FEDERAL COURT OF AUSTRALIA

Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98

ORDERS

THE COURT ORDERS THAT:

1.    There be judgment for the applicant against the first respondent in the sum of $37,940.

2.    Costs be reserved.

3.    Within 28 days the applicant file and serve any evidence and/or submissions in relation to costs, not exceeding five pages.

4.    Within 14 days thereafter the respondents file and serve any evidence and/or submissions in response, not exceeding five pages.

5.    Within 7 days of receipt of the respondents’ submissions, the applicant file and serve submissions in reply.

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

REASONS FOR JUDGMENT

KATZMANN J:

INTRODUCTION

1    Mina Greiss alleges that he was defamed in an article appearing on the 7News website (the first matter complained of), a Facebook post on the 7News Facebook account (the second matter complained of) and a tweet posted by Leonie Ryan, a journalist employed by Seven Network (Operations) Ltd as a court reporter, on her personal Twitter account (the third matter complained of, hereafter generally referred to as “the Ryan tweet”). Copies of the three matters are annexed to these reasons. Each of them was published on 6 May 2021. Each of them contains a report of, and comment on, the conduct of Mr Greiss that day outside a courthouse in Newcastle.

2    The respondents admit publication and identification. They also admit that the pleaded imputations were conveyed. They contend, however, that they are not liable, relying on the defences of justification (truth) and honest opinion. In relation to the first and third matters complained of, they also plead the defence of contextual truth. In the event that they fail to establish any of these defences, they argue that no damages should be awarded anyway.

UNDISPUTED FACTS

3    The following facts were either agreed or not in dispute.

4    Seven is the distributor of the television programme, Seven News, and the operator and publisher of the content on the website www.7news.com.au (the 7news website) which is available for download throughout Australia. Seven is also the operator and publisher of content on the Facebook page “Channel 7” (the 7 Facebook account).

5    Ms Ryan is a journalist employed by Seven.

6    On 6 May 2021 Jarryd Hayne, a former star rugby league player, was sentenced at the District Court in Newcastle some six weeks after he had been convicted of two counts of sexual intercourse without consent.

7    Ms Ryan was one of a number of members of the media who attended the courthouse to report on the sentencing hearing. Mr Greiss attended with friends to support Mr Hayne. They were Daniel Petras, Alifeleti Sosefo Mateo and Henry Prince Iuta.

8    At about 3:40 pm, Mr Greiss and other supporters of Mr Hayne left the courthouse and stood together within a courtyard to the right of the entrance to the building.

9    About five minutes later, the victim emerged from the building, escorted by two sheriff’s officers, Andrew Girkin and Scott Weaver. She was part of a small group which also included detectives and the Crown prosecutor. For convenience, I will refer to this group as the victim’s group or the group. As the group left the building, they turned right and walked down a ramp which runs alongside the building to Hunter Street. When he noticed the group leaving, Mr Greiss rose from his seat outside the building and walked towards the ramp, positioning himself at the top of a small staircase which led to the ramp. He looked at the group and noticed that it included the victim.

10    At this time, the members of the media, including Ms Ryan, were standing on the footpath on Hunter Street, at the bottom of a wide set of stairs leading to the courthouse entrance.

11    A few minutes after the victim left the court precinct, Ms Ryan published the Ryan tweet. In the tweet, which was accompanied by a photograph of Ms Greiss, Ms Ryan wrote:

Foul behaviour outside court following Jarryd Hayne’s sentence. One of his supporters stared his victim down and spat in her direction.

Share far & wide guys.

A grub right here.

The photograph depicts Mr Greiss holding a mobile phone in front of him giving the impression that he is filming something.

12    The Ryan tweet was retweeted by Tiffiny Genders, a reporter for the Nine Network. A Twitter account apparently operated by Seven under the name “7News Sydney” replied to the Ryan tweet, proclaiming that:

The vile act aimed towards Hayne’s victim occurred just hours after she declared he had destroyed her life on the night of the 2018 NRL grand final.

13    Underneath a photograph of Mr Greiss, apparently cropped from the Ryan tweet, and one of Mr Hayne, the following statements were made:

Disgusting scenes as Jarryd Hayne supporter SPITS towards rape victim.

Chaos erupted outside court just moments after the disgraced ex-NRL star was sentenced to five years and nine months in prison.

14    Shortly after the victim’s group left the court precinct, Mr Hayne’s wife (Amellia Bonnici) left the court building. Various people attempted to shield her from press view as she moved towards and entered a waiting car.

15    Later that day, Seven published the first matter on the 7news website and the second matter on the 7 Facebook account.

16    The first matter was an article entitled:

Disgusting scenes outside court as Jarryd Hayne supporter SPITS towards rape victim.

17    The article embedded a copy of the Ryan tweet.

18    The second matter, the Facebook post, read:

Chaos erupted after disgraced NRL player Jarryd Hayne was handed a lengthy prison sentence.

19    A link to the article followed.

20    The post itself was accompanied by a large photograph of Mr Greiss, the same one that appeared in the Ryan tweet. Here, the photograph was captioned:

‘GRUB’ SPITS AT RAPE VICTIM OUTSIDE COURT

21    115,055 people viewed the first matter, 107,090 from IP addresses in Australia. Of the total page views of the first matter, 3,393 were accessed through Twitter.

22    66,701 people accessed the first matter through Facebook. A screenshot of the second matter taken the day it was removed shows that it had 371 “reactions”, 348 “comments” and 34 “shares”.

23    The third matter attracted 1,635 retweets, 371 “quote tweets” and 2,772 “likes”.

24    The second and third matters generated a considerable amount of comment on social media. Some 121 pages of comment were tendered in evidence, although a good deal of it was duplication.

25    Some of the commentary was critical of the sentence imposed on Mr Hayne, supportive of Mr Hayne and not in the least critical of the so-called “grub”. But most of it was negative and hostile to Mr Greiss, picking up the message in the Ryan tweet. Many commentators questioned why the spitter had not been charged because spitting at someone is an assault or because of the risk of transmission of COVID or both. Many called for him to be “locked up”. Mr Greiss was vilified, both in comments on Facebook posts and in messages sent to him directly via Facebook Messenger, as a “grub”, “an asshole”, “a low life”, “scum”, a “sick poor excuse as man”, “a woman hater”, “a filthy creature”, “a piece of shit”, “this disgusting specimen” and the like – and worse still. One commentator on Facebook asked whether it was “legal to flog this person?”.

26    Another wrote:

WTF, where did that swamp creature crawl from? Needs to go back on his medication. Gronk on the loose. Blatant misogynistic act by a man with the mental capacity of a toddler in a tantrum rage.

27    Yet another called for the “filthy grub” to be “locked up right beside his filthy grub mate”.

28    One man sent Mr Greiss a message via Facebook Messenger saying:

You are nothing but a piece of shit. Woodchipper material. Would love to get you in the ring you UnAustralian Cunt.

29    Some of the Facebook posts were more threatening, like this one:

Hey scum bucket. We know your name now. Won’t take long to find out where you live then we coming for ya[.]

30    Another post on Twitter in reply to the Ryan tweet referred to Mr Greiss as “a filthy pig” and a “scumbag” and called for somebody to “hunt the scumbag down”.

31    One commentator replying directly to the Ryan tweet wrote:

These people should not exist.

32    Many commentators mistakenly assumed from his appearance, particularly his long black bushy beard, that the spitter was a Muslim. One who did not was a woman who apparently recognised Mr Greiss. She addressed her remarks directly to him via a Facebook message:

Hi Mina! Thanks for being another who proves once again that christians are the biggest hypocrites on the planet! Hiding behind the bible, supporting convicted rapists, spitting at the victim ... what a disgusting, grubby, evil cult christianity is! Thank you for being a prime example of that cult - with examples such as yourself and your rapist friend, no wonder people are leaving said cult in droves!

33    The day after the matters were published, Mr Greiss was exposed by name in Twitter posts by several people, including as the “creep” who spat at the victim. The author of that particular post called on people never to hire or help him.

34    The same day the NSW police received information suggesting that a person, who I infer was the victim (the name is redacted in the police report), had been spat at and abused when leaving the court complex. The source of the information is not disclosed. The police also learned that “journalist’s [sic]” had been assaulted and spat at. Mr Greiss was identified as “being responsible for spiting [sic] onto the footpath as recorded upon commercial footage”.

35    During the evening Mr Greiss was interviewed by police. He admitted to spitting on the street but said the victim was “not around” when he spat. He agreed he was “revved up at the time” and that “emotion got the better of him”. Towards the end of the interview Mr Greiss said he had “phlegm”, asthma and bronchitis. When asked why he did not spit into a tissue or “somewhere more appropriate than the footpath”, he had no answer. On 11 May 2021 Mr Greiss was served with an infringement notice for offensive behaviour and fined.

36    After he was fined, Seven posted on Twitter:

A supporter of Jarryd Hayne has been fined for allegedly spitting outside court after the disgraced footballer was jailed for rape. Mina Greiss is accused of spitting as the victim left Newcastle Court last week.

37    When he received the infringement notice, Mr Greiss asked for a written account confirming that he did not spit at the victim. His request was declined.

38    On 4 June 2021 Mr Greiss’s solicitors served a concerns notice on Seven in relation to various publications including the first and second matters and on 28 June 2021 they served a concerns notice on Ms Ryan in relation to various tweets including the third matter.

39    Each of the matters was removed on or about 20 August 2021.

40    On 26 August 2021 Mr Greiss’s solicitors requested a copy of Seven’s video footage of the alleged spitting incident and on 18 February 2022 they informed Seven’s solicitors that they had obtained and viewed the CCTV footage from the Newcastle courthouse. On 8 July 2022 Mr Greiss’s solicitors produced a copy of the CCTV footage from the Newcastle courthouse to Seven’s solicitors.

THE IMPUTATIONS

41    Although there was initially a dispute about whether one of the pleaded imputations was conveyed, ultimately the respondents accepted that all the pleaded imputations were conveyed and were defamatory.

42    I therefore make the following findings.

43    The first matter conveyed the following imputations or imputations no different in substance, each of which is defamatory:

(1)    Mr Greiss engaged in the vile act of staring down and spitting towards Mr Hayne’s rape victim;

(2)    Mr Greiss stared down and spat in the direction of Mr Hayne’s rape victim;

(3)    Mr Greiss is despicable, in that he stared down and spat in the direction of Mr Hayne’s rape victim; and

(4)    Mr Greiss sought to harass and intimidate Mr Hayne’s rape victim by staring her down and spitting at her.

