Whittington v Newman

Court of Appeal (NSW)|2023-10-23|Before: Leeming JA, Stern JA, Rothman J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

The plaintiff, Ms Jasmin Newman, who is the respondent to this application for leave to appeal, is a family dispute resolution practitioner. She is accredited in that role with the Commonwealth Attorney-General's Department. The defendant, Mr Adam Whittington, who is the applicant seeking leave to appeal, is said to be (a) an Australian citizen who resides overseas either in Sweden or in Russia, (b) the Chief Executive Officer of a Swedish company which operates a Facebook page called "Child Abduction Recovery International" and (c) the founder of a charity known as "Project Rescue Children". Both parties were originally unrepresented, and in an earlier interlocutory judgment Sackar J acknowledged the assistance given by two counsel, Messrs Armitage and Smartt, who appeared at the request of the Court: Newman v Whittington [2022] NSWSC 249 at [3]. Subsequently, solicitors have been retained, but those counsel have continued in the litigation. Mr Whittington's senior counsel did not appear at first instance.
In the hearing before Sackar J, there were some 24 matters complained of. All were publications between 29 December 2019 and 21 October 2021. The 12 matters in the proposed pleading giving rise to this appeal are within the same time range. A deal of his Honour's reasons for judgment addressed the new requirement for serious harm introduced by s 10A. Sackar J's reasons for judgment concluded at [72]: In summary then I would not grant leave to proceed with matters 12, 13, 15, 16, 17 and 18. Nor would I grant leave in relation to matters 3, 5, 8, 10, 11, 12, 19, 20 and 21. I would however grant leave to the plaintiff to replead matters 1, 2, 4, 6, 7, 9, 14, 22, 23, and 24 insofar as she is able to specify the jurisdiction or jurisdictions in which the matters were published. In addition although I would not permit the plaintiff to proceed with her current pleading in relation to serious harm, I would permit her to replead her case in that regard.
The proposed pleading giving rise to this appeal was prepared in response to that decision. It contains some 59 imputations alleged from 12 publications, which for present purposes may be summarised as Ms Newman (a) is an associate of paedophiles, (b) has committed fraud and (c) has misrepresented her qualifications as a psychologist. Prominent in the submissions before the primary judge and in this Court were the 11th and 12th matters complained of. Each was a Facebook post made on 21 October 2021. Each was annexed to the pleading. It was alleged that each conveyed the imputations that Ms Newman has supported one particular paedophile, is closely connected with paedophiles and is dishonest. A suite of further particulars of serious harm were given in respect of those two Facebook posts.
After receiving the proposed "fourth amended statement of claim", Mr Whittington filed a notice of motion on 27 May 2022 seeking orders that Ms Newman be refused leave to amend, refused leave to replead, and that the proceeding be dismissed. That motion was heard by the primary judge on 24 June 2022. His Honour in substance dismissed the motion: Newman v Whittington [2022] NSWSC 1725. Judgment was delivered on 16 December 2022, and in the period his Honour was reserved there were further communications between the counsel appearing for the parties and his Honour's Associate, including a concerns notice which was attached to counsel's email dated 28 October 2022.

