Federal Court of Australia

Selkirk v Wyatt [2024] FCAFC 48

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The parties be heard as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    This is an appeal in a defamation action. The appellant, Ms Simone Selkirk, was the applicant in the proceeding. The respondents to the appeal were two of six respondents in the proceeding. The respondents to the appeal were the fifth and sixth respondents in the proceeding, Mr Martin Wyatt and Real Estate Online Pty Ltd (Real Estate Online), who I will refer to as the respondents. The primary judge made an order that the proceeding be dismissed. He proceeded on the basis that the proceeding had otherwise resolved against the first to fourth respondents.

The History of the Proceeding and the Application made by the Respondents

2    Ms Selkirk commenced the proceeding by an Originating application dated 1 August 2022. She sought general damages, special damages and aggravated damages and other orders in relation to publications which she alleged were defamatory of her. Ms Selkirk complained of the publication by the respondents throughout Australia, including in the Australian Capital Territory and the Northern Territory, of an online article entitled “Simone Selkirk appeals ruling after being found guilty of David Jones scam” on the website at www.MyLocalPages.com.au. The fifth respondent is the managing director of the sixth respondent which owns the “MyLocalPages” website.

3    The original article as it appeared on the news.com.au website was in the following terms:

Simone Selkirk appeals ruling after being found guilty of $16k David Jones scam

A high-flying consultant found guilty of scamming David Jones stores to the tune of $16,000 will now appeal the decision in the Supreme Court.

Consulting firm director Simone Selkirk used false invoices to persuade staff at David Jones to refund her a total of $16,000 over two years.

A once high-flying lawyer and consultant found guilty of using a fake name and receipts to swindle David Jones stores out of thousands of dollars has taken her case the NSW Supreme Court.

Simone Olivia Selkirk’s sentencing for multiple counts of dishonestly obtaining financial advantage by deception has been delayed as a result.

In a decision at Sydney’s Downing Centre Local Court in December, the Darling Point woman was found to have raked in $16,000 in refunds for clothes and bedding she returned 10 several David Jones outlets between July 2016 and August 2018.

The court previously heard the 45-year-old produced fake online receipts, under the name of “Samantha Ellison”, in the form of emails to dupe staff at David Jones stores in Elizabeth St, Barangaroo, Bondi Junction and Chatswood.

She returned goods including Country Road clothes and expensive bed sheets, with refunds being made to her personal credit card.

Simone Olivia will appeal after being found guilty.

Where the items originated from remains a mystery, with the court hearing last year there were no records of the clothes and bedding ever being bought from the department stores.

But before her first slated sentence date in February, Selkirk lodged an appeal over Magistrate Lisa Viney’s decision in the NSW Supreme Court.

She did not appear before the Downing Centre on Monday, which heard the matter would be adjourned until August 3 to allow time for her appeal heard on June 11 to be decided.

Justice Stephen Campbell has reserved his judgment.

Selkirk is the former director of consulting firm Marc1 and ran her own style and lifestyle blog as editor of MARC Fashion.

The eastern suburbs woman was arrested in October 2018 and was later charged with dozens of offences, including 34 counts of dishonestly obtain financial advantage by deception.

She was also hit with 15 counts of dealing with the proceeds of crime, which were later withdrawn.

Selkirk entered a late guilty plea to four counts of dishonestly obtaining a financial advantage by deception before reneging and unsuccessfully defending the charges at hearing.

4    The article which formed the basis of the appellant’s claim against the respondents is in the following terms (all errors in the original):

Consulting company director Simone Selkirk employed fake invoices to persuade staff members at David Jones to refund her a complete of $16,000 more than two years.

A at the time significant-traveling law firm and advisor observed guilty of using a faux identity and receipts to swindle David Jones stores out of thousands of dollars has taken her circumstance to the NSW Supreme Courtroom.

Simone Olivia Selkirk’s sentencing for multiple counts of dishonestly obtaining monetary advantage by deception has been delayed as result.

In a choice at Sydney’s Downing Centre Local Courtroom in December, the Darling Stage woman was observed to have raked in $16,000 in refunds for dresses and bedding she returned to a number of David Jones outlets amongst July 2016 and August 2018.

The court earlier heard the 45-year-outdated manufactured fake on the internet receipts, beneath the title of “Samantha Ellison”, in the variety of email messages to dupe personnel at David Jones stores in Elizabeth Street, Barangaroo, Bondi Junction and Chatswood.

She returned products together with Country Highway apparel and high priced mattress sheets, with refunds becoming made to her private credit card.

Simone Olivia will attraction soon after remaining uncovered responsible.

In which the objects originated from stays a thriller, with the court docket hearing last 12 months there were being no records of the apparel and bedding ever staying acquired from the office merchants.

But before her first slated sentence date in February, Selkirk lodged an attraction above Magistrate Lisa Viney’s final decision in the NSW Supreme Courtroom.

Selkirk is the former director of consulting agency Marc1 and ran her very own design and life-style weblog as editor of MARC Manner.

The eastern suburbs female was arrested in October 2018 and was later billed with dozens of offences including 34 counts of dishonestly receive fiscal edge by deception.

She was also hit with 15 counts of dealing with the proceeds of criminal offense, which were being later on withdrawn.

Selkirk entered a late guilty plea to 4 counts of dishonestly getting a monetary gain by deception ahead of reneging and unsuccessfully defending the prices at hearing.

As can be seen, there has been an “adaption” of the article which appeared on the news.com.au website, some of which does not make any sense. For example, the sentence “Simone Olivia will appeal after being found guilty” has been changed to “Simone Olivia will attraction soon after remaining uncovered responsible”.