44    The second matter conveyed the following imputations or imputations no different in substance, each of which is defamatory:

(5)    Mr Greiss spat at a rape victim outside court; and

(6)    Mr Greiss is despicable, in that he spat at a rape victim outside court.

45    The third matter conveyed imputations (2), (3) and (4) or imputations no different in substance, each of which is defamatory.

THE RESPONDENTS’ AMENDMENT APPLICATION

46    In their defence the respondents originally pleaded justification and honest opinion. On 4 July 2022 I made case management orders which included provision for the exchange of witness statements, discovery and the fixing of the hearing dates.

47    On 3 February 2023, five weeks before the trial was due to start, the respondents filed an interlocutory application (the application) seeking leave to amend their defence. The application was supported by an affidavit of Justine Munsie, the respondents’ solicitor.

48    Mr Greiss opposed the application, relying on an affidavit sworn on 28 February 2023 by his solicitor, Margaret Antunes of Antunes Lawyers.

49    The application was listed for hearing on the first day of the trial. After hearing argument, I informed the parties that I would allow the application and give my reasons later. Counsel for Mr Greiss then indicated that reasons for that decision were not required “for the purpose of the trial”. At the time, I had the impression that reasons were not required at all. On reflection, however, I considered my impression may well have been wrong. Consequently I record the reasons below. As the amendments concerned multiple aspects of the respondents’ defence, it is convenient to set out my reasons for allowing them before turning to the substantive determination of this matter.

The relevant considerations

50    Rule 16.53 of the Federal Court Rules 2011 (Cth) (Rules) requires that any party wishing to amend a pleading after pleadings have closed must apply for the leave of the Court. Rule 1.41 provides that, if a party makes an application, the Court may grant or refuse the order sought or make a different order. The Court’s discretion is at large, save that, like any power conferred by the Rules, it must be exercised in the way that best promotes the overarching purpose of the civil practice and procedure provisions of the relevant legislation, including the Rules, set out in s 37M(3) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). That purpose is the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: FCA Act, s 37M(1).

51    Various factors are relevant to the exercise of the power. The respondents relied on the uncontroversial summary contained in the judgment of Besanko J in Roberts-Smith v Fairfax Media Publications Pty Limited (No 5) [2020] FCA 1067, drawn from a number of authorities listed at [15] of that judgment. They are:

(1)    the nature and importance of the amendments to the party applying for them;

(2)    the extent of the delay and the costs associated with it;

(3)    the explanation for the delay;

(4)    the prejudice that might reasonably be assumed to follow from the amendment and that which is shown;

(5)    the parties’ choices to date in the litigation and their consequences;

(6)    the detriment to other litigants in the court if the amendments are allowed; and

(7)    the potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification.

The proposed amendments

52    The respondents wished to amend their defence by:

(1)    adding a defence of contextual truth under s 26 of the Defamation Act 2005 (NSW) (Defamation Act) to the first and third matters, including a new particular 8;

(2)    amending particular 7 of their justification defence; and

(3)    amending their particulars of mitigation to enable them to rely on the substantial truth of the contextual imputations in mitigation of damages in the event that their substantive defences were not made out.

The amendment to the particulars of the justification defence

53    It is convenient to deal first with this aspect of the amended defence.

54    Particular 7 initially read:

The Applicant faced the Walkway and stared at the Victim and spat towards her feet as she passed by him to exit the court precinct.

55    The respondents’ amendment sought to delete the words “towards her feet as” and insert “after” in substitution.

56    Mr Greiss submitted that, as amended, the particular was “hopelessly imprecise and … incapable of proving the substantial truth of any of the pleaded imputations because it does not address a material part of the sting”. He argued that “[t]here is no longer any particularised allegation that the spitting was directed towards the victim, and it is clear that it is no longer the respondents’ case that the spitting occurred in her presence, but merely an unspecified time after she had left”. In the result, he contended that the entire justification defence was no longer tenable and should be struck out. He claimed that the respondents’ case “now rises no higher than an allegation that Mr Greiss spat in an unspecified direction an unspecified amount of time after the victim left the area” and was incapable of proving the substantial truth of the pleaded imputations, let alone in the context in which they are conveyed by each publication.

57    In its proposed form the amendment was imprecise. But the reason for the amendment was apparent from the correspondence in which it was foreshadowed.

58    In Ms Munsie’s letter of 23 December 2022, in which she notified Mr Greiss’s lawyers of the respondents’ intentions to file the amended defence, the amendment was said to be necessary to remove part of an allegation following the preparation of a short supplementary statement of Ms Ryan served at the same time. In that statement Ms Ryan said that, having reviewed the footage discovered by Seven and the CCTV footage from the day of the incident, she “[does] not believe [Mr Greiss] spat in the direction of the victim’s feet” but rather believed that he “spat in her direction”. This is the point of the amendment.

59    In the circumstances, I decided that the justification defence should not be struck out. Instead, I granted the respondents leave to amend particular 7 so that it reflected what Ms Ryan said in her supplementary statement, namely that Mr Greiss spat in the victim’s direction as she passed by him, a course which Mr Greiss agreed disposed of his objection to the amendment.

60    Consequently, particular 7 now reads:

The Applicant faced the Walkway and stared at the Victim and spat in her direction as she passed by him to exit the court precinct.

The amendment to raise a contextual truth defence

61    The amendment proposed was a single contextual imputation with respect to each of the first and third matters in the following terms:

The Applicant behaved disgracefully outside of Court to the woman Jarryd Hayne had been sentenced for raping.

62    The respondents allege that the contextual imputation in each case is substantially true and, by reason of its substantial truth, publication of such of the pleaded imputations as may not be found to be substantially true did no further harm to Mr Greiss’s reputation.

63    Mr Greiss objected to the amendments on four bases:

(1)    the contextual imputation does not arise;

(2)    the particulars were not capable of proving the truth of the contextual imputations;

(3)    the delay was not explained or at least not adequately explained; and

(4)    he would be prejudiced by the amendment.

I deal with each of these objections below in the same order.

Does the contextual imputation arise?

64    As the respondents submitted, this was a trial issue. The real question on the application was whether the imputation was capable of being conveyed or, put another way, it was reasonably arguable that the contextual imputation arises.

65    Mr Greiss pointed out that s 26 of the Defamation Act (as it was before the amendments that commenced on 1 July 2021, which are inapplicable) required that a contextual imputation be carried “in addition to” the imputations pleaded by him. He submitted that any such imputation must be formulated so that facts, matters and circumstances that can be relied on to establish its truth bear a reasonable relationship to the contextual imputation itself and to the matters complained of. Otherwise, as Wigney J pointed out in Domican v Pan Macmillan Australia Pty Ltd [2019] FCA 1384 at [44], “the respondent can then rely on particulars of truth that may have nothing whatsoever to do with the published material”.

66    Mr Greiss submitted that the way his behaviour is said to have been disgraceful is that he stared down and spat towards the victim, but as the first and third matters do not refer to any other relevant conduct, the contextual imputations are not “in addition to” the pleaded imputations. As I explain below, a contextual imputation need only differ in substance from the pleaded imputation and I was persuaded that the contextual imputation the respondents wished to plead did differ in substance from the pleaded imputations. I considered it was at least reasonably arguable that the single act of spitting towards, or in the direction of, a rape victim was sufficiently serious to support the general meaning of disgraceful behaviour.

67    In any case, as the respondents submitted, the matters complained of were not bare recitations that Mr Greiss stared down and spat at the victim. The contextual imputation also arises from the headline of the first matter (“Disgusting scenes outside court …”) and from the description of Mr Greiss’s behaviour (staring the young woman down and spitting in her direction) in circumstances in which the publication also reported that her assailant had just been jailed for a “brutal sexual assault” and “the vile act aimed towards [her] occurred just hours after she declared [her assailant] had destroyed her life …”. In the third matter, the contextual imputation arises not merely from the reference to a supporter staring down the victim and spitting in her direction but from the words “foul behaviour”.

68    Mr Greiss also contended that “the vice of the proposed contextual imputations is that they seek to re-articulate the sting of the [f]irst and [t]hird matters at a high level of abstraction as the pretext for introducing evidence of a specific incident which is not mentioned anywhere in the [f]irst or [t]hird matter[ ] and which is remote from the conduct which is mentioned” (original emphasis). He argued that it involved a verbal exchange with a journalist, was not directed to the victim, and took place well after the victim is said to have left the court precinct. He claimed that this was the vice identified by Wigney J in Domican at [44] and in the authorities his Honour cited.

69    I reject this contention. The only new particular relied upon was that:

After the Victim had left the Court precinct the Applicant described her as an “escort” to a member of the media.

70    The proposed amendment did not reflect the vice identified by Wigney J in Domican. The facts, matters and circumstances upon which the respondents intended to rely in order to establish the truth of the contextual imputation were capable of bearing a reasonable relationship to the contextual imputation and would not have “nothing whatsoever” to do with it. The remark Mr Greiss is said to have made at the courthouse occurred after the victim’s assailant was convicted, within an hour after she left, and in an exchange which included references to the episode in which Mr Greiss was said to have spat towards, or in the direction of, the victim. Moreover, I considered it could indicate that Mr Greiss was contemptuous of the victim; that he felt she had no right to complain; and it arguably explained why he might have spat at or towards her (or in her direction), if indeed he did.

71    Nothing in Domican or the other authorities to which Wigney J referred in that case (in which contextual imputations were said to be so broad as to capture, as the respondents put it, “historical, disparate and wholly unconnected acts” of a plaintiff) suggests that the contextual imputations the respondents sought to plead were of that type: see Domican at [45]–[51].

Are the particulars capable of proving the truth of the contextual imputation?

72    Mr Greiss submitted that the “extremely limited particulars” do not support a contextual imputation of disgraceful behaviour “to” the victim because the reference to her as an escort was not made to her and, given the proposed amendment to particular 7 to the justification defence, there is now no allegation that Mr Greiss spat towards her or in her presence.

73    As a result of the respondents’ revised amendment to particular 7, this question also fell away. Particular 7 of the contextual truth defence is now in the same terms as the revised particular 7 to the justification defence. In their revised form, I was satisfied that the particulars were capable of proving the truth of the contextual imputation.

The extent of the delay

74    The originating application and statement of claim were filed on 21 April 2022 and sealed copies were served on the respondents’ solicitors by email on 26 April 2022, the day the documents were accepted for filing. The respondents filed their defence on 14 June 2022 and no reply was filed. Mr Greiss was notified of the proposed amendments by email six months later, on 23 December 2022. The email was sent to Ms Antunes and Andrew Kaine, an associate of her firm. Mr Kaine replied on 16 January 2023. He said that the firm’s office was closed from 22 December 2022 and the email did not come to their attention until 9 January 2023 when the office reopened. Ms Munsie wrote to Antunes on 2 February 2023 requesting their consent to an order she proposed to seek at the forthcoming case management hearing that leave be granted to the respondents to file their draft amended defence. Since that time the scope of the contextual truth defence had narrowed.