The reasons of the primary judge

The primary judge first addressed the submissions dealing with the belated concerns notice. However, it was not necessary for him to address the notice itself, as his Honour held that s 12B had no operation because the proceedings had already commenced prior to the publication of the 11th and 12th matters complained of: at [29]. Further, his Honour considered that there was no discretionary reason to refuse leave to permit Ms Newman to add those publications to the existing proceeding: at [30].
The primary judge was critical of some aspects of the proposed pleading, including the allegations that the defendant was "likely" to have authored the material (at [85]-[88]) and a claim for special damages (at [89]-[93]). However, his Honour was satisfied that sufficient particulars of publication had been supplied, saying at [75]-[79]: Dealing then with the provisions of UCPR r 15.19(1)(b), the pleading must particularise sufficient material to enable a court to draw the inference that the posting has been downloaded, in the case of [the] internet, or the article read in the case of other written material, or the broadcast seen and/or heard in the case of radio, television or video distribution. As the West Australian Court of Appeal has said: "The cases also establish that an inference to the effect that the material on which complaint is made has been downloaded by somebody might be drawn from a combination of facts, such as the number of 'hits' on the site on which the allegedly defamatory material was posted and the period of time over which the material was posted on the internet. For example, in Scali v Scali [2015] SADC 172 screenshots of the defendant's YouTube posts, which appeared to demonstrate the number of times the allegedly defamatory videos had been viewed as at the date of the screenshot, were relied upon as evidence of the fact that the videos of which complaint was made had been downloaded and comprehended by third parties." Here, the plaintiff has provided the almost identical particulars in relation to each of the postings to that provided in Sims v Jooste, supra, and upon which Martin CJ concluded that there was evidence that the defamatory material had been downloaded and comprehended. The above analysis does not suggest that greater particularity could not be given, but the plaintiff has not sought, in this motion, further and better particulars. The Court is, at present, neither indicating such particulars would be granted or indicating that they would not be. Further, given the terms of UCPR r 15.19(1)(b), the particulars that have been provided so far are the particulars upon which the damages would be based, subject to any further material that may, in the course of the proceedings, be admitted. The immediately preceding comment does not include any grapevine effect. Further to the foregoing, the defendant submits that the details of the "publication" refer to the posting of the material on pages owned by the "Child Abduction Recovery International", which is described as a Swedish company founded by the defendant and of which the defendant is Chief Executive Officer. In circumstances where the Facebook page is a public page owned by Child Abduction Recovery International, then that company, said to be incorporated in Sweden, is a publisher of the documentation, at least inferentially. (Footnotes omitted.)
The primary judge did not address Mr Whittington's complaint in relation to the 11th and 12th matters insofar as it was based on the "serious harm" threshold under s 10A. It was common ground in this Court that although Sackar J's reasons had addressed "serious harm" in some detail, they did not determine whether the proposed repleaded statement of claim satisfied that section.

The application for leave to appeal to this Court

Mr Whittington's summons seeking leave to appeal was filed promptly on 10 January 2023. It was set down as a concurrent hearing on 10 May 2023, but that was vacated shortly beforehand owing to the illness of counsel and thus only came to be heard on 23 October 2023. The concurrent hearing, which occupied an entire day, means that this Court has fully heard the parties both on the basis for leave, and the substantive merits of the proposed grounds of appeal.
The proposed notice of appeal contains six grounds. The second and fourth complain of a denial of procedural fairness, which are based upon the reliance placed by the primary judge upon the judgment of Sackar J in relation to the failure to determine the complaint that the 11th and 12th matters could not satisfy the serious harm threshold and the conclusion that s 12B had no application to an amendment to an extant pleading. The first ground alleges error insofar as the primary judge held that Sackar J's judgment "determined or dealt with any issue that was before the primary judge". The third is based on the absence of a concerns notice. The fifth and sixth challenge the reasons of the primary judge concerning publication.
These grounds can be resolved very concisely.

