Read the Journal article: provided in screenshots. I can also email over the pdf if it is easier.

Introduction is the defence of justification (truth). (Initially, Nationwide C+10:00. Co Defamation law in Australia is thriving, if the volume of case law News also pleaded a statutory defence of qualified privilege.) being generated by courts is any indication. In 2018, there were The central witness at the trial for Nationwide News' defence 191 judgments in defamation matters handed down by Aus- was actress, Eryn Jean Norvill, who played Cordelia in the pro- tralian courts. This was an increase from 159 judgments in duction of King Lear. Norvill had not spoken to The Daily Tele- 2017. It is fair to say that a lot happened in defamation law in graph prior to publication. She had communicated her concern Australia in 2018. It is not possible to cover every development. privately to the Sydney Theatre Company and did not want to This article seeks to highlight the important and interesting deal with the matter formally. Another witness, Witness X, legal developments that occurred in Australian defamation law came forward during the trial, seeking to give evidence. The pre- last year. siding judge, Wigney J, refused an application by Nationwide News to allow Witness X to give evidence." Rush is seeking #MeToo, Hollywood and tabloid newspapers: aggravated damages, as well as damages for economic loss. Rush v Nationwide News Pty Ltd The trial started on 22 October 2018 and extended over 15 As Ipp JA observed in Bennette v Cohen, '[dJefamation litigation sitting days. Judgment was reserved on 9 November 2018 and is is a fact of Australian life'.' Defamation has been a constant eagerly awaited. Not that the wait will be long now: last week, source of litigation in Australia from the earliest days of Euro- Wigney J announced that he intended to hand down his judg pean settlement. What has been striking about the past few years ment on Thursday 11 April 2019 at 2:00 pm. is the return of high-profile, long-running defamation cases. Big Rush v Nationwide News was the fourth decision of the Fed- defamation cases are back. High-profile defamation cases, char- eral Court of Australia to final judgment in a 'pure' defamation acteristic of the late 1980s and early 1990s,' are back. Perhaps claim.' Ordinarily, a defamation claim is not a matter within the biggest of them all last year was Rush v Nationwide News. federal jurisdiction, arising as it does at common law and sub- Internationally famous, Oscar-winning Australian actor, stantially modified now by State and Territory legislation. The Geoffrey Rush, sued Nationwide News in the Federal Court of Federal Court can exercise jurisdiction over a defamation claim Australia over the front page article, published in The Daily in its accrued jurisdiction, where it is pleaded alongside a claim Telegraph under the headline, 'KING LEER', as well as posters that is within federal jurisdiction, such as misleading or decep- informit. outside newsagencies promoting the story, and a follow-up tive conduct in contravention of the Australian Consumer Law story, also published in The Daily Telegraph, in print and online. (Cth) or its predecessor legislation, the Trade Practices Act Rush claims that the matter makes specific allegations about his 1974 (Cth).' However, the Full Federal Court established in conduct during the production of King Lear in late 2015 and Crosby v Kelly that, due to a previously unnoticed quirk of the early 2016 - ranging from inappropriate, scandalous, sexually Commonwealth and Territory cross-vesting legislation," the inappropriate and sexually predatory behaviour - and general Federal Court could exercise jurisdiction over 'pure' defamation allegations of being a pervert. He bases his case on the natural claims. This jurisdiction has been taken up with enthusiasm by and ordinary meaning of the words, as well as on true innuen applicants and shows no signs of abating." does, arising from the #MeToo context - Harvey Weinstein, Kevin Spacey and Don Burke are cited in the extrinsic facts said Political defamation: Mirabella v Price to support his true innuendoes. High-profile defamation cases occur not only in superior courts The sole defence ultimately relied upon by Nationwide News but can be also brought in inferior courts. One such examplefrom 2018 was Mirabella v Price. The former Liberal Party politi- A Hollywood star, tabloid magazines and cian and member for Indi, Sophie Mirabella, won her defamation defamation: Bauer Media Ply Lid v Wilson [No 2] claim in the Wangaratta registry of the County Court of Victo- The largest award of defamation damages ever made by an Aus- ria over an article published in the regional newspaper. The tralian court was set aside in 