references to the names of the plaintiff's siblings. Those particulars had stood as the defendants' justification of the central sting, that the plaintiff is a serial liar. If the particulars were capable of justifying the Hore-Lacy meaning, then they must be capable of justifying the plaintiff's pleaded meaning.
96 Secondly, the particulars in Part E engaged with the plaintiff's pleaded imputation. The plaintiff's meaning was a single composite imputation and the defendants were entitled to justify the sting conveyed, including by any permissible variant. Penton v Calwell[40] supports the proposition that a defendant can justify a sting going to dishonesty by reference to a general charge conveyed by a section of the article upon which the plaintiff did not rely.
97 The defendants contended that the particulars in question engaged directly with the central sting that the plaintiff is 'a serial liar who has invented fantastic stories about her age, name and background'. It would be open to the jury to find that, based on the words in the article, a permissible variant of the plaintiff's meaning included an allegation that the plaintiff lied about her siblings' names as an aspect of the allegation that 'Rebel Wilson' was a fake name. The story about the plaintiff's name was interrelated with those of her siblings' names because the plaintiff consistently told the story that their mother gave them themed names. It would be artificial to attempt to quarantine parts of the story because each lie within it supported or leant credibility to the other parts.
98 Essentially for the reasons submitted by the plaintiff, and given the circumstances and state of the pleadings, the impugned particulars could not stand. A necessary consequence of the abandonment of the Hore-Lacy defences and the adoption of a truth simpliciter defence, is that there was no longer any matter in issue between the parties concerning the names of the plaintiff's siblings.
99 The defendants sought to justify the imputation by reference to parts of the impugned articles about which the plaintiff had not complained. That is a vice clearly identified in Hore-Lacy.[41] If the defendant sought to justify an imputation about which the plaintiff did not complain there were two alternatives - invoking a Hore-Lacy imputation or the defence of contextual truth - both of which had, by this point, been abandoned.
100 Accordingly, I ordered that the further amended defence be amended by deleting the references in paragraphs 5A, 7A, 13B and 17A to Part E of the schedule and in those same paragraphs the reference to Part D was to be confined to those parts that remain after excluding paragraphs 46B, 46E, the words 'and her siblings', 48B, 49B, 51B, 52C, 52D, 54B, 55B and 56B.
[1] Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517, 580 [205] (Kirby J).
[6] [2014] VSC 599, [72] (before the primary judge).
[9] [2015] VSCA 107, [33]-[38] (citations omitted).
[10] Naxakis v Western General Hospital (1999) 197 CLR 269, 289-290 [58], 293 [65] (Kirby J).
[11] Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517, 529 [31] (McHugh J).
[12] Naxakis v Western General Hospital, 284 [44] (McHugh J).
[19] [2014] NSWCA 70, [95]-[108].
[20] [2004] NSWCA 439; (2004) 61 NSWLR 614, [38] (Santow JA and Stein AJA agreeing).
[22] [2011] VSC 574, [159]-[163].
[23] [2011] VSC 574, [161]-[164].
[24] See Farrah Constructions v Saydee Pty Ltd (2007) 230 CLR 89, 151-152 [135].
[25] Defendants' Further Amended Defence dated 22 May 2017 - Woman's Day Print article, [5D]; Woman's Day online article, [7D]; First OK Magazine article, [17C].
[26] A defence of contextual truth was also taken as a further alternative in respect of the Woman's Day Print Article and the Woman's Day Online article but this defence was later abandoned.
[27] [2003] VSCA 161; (2003) 9 VR 1, 63 [306] (citations omitted) (Winneke P and Warren AJA agreeing). Followed by the NSW Court of Appeal in Fairfax Media Publications Pty Ltd & Ors v Kermode, [2011] NSWCA 174; (2011) 81 NSWLR 157, 169 [47] ('Kermode').
[28] Fairfax Media Publications Pty Ltd & Ors v Kermode, [2011] NSWCA 174; (2011) 81 NSWLR 157, 170 [50] (citations omitted).
[29] [2011] NSWCA 174; (2011) 81 NSWLR 157, 170 [49] (citations omitted).
[30] [2011] NSWCA 174; (2011) 81 NSWLR 157, 172-173 [59] (citations omitted).
[31] [1961] AC 1090, 1141-1142.
[33] David Syme & Co Ltd & Anor v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667, 688 [59].
[35] See Second Further Amended Defence dated 7 June 2017.
[36] (2013) 44 VR 352, 403-404 [226]-[228].
[37] At [306](ii) (citations omitted).
[38] At [47] (McColl JA, Beazley and Giles JJA agreeing).
[39] [2003] VSCA 161; (2003) 9 VR 1, 63 [306]..
[41] [2000] VSCA 24; (2000) 1 VR 667, 688 [59].
Wilson
Bauer Media
(2005) 220 CLR 517
(1999) 197 CLR 269
(2004) 61 NSWLR 614
(2007) 230 CLR 89
(2003) 9 VR 1
(2011) 81 NSWLR 157
(2000) 1 VR 667
(2013) 44 VR 352
(1945) 70 CLR 219