5    Ms Selkirk pleaded that in its natural and ordinary meaning, the MyLocalPages article was defamatory of her and carried a number of defamatory meanings or meanings not different in substance. The defamatory meanings alleged by Ms Selkirk are as follows:

a.    The Applicant is a fraudster;

b.    The Applicant is a scammer;

c.    The Applicant is guilty of defrauding David Jones;

d.    The Applicant is a criminal in that she dishonestly sought to deceive David Jones to obtain a financial advantage by returning goods without genuine receipts;

e.    The Applicant is a criminal in that she dishonestly sought to deceive David Jones to obtain a financial advantage by returning goods using fake receipts;

f.    The Applicant produced fake receipts when returning goods to David Jones so she could claim refunds;

g.    The Applicant is a criminal in that she falsified records of proof of purchase of goods she returned so that she could obtain a financial advantage by receiving refunds for those goods;

h.    The Applicant is guilty of dishonestly deceiving David Jones to obtain a financial advantage by obtaining refunds for goods returned using fake receipts;

i.    The Applicant is guilty of scamming David Jones by providing fraudulent proofs of purchase to obtain refunds for goods;

j.    The Applicant dishonestly deceived David Jones by providing fraudulent proofs of purchase to obtain refunds for those goods;

k.    The Applicant produced fraudulent proofs of purchase when returning goods to David Jones so she could claim refunds; and

l.    The Applicant committed the crime of dishonestly obtaining financial advantage by deception.

m.    The Applicant is untrustworthy.

n.    The Applicant is untrustworthy in that she sought to profit from dishonest conduct.

6    The appellant’s Amended Statement of Claim contains the following particulars of serious harm as that term is used in s 10A of the Defamation Act 2005 (Vic) (the Act):

a.    The publication of the matters complained of were to a mass media audience.

Further, those who searched “Simone Selkirk” will have been confronted with links to the MyLocalPages Article.

b.    The imputations are serious, the Applicant’s professional reputation depends on her integrity as an admitted member of the legal profession and to have an unblemished reputation. The imputations as alleged pose a serious risk to the Applicant’s ability to obtain gainful employment in a legal or executive role. The matters complained of are likely to prejudice the Applicants ability to obtain such employment.

c.    The MyLocalPages Article associates the Applicant with serious crimes.

d.    Following the publication of the MyLocalPages Article, the Applicant has been questioned about the crimes.

e.    Further particulars of serious harm will be provided as they arise

7    In their Amended Defences, the respondents raised defences of a fair report of proceedings of public concern (s 29 of the Act), publication of a matter concerning an issue of public interest and that the respondents reasonably believed that the publication of the matter was in the public interest (s 29A of the Act) and statutory qualified privilege (s 30 of the Act).

8    On 31 October 2022, the respondents issued an Interlocutory application in which they sought the following orders (relevantly):

1.    An order pursuant to FCR 26.01 that judgment be given for the fifth and sixth respondents against the applicant on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding.

2.    Alternatively, an order that the serious harm element of the applicant’s claim be determined prior to any further step being taken in the proceeding, pursuant to section 10A(4) of the Defamation Act 2005 (Vic).

9    It is and was not in dispute that the relevant legislation in relation to the publication is the Defamation Act 2005 (Vic). Section 10A of that Act provides (relevantly):

(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 a defamation proceeding 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 proceeding commences or during the trial; and

(b)    make any orders the judicial officer considers appropriate concerning the determination of the issue (including dismissing the proceeding if satisfied the element is not established).

10    The primary judge decided that three separate questions should be heard separately from any other questions. Those questions were as follows:

(1)    Whether the article conveyed one or more of the defamatory imputations alleged;

(2)    The extent of publication of the article; and

(3)    Whether, in light of the answers to (1) and (2), publication of defamatory matter about the applicant caused, or is likely to cause, serious harm to her reputation.

11    The primary judge considered that those questions may justly and conveniently be heard separately, including where the evidence, as things currently stand, is that the article was published to no more than three persons, and that Ms Selkirk in the statement of agreed facts (SOAF) filed in the Downing Centre Local Court in substance arguably agreed that she had on many other occasions engaged in the same (dishonest) conduct the subject of the article (Selkirk v Hocking [2023] FCA 432 at [45] per O’Callaghan J).

12    On 20 June 2023, Registrar Legge made a number of procedural orders. These orders are relevant to one of the principal arguments the appellant put on the appeal and, in those circumstances, I set them out in full.

1.    A hearing for the determination of the following preliminary questions be set down for 4–5 September 2023 (Preliminary Questions Hearing):

a.    Whether the article entitled “Simone Selkirk appeals ruling after being found guilty of David Jones scam” that appeared on the website at www.mylocalpages.com.au and is identified in Annexure F to the Amended Statement of Claim in this proceeding (MyLocalPages Article) conveyed in its natural and ordinary meaning any one or more of the imputations pleaded in paragraph 30 of the Amended Statement of Claim (Carried Imputations).

b.    What is the extent of the publication of the MyLocalPages Article?

c.    Whether publication of the MyLocalPages Article has caused or is likely to cause serious harm to the applicant’s reputation.

2.    By 4.00pm on 1 August 2023, the applicant file and serve all of the affidavit material that she intends to rely upon in the Preliminary Questions Hearing.

3.    By 4.00pm on 14 August 2023, the fifth and sixth respondents file and serve all of the affidavit material they intend to rely upon in the Preliminary Questions Hearing.

4.    By 4.00pm on 21 August 2023, the applicant file and serve a written outline of submissions and any reply affidavit material.

5.    By 4.00 pm on 28 August 2023, the fifth and sixth respondents file and serve a written outline of submissions.

6.    By 4.00pm on 28 August 2023, each of the applicant, fifth and sixth respondents file and serve:

a.    written notice as to whether that party requires any deponent of an affidavit filed by another party pursuant to orders 2, 3 or 4 above to attend Court at the Preliminary Questions Hearing to be cross-examined; and

b.    a list of any objections to the evidence served by any other party pursuant to orders 2, 3 or 4 above.