Nothing turns on the alleged want of procedural fairness

It is convenient to start with the alleged denial of procedural fairness. The ultimate issue is whether leave should be granted to Ms Newman to amend. It was common ground that if any of the errors said to vitiate the exercise of discretion by the primary judge were made out, then this Court would re-exercise the discretion, and either refuse leave or grant it, perhaps on conditions. Neither party sought for the matter to be remitted to the Common Law Division to be redetermined, perhaps on different evidence. In those circumstances, which are not uncommon when leave is sought to appeal from an interlocutory decision of practice or procedure, complaints of a denial of procedural fairness ordinarily will not affect the outcome (although they may bear upon whether there should be a concurrent hearing).
That is because the litigant who asserts being denied of an opportunity of being heard by the primary judge will enjoy the right to be heard in this Court on that point. If the point is good, then the discretion will be re-exercised accordingly. If the point is bad, then the fact that the litigant was not, at first instance, heard fully on the point will amount to a breach of the obligation to accord procedural fairness that does not give rise to any substantive injustice.
For those reasons, in cases such as this, what matters is not whether there was a denial of Mr Whittington's entitlement to be heard, but rather whether the submissions on which he claims not to have been fully heard should have led to a different outcome. To reiterate, if the submissions would have been rejected in any event had Mr Whittington been fully heard, then his denial of procedural fairness will not have altered the outcome.
The foregoing was squarely and candidly acknowledged at the hearing: CHRYSANTHOU: … [H]is Honour delivered judgment and his Honour did not have regard to the new concerns notice, but did decide the question of the construction of s 12B, being not applicable to an amendment, which we say is not something that the defendant had the opportunity to be heard on in argument. That's the procedural fairness issue. LEEMING JA: Does anything turn on it, in its character of being a denial of procedural fairness because at the moment I can't quite see how we can avoid determining that decision ourselves? CHRYSANTHOU: No.
It follows that the serious allegation that there has been a material denial of procedural unfairness should never have been made. The present is far from an isolated instance of this erroneous approach. In Murdoch v Mudgee Dolomite & Lime Pty Ltd (in liq) [2022] NSWCA 12; 398 ALR 658 at [128]-[129] this Court said: Such claims that there have been a denial of procedural fairness, on which nothing can turn, recur in this Court. Most recently, in Sydney Trains v Batshon [2021] NSWCA 143 at [35]-[37] it was said: "But even if there were a denial of procedural fairness, Sydney Trains' appeal to this Court is by way of rehearing, and it can make and has made the same submissions here. As has repeatedly been said in this Court, attention needs to be given, when a complaint is advanced that there has been a denial of procedural fairness, to whether any such denial is material, given the parties' rights of appeal. If the complaint concerning an absence of procedural fairness can be rectified on an appeal which is by way of rehearing, then it is unlikely to be material. See for recent examples Minister for Education and Early Childhood Learning v Zonnevylle (2020) 103 NSWLR 91; [2020] NSWCA 232 at [55] and Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83; 379 ALR 248 at [139] and [176]. Another way of putting this is that if this Court accepted there had been a denial of procedural fairness, it would only set aside the judgment and remit the proceeding to the Common Law Division if this Court were unable to resolve the substance of the complaint. …" So too here. Either the primary judge made appellable error in finding that the Timboon Quarry was not within the scope of Robert's and Stephen's fiduciary duties or he did not. If his Honour did so in a way which was procedurally unfair, but nonetheless reached the correct conclusion in circumstances where (a) no further evidence is sought to be adduced, (b) it is not said that cross-examination would have differed and most importantly (c) no retrial is sought because this Court can determine the issue, then any denial of procedural fairness would be immaterial.
In short, Mr Whittington says, correctly, that the primary judge ruled against him without determining his submission based on s 10A to the 11th and 12th matters complained of, and applied a construction of s 12B which differed from that advanced by the parties (until a new submission was made - which Mr Whittington says went beyond the grant of leave - in a supplementary submission made by Ms Newman after judgment was reserved). But if Mr Whittington's submissions must be rejected in any case, after this Court on appeal has heard full submissions from both sides, then nothing turns on the arid question about the process by which the primary judge reached that conclusion. The points that matter are the operation of ss 10A and 12B.