75    Ms Antunes’ affidavit disclosed that CCTV footage in the possession of Mr Greiss was served on the respondents’ solicitors on 8 July 2022 and Ms Ryan’s first statement was served on Antunes on 23 August 2022. A mediation took place on 18 October 2022.

Is the delay adequately explained? Is there the potential for the public to lose confidence in the legal system if the amendments are allowed?

76    These questions are related and can be considered together.

77    In my opinion the delay was not adequately explained.

78    As Mr Greiss pointed out, Ms Munsie did not expressly address the reason(s) for the delay in her affidavit. The rather opaque inference from her affidavit was that the amendments were proposed by senior counsel who was only briefed in late October 2022.

79    As Mr Greiss submitted, while Ms Munsie deposed that senior counsel was briefed on 26 October 2022 and a draft amended defence was served on 23 December 2022, she did not say that the defence was amended on the advice of senior counsel. The respondent’s written submissions on the application, however, which purported to be the work of both senior and junior counsel, recorded that “[a]s to the defence of contextual truth, senior counsel took the view that it ought to be pleaded” and, as to the change to particular 7 of the justification defence, “Ms Ryan took this view after further observing video footage”.

80    In these circumstances I accepted that the proposal to amend to plead contextual truth was made on the advice of senior counsel. That said, Ms Munsie did not say when she received the advice or how long it took to obtain instructions to make the application. If it was around the time senior counsel was briefed, then there was a two-month delay in notifying Mr Greiss which is unexplained. Moreover, the evidence upon which the respondents rely to plead the “escort” allegation was in their possession at all relevant times. It is contained in the Seven videos of which Ms Munsie was aware since before the proceeding commenced, as she referred to them in pre-litigation correspondence in August 2021. And no evidence was adduced to indicate when Ms Ryan first reviewed the footage or when she decided that her initial statement should be revised.

81    Nevertheless, for the following reasons I did not consider that there was any real risk of a loss of confidence in the legal system.

Would Mr Greiss be prejudiced if the amendments are allowed?

82    Mr Greiss did not suggest that he was unable to meet either the new contextual truth defence or the amendment to the justification defence. In particular, as the respondents observed, he did not suggest that if notice had been given at an earlier point in time he would have issued a subpoena, made some forensic decision or had lost some opportunity. Rather, he submitted that there was “general prejudice caused by the lateness of the amendment” and “specific prejudice because the contextual truth defence … [was] an attempt to introduce an exchange not referred to in the publications, so as to cause further harm and damage to Mr Greiss in the conduct of the trial”.

83    The “general prejudice” was not identified and no proper foundation was laid for the serious accusation of bad faith inherent in the allegation of “specific prejudice”.

84    While it was understandable that Mr Greiss would want to exclude from the trial evidence that he had referred to the victim as an escort, that is not relevant prejudice. Even if the respondents did not raise the making of the comment by way of a defence of contextual truth or in mitigation of damages, their counsel would be able to cross-examine on it and it would emerge in evidence in any event. It would be relevant to Mr Greiss’s state of mind and would arguably support the respondents’ version of events.

85    As no relevant prejudice was occasioned by the lateness of the amendments, I was of the opinion that little weight should attach to the inadequacy of the respondents’ explanation for the delay.

86    Of course, in some cases, the absence of an explanation (or an adequate explanation) for the delay in applying for an amendment will be significant. In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [103], the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) observed that “[g]enerally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for” and in most cases in which delay has occurred the party responsible should explain it. In that case the absence of an adequate explanation was significant. The University had applied for an adjournment of a four-week trial on the third day of the trial in order to make substantial amendments to its statement of claim. Still, as the Full Court (Keane CJ, Gilmour and Logan JJ) observed in Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 at [51]:

Aon Risk is not a one size fits all case. Whilst various factors are identified in the judgment as relevant to the exercise of discretion, the weight to be given to these factors, individually and in combination, and the outcome of that balancing process, may vary depending on the facts in the individual case. As the plurality in Aon Risk observed at [75], statements made in cases concerning amendment of pleadings are best understood by reference to the circumstances of those cases, even if they are stated in terms of general application.

87    The factors that persuaded the High Court in Aon that the applications for adjournment and amendment should not have been allowed were the timing of the application, the necessity to vacate or adjourn the trial dates, the inadequacy of the explanation, and the fact that new claims were intended to be raised which had not previously been agitated because of a deliberate tactical decision not to.

88    The circumstances of the present case were very different. I was not persuaded that the deficiencies in the respondents’ explanation were a sufficient reason to refuse their application. Where amendments to a pleading have arguable merit and there is no significant or appreciable prejudice, a court will rarely deny an application to amend a pleading. Nor is it to the point that some additional expense may be incurred in addressing the new defence. As Marshall, Rares and Flick JJ said in Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [81]:

A new factual allegation permitted by an amendment may involve putting the party against whom it is made to the expense of meeting it at trial. However, that will rarely, if ever, be a reason for refusing an amendment that enables a real issue to be heard and determined in the controversy between the parties provided that it can be done having regard to the overarching purpose in Pt VB of the Federal Court of Australia Act. The object of inexpensive determination of disputes does not require the Court to preclude a party ventilating a real dispute at all.

To what extent, if at all, would other litigants in the court be adversely affected if the amendments were allowed?

89    It was not suggested that leave should be refused because other litigants would be adversely affected if the amendments were to be allowed. Mr Greiss made no submissions on this question. In circumstances such as this, where no application was made or foreshadowed for the hearing dates to be vacated and the hearing would not be prolonged as a result of the amendments, no detriment to other litigants could arise.

Conclusion

90    Taking all relevant factors into consideration and weighing them in the balance, I was satisfied that the best way to promote the overarching purpose was to allow the respondents’ amendments and require the respondents to pay the costs of the application.

ISSUES

91    It follows that the remaining issues concern:

(1)    whether the defences of justification, honest opinion and/or contextual truth have been made out; and

(2)    if not:

(i)    the extent to which any of the matters relied upon to prove justification, honest opinion and/or contextual truth mitigates damages;

(ii)    whether Mr Greiss has made out a case for aggravated damages; and

(iii)    the amount, if any, of damages that should be awarded.

THE JUSTIFICATION DEFENCE

The law

92    Section 25 of the Defamation Act provides that it is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. A defendant who raises such a defence must prove that each of the imputations and every material part of those imputations was substantially true at the time of publication: Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; 278 ALR 232 at [138] (McColl JA, with whom Spigelman CJ (at [1]), Beazley JA (at [2]), McClellan CJ at CL (at [283]) and Bergin CJ in Eq (at [284]) agreed). There is no defence of partial justification: Kumova v Davison (No 2) [2023] FCA 1 at [96] (Lee J). “Substantially true” is defined in s 4 of the Defamation Act to mean “true in substance or not materially different from the truth”. It is unnecessary for a defendant to prove that every part of an imputation is literally true; it is enough that its gravamen or “sting” of the imputation is true: Mahommed at [138].

93    In considering whether imputations that require an evaluative assessment of Mr Greiss’s conduct (such as the imputations that his conduct was “vile” or “despicable” or that he behaved “disgracefully”), it is necessary to consider whether ordinary decent people, that is, reasonable people of ordinary intelligence, experience and education, bringing to bear their general knowledge and experience of worldly affairs, would come to that conclusion: Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31 at [54]–[56] (Gummow, Hayne and Bell JJ).

94    If the justification defence fails, however, evidence led in support of that defence may mitigate damages. Thus, if the respondents fail to prove that one imputation or a material part of an imputation is not substantially true but prove that another is, the substantial truth of the other may reduce the damages “perhaps almost to vanishing point”: Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 120 (Neill LJ).

The scope of the factual dispute

95    Mr Greiss denied having any interest in the victim. He claimed not to have been looking at her, let alone staring her down, and in his evidence in chief he insisted he did not spit at all, let alone at the victim, until after the victim had left the court precinct.

96    I take it to be common ground that, if Mr Greiss is found to have acted in this way, that was a vile act, that it was despicable conduct and disgraceful behaviour, and that it was intimidating and harassing. Certainly there was no argument to the contrary. In any event, I have no doubt that ordinary decent people would so conclude.

What does the video footage show?

97    The CCTV footage shed some light on the events, although it has its limitations. One of those limitations is that there is no audio. Another is that that footage was taken from fixed cameras which do not apparently correspond to the perspectives of various witnesses at all material times. In particular, the evidence was insufficient to establish that the CCTV footage captured the line of sight of each of the respondents’ witnesses at any relevant time. In addition to the CCTV footage there was audiovisual evidence obtained from material produced on subpoena by three media organisations.

98    I have watched and listened to this material several times. I make the following findings based on what I saw and heard. The times given below reflect the time stamps on the CCTV footage. It was common ground, however, that the time stamps were inaccurate in that they were approximately 15 minutes behind the real time.

As the victim’s group leaves the courthouse

99    At 3:31:19 pm a sheriff's officer, who the parties agreed was Mr Girkin, emerged from the courthouse followed by the other members of the victim’s group. They immediately turned right and proceeded down a disability ramp, which runs along the front of the courthouse and then turns left towards Hunter Street. The ramp is wide enough for two people to walk alongside each other.

100    Mr Girkin led the group down the ramp, until he stopped at the bottom of the small staircase which connected the ramp to the mezzanine, while the rest of the group continued down the ramp. Behind Mr Girkin was a man in a suit. Walking behind that man were two women walking side-by-side. The woman closer to the wall of the courthouse was the victim. Behind the two women was the Crown Prosecutor followed by three women in single file. At the end of the group was Mr Weaver. At approximately 3:31:49 pm (around 30 seconds after Mr Girkin first exited the courthouse) the last member of the group (Mr Weaver) left the ramp and turned right down Hunter Street.

101    At the time this group emerged from the courthouse, Mr Greiss was sitting on a bench outside on the mezzanine level. The bench was approximately halfway between the entrance to the courthouse and the small staircase. Mr Greiss was facing away from the entrance. But at approximately 3:31:27 pm (that is eight seconds after Mr Girkin walked out of the courthouse) Mr Greiss looked over his left shoulder towards the group. At 3:31:29 pm Mr Greiss stood up from the bench and walked towards the stairs that connected the mezzanine and the ramp.