7.    Costs be reserved.

8.    There be liberty to apply.

13    The appellant filed two affidavits of herself, one in chief on 1 August 2023 and the other in reply on 21 August 2023. She annexed to her affidavit a number of unsigned statements of persons she referred to as “professional and acquaintance contacts”.

14    The respondents’ application was heard on 4 and 5 September 2023 and, on 13 September 2023, his Honour delivered his decision. As I have said, his decision was that the proceeding be dismissed (Selkirk v Hocking (No 2) [2023] FCA 1085).

The Primary Judge’s Reasons

15    The key conclusions of the primary judge were as follows.

16    The proceeding was brought in the Victoria District Registry and the hearing was conducted in Victoria. In those circumstances, s 10A(1) of the Act applied to the proceeding (see s 79 of the Judiciary Act 1903 (Cth)).

17    Section 1 of the Defamation Act 2013 (UK) is similar to s 10A(1) of the Act and relevantly provides:

“A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”.

18    The article was first uploaded on the MyLocalPages website on 29 June 2020, but did not become publicly available via a search engine such as Google until some date in 2021.

19    There was a dispute between the parties as to whether the article had been removed on 11 April 2022 or continued to be accessible until May 2022. The primary judge resolved that dispute in favour of the respondents and found that the only explanation for the appellant being able to produce to her lawyers a version of the article stamped with the date of 18 May 2022 annexed to the Concerns Notice and to the Statement of Claim was that the article must have been “cached” on the appellant’s relevant electronic device.

20    The extent of the publication of the article was that it was published from the MyLocalPages website to three people within the time period from July 2021 to 11 April 2022. In the course of considering the evidence relevant to the finding he would make, the primary judge considered the proposed tender by the appellant of unsigned witness statements from “professional and [ ] acquaintance contacts” who the appellant claimed “actively identified the MyLocalPages Article from a Google name search of ‘Simone Selkirk’ in and around early 2022”. The primary judge rejected the tender of the unsigned witness statements and, as I will explain, there is no challenge by the appellant to that decision. After ruling that the unsigned witness statements were inadmissible, the appellant sought leave to call three of the persons who had made statements to give evidence via video-link. The primary judge refused leave in circumstances in which a Senior National Judicial Registrar had made an order on 20 June 2023 that the appellant file and serve all affidavit material by 1 August 2023.

21    There is a challenge by the appellant to that aspect of his Honour’s decision. His Honour considered that it would be inconsistent with the principles which lie behind s 37M of the Federal Court of Australia Act 1976 (Cth) to permit the late calling of such evidence. His Honour’s ruling was in the following terms:

I have before me an application by counsel for the applicant to adduce viva voce evidence from three witnesses in circumstances where the application was first foreshadowed after I had made rulings this morning excising considerable parts of the proposed testimony to be given by Ms Selkirk, the applicant. That material excised on the basis of relevance and the like included three unsigned statements given by three different individuals that are said to relate to the issue of publication and the issue of serious harm. The application is opposed by the fifth and sixth respondents, for whom Mr Castelan appears.

On 20 June 2023, Registrar Legge made orders setting down the preliminary questions, which is not necessary for me to recite now, and made orders for the filing of affidavit material. Her orders included that the applicant file and serve all of the affidavit material that she intends to rely on at the hearing of the preliminary questions by 1 August 2023, which I observe is more than a month ago. Mr Sowden, who appears for the applicant, contended that it was in the interests of justice to permit the last minute calling of three individual witnesses, which would necessarily entail the evidence being given by video link.

In my view, it is simply too late now to seek to rely on additional evidence in circumstances where the very first notice that the fifth and sixth respondents have had of that application was a few minutes ago, that is to say, at the end of the first half of the first day of the two days that have been allocated to hear this proceeding. In my view, it would not be consistent with the well-known principles which lie behind section 37M of the Federal Court of Australia Act (Cth) to permit the late calling of such evidence in all the circumstances. For those reasons, the application to adduce oral evidence from the three named individuals is refused.

Two signed statements were annexed to the appellant’s affidavit in reply and a third was, it seems, provided shortly before the hearing. The fact that the statements were signed is not mentioned by the primary judge.

22    There were a number of objections to the appellant’s evidence by the respondents. A number of these objections were upheld by the primary judge.

23    The primary judge then considered whether the publication of the article caused, or was likely to cause, serious harm to the appellant’s reputation. His Honour noted the circumstances in which the appellant was tried before a magistrate in the New South Wales Downing Centre Local Court in November 2019 on various counts of dishonestly obtaining a financial advantage by deception, one count of using a false document to attempt to obtain a financial advantage and seven counts of dealing with property which was the proceeds of crime. He described the factual details of the charges. He referred to the fact that the matter before the magistrate proceeded by way of a SOAF under s 191 of the Evidence Act 1995 (NSW). He said that the appellant was convicted of 16 counts of dishonestly obtaining a financial advantage by deception contrary to s 192E of the Crimes Act 1900 (NSW), one count of using a false document to attempt to obtain financial advantage contrary to s 254(b)(ii) of the Crimes Act and seven counts of dealing with property which was the proceeds of crime contrary to s 193C(2) of the Crimes Act. The appellant lodged an appeal against all of her convictions and her appeal was upheld (Selkirk v Director of Public Prosecutions [2020] NSWSC 1590 per Campbell J). As the primary judge said, the appeal was allowed essentially because the Crown had not proved where the appellant had obtained the goods in the first place and, therefore, it had not proved an essential element of each of the charges. The primary judge reached the conclusion that the appellant did not, nor could she, deny the proposition that, despite the fact that her appeal was allowed and the charges ultimately withdrawn, on 17 occasions (including one attempt) she had committed those acts referred to and that such conduct constituted what she admitted was “deception”.