The claimed non-compliance with s 12B

Mr Whittington complained that there had been a failure to comply with s 12B in relation to the 11th and 12th matters complained of. That section provides as follows: 12B Defamation proceedings cannot be commenced without concerns notice (1) An aggrieved person cannot commence defamation proceedings unless - (a) the person has given the proposed defendant a concerns notice in respect of the matter concerned, and (b) the imputations to be relied on by the person in the proposed proceedings were particularised in the concerns notice, and (c) the applicable period for an offer to make amends has elapsed. (2) Subsection (1)(b) does not prevent reliance on - (a) some, but not all, of the imputations particularised in a concerns notice, or (b) imputations that are substantially the same as those particularised in a concerns notice. (3) The court may grant leave for proceedings to be commenced despite non-compliance with subsection (1)(c), but only if the proposed plaintiff satisfies the court - (a) the commencement of proceedings after the end of the applicable period for an offer to make amends contravenes the limitation law, or (b) it is just and reasonable to grant leave. (4) The commencement of proceedings contravenes the limitation law for the purposes of subsection (3)(a) if the proceedings could not be commenced after the end of the applicable period for an offer to make amends because the court will have ceased to have power to extend the limitation period. (5) In this section - limitation law means the Limitation Act 1969.
Following receipt of a concerns notice, a publisher may make an "offer to make amends" in accordance with ss 13-15. If an offer to make amends is accepted and performed, s 17 provides that it will prevent an action against the publisher based on that matter, and if it is not accepted, s 18 confers a substantive defence if it is a reasonable offer made as soon as reasonably practicable after receipt of the concerns notice by a publisher who was ready and willing to carry it out.
Clause 7 of Schedule 4 of the Defamation Act was introduced by the amending Act and provides: 7 Application of 2020 amendments An amendment made to this Act by the Defamation Amendment Act 2020 applies only in relation to the publication of defamatory matter after the commencement of the amendment.
The Defamation Amendment Act 2020 commenced on 1 July 2021.
The operation of s 12B to the amendment of extant defamation proceedings so as to add new matters is not free from difficulty. Mr Whittington advanced a suite of objections to the proposed new pleading based on s 12B, noting that the 11th and 12th matters were published after 1 July 2021. Mr Whittington pointed to the fact that s 12B required a concerns notice to be given in respect of each matter, and the fact that the failure to give such a notice would deny a defendant the entitlement of an offer to make amends pursuant to ss 13-15, with the consequent potential to deny the availability to a defendant of the substantive defence in s 18. Those arguments are not without force.
However, an essential integer of this aspect of Mr Whittington's argument is that the document supplied on 19 October 2022, and provided to the primary judge after judgment had been reserved, could not constitute a s 12B concerns notice. At this point Mr Whittington's objections became very technical. One aspect was that the notice could not post-date the service of the proposed pleading. Another was that there had been non-compliance with the obligations of service of the notice under s 44, despite it being sent to Mr Whittington's solicitor at his nominated email address (it was asserted that it was not "given" for the purposes of that section). A third was that the submissions provided to the primary judge after judgment was reserved went beyond the leave granted. A fourth, which overlapped with the foregoing, was expressed thus: STERN JA: Haven't you had the concerns notice as an email which is an email which has been specified for serving documents? CHRYSANTHOU: Possibly, but we say that in the circumstances in which it was given, where it was produced only to overcome an argument that was made in June in relation to the viability of the statement of claim, and in circumstances where the plaintiff made a tactical decision to [not] issue a concerns notice before propounding that pleading, the concerns notice does not satisfy s 44, it hasn't been given for the purposes of the Act as a concerns notice.
These points are without merit. Even if it were outside of the scope of the grant of leave to make further submissions attaching the notice, that could not limit Ms Newman's ability to serve a notice, although her delay in doing so until after judgment on the pleading was reserved might go to costs. There is no sound basis for construing s 12B so as to prevent its being satisfied after a draft pleading has been served. Service by email is explicitly authorised by s 44(1)(a)(iv), and in any event s 44 is facultative. At the time that the notice was served on 19 October 2022, there was no extant defamation proceeding which made allegations based on the 11th and 12th matters. Instead there was an extant proceeding confined to other matters, and an undetermined application for leave to amend so as to expand the litigation to include the 11th and 12th matters. On any view of the operation of s 12B, that provision was satisfied.
Mr Whittington opposes Ms Newman relying on this submission without a notice of contention, for which he says she needs leave. However, this Court is not hearing and determining an appeal. It is hearing and determining, concurrently, an application by Mr Whittington for leave to appeal, and the appeal itself upon the hypothesis that leave might be granted. The point is squarely relevant to the grant of leave, insofar as it is said that there is some substantial injustice suffered by Mr Whittington.
It is true that the primary judge determined the issues concerning s 12B differently. His Honour considered that s 12B had no application where proceedings were pending. That approach is based on the prohibition in s 12B being upon the "commencement" of defamation proceedings, and thus not being contravened in circumstances where defamation proceedings were extant. It is true that the construction for which Mr Whittington contends requires in substance reading extra words into the prohibition. On the other hand, it might be thought to be unfortunate if the substantive defence in s 18 could not be availed of in circumstances such as the present. Another consideration bearing on the matter is that the purpose of these requirements was to incentivise parties to reach satisfactory accommodations before litigation was commenced and therefore before costly litigation is embarked upon, and to that end it might be thought that the section is not directed at an amendment of extant defamation proceedings.
Enough has been said to indicate that the resolution of the more general issue is not without complexity. But enough has also been said to demonstrate that the more general point does not arise in the present case, where on any view s 12B was satisfied by the service of the notice on 19 October 2022. It follows that there is no proper basis for granting leave to decide a point which does not affect the outcome between the parties. This point may matter in some other case, and it is desirable that it not be addressed in this proceeding where nothing turns upon it.

