Grounds 2(a), (b) and (c)
80 These grounds articulate different ways of challenging the primary judge's conclusion in relation to the second matter he relied on, namely, the conclusion that widespread publication of the article telling of her convictions and of her intention to appeal them could not have made her reputation worse. Her reputation was already damaged, or simultaneously damaged, by her admission that she had engaged in acts of deception.
81 The appellant submitted that the primary judge should not have relied on this matter to conclude that she had failed to establish that she had suffered serious harm because this was a separate matter relevant to the mitigation of damages. It related to bad reputation, upon which the respondents bore the onus and which had not been set down for a separate hearing. Furthermore, what should have been presumed at the "serious harm stage' was that at the time of the publication, the appellant had a good reputation.
82 The appellant submitted that the primary judge had relied on the SOAF in the criminal proceedings and noted that the appellant had conceded that she had engaged in deceptive conduct, but had not conceded dishonesty. The appellant pointed out that deception and dishonesty are very different things.
83 The appellant submitted that neither the mitigation of damages by proof of a prior bad reputation nor the serious harm test operated to change the presumption of good character into a presumption of bad character.
84 Under the rubric of the general submission, the appellant submitted that although a prior bad reputation was not irrelevant to the serious harm test, the respondents carried the onus to establish the prior bad reputation in the same way as the respondents carried the onus to bring forward evidence of a prior bad reputation in mitigation of damages. In other words, a prior bad reputation cannot be assumed and it must be proved by the respondents. That was not done in this case.
85 The appellant submitted that there was no evidence that the decision of the Supreme Court of New South Wales in the criminal proceedings (Selkirk v Director of Public Prosecutions [2020] NSWSC 1590) was widely read. The appellant submitted that the prior bad reputation could only be established by the adducing of direct evidence and the respondents had not adduced such evidence. The appellant relied on the decision in Colagrande v Kim [2022] FCA 409 (Colagrande v Kim) and submitted that that was a very similar case to this case.
86 In Colagrande v Kim, the doctor plaintiff was convicted of the indecent assault of a patient, a charge to which he had pleaded not guilty. The Queensland Court of Appeal subsequently quashed the conviction and thereafter the prosecution entered a nolle prosequi. The defendant had published an article about the relevant events and Jagot J considered two matters. First, her Honour considered whether despite the setting aside of the conviction and the subsequent entry of the nolle prosequi, the doctor's reputation had been negatively affected by the mere fact of his charge and conviction. Her Honour considered that that was the case, at least in the minds of some people. Secondly, her Honour considered whether, in those circumstances, she could infer that the doctor had a bad reputation requiring the mitigation of damages to be awarded to him on that account. Her Honour said (at [47]-[49]) that she did not consider that she could infer that the doctor had a bad reputation requiring the mitigation of the damages to be awarded to him on that account. Her Honour said (at [47]):
… This is because:
(1) the respondents pleaded but then abandoned a plea of bad reputation in mitigation of damages;
(2) while I can accept that in the minds of some people the mere fact of charge and conviction, despite subsequent successful appeal and entry of a nolle prosequi, will have damaged Dr Colagande's reputation, I am unable to accept (particularly without any supporting evidence) that this involves a settled generally held view of the community: Faruqi v Latham [2018] FCA 1328 at [162];
(3) to the contrary of (2), the fundamental principle of our law is that a person is innocent unless and until proven guilty, a necessary corollary of which is that a person whose conviction has been set aside and a nolle prosequi entered thereafter is to be treated as innocent. Accordingly, it would be wrong for another aspect of our law, that of defamation, to treat the person's reputation as sullied and therefore less amenable to damage and unworthy of vindication to the same extent as might otherwise have been the case; and
(4) even if the proposition in (3) does not hold good as a statement of principle in a case where a conviction has been set aside and a nolle prosequi entered, my acceptance that some people will still think less of Dr Colagrande does not mean that it is to be assumed that these people represent the community at large. Without evidence, it is equally possible to assume or infer that as many (if not more) people will adhere strongly to the notion that a person is innocent unless and until proven guilty as will adhere to the notion that there "is no smoke without fire".