24    The primary judge noted the second important factual matter concerned the (limited) extent of the publication of the article. The evidence went no higher than that three people, one of whom must have been the appellant, read the article on the MyLocalPages website.

25    The final factual matter that the primary judge addressed was the appellant’s evidence about what she said was the serious harm to her reputation caused by the publication of the article. The appellant relied on her affidavits and the primary judge noted that he had ruled that significant parts of her first affidavit were inadmissible and he identified what parts of her affidavit had survived objection.

26    The primary judge then identified three principal matters leading him to the conclusion that the appellant had not established that the publication of the article had caused, or was likely to cause, serious harm to her. He said that, in his view, each of the reasons was sufficient on its own. I will refer to these matters as the first matter, the second matter and the third matter.

27    First, the primary judge noted the particulars of serious harm and that the only matters about which any evidence had been led was that the appellant’s “professional reputation depends on her integrity as an admitted member of the legal profession and to have an unblemished reputation”; that the “imputations as alleged pose a serious risk to [her] ability to obtain gainful employment in a legal or executive role”; and are matters which are “likely to prejudice [her] ability to obtain such employment”. His Honour said there was an immediate difficulty with the plea and the evidence led in support of it in that they did not address the critical question of whether the publication of the article caused any, let alone any serious, harm to the appellant. In that context, he referred to the judgment of Lord Sumption in Lachaux v Independent Print Ltd [2019] UKSC 27; (2020) AC 612 (Lachaux) at [14]. His Honour reached the conclusion that the evidence went no further than vague assertions by the appellant that between February 2022 and September 2022, when she obtained employment in her field, the process of finding a job did not go very well, offers went cold and a number of referees were not contacted. His Honour said that there was no evidence that those matters were attributable to the publication of the article. Even if they were, he did not accept that those matters constituted “serious harm” within the meaning of s 10A(1) of the Act.

28    Secondly, his Honour took into account that the appellant had admitted through her counsel, before the magistrate and on appeal, and in the witness box before him, that on 17 occasions over a very significant period of time (more than two years) she engaged in acts of deception consisting of attending in person at David Jones stores on those occasions between 7 July 2016 and 26 August 2018 to obtain a refund for “returned goods” and on each occasion she presented a false online purchase invoice email as proof of purchase (using numbers which were a derivative of her mobile phone number) and knowing that the proof of purchase numbers in each document were false and in circumstances where she had not used either of the credit cards to which refunds were credited for the purchase of the goods in question. The primary judge said (at [86]):

… In those circumstances, I do not accept that even widespread publication of the article telling the tale of her convictions and of her intention to appeal them, could have caused her reputation to be made worse. It is true that the convictions were quashed on grounds that included that the Crown had not proven “dishonesty” within the meaning of the statute, but where Ms Selkirk conceded that what she did was nonetheless deceitful, in my view she proffered a distinction without a relevant difference.

His Honour said that put another way, there was no evidence that anyone “thought any the less of [her] by reason of the publication” (see Lachaux v Independent Print Ltd [2017] EWCA Civ 1334; [2018] QB 594 at 620 [79] per Davis LJ).

29    His Honour noted that other evidence he had ruled inadmissible, in any event led nowhere because no evidence was sought to be adduced to prove that the salary “lost” was caused by the publication of the article.

30    Thirdly, the primary judge took into account the fact that the number of persons to whom the article was published was, on any view of the matter, very limited. That was a matter that was taken into account by Davis LJ in the Court of Appeal in Lachaux v Independent Print Ltd [2017] EWCA Civ 1334; [2018] QB 594.

31    The primary judge concluded his reasons by referring to the issue of whether the article conveyed one or more of the pleaded imputations. His Honour said that he did not need to decide this issue because the proceedings must be dismissed in any event. His Honour said that he had not gone on to consider the question because, on reflection, he thought he was wrong to have proposed it to be set down for hearing as a separate question, “untethered from the defences of fair report of proceedings of public concern, publication of matter concerning an issue of public interest and statutory qualified privilege” (at [93]).

The Grounds of Appeal

32    Ground 1 in the Notice of appeal is that the primary judge erred in law in “summarily dismissing” the proceeding against the first to fourth respondents who were not parties to the relevant application.

33    Counsel for the appellant said in the course of his oral submissions that Ground 1 in the Notice of appeal was abandoned. It is unclear as to whether counsel qualified his statement that that ground was abandoned by saying that if serious harm could not be established with respect to the respondents, then it could not be established against the first to fourth respondents. As I consider that the appeal should be dismissed, it is unnecessary to consider whether counsel qualified his statement that Ground 1 in the Notice of appeal was abandoned. I should add, in fairness to the primary judge, that his Honour considered that the proceeding had otherwise resolved against the other named respondents (at [2]). Nothing was said on the appeal about his Honour’s understanding and I would certainly not proceed on the basis that his Honour was mistaken in light of some uncertainty from time to time about what arguments the appellant was and was not pursuing.

34    The second ground of appeal is as follows:

2.    The Court erred at law in finding that the appellant did not have a reputation that could be seriously harmed by the fifth and sixth respondents’ article and that accordingly the appellant had failed to discharge the evidential onus of showing that she had suffered serious harm when;

(a)    it is for the respondent to prove mitigation and the appellant to prove serious harm and accordingly the question of the appellant’s prior reputation was a matter that ought to have been left for trial;

(b)    the appellant was in any event entitled to the presumption of a good reputation;

(c)    the question of the appellant’s prior reputation was not set down for determination as a preliminary issue in the Court’s ruling made 9 May 2023; and

(d)    it was not possible to ascertain whether the article had caused serious harm, even supposing the appellant had a prior bad reputation, without determining whether the imputations pleaded by the appellant arose from the article.