102    The following still depicts the scene as it would have appeared to anyone standing at the top of the ramp at 3:31:38 pm. Mr Greiss was looking towards, or in the direction of, the victim as she passed by with other members of the group. She did not look at him. Like all members of the group, she was looking ahead. Mr Girkin was standing at the bottom of the staircase but not obscuring Mr Greiss’s view of the victim.

103    At 3:31:39 pm Mr Greiss pointed in the direction of the victim. His mouth was moving. The woman walking next to the victim turned her head to look at Mr Greiss. I infer that he said something which attracted her attention.

104    Two seconds later, Mr Greiss pointed in the direction of the victim again and once more the woman to the left of the victim turned her head to look at him as the following still shows.

105    At 3:31:45 pm Mr Greiss turned his head slightly to face Hunter Street and spat into a garden bed:

106    The man in the blue shirt is Mr Petras. The man in the red shoes seated on the bench is Mr Iuta.

107    At this point the victim had almost reached the end of the ramp as the following still from the CCTV footage shows.

108    At 3:31:47 pm Mr Greiss pointed in the direction of the victim for a third time. At this juncture Mr Girkin started to walk up the stairs towards Mr Greiss. About a second later, three sheriff's officers standing outside the front of the courthouse moved towards Mr Greiss. Four seconds after that, the last member of the victim’s group disappeared from view.

109    The video footage taken by Channel 7 records the reactions of journalists. An unidentified man asked: “Are they intimidating her? That’s outrageous.” Three seconds later, Ms Genders said: “That’s disgusting. He just spat at them”. Three seconds after that, Ms Ryan said: “He was staring down the victim [inaudible] yeah”. These comments or comments to the same effect are picked up in a video taken by a Channel 10 camera operator. All but one of them is made within 36 seconds of the time the respondents allege Mr Greiss spat at or towards the victim or in her direction. In addition, both the Channel 7 and Channel 10 footage record Ms Ryan saying: “He was staring the victim down and then spat towards her”.

110    At 3:32:21 pm, after Mr Greiss and Mr Petras spoke to the sheriff’s officers, Mr Greiss spat for a second time into the garden bed near the main stairs outside the front of the courthouse. This second spit is difficult to discern on the CCTV footage but it is crystal clear on the Channel 10 footage. Following the second spit Mr Greiss returned to talk to the sheriff's officers.

After the victim’s group left

111    At 3:35:10 pm, footage obtained from Channel 10 reveals that Mr Greiss called out:

Did you put that she’s an escort? (gesticulating as though writing in the air) Did you put that in your…yeah, you’re journalists right?

Yeah, put that in your thing.

112    A woman in the media pack immediately responds but only her last word is audible. That is “spat”.

113    Two seconds later, Ms Ryan said: “Absolutely appalling behaviour”. Mr Greiss replied: “Yeah? Oh good, I’m happy with that.”

114    These exchanges were referred to in submissions as the first escort conversation.

115    At 3:35:40 pm, Mr Greiss, along with Mr Mateo, Mr Iuta and Mr Petras left the mezzanine via the stairs that lead down to the disability ramp.

116    A few minutes later, Ms Ryan tweeted the third matter complained of.

117    Approximately nine minutes later (and about 12 minutes after the respondents allege that Mr Greiss stared down the victim and spat at, towards, or in her direction) video footage obtained from Fairfax depicts Mr Greiss approaching Ms Ryan and other members of the media who were still milling around at the bottom of the stairs on Hunter Street outside the courthouse. At this point, the following exchange (the second escort conversation) took place:

Mr Greiss:    You’re quick on Twitter.

Ms Ryan:    What? Oh yeah, I’m good at tweeting.

Mr Greiss:    [Inaudible] quick. Grub you reckon?

Ms Ryan:    Yeah, you are.

Mr Greiss:    Yeah, all good, yeah. I’m happy with that.

Ms Ryan:    Ok.

Mr Greiss:    I can, I can live with that.

Ms Ryan:    If you want to be remembered by that, that’s fine.

Mr Greiss:    I can deal-

Ms Ryan:    And I just love that you’ve focused on another woman, haven’t you?

Mr Greiss:    Yeah, absolutely. Yeah.

Ms Ryan:    Yeah, yeah. Course.

Mr Greiss:    Did you put that she’s an escort?

Ms Ryan:    That’s indicative of the type of person that you are.

Mr Greiss:    All good. Did youse put that an escort? None of your articles said es – nothing about her being an escort.

Ms Ryan:    Didn’t come out in court, did it?

Mr Greiss:    Oh, that’s what comes out in court, aye. Only what comes out in court.

Ms Ryan:    No, yeah. We report on facts, mate.

Mr Greiss:    Yeah

Ms Ryan:    Yeah, we do, yeah.

Mr Greiss:    Yeah, yeah? Good work. Good work.

Ms Ryan:    Yeah.

Mr Greiss:    Fuck out of here bro.

Female:    She’s not an escort, that’s why.

(Emphasis added.)

118    About five minutes after this exchange, Mr Greiss (along with Mr Petras, Mr Mateo and Mr Iuta) walked away from Ms Ryan and the other members of the media and, at 3:50:16 pm on the CCTV footage, Mr Greiss spat for a third and final time, this time towards the journalists. The spit was immediately preceded by the following exchange (the third escort conversation), which was captured variously by Channel 9 and 10 video cameras and incorporated in a compilation video which was tendered without objection and became Exhibit 12:

Ms Ryan:    Trying to intimidate another woman are you?

Mr Greiss:    You’re not a woman.

Ms Ryan:    Get out of my face.

Mr Greiss:    You’re not a woman.

Ms Ryan:    Get out of my face.

Mr Petras:    Why you calling him a grub, why you calling him a grub on social media?

Mr Greiss:    Yeah…[inaudible].

Ms Ryan:    Uh, I called him a grub.

Mr Petras:    Yeah, why you calling him a grub?

Ms Ryan:    Because he spat towards the victim.

Mr Greiss:    Yeah, I did spit.

Mr Petras:    Yeah, he spat on an escort. He spat on an escort.

Mr Greiss:     Don’t touch me, don’t touch me. Did you see what she’s fucking putting up?

Ms Ryan:     Yeah, ok mate. Get out of my face.

Mr Petras:     He should spit on you.

Male:         Say that again.

Mr Petras:     He should spit on you-

Mr Greiss:     Yeah, exactly!

Mr Petras:     Treat you like a dog like you are.

Mr Greiss:     Fuck out of here.

Mr Petras:     Look at the fucking dropouts from school. Look at the nerds.

Mr Greiss:     Yeah, put that on your thing…still racks up, yeah? Hey, put that on there…

Mr Petras:     Hey put that, put that on there she’s an escort. Put it on there, she’s an escort.

Mr Greiss:     (spits) Here, another one for ya.

(Emphasis added.)

119    With the exception of the first remark by Mr Greiss (“You’re quick on Twitter”), which is plainly audible and which Mr Greiss accepted he made, the above account is taken from a transcript of the three conversations prepared by the respondents. While counsel for Mr Greiss disputed its accuracy, I have both watched and listened carefully to the footage. I consider that the transcript of these conversations that the respondents prepared is substantially correct, indeed almost word perfect. While the words uttered immediately after the final spit (at about 42 seconds into the compilation video) are not as loud as others, I am satisfied that Mr Greiss did say those words or words to precisely the same effect. Indeed, in cross-examination, immediately after Exhibit 12 had been played, Mr Greiss agreed:

MR RICHARDSON: Now, Mr Greiss, I want to suggest that at the last moment played there, you said, “Here’s another for you,” or, “There’s another one for you”?---Okay. I - - -

Do you agree with that?---Yes, I agree.

The evidence from the witnesses

120    Mr Greiss gave his account of what occurred. He also relied on evidence adduced from two friends and supporters of Mr Hayne, who were with him at the time the conduct the subject of the proceeding took place. They were Mr Mateo and Mr Iuta.

121    Ms Ryan was the first of the respondents’ witnesses to be called. Two other journalists were also called. They were Giselle Wakatama, a journalist with the Australian Broadcasting Corporation, and Ms Genders, a journalist with Channel 9.

122    What follows is a recitation of the salient parts of the evidence or its effect.

123    Although Mr Greiss was the first witness to be called in the proceeding, it is convenient to begin with the evidence of Ms Ryan and the other journalists who were called by the respondents since they bear the onus of proof on the justification defence.

Leonie Ryan

124    Ms Ryan sat in a designated media room where the proceedings concerning Mr Hayne were being livestreamed until the sentence was handed down when she left the courthouse and stood at the bottom of the stairs leading from Hunter Street to the front of the building with reporters from various media outlets. Her purpose was to try to obtain a reaction from Mr Hayne’s supporters outside court.

125    Ms Ryan saw a sheriff, followed by others including the victim, leave the courthouse and descend the ramp. She estimated that there were about half a dozen people in the group with the victim. At about the time they started to move, Ms Ryan noticed Mr Greiss stand up from his seat and “almost walk [in] the direction of where the alleged victim was walking” while “staring at her and mumbling”. In cross-examination she clarified that she did not hear him mumbling but saw his mouth moving. She maintained that she could see this movement from where she was standing because his face was “side on” rather than directed away from her. She denied that Mr Greiss’s large beard would have prevented her from being able to see him mumbling.

126    As the victim walked past, Mr Greiss “spat in her direction”. She saw his “head move back and go forward” and heard “a spitting sound”.

127    Mr Greiss appeared to be facing “the group of people that had just passed him” and she formed the impression that his behaviour was directed at the victim.

128    When asked what gave her that impression, Ms Ryan replied:

When he stood up, it coincided at the exact same moment she walked out of the doors. And she was on the inside, but almost third from the front. It just appeared that his – his – his eyeline was directed at her.

129    Ms Ryan stated that Mr Greiss was staring at the victim but that the victim did not notice him.

130    When put to her in cross-examination that she was too far away to hear any spitting sound, especially in light of her acceptance that she could not hear Mr Greiss mumbling, she stood her ground. She admitted, however, that she did not see Mr Greiss spit towards the victim’s feet, despite saying so in a witness statement she prepared about nine months earlier. In that respect she accepted that her recollection at that time was incorrect.

131    In cross-examination she said that “a second or two” after she saw Mr Greiss spit, she saw him point towards the group.

132    After being shown the footage from Channels 7 and 10 of the journalists’ reactions, Ms Ryan identified her voice and that of Ms Genders.