2018. In September 2017, John Benalla Ensign. Mirabella also sued the newspaper's editor, Libby Dixon J awarded actor and comedian, Rebel Wilson, a total of Price. The article was published during the 2016 Federal election over $4.5 million damages, consisting of $650,000 aggravated campaign. Even though it was published in a regional Victorian damages and approximately $3.9 million special damages." A newspaper, because of the political interest in the contest in the jury found that Wilson had been defamed by Bauer Media pub- seat of Indi, the story was picked up and widely shared on social lications (including Woman's Day, New Weekly and OK Maga- media Mirabella claimed that the article conveyed the imputa- zine) suggesting that she had fabricated multiple aspects of her tion that she physically pushed her successor in the seat of Indi, life, including her age and social background. The jury also the Independent Cathy McGowan, out of a photograph for rejected all of the defences advanced by Bauer Media, including political reasons. Price and the publisher of The Benalla Ensign truth, triviality and qualified privilege. John Dixon J awarded set out to prove, on the basis of a Hore-Lacy defence," that aggravated damages in excess of the cap because of the substan- McGowan pushed a politician, just not McGowan. cial grounds of aggravation. His Honour also awarded the dam- At the five-day trial, the jury found, in only an hour, that the ages for non-economic loss not on the basis of actual pecuniary imputation pleaded by Mirabella" was conveyed and was defam- losses but on the basis of loss of opportunity, which was the way atory and that it was indefensible. in which Wilson advanced her case. In assessing damages," the trial judge noted that The Benalle In June 2018, the Victorian Court of Appeal handed down its Ensign had published a full apology but that this occurred three judgment in Bauer Media's appeal against the judgment at first months later, after the election at which Mirabella failed to inseance." Bauer Media succeeded in having the largest compo- regain her seat. The apology also attracted scant attention. This ment of the judgment - the award of damages for economic loss was in contrast to the extensive republication of the original - set aside. The appeal court found that the trial judge had story at the time it was published. The trial judge further noted erred in his reasoning about Wilson's claim. The finding in Wil- that the imputation was not at the serious end of the range of son's favour rested upon drawing inferences that the articles had physical assaults and batteries that may be committed Ulti- been read in Hollywood and that this had caused Wilson to lose mately, the trial judge assessed Mirabella's damages at roles. There was no evidence called by Wilson to support this $ 175,000." No appeal against the decision has been lodged. Thus, the appeal court found that Wilson had failed to establish her causal entitlement to this head of damages. A sports star, sexual harassment As a matter of principle, there was no problem with Wilson and defamation: Gayle v Fairfax Media presenting her case on the basis of loss of opportunity. Howev- Publications Pty Ltd (No 2) er, pleading damages for economic loss in defamation cases, A high-profile defamation trial that was heard in 2017 reached which has now become more attractive with the capping of its conclusion in 2018 when judgment was finally handed damages for non-economic loss, " presents issues of causation down. In November 2018, almost 13 months after the jury had and remoteness of damage, which do not ordinarily arise in returned its verdict, MeCallum J (as her Honour then was). defamation cases where damages for non-coonomic loss are usu- delivered her judgment assessing the damages payable to West ally the only damages sought and awarded. Indian cricketer, Chris Gayle. Gayle had sued Fairfax Media In relation to aggravated damages, the Victorian Court of Publications over allegations that he had exposed himself to a Appeal accepted some challenges to the grounds supporting the woman in a change room during the 2015 World Cup. The award of aggravated damages, so reduced the award from articles were published in early 2016. shortly after Gayle con- $650,000 to $600,000 damages - still well in excess of the ducted his controversial interview with journalist, Mel statutory cap on damages for non-coonomic loss, which was, at McLaughlin, then on the Ten Network, covering the Big Bash the time of judgment, 5389,500. League cricket competition. There were two significant legal issues about the proper oper- Following a seven-day trial, the jury gave a verdict compre- ation of the statutory cap on damages for non-coonomic loss hensively in favour of