This ground was pursued at the hearing and Grounds 2(a), (b) and (c) relate to the second matter relied on by the primary judge. Ground 2(d) is linked to the third ground of appeal.

35    The third ground of appeal is as follows:

3.    The Court erred at law by not considering whether the defamatory imputations were carried in the fifth and sixth respondents’ article notwithstanding that the Court had earlier ruled that this would be one of three matters to be determined at a preliminary hearing.

This ground was pursued at the hearing of the appeal and relates to the primary judge’s decision not to consider whether the article conveyed one or more of the pleaded imputations (see [31] above).

36    The fourth and final ground of appeal is as follows:

4.    The Court erred at law in denying procedural fairness by:

(a)    allowing and accepting the fifth respondent’s evidence in the form of expert evidence without prior notice to the applicant and further denying the applicant opportunity to respond with expert evidence in reply;

and

(b)    disallowing the appellant’s business email records, which was material evidence responding to the issue of the scope of publication of the fifth and sixth respondent’s article having a wider audience than ‘3-page views’, which evidence was an exception to hearsay in accordance with section 69 of the Evidence Act 2008 (Vic) (Evidence Act);

(c)    failing to exercise the discretion under section 67(4) and (5) of the Evidence Act by dismissing, on the first day of hearing, the appellant’s application to rely on the signed (not sworn) Witness Statements, which was material evidence responding to the issue of serious harm caused by the fifth and sixth respondent’s article; and

Particulars

a.    The appellant’s ‘serious harm’ Witness Statements were annexed in final unsigned form to the Affidavit of Simone Selkirk, dated 1 August 2023 for the advance awareness of the fifth and sixth respondent’s, and were again annexed in signed (not sworn) form to the Supplementary Reply Affidavit of Simone Selkirk, dated 21 August 2023 again for the preparation and awareness of the fifth and sixth respondents.

(d)    dismissing, on the first day of the hearing, the appellant’s application to call the Witness Statement witnesses who were confirmed to be available to give evidence under oath on the first day of the hearing, who were material witnesses who could give direct evidence responding to the issue of serious harm caused by the fifth and sixth respondent’s article;

Particulars

a.    The appellant repeats the Particulars set out in 4(c) above

4(b); (c) and (d) being disallowed on the judgement grounds of case management transgression considerations as overriding the interests of justice and the just resolution of the dispute, contrary to Section 37M of the Federal Court Act; and in the premises the Court ought to have exercised its discretion under Rules 1.32 and 1.34 of the Federal Court Rules to allow the appellant’s evidence to be adduced.

37    It is important to note the following matters.

38    First, Grounds 4(b) and (c) in the Notice of appeal were expressly abandoned by the appellant and I say no more about them.

39    Secondly, there was no suggestion by the appellant that her evidence alone was sufficient to establish serious harm. In fact, the appellant went so far as to concede in her written submissions that absent the evidence of the three proposed witnesses she sought leave to call, she could not succeed in meeting the serious harm test (see the appellant’s written submissions in chief at [8] “Critically, without this evidence the applicant was bound to lose the application”; and [10(i)] “The evidence would have been crucial to demonstrating that the publication had caused serious harm”; and [10(iii)] “On the other hand, the prejudice to the Appellant in not allowing the evidence was profound, because without that evidence the Appellant had no means of satisfying the serious harm requirement under section 10A of the Defamation Act”). Counsel for the appellant in his oral submissions reiterated the importance of the three proposed witnesses when he emphasised how critical their evidence was (see p 11 of the transcript of the hearing of the appeal).

40    The appellant made detailed submissions in support of Ground 4(d) and, in fact, this was the main ground relied on by the appellant at the hearing of the appeal. I have already explained the reason for that. Counsel for the appellant accepted, both in writing and orally, that without the evidence of the proposed witnesses that the appellant sought to have give evidence by video-link, she was bound to fail in her opposition to the respondents’ application.

Relevant Principles

41    The Supreme Court of the United Kingdom considered s 1 of the Defamation Act 2013 (UK) in Lachaux. Section 1 is in the following terms:

Serious harm

(1)    A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

(2)    For the purposes of this section, harm to the reputation of a body that trades for profit is not ‘serious harm’ unless it has caused or is likely to cause the body serious financial loss.

42    There is a difference between this section and s 10A in that s 10A provides that serious harm is an element of a cause of action for defamation, whereas s 1 provides that a statement is not defamatory unless its publication has caused, or is likely to cause, serious harm. In both cases, it is serious harm to the reputation of the person. Neither party suggested that this difference was relevant to any of the issues on the appeal.

43    In Lachaux, the plaintiff sued the defendant news publishers for libel in respect of five articles which reported allegations made against the plaintiff by his ex-wife. He complained that the articles bore the meanings that he was a wife-beater who had falsely accused his ex-wife of kidnapping their son, causing her to face the risk of being jailed, and later unjustifiably snatched their son back from her. A number of matters were ordered to be tried as preliminary issues, including the question of whether each statement complained of satisfied the requirement in s 1(1) of the Defamation Act 2013 (UK) that its publication had caused, or was likely to cause, serious harm to the claimant’s reputation.

44    In a detailed judgment, Warby J in the Queen’s Bench Division held that the plaintiff had established that the publications had caused, or were likely to cause, serious harm to the plaintiff’s reputation (Lachaux v Independent Print Ltd v [2015] EWHC 2242 (QB); [2016] QB 402).

45    On appeal to the Court of Appeal, the decision at first instance was affirmed on partly different grounds (Lachaux v Independent Print Ltd [2017] EWCA Civ 1334; [2018] QB 594).