133    In cross-examination Ms Ryan recalled that she was standing on the footpath facing the court at the bottom-left of the main entry stairs when she saw Mr Greiss spit. She described (correctly) the victim’s position within the group. At the invitation of the cross-examiner, Ms Ryan marked her position at that time and the positions of other members of the media, the victim and Mr Greiss on a photograph of the courthouse (Exhibit R). She indicated that Ms Wakatama, Ms Genders and the Channel 7 and Channel 9 cameramen were standing with her. She placed Mr Greiss on the mezzanine level close to the small staircase and the victim on the lower part of the ramp near the position of the small staircase.

134    When challenged about the position of the victim at the moment of the spit, Ms Ryan said she was more focused on Mr Greiss so was not paying attention to the victim’s position. But she denied the proposition that at the time of the alleged spit the victim was about to step onto the footpath on Hunter Street.

135    Ms Ryan was unable to recall whether there was a sheriff’s officer near Mr Greiss at the time she claimed to have first seen him spit. But Ms Ryan testified that “within seconds” of seeing Mr Greiss spit, “a number of sheriffs” approached him.

136    Ms Ryan said she had two or three interactions with Mr Greiss after she saw him spit. She rejected the proposition put to her in cross-examination that his exchanges with her were not motivated by his animus towards the victim. She agreed that he first approached her about her tweet, saying words to the effect of “You’re very quick on Twitter” (see the second escort conversation). She denied the proposition that much of the exchange she had with him and Mr Petras related to content of her tweet. She also denied the proposition that Mr Greiss was “expressing to her his concern and upset” about the tweet. In this respect, the video footage of the escort conversations supports her denial.

Giselle Wakatama

137    Like Ms Ryan, Ms Wakatama sat in the media room during the sentencing hearing. After the sentence was handed down, she moved outside and waited on the pavement at the bottom of the main entry stairs.

138    She recalled seeing “a group gliding down the walkway” which she understood to consist of various officers and the victim. At this time she observed Mr Greiss stand up “quickly” and make his way to a “gap with stairs” that led to the disability ramp. When asked about what she observed about Mr Greiss at this point she said:

I just remember hands, and I remembered a lunge, like, sort of a – a motioning, a lunge towards that open area as they walked down. He had his mouth open. I didn’t see – I thought he was saying something or yelling something, but then there was just, as I said, this sort of motion and then, sort of, an ostrich-type move as he got to the end of the lunge.

139    At this time, Ms Wakatama remembered that the victim was “going past, down the walkway, past the open area where there are steps up to the mezzanine level from the rampway”.

140    At the moment she saw Mr Greiss lunge, she said he called the victim “an escort” and spat at her but in cross-examination it became clear that her evidence that he spat at her was based on what Ms Ryan or Ms Genders (or both) had said.

141    In cross-examination Ms Wakatama said that the mouth opening and hand movements occurred about 20 seconds before the lunge. She said she never saw or heard any spitting but did see Mr Greiss’s mouth open and saw him lunge, in an “ostrich-type” movement, while “facing across the walkway” when the victim passed. While it was put to Ms Wakamata that she could not have seen his mouth moving or moving to the extent she described, having regard to her position and his bushy beard, Ms Wakamata was unshakeable. She maintained that she could see “a profile of a mouth open and hands” and could see “his head move as [the victim] moved”.

142    Ms Wakatama said that Mr Greiss appeared to be facing the group and that, at the time, she formed the impression that his behaviour was directed at the victim. When asked what gave her that impression she stated that “his eyes seemed intent on focusing on her” and that, as she passed by the small staircase and proceeded down the ramp, his head “moved as she moved”. She also maintained that she could see the victim’s group “move in a wave” down the ramp, led by a sheriff’s officer. She rejected the proposition that Mr Greiss was standing at least two metres away from the victim. She said he was more like one and a half metres away.

143    In cross-examination Ms Wakatama also said that she believed that there were four or five people in the victim’s group, or at least that many “cocooned around her”, although she accepted that she could be mistaken. She recalled (correctly) that the victim was approximately two or three people back from the front of the group. She thought (incorrectly) that the victim was “more in the middle” and that there were people on either side of her. While she did not see the sheriff’s officer who was positioned at the bottom of the small staircase, having seen a video about a week earlier she accepted that he was there at the relevant time. When it was put to her that, because she could not see the sheriff’s officer at the bottom of the stairs, she did not know where the victim was, she accepted that she made “assumptions” about the position of the victim based on the speed at which the group was “gliding” down the ramp from one end to the other and noted that she was “looking at the whole scene”.

144    On a photograph that became Exhibit S, Ms Wakatama identified her position at the time of the first spit as near the bottom-left corner of the stairs leading to the courthouse from the footpath on Hunter Street. On being shown Exhibit A (a CCTV image of the foot of those stairs), which does not show any women standing in the bottom-left corner of the stairs, Ms Wakatama accepted that she may have been further to the right. She identified Mr Greiss’s position at the time she saw his mouth open. She placed the victim as “near the gap in the walkway”, meaning near the small staircase at the top of which Mr Greiss was standing. She said that at the time of the “lurching” or “lunging” motion, he had moved “slightly forward” and she placed the victim as past the “gap”. At the time Mr Greiss’s head moved to follow the victim, Ms Wakatama placed the victim towards the end of the ramp.

Tiffiny Genders

145    After Mr Hayne was sentenced, Ms Genders left the media room and stood outside the building to gauge the reaction of those present. As the group which included the victim left the building, she noticed another group of people standing on the mezzanine level just one level above her (Ms Genders). She saw one of the latter group, whom she identified as Mr Greiss, approach the victim’s group, and look down at the victim or the group as they walked down the ramp. She said Mr Greiss was “staring at the victim as she walked past” and indicated that he was standing as close as he could to the victim. She said she could hear him say something but could not make out the words. She had the impression from the fact that he was watching her, that his behaviour was directed at the victim. When asked what happened next, she replied: “He spat in her direction”. She testified that she saw the spittle. She said she was “in complete shock”. It was suggested to her in cross-examination that she had no idea where the victim was at the time she said she saw Mr Greiss spit, but she disagreed. She denied that she was mistaken about what she saw. She also denied that it was false to say that Mr Greiss spat at the victim. She rejected the proposition that, having regard to where she was standing, the positions of Mr Greiss, the victim’s group, all the other people surrounding her and the ambient noise, she could not possibly have given truthful evidence. She denied making assumptions and reconstructing events she did not actually see and hear. She accepted that, if her evidence was correct and Mr Greiss did spit in the direction of the victim, he was also spitting in the direction of the sheriff.

146    On a photograph of the courthouse that became Exhibit U, Ms Genders identified her position at the bottom-left corner of the main entry stairs at the time Mr Greiss spat. She placed Mr Greiss at the top of the small staircase. And she placed the victim in a position past the small staircase.

147    In cross-examination, Ms Genders testified that, “moments after the spitting incident”, she asked Mr Greiss whether he spat in the victim’s direction and he did not deny it.

148    Consistent with her recollection, footage taken by a Seven camera operator discloses that she called out: “That is disgusting. He just spat at them”.

149    Almost immediately after she saw Mr Greiss spit at the victim, sheriff’s officers approached Mr Greiss. She could not hear what they were saying.

150    At 3:50 pm that day (four minutes before Ms Ryan’s tweet), Ms Genders published a tweet in the following terms:

A repulsive Jarryd #Hayne supporter was just staring down the victim & spat as she walked past with police. @9NewsSyd

151    In cross-examination Ms Genders denied giving the evidence she did in order to try to justify her tweet.

152    After sending this tweet, Ms Genders became aware of the Ryan tweet and re-tweeted it.

153    In cross-examination Ms Genders recalled “maybe eight to 10 people” in the victim’s group and that the victim was “a couple of people” inside the group although she admitted that she could not remember the “exact formation” of the group. She described Mr Greiss’s conduct, including speaking, looking and spitting at the victim, as having occurred in “one fell swoop, in one fluid movement”.

154    It was suggested to Ms Genders that there was a difference between spitting at someone and spitting in their direction but Ms Genders disagreed.

155    That evening, on the 6 pm news bulletin, Channel 9’s story featured commentary from the newsreader, Georgie Gardner, and Ms Genders which was interspersed with statements recorded at the courthouse.

Georgie Gardner:    There’s been outrage at the behaviour of Jarryd Hayne supporters who turned on his rape victim outside court. Tonight, police are considering charges, with concerns the ugly scenes will deter other women from speaking out about sexual assault.

Tiffiny Genders:    Do you think it’s acceptable to spit at a woman? [directed to Mr Greiss]

Mina Greiss went to court to support Jarryd Hayne, but today, he became the story.

Mina Greiss:    Get out of here, get of here [inaudible], shove that camera [inaudible] get out of here.

Tiffiny Genders:    This was the 38-year-old moments after witnesses claim he tried to intimidate the rape victim. The father of one seen hurling abuse at the 28-year-old before spitting in her direction.

Tiffiny Genders:    Others within in the group then unleashed on a female reporter.

Unnamed man [in all probability Daniel Petras]:

    He should spit on you, treat you like a dog like you are.

…

156    In cross-examination Ms Genders admitted that she was the source for Ms Gardner’s opening remarks and maintained that her comments were accurate.

Mr Greiss

157    On 5 May 2021 Mr Greiss drove to Newcastle with Mr Petras, Mr Mateo and Mr Iuta in order to support Mr Hayne who was to be sentenced the following day. Mr Greiss had been friends with Mr Hayne for around 17 years at the time of his sentencing.

158    At around 9:30 am on 6 May 2021, the four men arrived at Newcastle courthouse. At around 3:00pm Mr Greiss heard that Mr Hayne had been sentenced. At this time he was in the foyer of the court. Soon afterwards he moved outside with his three friends and waited outside the entrance to the courthouse to make sure that Mr Hayne’s wife, Ms Bonnici, found her way safely to the car. He believed the dozen or so members of the media, who were gathered outside, were waiting for her. In cross-examination he accepted that he was not part of the group of people with umbrellas that assisted Ms Bonnici in leaving the court.

159    Mr Greiss denied spitting at the victim, spitting in her direction or staring her down.

160    Mr Greiss conceded in cross-examination that he was angry after learning the sentence because he felt the sentence was unjust. He said he believed that Mr Hayne was innocent and that the victim was not telling the truth. He denied blaming the victim for his friend’s plight.

161    Before Ms Bonnici emerged, Mr Greiss noticed other people leaving the court led by a sheriff’s officer. He then rose from his seat and walked towards the top of the stairs connecting the mezzanine and the ramp. In the group led by the sheriff’s officer he saw a man wearing a barrister’s robe and a woman whom he said he initially mistook for Ms Bonnici, but within a second or two he realised that it was the victim.