87 The case is relevant in terms of the need for proof of the appellant's bad reputation, but is otherwise distinguishable. The judge in Colagrande v Kim was dealing with a case in which the bad reputation in some people's minds arose from the "mere fact of charge and conviction" whereas in this case, even though the appellant succeeded on her appeal, the finding that she had engaged in deceptive conduct was not set aside. In fact, I notice in the criminal proceedings that the distinction between deceptive conduct and dishonesty was emphasised in her first ground of appeal before the Supreme Court of New South Wales which was as follows:
1. The learned magistrate erred in conflating the issues of whether Ms Selkirk had engaged in deceptive conduct, namely by providing a false document, with the issue of whether the Plaintiff had acted dishonestly, and did not separately determine whether or not Ms Selkirk had acted dishonestly.
88 The appellant submitted that the primary judge had impermissively reversed the onus of proof and in the context of that submission he referred to the decision in Faruqi v Latham [2018] FCA 1328. In that decision, Wigney J provided, with respect, a useful summary of the law with respect to the issue of bad reputation and its relevance to the mitigation of damages. His Honour said (at [160]-[164]):
160 First, evidence of the plaintiff's bad reputation is, subject to certain conditions and exceptions, generally admissible in a defamation proceeding as going to the mitigation of damages: Scott v Sampson (1882) 8 QBD 491.
161 Second, the evidence of bad reputation must relate to the "sector" of the plaintiff's life relevant to the defamation: Plato Films Ltd v Speidel [1961] AC 1090 at 1123, 1139, 1140 and 1147; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 801; Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430 at [17]-[21], [28]; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [162].
162 Third, the evidence of a person's reputation must demonstrate a settled view of the community and must be a permanent, not transitory view: Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504 at 513; Associated Newspapers Ltd v Dingle [1964] AC 371 at 396-399, 406, 412, 417.
163 Fourth, subject to certain exceptions, evidence of particular previous acts of misconduct by the plaintiff are not admissible under the guise of bad reputation: Scott v Sampson at 504-505; O'Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89 at [6]; except perhaps if those acts are sufficiently notorious: O'Hagan at [38]; Speidel at 1131; Goody v Odhams Press Ltd [1967] 1 QB 333 at 342. The main exception to this exclusionary rule is that evidence which provides directly relevant background context to the defamatory conduct is admissible: Burstein v Times Newspapers Ltd [2001] 1 WLR 579 at 598-602. Evidence that may be admitted under the so-called Burstein principle includes, in general terms, evidence of specific conduct that is directly relevant to either the subject matter of the alleged defamatory statement, or the plaintiff's reputation in that part or sector of his or her life which is the subject of the defamatory publication, but does not include evidence of rumours that the plaintiff had done what was alleged in the defamatory material: see Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550 at [32]-[46] and the cases there cited.
164 Fifth, the rationale or policy that lies behind the various exclusionary rules relevant to evidence of reputation is to "prevent [defamation] trials from becoming roving inquiries into the plaintiff's reputation, character or disposition": Burstein at 596; Speidel at 1143-1144.
89 The appellant also relied on the fact that the respondents had not pleaded prior bad reputation in mitigation of damages in their respective defences. That is correct. She also submitted that prior bad reputation in mitigation of damages is not part of the separate question hearing. I reject this submission. It seems to me that it is part of the serious harm test. The appellant submitted that the matter was raised at the last minute and in breach of the rules of procedural fairness. I do not accept this submission. Insofar as it relies on the respondents raising the appellant's concession as to deceptive conduct, I am unable to see that a lack of notice (if that be assumed) has led to any prejudice to the appellant. Insofar as the appellant says that the prejudice relates to what flows from the respondents being able to raise the point, I reject the submission because the appellant's real point is that the respondents did not call any direct evidence to show that she had a prior bad reputation, rather than that the appellant would have called evidence to negate a prior bad reputation.
90 It is convenient at this point to identify the relevant principles.
91 At common law, subject to some exceptions which are not presently material, damage from the publication of defamatory imputations was presumed, not proved, and the presumption was irrebuttable (Lachaux at [20]).
92 The appellant submitted that there was also a rebuttable presumption that the plaintiff had a good reputation. There is at least some controversy about that proposition (Gatley C, Gatley on Libel and Slander (13th ed, Sweet & Maxwell, 2022) at [34-108]). In Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474. Hunt J said (at 483):
All that this means, as I understand it, is that a plaintiff need not lead evidence of injury to his reputation to establish his cause of action because some such injury is presumed. It does not mean that the plaintiff's reputation is necessarily presumed to be good, only that, whatever his reputation is, it has suffered some injury.