The claimed non-compliance with s 10A

Section 10A provides as follows: 10A Serious harm element of cause of action for defamation (1) It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person. (2) For the purposes of subsection (1), harm to the reputation of an excluded corporation is not serious harm unless it has caused, or is likely to cause, the corporation serious financial loss. (3) The judicial officer (and not the jury) in defamation proceedings is to determine whether the serious harm element is established. (4) Without limiting subsection (3), the judicial officer may (whether on the application of a party or on the judicial officer's own motion) - (a) determine whether the serious harm element is established at any time before the trial for the proceedings commences or during the trial, and (b) make any orders the judicial officer considers appropriate concerning the determination of the issue (including dismissing the proceedings if satisfied the element is not established). (5) If a party applies for the serious harm element to be determined before the trial for the proceedings commences, the judicial officer is to determine the issue as soon as practicable before the trial commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceedings (including during the trial). (6) The matters a judicial officer may take into account in deciding whether there are special circumstances for the purposes of subsection (5) include (but are not limited to) the following - (a) the cost implications for the parties, (b) the resources available to the court at the time, (c) the extent to which establishing the serious harm element is linked to other issues for determination during the trial for the proceedings. (7) Without limiting subsection (5), the judicial officer may determine 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. (8) Nothing in this section limits the powers that a judicial officer may have apart from this section to dismiss defamation proceedings (whether before or after the trial commences).
The new "serious harm to … reputation" element in s 10A applies to the 11th and 12th matters complained of. Those publications constitute separate causes of action, and there is no basis for contending that because they are contained in an amended pleading, they escape the operation of s 10A. The transitional provision in cl 7 of Sch 4 reproduced above is clear on this point, and the contrary was not suggested by Ms Newman.
The primary judge did not address s 10A. That may have been because of a misapprehension of the effect of Sackar J's judgment. As Mr Whittington submitted, it is strictly true that Sackar J, who granted leave to replead, did not determine whether the new pleading complied with s 10A. However, in fairness to his Honour, it is tolerably plain that Sackar J was of the view that the case which Ms Newman sought to propound was one which was capable of satisfying s 10A; otherwise leave to replead would not have been granted.
Mr Whittington submitted that the particulars provided by Ms Newman wrongly addressed her apprehension of harm to her person and the damage that she had thereby suffered, rather than the requisite particularisation of harm to her reputation. He observed that it was open, pursuant to s 10A(7), to conclude that the particulars were incapable of sustaining this element of the cause of action. He also sought to reserve to himself an entitlement in the future, in the event that the submissions based on the pleading were rejected, to have this issue determined as a threshold issue in accordance with subss (5) and (6): CHRYSANTHOU: Only that the pre-emptive step that was taken below was an argument that for the 11th and 12th matters, the particulars of serious harm were insufficient and wouldn't satisfy a Court that that matter should proceed if a strikeout were to then take place. This procedure is not adopted below because it was still a question of leave. SIMPSON AJA: The point of my question is this is not a [subsection] 7 determination pleading point. CHRYSANTHOU: No, it's not. No. It's a pleading point, but from the perspective of approaching a matter such as this in a just, quick and cheap manner, we say that if this application for leave fails and the matter goes back before the defamation list judge, the next step that we will take is to invite the Court to consider the serious harm particulars under [subsection] 7.
If - which may very much be doubted - there is a distinction between whether leave should be granted to a proposed pleading because of a deficiency in its particularisation of serious harm, and the summary determination of serious harm pursuant to s 10A(7), it is one that is entirely arid even by the standards of pleading arguments in this area of the law. The proposition that a defendant should have two opportunities - one in opposition to the grant of leave, and another, subsequently, pursuant to s 10A(7) - to determine whether the pleading as particularised articulates a cause of action capable of satisfying s 10A is contrary to the command upon litigants, their lawyers and courts to facilitate the just, quick and cheap resolution of the real issues in the proceedings: Civil Procedure Act 2005 (NSW), s 56. Whether a proposed pleading warrants a grant of leave and whether as particularised it is incapable of establishing a serious harm to reputation are in substance a single issue, capable of being determined on the pleading and particulars. There are many occasions in litigation where one side seeks leave to amend, and the other side seeks summary dismissal or strike-out, giving rise to a single issue: has the plaintiff advanced a case which warrants going to trial.