162    He denied that he moved to that position so that he could be nearer to the victim and that he looked at her as she passed by in an attempt to see her close up. He also denied that he wanted her to see him or that he intended to draw attention to himself.

163    While standing at the top of the stairs Mr Greiss pointed at the victim’s group twice, but denied pointing at the victim or anyone in particular. He accepted that he was speaking but claimed to be addressing the sheriff’s officer. He said that he asked the sheriff why they had not escorted Ms Bonnici out first and that the officer informed him that they were going to do so after they had “finished with the victim”.

164    Mr Greiss described his interactions as “harmless”. He said he asked the officer a “simple question” (“when are you taking the accused’s wife out?”). He denied calling the victim a liar or saying anything derogatory about her. He also denied that the victim would have been able to hear what he was saying, denied raising his voice and denied wanting to intimidate or harass the victim. He maintained that he was speaking in a quiet voice. Nonetheless, he accepted that his conduct might be intimidating and harassing but only if it were directed at her:

MR RICHARDSON: You would agree, wouldn’t you, that a man standing a few metres away from a sexual assault victim moments after a sentencing hearing who is pointing and speaking in a raised voice would likely be found by that woman to be intimidating?---If he was directing at her, yes. It would be.

And also, I suggest to you, likely to be found by that woman to be harassing?---Yes.

Mr Greiss, do you agree, in circumstances where a woman has been the victim in a sexual assault case and the man who assaulted her has just been sentenced and she is leaving a public courthouse, that she would likely be in a vulnerable state?---Of course.

You knew, didn’t you, that in those circumstances, a man pointing and speaking, would very probably make that woman feel intimidated, didn’t you?---Yes.

And also harassed, you agree?---Yes.

165    Mr Greiss accepted that at the time he was pointing he was angry. When it was put to him that there was no reason to be angry with the sheriff, he said that he “wasn’t angry at the sheriff” while also denying that he was angry with the victim.

166    Mr Greiss accepted that he turned to his left to face the street and moved his head in a sharp downward motion. The cross-examiner then put to him that that was the precise moment when he first spat. At first he claimed not to recall that, but then denied the possibility. When asked whether he could suggest any other explanation for the movement of his head, he said that he could not recall and did not know, but suggested he could have sneezed.

167    Mr Greiss denied that his head gesture was an expression of his disgust or contempt for the victim or a reaction to her having walked past him.

168    He accepted that four sheriff’s officers came straight to him after the sharp downward movement of his head, that one ascended the ramp and that a number of others approached from the main entrance.

169    He also accepted that he was angry at the time but he denied that the sheriff’s officers were critical of his behaviour moments before and that he was defending himself. He described the interaction as “simple” and “a normal conversation” that did not involve “harsh talking” or “confrontation”.

170    Although he initially denied the second spit, after being shown the relevant footage Mr Greiss accepted that he did spit following his conversation with the sheriff’s officers. He agreed that that was “a deliberate act”. He denied it was an expression of his anger.

171    After the victim left he and his friends walked down to Hunter Street.

172    While on the street, Mr Petras showed him Ms Ryan’s tweet. When asked how he felt on seeing it, he replied:

Well, I was shocked. I was shocked. I felt like – I felt – there was no words that I could say that – I felt embarrassed. Really embarrassed. And I felt let down. I felt that there’s nothing I could do or say to fix this, to even – It was just embarrassing. It was just so embarrassing, and there was nothing I could – that I could do to defend myself over – about it.

173    In cross-examination, Mr Greiss initially denied speaking twice to the journalists on two occasions before Ms Bonnici left, maintaining that there was only one conversation with Ms Ryan, and also denied speaking to Ms Ryan after Ms Bonnici had left the precinct. He later accepted that all three interactions occurred, although he denied speaking to the journalists during the first interaction.

174    In relation to the first escort conversation, Mr Greiss accepted that the video footage shows that he was filming the journalists. He claimed, however, not to remember calling the victim an escort or saying to the journalists “did you put that she’s an escort” and after hearing the recording he denied it.

175    In relation to the second escort conversation, Mr Greiss agreed that he approached Ms Ryan about her tweet. He accepted that there were many people within earshot, plenty of cameras around and many media representatives listening. Relevantly, he agreed that he said to her “grub, you reckon?” to which Ms Ryan said “yeah, you are” and that he then replied: “yeah, all good, yeah. I’m happy with that”. He also accepted that he asked her: “did you put that she’s an escort”. He claimed not to understand Ms Ryan’s remark that “I just love that you’re focussed on another woman …”, despite voicing his agreement with her at the time (“Yes, absolutely”), and denied that he had previously been focussed on the victim.

176    Mr Greiss testified that when he confronted Ms Ryan “it was basically about the whole tweet”, which he described as “all a lie”. While he accepted that he did not say to her that the tweet was a lie, he maintained that he confronted Ms Ryan about the whole content of the tweet. He agreed, however, that at no point in time did he ask Ms Ryan to take down the tweet.

177    Mr Greiss testified that he was speaking to journalists outside the courthouse because he was upset that “there [were] things that didn’t come out” in Mr Hayne’s trial and, although he could not “go into too much detail”, there were “things that the jury weren’t told”. In cross-examination he stated that he had discussed the allegations made against Mr Hayne with him. He agreed that his comments about the victim being an escort were meant to convey that she was a prostitute and “a person of little worth”. Incredibly, he denied wanting the media to report his comments in the following troubling exchange:

You wanted the media to write that about her, didn’t you?---No, it wasn’t – it wasn’t my business.

You felt that, if the media reported she was an escort, it would be good for your friend, the accused?---No, I just felt that it didn’t come out in court.

You felt it would mean it would be less likely she would be believed?---No, I felt like it would give my friend a better chance to defend himself in court.

You felt contempt for this woman, didn’t you, Mr Greiss?---I had no – I don’t know who she is. I have got nothing against her. Okay. Mr Richardson, I have got nothing against her. I don’t know her. Okay. I was angry because my friend was sent to jail. Okay, and the truth of the whole matter didn’t come out as it should have been. Okay, and now this is – this is why I didn’t want to talk in the first place. Okay. This is happening right now, that we should not be discussing this. Okay, but there are a lot of things, aspects, that did not come out in his sentencing that did come out now and that’s why he’s getting a retrial.

You didn’t even sit through the first and second trials, did you?---I know – I know about.

You didn’t sit through either the first or the second trial. You said that earlier, didn’t you?---No, I didn’t.

178    Despite denying that he wanted the media to write about the victim, Mr Greiss ultimately conceded that he urged the journalists to report that she was an escort. Although he claimed to have nothing against the victim, he said he wanted them to report she was an escort because he believed she falsely accused his friend of rape and was responsible for his imprisonment. He disavowed a belief that an escort could not be raped. He claimed his point was that he was “just angry that … a lot of things … didn’t come out in [the] trial”. He thought it would have made a difference to the outcome if the jury had been told she was an escort but was unable to explain why.

179    He admitted to spitting while walking down to the street (third spit) and accepted that it was an expression of his anger following his conversation with Ms Ryan. Although he initially denied saying “here’s another one for ya”, as I indicated above, after the video was replayed he accepted that he did say words to that effect, but claimed (disingenuously in my opinion) not to know what he meant by them or to what he was referring. Similarly, he flatly denied saying to Ms Ryan “You’re not a woman”, although at that point, too, the video had been played twice to him. I accept that the latter comment was difficult to hear in the courtroom. I, myself, could not then hear it. But that was not Mr Greiss’s evidence.

180    Mr Greiss accepted, however, that (in the third escort conversation) Mr Petras said that “he spat on an escort” and that he did not correct him. After multiple denials, he also accepted that he said “I did spit” after Ms Ryan had said “… he spat towards the victim”, but denied that in doing so he was agreeing with Ms Ryan. He also denied replying “Yeah, exactly” to Mr Petras’s statement that, “He should spit on you”.

181    Again, Mr Greiss accepted that during this confrontation with Ms Ryan there were many people within earshot, plenty of cameras around and he had an audience.

182    On the drive home Mr Greiss was shown publications by Channel Seven. His former partner called and told him “there was a lot of publications and comments”. When asked how he felt about “publications being put up about [him]”, he replied:

It was embarrassing. It was – it was an overwhelming feeling of let down and shame. Shame. Because it’s not the way we were brought up. It was something way beyond comprehension. Like, I couldn’t – I was never in that position in my life before. I’ve never been accused of something like this, or – I didn’t know how to feel. Later on I was just – I just felt let down. I just felt really let down.

183    The next day Mr Greiss saw the first matter complained of (the news article). His reaction to that was the same. He said he “felt shame”, “felt ashamed” and “embarrassed”.

184    He was “outraged” by the Facebook post (the second matter), “very angry” and “very upset”.

Mr Mateo

185    At the time the victim left the court, Mr Mateo was standing on the footpath on Hunter Street. He had walked down the small staircase onto the disability ramp and then the street to call his mother. He said that he was standing “probably directly down from where the waiting area was on the upper level of the courthouse” and, at the time the victim left, he “turned towards where she was coming from”. He could see Mr Greiss from where he was standing. He testified that he did not see Mr Greiss spit towards, or in the direction of, the victim’s group and could not hear what Mr Greiss was saying to the victim’s group as he was still on the phone.

186    In cross-examination, however, Mr Mateo said that he did observe Mr Greiss spit at the time the victim left. He testified:

As I was watching the victim leave, she was – well, like, the group that she was with almost turned the corner around the building, and he spat in – pretty much in my direction, into the garden bed.

187    When shown the CCTV footage he confirmed that this was at the time of the first spit, which Mr Greiss had denied:

And you see now, Mr Mateo, there’s a group of people leaving?---Yes.

And you see Mr Greiss has stood up and is moving to the top of the ramp there?---Yes.

Did you see Mr Greiss move his head then?---Yes.

Was that the moment that you believe that he spat?---Yes.

188    He agreed with the cross-examiner that he saw Mr Greiss turn to the left to face the street, then move his head and spit. At the time, he said, he believed he (Mr Mateo) was “facing where the victim was coming down”.

Mr Iuta

189    Mr Iuta’s evidence on this point was of little to no assistance.

190    In his evidence in chief, Mr Iuta testified that, when the victim’s group left the court building down the ramp he was sitting down facing the street with his back to the courthouse. Mr Greiss, he said, was on his right. At that time he did not see Mr Greiss spit in the direction of the victim or towards the victim. Nor did he see him talk to the victim.