Gayle. Not only did they find that none of under the Defamation Act 2005 (Vic) :35. First, the Victorian the imputations were true, they also found that Fairfax, in pub- Court of Appeal endorsed the trial judge's interpretation of $35 fishing chose allegations, was actuated by malice, thereby defeat- that, where an award of aggravated damages was warranted on ing its statutory defence of qualified privilege." Assessing Gayle's the faces of the case, the statutory cap on damages for non-coo- damages in line with the jury verdict, MeCallum J awarded him nomic loss could be set aside and the damages awarded without $300,000 damages, excluding any component for aggravation." reference to it. This has been contentious. The other con- This case is subject to appeal, which will be heard in June 2019. centious aspect has been whether the statutory cap on damages 4 Commerdel low Quarterly March-May 2919for non-economic loss creates a scale or range of damages, ers. His Honour went on to find that Jones had engaged in a requiring a trial judge effectively to locate a claim, where there campaign of vilification against the brothers and that the tone of were no aggravating circumstances, on a scale from the lowest the broadcasts was vicious and spiteful and that Jones was wil- coin in the land to the prescribed maximum, or whether it mere- fully blind to the truth or falsity of the allegations. All of this ly marks a cut-off. New South Wales judges have, on the whole, provided substantial grounds for the aggravation of damages. tended to prefer the approach that the cap creates a scale or Each plaintiff was awarded $850,000 damages (including a com- range." whereas Victorian judges, including the appeal court in ponent of $100,000 aggravated damages). (The offer of amends Bauer Media . Wilson, have preferred the view that the cap rep- made to each plaintiff was $50,000 and a qualified apology. resents a cut-off." This view appears to proceed on the basis that Flanagan J had little difficulty finding that the rejection of the the trial judge should assess the damages for defamation and offer of amends by the plaintiffs was not unreasonable.) then if the figure happens to exceed the statutory cap, apply the This was another high-profile case in which the cap was cap so as to cut the award down to its current level, which, at the exceeded for the purposes of awarding aggravated damages. This moment, is $398,500. This does not appear to be what occurs in is not really a problem - it is an atypical case, like Bauer Media practice - one might expect that if this were in fact the " Wilson, when compared to all the other defamation cases approach that judges took in assessing damages, there might be decided under the national, uniform defamation laws. The at least one case, if not more, in which an award of precisely the statutory cap on damages is keeping awards of damages in amount of the cap were made. Yet this is not borne about the by defamation cases under the national, uniform defamation laws the case law - and there has been more than a decade of case under control, as it was intended to do. law under the national, uniform defamation laws. This is prob- A legally significant issue arising from this case was not the ably because trial judges, when assessing damages for non-eco- award of damages but the other remedy sought and granted - a nomic loss in defamation cases, are acutely aware that there is a permanent injunction against Jones. It has always been open to statutory cap and proceed accordingly. The problem with the the plaintiff to seek a permanent injunction against a defendant cut-off approach to the statutory cap is that it seems to accept to prevent the defendant from repeating the defamatory impu- that the first step in applying the statutory cap is to ignore that tations. Until recently, such relief has not often been sought by the statute exists, then to apply it at the end of the assessment, plaintiffs. An award of damages against a defendant has usually almost as an afterthought. It is an unusual approach to statuto- acted as a sufficient disincentive to a defendant repeating the ry construction where the first step is to ignore that the statute defamatory statements. Over the last decade, plaintiffs have exists. The scale or range approach to the statutory cap should be increasingly sought permanent injunctions and, on occasion, the preferred construction. these have been granted. The typical case in which such relief has been granted is where there is a personal defendant, potentially Commercial radio, the Queensland floods and impecunious and therefore unable to satisfy any award of dam- defamation: Wagner v Harbour Radio Pty Ltd ages, often defaming the plaintiff online and giving an indica- Another big