46    On a further appeal to the Supreme Court, Lord Sumption (with whom Lord Kerr of Tonaghmore, Lord Wilson, Lord Hodge and Lord Biggs JJSC agreed) said that the rival constructions of s 1 of the Defamation Act 2013 (UK) were as follows: (1) the construction advanced by the plaintiff that the Act does not affect the common law presumption of general damage and the associated rule that the cause of action is made out if the statement complained of is inherently injurious. As Lord Sumption noted, the effect of the provision on this construction is simply that the inherent tendency of the words must be to cause not just some damage to reputation, but serious harm to it; (2) the alternative construction advanced by the defendant news publishers was that the provision introduces an additional condition to be satisfied before the statement can be regarded as defamatory on top of the requirement that the words must be inherently injurious. It must also be shown to produce serious harm in fact. The submission was that unless it was self-evident that such a statement must produce serious harm to reputation, this would have to be established by extraneous evidence.

47    Warby J substantially accepted the construction advanced by the defendant news publishers. However, he found on the facts that the relevant newspaper articles did cause serious harm to the plaintiff. Although the Court of Appeal preferred the plaintiff’s construction of s 1, they upheld the judge’s finding of serious harm.

48    Lord Sumption preferred the approach taken by Warby J. His Lordship said (at [12] and [14]):

Although the Act must be construed as a whole, the issue must turn primarily on the language of s 1. This shows, very clearly to my mind, that it not only raises the threshold of seriousness above that envisaged in Jameel and Thornton, but requires its application to be determined by reference to the actual facts about its impact and not just to the meaning of the words.

…

The reference to a situation where the statement ‘has caused’ serious harm is to the consequences of the publication, and not the publication itself. It points to some historic harm, which is shown to have actually occurred. This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. The same must be true of the reference to harm which is ‘likely’ to be caused. In this context, the phrase naturally refers to probable future harm … Both of these suggestions seem to me to be rather artificial in a context which indicates that both past and future harm are being treated on the same footing, as functional equivalents. If past harm may be established as a fact, the legislator must have assumed that ‘likely’ harm could be also. …

49    In applying the law to the facts, his Lordship referred to the reasons of Warby J and noted that he had based his finding of serious harm on the following matters:

(1)    the scale of the publications;

(2)    the fact that the statements complained of had come to the attention of at least one identifiable person in the United Kingdom who knew the plaintiff;

(3)    that they were likely to have come to the attention of others who either knew him or would come to know him in the future; and

(4)    the gravity of the statements themselves according to the meaning attributed to them by the judge who had determined meaning.

50    Lord Sumption noted that the plaintiff would have been entitled to produce evidence from those who had read the statements about its impact on them. However, he did not accept, any more than the primary judge did, that his case must necessarily fail for want of such evidence. His Lordship noted that the primary judge’s finding was based on a combination of the meaning of the words, the situation of the plaintiff, the circumstances of publication and the inherent probabilities. He considered that there was no reason why inferences of fact as to the seriousness of the harm done to the plaintiff’s reputation should not be drawn from considerations of this kind. Lord Sumption did not consider that there was any error in Warby J’s evaluation of the material before him.

51    In Rader v Haines [2022] NSWCA 198, the New South Wales Court of Appeal was required to consider s 1 of the UK Act because the publication in issue was received and read in England and it was common ground that the substantive law of England was applicable. Brereton JA, with whom Macfarlan JA agreed and Basten AJA agreed subject to one qualification, delivered the reasons of the Court. His Honour noted the difference between s 1 of the UK Act and s 10A of the Defamation Act 2005 (NSW) which is in the same terms as s 10A of the Victorian Act. Brereton JA said the following (at [28] and [29]):

28    The authorities to which reference has been made found the following propositions in respect of s 1 of the UK Act:

(1)    In order to succeed, a plaintiff must satisfy the threshold of showing that the publication has caused or is likely to cause serious harm to his or her reputation.

(2)    “Serious” harm involves harm that is more than merely substantial, though it need not be grave.

(3)    The requirement for serious harm to reputation is concerned with actual or likely reputational damage – that is, the impact of the imputation, in all the circumstances, on the plaintiff’s reputation – arising from a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. It is not satisfied by the gravity of the imputation alone. Nor is it satisfied by injury to feelings, however great. Relevant factors include the meaning of the words, the extent of the publication, the nature of the recipients and their relationship with the plaintiff, and whether they believe the imputations.

(4)    A grave imputation may not result in serious harm, typically where the publication is to a small number of persons well acquainted with the plaintiff who are not disposed to believe it, and any impact of the imputation on the plaintiff’s reputation is transitory or ephemeral.

29    The following conclusions of the trial judge accord with those propositions:

(1)    Section 1 introduced a “new threshold of serious harm which did not previously exist”, and “Claimants therefore need to establish that serious harm has been caused or is likely to be caused as a fact”

(2)    “More than the mere inherent tendency of the words is required, even where the words amount to a grave allegation against the plaintiff, and special emphasis is to be placed on the circumstances and extent of publication”;

(3)    “Serious harm should not be conflated with hurt to feelings. However distraught the plaintiff may have been, this personal hurt is not evidence of harm to reputation because harm depends upon ‘a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated’”; and

(4)    “findings of serious harm should be based on the circumstances and extent of publication, whether the publication was likely to have come to the attention of others at the time or in the future and the gravity of the imputations. The meaning of the words, the situation of the plaintiff, the circumstances of publication and the inherent probabilities are also relevant”.

52    His Honour considered that the relevant matters included the following: (1) the publication was limited to the plaintiff’s parents who of all the people in the world best knew him and were best positioned to judge for themselves whether there was substance to the imputation and whose relationship with him was such as to withstand even the most serious allegations; and (2) despite the seriousness of the imputations, a discord in the plaintiff’s relationship with his parents for some weeks did not amount to serious harm.