191    In cross-examination Mr Iuta said that he did not see Mr Greiss spit at any time, although it is common ground that he spat at least once while on the mezzanine level and once on the footpath in front of the reporters. He did not say that he was watching Mr Greiss. All of that is unsurprising since his evidence indicates that he was not focussed on Mr Greiss. Indeed, it suggests that he was not paying any attention to Mr Greiss as he was preoccupied with thoughts of Mr Hayne.

Other evidence

192    Mr Greiss also relied on certain passages in two statements produced on subpoena. Those statements were made by Mr Weaver (the sheriff’s officer at the back of the victim’s group) and Mr Marsay (another sheriff’s officer who was presented at the courthouse that day).

193    The relevant representations from Mr Weaver were:

At the conclusion of the sentencing Acting Sergeant GIRKIN and I escorted the victim in the substantive matter away from the court without incident. There was no interaction with her and the HAYNE group.

After the (substantive) victim in the matter had safely left the area, I walked back towards the court entrance.

(Emphasis added).

194    The relevant representation from Mr Marsay was that “the victim was removed from the building … without incident”.

195    Mr Greiss claimed, in effect, that these representations undermined the respondents’ case.

196    As I said in Greiss v Seven Network (Operations) Limited (Evidentiary Ruling) [2023] FCA 235 at [47], [51]–[52], however:

It is difficult to know what to make of this. What did Mr Weaver mean by “without incident”? What would he have regarded as sufficient to constitute an “incident”? What did he mean by “no interaction”? Would he have considered a spit in the direction of the victim to amount to interaction with the victim anyway? Was he in a position in which he could have seen a spit in any event? It is no part of the respondents’ case that the victim was struck by spittle.

…Again, what did Mr Marsay mean by “without incident”? Was he reporting something he was told or something he saw? If he was reporting something he was told, was his informant a person who could have seen the incident the respondents allege occurred? The respondents submitted that the representations in his statement should not be admitted for a hearsay purpose because it is so unclear what he heard or from whom and where he was at any relevant time.

Mr Marsay did not suggest that he was one of the sheriff’s officers who escorted the victim from the building. Indeed, it is common ground that they were Mr Girkin and Mr Weaver. Nor does Mr Marsay suggest that he was outside the courthouse at the time Mr Greiss is alleged to have spat at the victim. It is clear he did not witness a spit and he does not appear to have been in a position in which he could have done so.

197    For those reasons, I would give these representations little weight.

Proof

198    The burden of proving the substantial truth of the imputations rested with the respondents. As this is a civil, not a criminal, case the standard of proof is the balance of probabilities. Section 140(2) of the Evidence Act 1995 (Cth) (Evidence Act) provides:

Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a)    the nature of the cause of action or defence; and

(b)    the nature of the subject-matter of the proceeding; and

(c)    the gravity of the matters alleged.

199    This provision incorporates some of the observations made by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–2:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty …

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

200    In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 67 ALJR 170; 110 ALR 449 at 449–50, the plurality (Mason CJ, Brennan, Deane and Gaudron JJ) wrote:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

(Citations omitted.)

The arguments

201    The respondents invited the Court to make the following findings of fact in relation to Mr Greiss’s conduct.

(1)    Mr Greiss’s attention was focussed on the victim from the moment he stood up to the moment the victim left the court precinct (Fact 1);

(2)    Mr Greiss stared at the rape victim (Fact 2);

(3)    Mr Greiss pointed at the rape victim (Fact 3);

(4)    Mr Greiss made pejorative statements to the rape victim as she passed by him (Fact 4);

(5)    At the time Mr Greiss’s head made a downward motion on the CCTV, he spat (Fact 5);

(6)    Mr Greiss spat in the direction of the rape victim (Fact 6);

(7)    Mr Greiss intended for his spit to be a sign of disgust and contempt for the rape victim (Fact 7);

(8)    Mr Griess called the rape victim an escort on two separate occasions and urged the media to publish this allegation (Fact 8);

(9)    Mr Greiss intended to harm the rape victim by calling her an escort (Fact 9); and

(10)    The conduct referred to in Facts 1 to 9 above is disgraceful (Fact 10).

202    For the reasons given below I am satisfied of all of these matters except for the fourth. The evidence does not allow any conclusion to be drawn about whether Mr Greiss made pejorative statements to the victim as she descended the ramp. I do accept, however, that he spoke with a raised voice that was loud enough to attract the attention of the woman walking beside the victim. I am not persuaded that he was speaking quietly, just asking the sheriff a “simple” or “harmless” question or having a polite conversation with the sheriff.

203    The following submissions were put on behalf of Mr Greiss.

204    First, the Court should accept Mr Greiss’s evidence that he did not move from his seat on the mezzanine so that he could see the victim up close and she could see him, that he neither wanted to draw attention to himself nor the victim to notice him, that he was not pointing at her and expressing anger towards her, and that he did not call her an escort or a liar or say anything derogatory to her. The evidence should be accepted because there is no evidence to contradict him and his evidence is consistent with the evidence of the sheriff’s officers. The Court should find, consistent with his evidence, that Mr Greiss approached the sheriff’s officer in order to ask when they intended to escort Ms Bonnici out.

205    Second, at the time Mr Greiss is alleged to have spat at or in the direction of the victim, he could not recall spitting, did not know what he was doing, and suggested he could have been sneezing. That suggestion is a plausible one and the Court could not exclude that possibility. While Mr Mateo “thought” that Mr Greiss spat at this time, he could have mistaken a sneeze for a spit as he was distracted, speaking to his mother on the phone.

206    Third, even if the head movement (which Ms Wakatama fittingly described as ostrich-type) was a spit, Mr Greiss was facing the street and spitting into a garden bed, “as Mr Mateo’s evidence confirmed”. At this point the victim’s group had almost turned the corner around the building, was about 10 metres away from Mr Greiss, and was not looking towards him.

207    Fourth, at all times when Mr Greiss was anywhere near the wheelchair ramp a sheriff’s officer was standing between him and the ramp and the victim was at the front of the group on the right-hand side closest to the wall so there was always at least one person from her group to the left between her and Mr Greiss.

208    Fifth, Mr Mateo and Mr Iuta never saw Mr Greiss spit towards or in the direction of the victim’s group or say or shout anything at the victim or her group and it was not suggested to either of them in cross-examination that they were mistaken about this evidence.

209    Sixth, Mr Greiss’s evidence was consistent both with the CCTV footage and the contemporaneous evidence of the sheriff’s officers, who recorded that the victim left the court complex “without incident”, that she left the area “safely” and that there was “no interaction” between her and Mr Hayne’s supporters, and the victim’s statement to police that she did not see anybody spit at her.

210    Seventh, Ms Ryan and Ms Wakatama each had a different perception of what occurred and the evidence of both was unreliable because of where they were standing and because it was inconsistent with the CCTV footage, which is “the best evidence”, and the contemporaneous records obtained by the police. Ms Ryan’s evidence was inconsistent with the respondents’ case as put to Mr Greiss in cross-examination and, for various reasons, implausible.

211    Consequently, Ms Greiss submitted that the Court would not be satisfied that he spat at, towards, or in the direction of the victim. To the extent that the respondents’ case is based on Ms Ryan’s recollection her evidence cannot be accepted. If it depends on the head movement at 3:31 pm, the footage is not clear enough to enable such a finding to be made and Mr Greiss’s suggestion that he might have been sneezing cannot reasonably be excluded. Even if he did spit at this time, he spat into a garden bed and not at or towards the victim or in her direction.

212    In oral argument, senior counsel for Mr Greiss contended that each matter imputes “a direct and close interaction between [Mr Greiss] and the victim”. She argued, in effect, that the justification defence must fail because the victim was “metres away” from Mr Greiss when he is alleged to have spat in her direction and her back was turned so he could not have been staring her down.

The reliability of the witnesses

213    Mr Greiss submitted that the evidence of Ms Ryan and Ms Wakatama was unreliable because they could not have seen what they claimed to have seen from where they were standing and because their evidence was inconsistent with the CCTV footage and the contemporaneous evidence obtained by the police. He submitted that having regard to the relevant positions of the journalists, Mr Greiss and their height differences, when Mr Greiss turned his head (to spit), they had “a parallax error”. The journalists would have been unable to discern where Mr Greiss is facing from the “back side angle” from where they were standing.

214    I do not accept the submission.

215    Ms Wakatama’s evidence about the “ostrich-type” movement of Mr Greiss’s head at the time of the first spit is a perfect description of what appears in the CCTV footage.

216    It is not correct to say, as counsel did, that Ms Wakatama’s evidence contradicted Ms Ryan’s evidence that she saw or heard a spit. The mere fact that Ms Wakatama did not see or hear a spit does not mean that Ms Ryan did not or could not, even if Ms Wakatama was further along Hunter Street towards the ramp than Ms Ryan at the relevant time. Further, contrary to Mr Greiss’s submission, the fact that Ms Ryan recalled Mr Greiss pointing after the spit is consistent with the CCTV evidence.

217    It was never put to Ms Wakatama that her evidence was affected by what she had seen in the CCTV footage or by something that someone else had said. In the absence of expert evidence to support Mr Greiss’s submission that they could not have seen what they claim to have seen, having regard to my own conclusions about what the CCTV footage reveals and the remarks made by Mr Petras and Mr Greiss shortly afterwards, I am not persuaded that either Ms Ryan or Ms Wakatama was not in a position to see what they claim to have seen. Each of them made concessions in cross-examination and I formed the view that they were honest witnesses who were genuinely trying to assist the Court.

218    Each of Ms Ryan, Ms Wakatama and Ms Genders gave evidence that they were present at the courthouse that day to observe the reactions and obtain commentary from supporters of Mr Hayne and other parties involved in the matter. In these circumstances it is likely that each of them was keenly watching Mr Greiss once they caught sight of him.

219    The fact that the journalists did not know the precise position of the victim at each moment is not decisive. As the respondents submitted, they knew as “functional, rational human beings, that she entered a ramp, they had a rough idea of the pace she was moving”.

220    Mr Greiss argued that “what really happened” was that one of the journalists thought she saw Mr Greiss spit and the rest of them picked up on it and convinced themselves that he did, in what they referred to as “a Crucible-like effect”, alluding to “the troubled adolescent females” from the Arthur Miller play “who in the midst of religious frenzy made false accusations of witchcraft against respectable members of the Salem community”. I reject that argument.

221    First, contrary to the rule in Browne v Dunn (1893) 6 R 67 no such proposition was put to any of the respondents’ witnesses and should not therefore have been put in submissions.