defamation case in 2018 was Wagner v Harbour tion that that conduct is likely to continue, notwithstanding the Radio in the Supreme Court of Queensland. The four Wagner court's award of damages." What is significant about Wagner v brothers sued Alan Jones and Harbour Radio, the licensee of the Harbour Radio is that Flanagan J granted a permanent injune- radio stations which broadcast his programme, 2GB and 4BC, tion against Jones from repeating the defamatory allegations." for defamation arising out of 32 broadcasts. They claimed that This would appear to be the first time in Australia that a media they had been defamed by imputations that they were responsi- defendant has been subjected to a permanent injunction. An ble for the deaths of 12 people in the Grantham floods in 201 1; appeal has been lodged by Jones but only in relation to this that they had engaged in a massive cover-up to avoid responsi- aspect of Flanagan J's decision. bility for these deaths; that they had acted illegally in building the Wellcamp airport; that they had corrupt relationships with Blogging and defamation law: the Commonwealth and Queensland governments; and that Benhayon v Rockett they had engaged in bullying and intimidation. These allega- Not all defamation plaintiffs were successful in 2018. In Octo- tions were made repeatedly over the course of 10 months in ber 2018, after a five-week trial before Lonergan J. a jury found 2014 and 2015. Jones and Harbour Radio relied principally that tennis coach turned spiritual healer, Serge Benhayon, had upon the defences of truth, fair report in relation to 10 of the not been defamed by acupuncturist turned blogger, Esther broadcasts, and an offer of amends, having abandoned its Rockett. Rockett had claimed that Benhayon had indecently defences of fair comment and honest opinion at trial touched her when conducting an 'ovarian reading' on her; that The trial judge, Flanagan J, hearing the matter alone (Apple- he was a 'sleazebag guru's that he led a socially harmful and garth J earlier dispensing with the jury on the basis of the tech- exploitative cult; and that he was a charlatan making bogus nicality of the evidence)," found in favour of the Wagner broth- claims. The jury had a formidable task, facing 60 impurationsand having to answer 183 separate questions. The jury found current Senator, Derryn Hinch; actor Jacki Weaver, a Mel- that 44 of the imputations were conveyed by the blog and were bourne tram; the St Kilda pier; and Marlon Brando in his role as defamatory of Benhayon but that 38 of them were substantially The Godfather'. Google applied to have Trkulja's proceedings true. However, all the imputations were protected by statutory struck out. qualified privilege and that defence was not defeated by malice. At first instance, McDonald J refused to do that." On appeal, The jury was able to hand up its 58-page document, rather than the Victorian Court of Appeal did so." There were three the foreperson having to read out the answers." The case indi- grounds advanced at trial and on appeal: first, that Google was cates that defamation plaintiffs do not always succeed, notwith not a publisher for the purposes of defamation law: secondly. standing the reputation of Australian defamation law for being that the search results were incapable of conveying defamatory plaintiff-friendly. It also demonstrates that juries are able to meanings to 'the ordinary, reasonable search engine user'; and manage quite complex cases. thirdly, that Google should have an immunity from suit. The trial judge and the appeal court agreed that the last-mentioned The liability of search engines for defamation, argument was a matter for the legislature. the 'ordinary, reasonable search engine user" The Victorian Court of Appeal in its judgment dealt at great and defamatory capacity: Trkulja v Google LLC length with the issue of whether Google was a publisher for the The High Court of Australia delivered only one defamation purposes of defamation law. Then, in a surprise twist ending, judgment in 2018 and it was not a substantive one, although it their Honours indicated that they did not need finally to decide did incidentally have some interesting points of principle to that issue because they could dispose of the issue on the basis make. The decision was Trkulja v Google LLC." This was not that the matters complained of were incapable of conveying the first time Milorad Trkulja had sued a search engine for defamatory meanings about Trkulja to 'the ordinary, reasonable defamation. Indeed, it was not the first time he had sued Google. search engine user'. This was decided rather briefly in the final Back in 2012, Trkulja had sued Yahoo! and Google in separate few pages of the judgment. proceedings for defamation arising