Analysis

53    There are essentially three challenges by the appellant to the primary judge’s decision. First, the primary judge erred in refusing the appellant’s application to call three witnesses who would give evidence by video-link. The evidence, so it was said, would assist the appellant in establishing that publication of defamatory matter about the appellant had caused, or was likely to cause, serious harm to her. As I have said, counsel for the appellant accepted that the success of this ground was crucial to the success of the appeal.

54    Leaving aside the effect of counsel’s concession, the second challenge to the primary judge’s decision is that he erred in relying on the appellant’s acceptance that she had engaged in acts of deception and therefore, according to the primary judge, he could not accept that even widespread publication of the article “telling the tale of her convictions and of her intention to appeal them, could have caused her reputation to be made worse”. This relates to the second matter relied on by the primary judge.

55    The third challenge to the primary judge’s decision is that he erred in not determining the meaning of the publication and whether it gave rise to the pleaded imputations. The submission is that unless that is done, the issue of serious harm cannot be determined.

56    It is convenient to deal with the third challenge first.

Grounds 2(d) and 3

57    As I have said, the primary judge said that he would not decide whether the article conveyed one or more of the pleaded imputations. He said that it was unnecessary to decide that issue because the proceedings must be dismissed in any event. He said that on reflection, he considered that he was wrong to have proposed that it be set down for hearing as a separate question.

58    It seems to me that the primary judge approached this issue by assuming that the publication carried the defamatory meanings pleaded by the appellant. It is difficult to see how he could have decided the case without proceeding in that way. There is support for that conclusion in the way he dealt with the second matter upon which he relied where he said that whilst it was true that in criminal proceedings the Crown had not proved dishonesty within the meaning of the section, the appellant had conceded that what she did was nevertheless deceitful. His Honour’s reference to the Crown not having proved “dishonesty” links to a number of the pleaded imputations, namely, imputations (d), (e), (h), (j), (l) and (n) which expressly refer to dishonesty. There was no error in his Honour proceeding in that way. It amounted to putting the appellant’s case at its highest for the purpose of determining the issue of serious harm. Nor did the primary judge err in not answering the first of the three separate questions he had identified in his earlier reasons. It was at all times open to his Honour to decide that it was not necessary or appropriate to answer a question previously identified as a separate question.

Ground 4(a)

59    Ground 4(a) was not addressed by the appellant in her written submissions in chief. It was addressed in her written submissions in reply. It was not addressed by counsel for the appellant in his oral submissions. In those circumstances, it would not be inappropriate for this Court to proceed on the basis that the ground has been abandoned. Nevertheless, I will consider the ground.

60    It is asserted by the appellant under the heading of “Procedural Fairness” in her written submissions in reply that the evidence of the fifth respondent (Mr Wyatt) was not lay evidence and was in the nature of opinion evidence within a specialised field of knowledge. The appellant points out that the fifth respondent described himself to the Court as being “an expert” in digital marketing while giving evidence on the first day of the hearing. Furthermore, the appellant asserts that the Rules of Court governing expert evidence were not complied with.

61    There are two answers to these submissions. First, I do not consider that the fifth respondent’s evidence was expert evidence. As the respondents pointed out, it was lay evidence of observed facts as to how the MyLocalPages website worked (Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486 at 490–491 per Dixon CJ; Matthews v SPI Electricity Pty Ltd (Ruling No 9) [2012] VSC 340 at [35]–[43] per J Forrest J; Heydon JD, Cross on Evidence (14th ed, LexisNexis, 2023–2024) at [29025]). Secondly, insofar as the appellant complains of a lack of notice or that she was taken by surprise by the evidence, that is not the case as the appellant was given adequate notice of the issue by Mr Wyatt’s sworn affidavits on 30 October 2022 and 14 August 2023 respectively.

Ground 4(d)

62    During the appeal counsel for the appellant conceded, quite properly in my view, that the witness statements were not in admissible form and were properly excluded.

63    The substance of the challenge to the primary judge’s decision is the matter contained in Ground 4(d). The appellant had three proposed witnesses available to give evidence by video-link on the afternoon of the first day of trial and she had produced as annexures to her first affidavit unsigned statements of the proposed witnesses and in her second affidavit (affidavit in reply), she annexed signed statements of two of the proposed witnesses and she later produced a signed statement of the third proposed witness.

64    The statements were of Ms Chloe Noel deKerbrech, Mr Cliff Royle and Mr John Towner. Before the primary judge, these statements were said by counsel for the appellant to be relevant to two issues, being the extent of the publication of the article and the issue of serious harm.

65    I have decided that there was no error in the primary judge’s decision, but I make two observations about the utility of this evidence to the appellant’s case.

66    First, the evidence (it was said) was relevant to the extent of the publication. In my opinion, it is difficult to see how, in the circumstances, any substantial weight can be placed on this matter. The primary judge found that the evidence went no higher than that three people, one of whom must have been the appellant, read the article. The evidence from the three witnesses, had it been admitted, adds another one to three persons who had read the article depending on how the other evidence in the case is viewed.

67    Secondly, in relation to whether the evidence would have established serious harm, the following should be noted. The appellant submitted that the evidence of Mr Towner was to the effect that he was concerned that the appellant had lied to him. That is true, but that state of mind on the part of Mr Towner appears to have been short-lived. The appellant pointed to the fact that Ms deKerbrech said that she was concerned about nominating the appellant for a role at Media Misfits. The difficulty with this evidence is that the evidence appears to be to the effect that Ms deKerbrech was more concerned about her own reputation and is not to the effect that she herself had formed an adverse view of the appellant’s reputation. The appellant also referred to the evidence of Mr Royle who said that no one contacted him after he had given the appellant a reference. The difficulty with this circumstance is that it could have occurred for any number of reasons.