93 If there is no presumption that the plaintiff had a good reputation, that does not prevent a plaintiff from adducing evidence of good character. At common law, a defendant may adduce evidence of a plaintiff's bad character in mitigation of damages (Gatley C at [34-080] et seq.).
94 The effect of s 10A of the Act is, among other things, to remove the presumption that the defamatory imputations have caused damage (Lachaux at [20] per Lord Sumption) together with any presumption of a good reputation, if the latter presumption was part of the common law. In other words, I reject the appellant's submission that the presumption of good character survived the enactment of s 10A. Alternatively, if there was no such presumption at common law, then the enactment of s 10A has done nothing to alter that fact.
95 In order to show the extent of the harm and whether it is properly characterised as "serious harm", one would ordinarily expect the plaintiff to adduce evidence of his or her pre-existing reputation (see Gatley C at [34-069]). Assuming the primary judge's ruling concerning the appellant's application to adduce evidence from the makers of the statements is correct, then except insofar as her own evidence may go to reputation, and the primary judge's findings were not favourable to the appellant in that regard (see at [83]-[85]), the appellant did not adduce at trial any evidence of her reputation.
96 A defendant to a defamation claim may adduce evidence of a plaintiff's general bad character in mitigation of damages. The appellant at one point seemed to suggest that evidence of general bad character was not relevant to the issue of serious harm, but only to the mitigation of damages. I do not think she maintained that position. In any event, it is not correct and general bad character of a plaintiff is relevant to whether there is serious harm (Lachaux at [16] per Lord Sumption).
97 Insofar as there is an issue as to which party bears the onus with respect to evidence of general bad character, I think the respondents bear the onus of establishing general bad character.
98 The English authorities, which I would follow, are to the effect that a prior bad reputation is relevant to the decision whether the publication has caused, or is likely to cause, serious harm to the claimant. It may mean that the difference between the prior bad reputation and the harm caused by the publication is not serious harm. Furthermore, they are authority for the proposition that if the defendant seeks to rely on prior bad reputation in the context of the issue of serious harm, then the onus is on the defendant to prove that matter.
99 In Lachaux, Lord Sumption said the following (at [16]):
… Suppose that the words amount to a grave allegation against the claimant, but they are published to a small number of people, or to people none of whom believe it, or possibly to people among whom the claimant had no reputation to be harmed. The law's traditional answer is that these matters may mitigate damages but do not affect the defamatory character of the words. Yet it is plain that s 1 was intended to make them part of the test of the defamatory character of the statement.
(see also at [24].)
100 In Banks v Cadwalladr [2023] EWCA Civ 219; [2023] 3 WLR 167, Lord Justice Warby (with whom Lord Justice Singh and Dame Victoria Sharp P agreed) said the following (at [58]):
This is a legally permissible line of reasoning, up to a point. Proof that the relevant sector of the claimant's reputation is bad among those to whom the statement complained of was published can reduce damages, perhaps very substantially. A claimant is only entitled to recover compensation for injury to the reputation he actually has. By the same token proof of an existing bad reputation in the relevant sector must be relevant to the question of whether the publication of a statement caused serious harm to the claimant's reputation.
101 Finally, in Price v MGN Ltd [2018] EWHC 3014 (QB); [2018] 4 WLR 150, Warby J said the following (at [46]):
Mitigation of damages/disproof of harm:
(1) A defendant may seek to show that the claimant's reputation has not in fact suffered, or not much, by proving that at the time of publication the claimant had an existing bad reputation. This was a clear common law principle in relation to mitigation of damages. The same point holds good, but with greater force, in the modern legal context where a claimant must establish "serious harm" under s 1. In principle, a defendant can establish that there is no cause of action because the claimant's reputation is so bad that the offending publication did not cause serious harm. Ahmed (above) is a case where it was so clear that this would be the outcome that summary judgment was appropriate.
(2) But there are clear limits to what is considered relevant and admissible for the purpose of, and the means by which a bad reputation can be proved.