from search engine results Trkulja appealed against the summary dismissal of his claim generated when third party users typed his name into the search to the High Court of Australia, which overturned the Victorian engine. Trkulja claimed that web page search results linked him Court of Appeal's decision. In doing so, the High Court, in a to Melbourne gangland crime. In his proceedings against joint judgment, found that the Victorian Court of Appeal had Yahoo!, he was awarded $225,000 damages." Significantly, in erred in shutting Trkulja out of litigating his claim at such an those proceedings. Yahoo! did not challenge the jury finding early stage. In the course of the judgment, though, the High that it was a publisher for the purposes of defamation law. In the Court made some interesting observations about publication. same year, when Google was sued by Trkulja, Google did chal- Their Honours stated that the principles of publication are 'col- lenge the jury finding on the issue of publication, seeking judge crably clear' but that their application to particular facts involv- ment notwithstanding the jury verdict. Beach J rejected ing novel technologies might be difficult." Another way of look- Google's argument, finding that, because Google had set up its ing at this is that internet technologies create challenges, and search engine to work precisely in the way that it did, Google compel reconsideration of the basic principles of publication in was responsible for the search results disseminated by it." a way not encountered during the era of mass media, which Google was ordered to pay Trkulja $200,000 damages. (It characterised the twentieth century: that the principles of pub- should be noted that Beach J's view about whether a search lication seemed to be 'tolerably clear' but actually concealed a engine operator is a publisher for the purposes of defamation range of problems and assumptions now being exposed to con- law is not the only view, or even the prevailing view. In Bleyer scantly evolving internet technologies. Google Inc, McCallum J followed the English Court of Appeal One point that the High Court was emphatic upon was the in Tamiz v Google Inc," finding that a search engine operator distinction drawn by the Victorian Court of Appeal between was not a publisher of search engine results until it had noticed primary and secondary publishers. The High Court emphasised that the results it was disseminating were arguably defamatory." that all a plaintiff has to prove is that the defendant is a publish- Prior to notice, the search engine operator was a mere passive er for the purposes of defamation law. The plaintiff does not facilitator, rather than a publisher.) have to specify whether the defendant is a primary or secondary Trkulja commenced new proceedings against Google, this publisher. That distinction only becomes relevant if the defen- time in respect of image results returned when third party users dant wishes to avail itself of a defence of innocent dissemination, typed in his name into Google. Again, the image results con- in which case the defendant will need to raise it and to charac- nected Trkulja with Melbourne gangland crime. The same cerise itself as a secondary publisher." search also threw up more random results, including images of The Victorian Court of Appeal's approach was interesting former Victorian Police Commissioner, Simon Overland; jour- Most cases involving the liability of search engines around the nalists, John Silvester and Andrew Rule; former broadcaster and common law world have turned upon the issue of publication." & Com andal low Quarterly March-May 2019The Victorian Court of Appeal's approach here was to deal with to be hoped that her Honour's decision is taken up in subse- this by reference to capacity - that the ordinary, reasonable quent cases, as it seems clear that a minimum threshold of seri- search engine user would know that the search engine was not ousness is a more effective means of dealing with trivial or conveying any defamatory meaning about Trkulja by generating marginal defamation cases at the outset, rather than waiting its random assortment of images in response to third party until liability has been established and then considering whether searches." This is a new angle on a difficult doctrinal problem, a defence of triviality has been established. and should be further explored, but not on an application for summary dismissal and not as a matter of defamatory capacity. Defamation law reform By contrast, the High Court could not be satisfied that no jury Finally, the other noteworthy event in defamation law in 2018 acting reasonably could have found in favour of Trkulja on the was the long overdue release of the statutory review into the