68    I conclude that, even if the appellant had been permitted to adduce the evidence of the three proposed witnesses, it would not have taken her case very far in terms of proving serious harm.

69    I note that the primary judge at one point in his reasons referred to the evidence as being inadmissible because it was irrelevant (at [49]–[50]). I consider that that observation was made in a different context. The context in which the primary judge made that observation was the appellant’s application to tender the witness statements.

70    The primary judge’s reasons for ruling as he did are set out above (at [21]). This Court would not interfere with the ruling in the absence of a House v R error ([1936] HCA 40; (1936) 55 CLR 499 at 505 per Dixon J (as his Honour then was), Evatt and McTiernan JJ). Nothing said by the appellant persuades me that there was such an error. The primary judge placed considerable weight on what he called the principles which lie behind s 37M of the Federal Court of Australia Act 1976 (Cth). Section 37M provides, relevantly, as follows:

(1)    The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a)    according to law; and

(b)    as quickly, inexpensively and efficiently as possible.

(2)    Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

71    The primary judge referred to a submission made by the appellant concerning the interests of justice, but said that, in circumstances in which the application was made shortly before lunch on the first day of the hearing, it was simply too late for the appellant to rely on additional evidence in circumstances where the very first notice that the fifth and sixth respondents have had of the application was “a few minutes ago”. The proceedings were commenced in August 2022. The appellant opposed the application by the respondents and that in itself led to a separate hearing which was determined against the appellant. She was aware from 20 June 2023 of the need to file her affidavits by dates in August 2023.

72    There is a submission in the appellant’s submissions in reply which is very difficult to understand, but should be mentioned. It is in para 16 and is as follows:

… It was available to the Court to allow the signed witness statements into evidence and reserve the right to apply a discretion of weight applied to that signed witness evidence in the absence of any availability for cross examination, of which on the first day of the Separate Questions Hearing three of the Affidavit exhibited and signed witness statement witnesses indicated their availability to present as witnesses and be cross examined on their witness statements, providing an opportunity of perfecting any irregularity of their witness statement form. …

73    As to the submission that it was available to the Court to allow the signed witness statements into evidence and to treat the issue as a question of weight, the appellant’s counsel at the hearing quite properly accepted that the witness statements were not admissible.

74    The appellant submits that this was not a case in which the application was effectively made without notice. The respondents were aware of the evidence of the potential witnesses by reason of the fact that the statements were annexures to the appellant’s affidavits. The appellant submits that the decision in Sandy on behalf of the Yugara People v State of Queensland [2017] FCAFC 108; (2017) 254 FCR 107 is distinguishable in that in that case there was prejudice and the statements were prepared and provided at the trial. Each case on this type of issue is different in terms of the facts. Nevertheless, I consider the case to be of assistance to the respondents because what the Court emphasised (at [85]–[86]) was whether the appellants had had an adequate opportunity to present their case. The Court found that it had. In this case, the appellant had the opportunity to comply with the orders of the Registrar and a submission to the contrary was not made.

75    At this point, I should mention one submission that was made by the appellant. It was submitted that the primary judge should have taken into account in making his decision about the proposed witnesses the appellant sought to call the following matters.

76    First, the appellant submitted that the primary judge had put to one side the written submissions that the appellant herself had prepared in circumstances where they were not referred to by her counsel in his closing submissions, or at all. I consider this matter to be irrelevant to his Honour’s ruling as to whether the appellant should be permitted to call the proposed witnesses to give evidence by video-link. Secondly, the appellant submitted that it was relevant to the exercise of the primary judge’s discretion that he had disallowed all of the appellant’s signed witness statement evidence filed and responding to the issue of serious harm. Those signed witness statements were not admissible and therefore the primary judge’s decision with respect to that matter was not relevant to his ruling that the appellant would not be granted leave to call the three witnesses to give evidence by video-link. Thirdly, the appellant submitted that she was “procedurally limited to Counsel in person representation and submissions made at the Separate Questions hearing only …”. As far as I understand the submission, it is a submission that although she had counsel at the hearing on 4 and 5 September 2023 (see [14] above), she represented herself at the “Separate Questions Hearing” (see [11] above) and, in all the circumstances identified in this paragraph, she was denied procedural fairness. I note that the appellant is a qualified legal practitioner. In any event, I do not consider that there has been a breach of the rules of procedural fairness.

77    The appellant also submitted that the evidence of the three witnesses was important in two respects. I have already commented on this submission.

78    The respondents emphasised the fact that the appellant had had an adequate opportunity to produce the affidavits which were envisaged by the Registrar’s orders. As far as can be seen from the transcript, there was little debate about whether the case would need to be adjourned. The appellant submitted that granting her application would not have resulted in an adjournment. At one point in the argument, the primary judge said to the respondents’ counsel that he was not sure that the appellant was seeking an adjournment. The issue was not addressed. However, I do not think it can be assumed that there would not have been an adjournment, either to allow the respondents to prepare for cross-examination, or at the conclusion of the appellant’s case to consider their position.

79    As I have said, there was no error in the primary judge’s decision not to allow the appellant to call the three proposed witnesses.

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.

Conclusion

107    For these reasons, the appeal must be dismissed, the parties will be heard on costs.

Associate:

Dated:    15 April 2024

REASONS FOR JUDGMENT

ANDERSON J:

108    I have had the benefit of reading a draft judgment of the learned presiding judge and agree with the orders that he proposes and the reasons given for making those orders.

Associate:

Dated:    15 April 2024

REASONS FOR JUDGMENT

O’SULLIVAN J:

109    I have had the advantage of reading the draft reasons for judgment of Besanko J. I agree the appeal should be dismissed for the reasons given by his Honour.

Associate:

Dated:    15 April 2024