The 11th and 12th matters complained of in this case are alleged to convey imputations that Ms Newman (a) has supported one particular individual paedophile, (b) is closely connected with paedophiles and (c) is dishonest. Paragraph 46 of the proposed pleading identifies at some length (one and a half pages) how it is said that the publication of the 11th and 12th matters complained of has caused serious harm to Ms Newman's reputation, and paragraph 47 explains how their publication is likely to cause serious harm to Ms Newman's reputation in the future. Paragraph 46(i) alleges an apprehension by Ms Newman of a threat to her physical safety. Paragraph 46(ii) refers to the effect of the 11th and 12th matters in light of earlier publications. Paragraph 46(iii) provides: The Plaintiff has suffered serious anxiety and stress as the result of the publication of the Eleventh and Twelfth Matters (and she has suffered similarly as the result of the other defamatory publications made about her by the Defendant); the anxiety and stress manifests itself in insomnia and poor concentration; the Plaintiff regularly takes anti-anxiety medication as prescribed by her General Practitioner and is doing up until the present date.
Paragraph 46(iv) identifies consultations with a clinical psychologist undertaken by Ms Newman in connection with her stress. Paragraph 46(v) identifies a further matter contributing to her claim of psychological harm. Paragraph 46(vi) states: The reputational harm caused to the Plaintiff by the publication of the Eleventh and Twelfth Matters is heightened by the fact that as a Family Dispute Resolution Practitioner, she is on occasion required to report incidents of child abuse where a child is perceived as at-risk; any client or potential client made aware of the Eleventh or Twelfth Matters is, in these circumstances, capable of forming an adverse view (including a seriously adverse view) of the Plaintiff.
Paragraph 47 asserts that the publication is likely to cause serious harm to Ms Newman's reputation in the future because written information on social media is easily stored and conveyed, including by persons intent on causing such harm, and on that basis she was likely to suffer all of the harms outlined in paragraph 46.
The written submissions filed in this Court on s 10A by Mr Whittington (both in chief and in reply) were very brief. The oral submissions relegated the operation of s 10A to the end. It was addressed only briefly. It was said, correctly, that the primary judge did not address the issue. It was said that Ms Newman's apprehension of a threat to herself was not a proper particularisation of serious harm to her reputation, although Mr Whittington accepted that a specific instance of a threat would be evidence of damage to reputation. It was said that the mental harm which Ms Newman claimed also fell short of establishing serious harm to reputation, and the heightening of harm in paragraph 46(vi) was once again not an actual allegation of harm, but a statement of Ms Newman's concern.
Against the proposition raised by the Court that each of the imputations would by themselves establish the serious harm to reputation, it was said that it was necessary to show "an actual impact demonstrated" for serious harm to have been caused. There was also said to be a separate difficulty in establishing, in this particular case, the likelihood of serious harm: SIMPSON AJA: You can't prove any actual impact if you're talking about likelihood in the future. CHRYSANTHOU: Yes, but for likelihood of harm one of the things that's relevant - and this is part of our complaint, is if the same people read the 12th matter, the same handful of people read the 12th matter as have read the first, second, third, fourth, et cetera, then there is no likelihood of harm because that harm would have already ensued - SIMPSON AJA: [You] mean, there's no likelihood of further harm because the harm has been done. CHRYSANTHOU: Yes. So that's why the pleading of these issues and the case law demonstrates the significant case law in English which has been adopted somewhat here, including by Sackar J in the first judgment, requires specific facts to be pleaded in support of these allegations.
There is force in the submissions advanced by Mr Whittington that some or all of the particulars supplied by Ms Newman purporting to be particulars of serious harm to reputation are in fact directed to damage, or to concerns that Ms Newman has. There is also force in his complaints about the particulars as to the likelihood of serious harm to reputation. This may give rise to difficulties at trial. But the issue here is whether the proposed pleading addresses the new element of the cause of action in such a way that the litigation can proceed.
The introduction of a new element to the cause of action gives rise to a large number of issues, which are discussed in D Rolph, "A serious harm threshold for Australian defamation law" (2022) 51(2) Australian Bar Review 185 at 202-207. One is whether Australian courts will follow the decision of the Supreme Court of the United Kingdom in Lachaux v Independent Print Ltd [2020] AC 612; [2019] UKSC 27, in relation to similar wording albeit in a somewhat different context (including, as Professor Rolph points out, the different approaches formerly taken to triviality). Consistently with what had been said in the earlier interlocutory decision of Sackar J, Mr Whittington insisted that damage could no longer be presumed and it was necessary in order to satisfy s 10A to adduce evidence to prove actual or likely serious harm to reputation.