issue of defamatory meaning, which is the test to be applied to Defamation Act 2005 (NSW). When the national, uniform conclude that the matters complained of were incapable of being defamation laws were introduced across Australia in 2005, only defamatory of Trkulja. Certainly, the argument that the ordi- New South Wales provided a legislative mechanism for the nary, reasonable search engine user would not find the pleaded review of the operation of the new laws. The Defamation Act meanings conveyed by the image search results could be made 2005 (NSW) $49(2) required a statutory review to be conduct- but most appropriately to the jury at trial, as a question of fact." ed "as soon as possible' after five years of the date of assent of the The High Court did not express a developed view about the Act. The Act was assented to on 24 November 2005, so the ordinary, reasonable search engine user as the next permutation requirement for the statutory review arose on 24 November of the ordinary, reasonable reader, or listener, or viewer. There 2010. Section 49(3) of the Act required the report of the statu- seems to be no objection, as a matter of principle, to extending tory review to be tabled in Parliament within 12 months of the the hypothetical referee at the centre of defamation law to new end of that five-year period. So the report of the statutory technologies as they emerge, so long as a consensus can be review was due on 24 November 2011. The report was finally reached about what understanding that hypothetical referee has released on 7 June 2018 - more than six and a half years after about new technologies, such as search engines. it was due." The report has formed the basis of a revival of the Defama- A minimum threshold of seriouness: tion Working Party, which was responsible for putting together Kostov v Nationwide News Pty Ltd the original national, uniform defamation laws in 2005. New Courts are increasingly and understandably concerned with the South Wales is leading the reform process. A consultation paper just, quick and cheap resolution of disputes. In defamation law, was released on 26 February 2019," with submissions closing on this has led to a number of developments designed to deter, or 30 April 2019. The intention is for draft legislation to be avail- dismiss at an early stage, trivial defamation claims. The defence able for comment by November 2019, with a view to legislating of triviality is unique to Australia but it may not be effective in the changes in June 2020. This should ensure that there is much dealing with trivial defamation cases." As a defence, it is only more co talk about in defamation law for the years to come. engaged after liability for defamation has been established. English courts have identified a number of more effective ways of dealing with trivial defamation claims at the ourset. Perhaps the most effective has been the discernment of a minimum Professor of Law. University of Sydney Law School, Universi- threshold of seriousness in the common law of defamation. In ty of Sydney. This article is based on a paper given at the New South Thornton : Telegraph Media Group Led," Tugendhat J reviewed Wales Bar Association CPD Conference, 30 April 2019. the various common law tests for what is defamatory and dis- 1 [2009] NSWCA 60, [63]. tilled from them a common requirement that, in order for a 2 Sec, for example, Ersingshansen v Australian Consolidated defamation claim to be actionable, it needed to meet a minimum Press Lad (1991) 38 NSWLR 404; Carson v John Fairfax & Sons Led threshold of seriousness. This has now been transmuted into the (1993) 178 CLR 44. statutory threshold of "serious harm' under the Defamation Act 3 Rush v Nationwide News Pry Lad (No 6) [2018] FCA 1851. 2013 (UK) s](1). The issue of whether a minimum threshold of Since this paper was delivered, Wigney J has handed down his seriousness forms part of the common law of Australia is start- judgment. His Honour found that the two newspaper articles sued ing to be litigated before Australian courts. The Full Court of upon conveyed all of the defamatory imputations pleaded by Rush the Supreme Court of South Australia rejected it outright in and that the poster conveyed one of the pleaded imputations. Wigney Lesses v Maras." However, in Kostov v Nationwide News Pry J further found that Nationwide News had failed to justify any of the Led," McCallum J recognised a minimum threshold of serious- imputations. His Honour awarded Rush $850,000 aggravated dam- ness as part of the common law of Australia and identified this ages. Wigney J also found that Rush had established his entitlement to an alternative basis upon which to dismiss the proceedings. It is damages for economic loss on the basis of loss of earning capacity