(a) Reputation is not considered for this purpose to be a single indivisible thing. It is only the claimant's reputation in the relevant "sector" of his life that matters for this purpose.
(b) It is not legitimate to plead or prove in mitigation of damages specific acts of misconduct, even if they concern the same "sector" of the claimant's life: the rule in Scott v Sampson (1882) 8 QBD 491.
(c) It is not legitimate to rely in mitigation of damages on the fact that the publication complained of contains other defamatory allegations about the claimant of which he has not complained: Plato Films Ltd v Speidel [1961] AC 1090, where the House of Lords refused to reverse or qualify Scott v Sampson. At 1125, Viscount Simonds said this:
"It surprises me that it should be considered a proper matter for pleading that a plaintiff has not thought fit to include in his action every libellous statement made about him by a defendant. It is, in my opinion, wholly improper."
(d) Further, "it is not legitimate for a defendant to seek to reduce damages by proving [other] publications of the defendant or others, and inviting an inference that those other publications have injured the claimant's reputation." Lachaux v Independent Print Ltd [2015] EWHC 2242 (QB) [2016] QB 402 [15(9)], summarising "the rule in Dingle" (Associated Newspapers Ltd v Dingle [1964]AC 371). Bad reputation must be proved by calling witnesses to speak of a person's actual reputation in the relevant sector.
(e) By way of exception to these general principles, criminal convictions may be admitted in evidence to prove a bad reputation in a relevant sector of a person's reputation, as "they are the very stuff of reputation": Goody v Odhams Press Ltd [1966] 1 QB 333. This is the principle applied in Ahmed.
(see also Turley v Unite the Union and Walker [2019] EWHC 3547 (QB) and George v Cannell and LCA Jobs Limited [2021] EWHC 2988 (QB); [2021] 4 WLR 145 at [121]-[124] per Saini J.)
102 I see no reason why the same approach should not be adopted if the facts relevant to reputation arise from, or are related to, the same events as are the subject of the defamatory material.
103 The difficulty with the primary judge's approach to the second matter he relied on is that, although the appellant engaged in deceptive conduct on her own admissions, there is no evidence that this was known to a sufficient number of persons to conclude that she had a general bad reputation by reason of her deceptive conduct. There is no reference in the article to the appellant's concession of deceptive conduct or the fact that she did challenge that finding in her appeal. The only source of that information is the reasons for judgment of the Supreme Court of New South Wales and there is simply no evidence that that came to the attention of a community adverse to the appellant (Colagrande v Kim at [47]).
104 It will be recalled that the primary judge said that any one or more of three matters sustain his conclusion that the appellant had not established serious harm within s 10A(1). I agree that the first matter and the third matter considered together justify that conclusion and that is sufficient to dispose of those grounds.
105 I mention for completeness that the appellant made a submission in reply to the effect that there was authority that prevents the Court from placing any reliance on previous publications such as the SOAF in the criminal proceedings or the reasons for judgment of the Supreme Court of New South Wales on the appeal. She referred to the rule in Associated Newspapers Ltd v Dingle [1964] AC 371 (Dingle) which was approved in Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 99 per McHugh J. The rule in Dingle was confirmed by Lord Sumption in Lachaux at [24] (see also Gatley C at [34-107]). As far as I can see, this argument does not appear to have been raised before the primary judge. It is not expressly articulated in the Notice of appeal. It is not in the written submissions in chief. It is in the written submissions in reply and was referred to in the oral submissions. There is statutory provision in the Act which may be relevant (see s 38) to the issue. This issue goes to the second matter relied on by the primary judge. As I have been able to deal with that matter on other grounds, I do not consider it necessary to decide whether the appellant can rely on this ground and whether it is made out.
106 The appellant also submitted that it is significant that the statements were not made to a small class of family members, spouses, sporting club associates and similar. Her argument was that Lord Sumption in Lachaux had said that a claimant may not establish serious harm because although the allegation is grave, the publication was only to a small number of people or to people none of whom believed it or possibly to people among whom the claimant had no reputation to be harmed. The argument advanced by the appellant, as far as I understood it, was that the class she identified was the type of class to which Lord Sumption referred and that that was not the class of persons in issue in this case. I do not accept this submission. The question is one of fact, not of defining categories and then concluding that publication to those categories does or does not amount to serious harm.