Let it be assumed, favourably to Mr Whittington, that the effect of s 10A is to introduce the same principles as apply in England. Even there, it is clear that actual or likely serious harm to reputation may be established by inference, at least where the imputation is grave. For example, in Coker v Nwakanma [2021] EWHC 1011, concerning a WhatsApp message accusing the plaintiff of raping the defendant's sister which was published only to the defendant's sister, the serious harm to reputation was resolved at trial as follows: As to serious harm, I am also satisfied that based on the meaning alone, and without any necessary additional evidence, the test under section 1(1) of the 2013 Act is satisfied. Although I have found that the scope of the publication was limited to the Defendant's sister, this is one of those cases where the nature of the language allows one to infer serious harm. Assessment of harm to reputation has never been just a 'numbers game' and very serious harm to reputation can be caused by publication to a relatively small number of publishees: at [33].
Professor Rolph observes that "[t]he archetypal case in which serious harm might be established purely by inference is where a grave or extreme imputation, such as paedophilia or terrorism, is disseminated through a mass media publication" but adds that "inferring serious harm without additional evidence is not limited to such cases".
The Court of Appeal has repeatedly stated that serious harm to reputation may be inferred: see for recent examples Banks v Cadwalladr [2023] KB 524; [2023] EWCA Civ 219 at [55] and [67] and Amersi v Leslie [2023] EWCA Civ 1468 at [7].
This accords with Lord Sumption's reasoning Lachaux at [21] that: The judge's finding was based on a combination of the meaning of the words, the situation of Mr Lachaux, the circumstances of publication and the inherent probabilities. There is no reason why inferences of fact as to the seriousness of the harm done to Mr Lachaux's reputation should not be drawn from considerations of this kind.
In light of the above, there is no occasion in this application, where the point was far from the forefront of the parties' argument, to address in any detail the operation of s 10A. The following suffices to resolve whether there should be a grant of leave.
First, the matters complained of make gravely serious allegations against Ms Newman. To reiterate, the 11th and 12th matters complained of are each said to convey the imputations that Ms Newman has supported one particular paedophile, is closely connected with paedophiles and is dishonest.
Secondly, Mr Whittington maintained that there was now an obligation in all cases to which s 10A applied for serious harm to "be proved by evidence of the actual impact of the publication". That goes too far. It will be necessary, for a plaintiff suing on a cause of action to which s 10A applies, to establish that the publication has caused or is likely to cause serious harm to the plaintiff's reputation. That may be established by evidence, or by admission. Further, actual serious harm, or the likelihood of serious harm, to the plaintiff's reputation, may also be established by inference from other facts, including the nature of the publication and the imputations it contains. And these are matters to be established at trial. It does not follow that in order for a defendant to meet the plaintiff's case particulars of the "actual impact" of the publication are required.
Thirdly, it will have been seen from the submissions reproduced above that, in part, the submissions turned upon the happenstance that most of the matters complained of preceded 1 July 2021, and only the 11th and 12th were subject to the new element of the cause of action. That is not an especially common situation. The proposition that the pleading should not attract a grant of leave because it is possible that the earlier publications attributed to Mr Whittington were so destructive of Ms Newman's reputation that it is not likely that the 11th and 12th matters inflicted any additional damage is not one which should be entertained, at least at this interlocutory stage of litigation which is far removed from the mischief to which s 10A was directed.
Fourthly, s 10A does not apply to the 1st to 10th matters complained of. Those publications contain similar imputations to those attributed to the 11th and 12th matters. True it is that Mr Whittington will succeed insofar as s 10A applies unless Ms Newman satisfies that section, and to that extent it is necessary for her pleading to address the new section. But notwithstanding the attention given to them in two judgments at first instance and now in this Court, it is also relevant to the grant of leave to note that those publications represent a small minority of the case Ms Newman propounds against Mr Whittington.
It is true that there are deficiencies in the first of the three particularised paragraphs of serious harm, which refer, speaking broadly, to apprehensions by Ms Newman that she is at risk, and claims that she personally has suffered mental harm. It is problematic to see how those particulars viewed in isolation answer the question of serious harm to reputation posed by s 10A. But, consistently with the approach implicitly taken by Sackar J, one cannot overlook the seriousness of the imputations and the alleged reach of their publication. No worthwhile purpose is served by exploring let alone resolving such deficiencies as there may be in the particulars provided by Ms Newman. Mr Whittington has fallen short of establishing that he cannot fairly defend or meet the case which is put against him.

Particulars of publication

The issue which occupied the greatest part of the hearing was the question of the particulars of publication. Consistently with Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56, Mr Whittington maintained that there was no publication on the internet until some recipient "downloaded" the matter. A great deal was said about the need to identify the person, the time of the download and the place of the download, especially with an eye to limitation defences and the possibility of substantive defences in different jurisdictions.
To take by way of example the particulars of publication of the first matter complained of, which was an article published to a WordPress site on 29 December 2019, Ms Newman asserts that an individual located in Queensland commented upon it on 24 March 2022, that a resident of Queensland named Kellie Morris read it on or about the date of publication, and that a resident of New South Wales named Glen Gorski read it on or about 19 May 2020. The particulars went on to say that the article said it was "Written by Child Abduction Recovery Services", and alleged that that company was a Swedish company of which Mr Whittington was Chief Executive Officer, that the document concluded "Love Skippy" and that "Skippy" was an alias used by Mr Whittington, and that his image seems to appear on a video to which the article referred. It also said that the article was removed from the world wide web on 17 February 2021 and the extent of readership was unknown.
The following submissions were made about those particulars: CHRYSANTHOU: … Then there's an allegation at (ii) that it was read by Queensland resident, Kellie Morris. We don't know where that name comes from, but that's not an allegation that it was read in Queensland. Kellie Morris may or may not have been in Queensland at the time of readership. LEEMING JA: In terms of the requirements of particularisation, 19(ii) gives you identity and date and residence of reader, but if she was in Tweed Heads when she was downloading it, that's important for you? CHRYSANTHOU: Yes, it could be. But also in this case we've searched through the Facebook post, we're not sure if this is a person now said to have read the Facebook post or said to have actually read the matter. Because it says "The first matter comprises the following". And then it says, "As at 24 March an individual located within Queensland commented on the publication". That's clearly a reference to the Facebook publications, not to the actual matter. So from our perspective we don't know if Kellie Morris read the article or just read one of the Facebook posts.
Rule 15.19 of the Uniform Civil Procedure Rules 2005 (NSW) relevantly provides: 15.19 Particulars in relation to statements of claim for defamation (cf SCR Part 67, rule 12; DCR Part 49, rule 11) (1) The particulars required by rule 15.1 in relation to a statement of claim seeking relief in relation to the publication of defamatory matter must include the following - (a) particulars of any publication on which the plaintiff relies to establish the cause of action, sufficient to enable the publication to be identified, (b) particulars of any publication, circulation or distribution of the matter complained of or copy of the matter complained of on which the plaintiff relies on the question of damages, sufficient to enable the publication, circulation or distribution to be identified, …
The publications are annexed to the statement of claim. It is plain that Ms Newman is contending that residents of Queensland and New South Wales downloaded the matter which she says is defamatory. It is also plain that the particulars carry with them the proposition that the residents of Queensland and New South Wales downloaded the matter while located in their State of residence. Ms Newman may or may not be able to establish that case, but the particulars are clear. They do not differ markedly from what has been held to be sufficient in other cases of internet publication.
There is no occasion in these reasons to address at any length the extent to which particulars of internet publications may be required, or whether they might be different depending on whether the publication is on a webpage, or a Facebook page, or a WordPress post or a "tweet". It is tolerably clear that nothing in these proposed grounds gives rise to any question of principle or point of general importance. Nor has there been shown to be any prejudice beyond the merely arguable to Mr Whittington.
Finally, Mr Whittington complains by proposed ground 6 of insufficient particulars being given of the basis on which it could reasonably be inferred that he was the publisher of the second, third, fourth and fifth matters complained of. For present purposes, where Mr Whittington is seeking to make out a case for the grant of leave, the question is whether there is a substantial injustice, because plainly there is no point of principle or general importance concerning the particulars of uploading. However, it is also clear that Mr Whittington has, in an affidavit sworn in the proceeding in the Common Law Division dated 22 November 2021, been able to identify who he says uploaded the matters complained of. (The affidavit was not in evidence before the primary judge but was tendered in this Court and bears directly on the grant of leave.) No case of substantial injustice is made out.

Conclusion and orders

The parties enjoyed a full hearing on the merits of the argument, which occupied an entire day. However, the fact that there was a concurrent hearing of an interlocutory appeal does not obviate the need to establish that the case is one which warrants a grant of leave. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: see the decisions restated in Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 at [25]-[27].
The foregoing establishes that there is no question of principle which is material to the orders made by the primary judge. Nor is there any question of public importance, or any reasonably clear injustice to Mr Whittington. The time has well and truly come for his defence to be filed.
The summons seeking leave should be dismissed. There is no reason for costs not to follow the event.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 February 2024

Defamation Amendment Act 2020(NSW)

(2021) 106 NSWLR 520

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