222    In any event, the analogy is inappropriate. There was no frenzy here. Each of the respondents’ witnesses reported on what they perceived to have occurred, based on what they saw and heard.

223    On the other hand, I accept that there are difficulties with some of Ms Genders’ evidence. It seems unlikely that she heard Mr Greiss speaking to the victim when neither Ms Ryan nor Ms Wakatama was able to make out what he was saying. Indeed, she said she “could hear something coming out of his mouth” but was unable to hear the words. Still, she maintained that she knew he was speaking to the victim because he was staring at her. That does not necessarily follow. In circumstances in which she was unable to hear what Mr Greiss was saying, it was certainly unreasonable of her not to concede that her report that Mr Greiss was “seen hurling abuse at the [victim]” (my emphasis) was false.

224    No challenge was made to the reliability of the evidence given by either Mr Mateo or Mr Iuta. I accept that they were doing their best to give truthful evidence.

225    However, for the reasons given below in my consideration of the respondents’ case, I do not hold the same view of Mr Greiss.

226    Of course, the mere fact that a witness’s evidence is not believed does not establish the contrary or necessarily allow a court to conclude that the positive case of the opposing party is correct: Kuligowski v Metrobus (2004) 220 CLR 363 at [60] (the Court). The burden of proof rests with the respondents throughout. Still, if a party is found to have lied, that circumstance may not only affect their credibility but in some circumstances it may also demonstrate a consciousness of guilt or, put another way, amount to an implied admission. A recent discussion of the relevant principles appears in Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555 at [196]–[205] (Besanko J).

Absent witnesses

227    Mr Greiss made much of the respondents’ failure to call any of the people in victim’s group who might have been able to give valuable evidence. They included police and sheriff’s officers as well as the Crown prosecutor, all of whom were either identified or identifiable. But none of these people were in the respondents’ camp, so to speak, such that it might be expected that the respondents would call them to give evidence. It was equally open to Mr Greiss to do so. See Jones v Dunkel (1959) 101 CLR 298.

228    Mr Greiss argued, in effect, that the absence of evidence from members of the victim’s group should be taken into account in determining what weight should be given to the evidence upon which the respondents relied. As senior counsel put it in argument, “this is not a Jones v Dunkel submission… [but] a Neat Holdings submission”. I understood her to mean that she was not asking the Court to infer that evidence these other potential witnesses could have given would not have assisted the respondents’ case, rather that she was suggesting that the Court would not be comfortably satisfied that the respondents’ justification defence was made out because witnesses who would have been in a position to support it did not give evidence. She submitted that the other members of the victim’s group were in a position much closer to Mr Greiss than any of the witnesses called by the respondents and, by inference, only they and Mr Greiss’s companions could give probative evidence about Mr Greiss’s behaviour at the critical time.

229    It is true that the respondents could have called others who were present at the scene to give evidence. But it is not incumbent on a party to a civil suit to call all possible witnesses: see Heydon JD, Cross on Evidence (14th ed, LexisNexis, 2024) at [1215]. Moreover, with the exception of Mr Girkin and perhaps the unidentified woman on the victim’s left, it is not apparent that any member of the victim’s group could have given evidence about what Mr Greiss was doing because the CCTV evidence indicates that, unlike Ms Ryan and Ms Genders, they had no interest in, and were not looking at, Mr Greiss. Their concern was in shielding the victim to enable her to leave the precincts of the court as quickly as possible.

230    On the other hand, the person who at all material times was standing closest to Mr Greiss was not called. That was Mr Petras. The respondents urged the Court to draw a Jones v Dunkel inference against him. Mr Greiss argued that no such inference was available.

231    In Jones v Dunkel the High Court held that in certain circumstances a court may draw three inferences against a party who fails to give evidence or call witnesses. The first is that the evidence that could have been called would not have assisted the party’s case: at 308 (Kitto J), 312 (Menzies J) and 321 (Windeyer J). The Court may take that circumstance into account in deciding whether to accept particular evidence that relates to a matter on which the absent witness could have spoken: Cross at [1215], citing O’Donnell v Reichard [1975] VR 916 at 929 (Newton and Norris JJ). The second is that evidence the witness might have contradicted can be accepted more readily: at 308 (Kitto J) and 312 (Menzies J). The third is that an inference favourable to the other party for which there is a foundation in the evidence can more comfortably be drawn: at 308 (Kitto J) and 312 (Windeyer J).

232    A Jones v Dunkel inference cannot fill gaps in the evidence or convert conjecture or suspicion into inference, but if the inference is drawn it can “weigh the scales, however slightly, in favour of the opposing party”: Adler v Australian Securities and Investments Commission [2003] NSWCA 131; 21 ACLC 1810; 46 ACSR 504; 179 FLR 1 at [649] (Giles JA, Mason P and Beazley JA agreeing at [1] and [2] respectively).

233    As Hodgson JA explained in Ho v Powell (2001) 51 NSWLR 572 at [15]–[16], Jones v Dunkel was a particular application of the principle in Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970 (Lord Mansfield) that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”.

234    Before a Jones v Dunkel inference may be drawn, however, three conditions must be met: first, the witness would be expected to be called by the party against whom the inference is sought; second, the evidence would elucidate a particular matter, and third, the failure to call the witness is unexplained: Payne v Parker [1976] 1 NSWLR 191 at 201–2 (Glass JA). A Jones v Dunkel inference will not be drawn if there are facts which disclose that the reason for not adducing evidence from the person was not that the party “fears to do so”: Fabre v Arenales (1992) 27 NSWLR 437 at 445–6 (Mahoney JA, Priestley and Sheller JJA agreeing at 454).

235    In the case of Mr Petras the conditions are firmly established.

236    With respect to the first condition, in Payne v Parker at 201–2 Glass JA observed that:

The first condition is also described as existing where it would be natural for one party to produce the witness, or the witness would be expected to be available to one party rather than the other, or where the circumstances excuse one party from calling the witness, but require the other party to call him, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him, or where the witness’s knowledge may be regarded as the knowledge of one party rather than the other, or where his absence should be regarded as adverse to the case of one party rather than the other.

(Citations omitted.)

237    As a friend of Mr Greiss who was in a prime position to witness the contentious events, it would be natural for Mr Greiss to call Mr Petras. He was (as the respondents put it) squarely in Mr Greiss’s “camp”. The Court was informed that he would be called as a witness for Mr Greiss. And an outline of evidence it was proposed to lead from him, prepared by Mr Greiss’s solicitor, was served on the respondents and included in the Court Book.

238    With respect to the second condition, it will be recalled that during the contretemps with Ms Ryan (the third escort conversation) Mr Petras said that Mr Greiss “spat on an escort”. In context, the “escort” was obviously a reference to Mr Hayne’s victim. As I observed earlier, Mr Iuta’s evidence about Mr Greiss’s movements and actions at the critical time was of little, if any, assistance as on his own admission he was not focusing on Mr Greiss. Mr Mateo had left the seating area but confirmed that he saw Mr Greiss spit at the time of the downward head motion in the CCTV footage (the first time Mr Greiss was alleged to have spit, a spit which Mr Greiss repeatedly denied). Neither Mr Iuta nor Mr Mateo gave evidence to corroborate Mr Greiss’s story of moving over to the disability ramp to speak to the sheriff. Yet Mr Petras was standing very close to Mr Greiss at the time of all the critical events and in a position to see what Mr Greiss was doing and/or hear him spit and talk. Mr Petras was also with Mr Greiss when, as Mr Greiss contended in cross-examination that he confronted Ms Ryan about her tweet, a contention, it will be recalled, that Ms Ryan disputed.

239    With respect to the third condition, no explanation was given for Mr Petras’s absence. The Court Book included an outline of evidence that he “will give” and which had been served on the respondents. In cross-examination Mr Greiss admitted to having dinner with him only a few days before the hearing. There is no doubt he was available to be called. Counsel for Mr Greiss conceded as much in closing written submissions in reply. But they submitted that there was no basis to draw any inference from the fact that Mr Greiss had elected not to call him.

240    Mr Greiss submitted that whether it was appropriate to draw a Jones v Dunkel inference depended on what other evidence has been adduced in the case, noting that Mr Greiss was not obliged to call unnecessary witnesses. Mr Petras’s evidence was said to be unnecessary given that the CCTV footage was the “best evidence” of whether the alleged spit occurred and any evidence Mr Petras could give was of little probative value as it would have been limited to his opinion about the person for whom the spit was intended. Further, Mr Greiss submitted that it was unnecessary to call Mr Petras to adduce evidence about this statement that “he spat on an escort” because neither that statement nor Mr Greiss’s silence in response to it could be relied upon as evidence.

241    I reject these submissions. For the reasons given above, the evidence that Mr Petras could have given was not merely cumulative, particularly in circumstances where the evidence of Mr Mateo and Mr Iuta was of limited assistance. Mr Petras was in a far better position than either of them to give evidence of the relevant facts. As I have already observed, the CCTV footage has limitations. And, as I will explain later, both Mr Petras’s statement and Mr Greiss’s silence in response can and should be taken into account.

242    Mr Greiss also submitted that the inference should not be drawn because whether a party would be expected to call a particular witness depends on “whether that party relevantly has any onus of proof”, citing Glass JA in Payne v Parker at 201, and that the onus of proving the defence of justification was with the respondents, not Mr Greiss.

243    In Payne v Parker at 200–201, Glass JA said:

The reasoning which is permissible involves the treatment of a failure to adduce evidence as a reason for increasing the weight of the proofs of the opposite party or reducing the weight of the proofs of the party in default: O’Donnell v. Reichard. The principle may be invoked for a deficiency in the evidence either of a party bearing the legal onus of proving an issue, or of a party bearing the evidentiary burden only: Ibid.; Steele v. Mirror Newspapers Ltd. If the failure is of the latter kind, the direct evidence of the party with the onus of proof can be more readily accepted, and inferences in his favour may be more confidently drawn: Jones v. Dunkel. If the failure is of the former kind, a consonant formulation would be that the direct evidence of the party carrying the onus may be more readily rejected, and the inferences for which he contends may be treated with greater reserve. The default “brings a great slur on his cause”: Ward v. Apprice.

(Emphasis added, footnotes omitted.)

244    In my opinion, this submission is based on a misreading of his Honour’s remarks. His Honour said that the principle may be invoked in respect of a deficiency in the evidence of a party bearing a legal or evidentiary burden. He did not say it may only be invoked in that situation. His Honour’s use of the adverb “only” merely served to highlight the lower threshold of the evidentiary burden. That must be what his Honour intended. Otherwise it would be inconsistent with the authorities upon which his Honour relied and Jones v Dunkel itself.

245    O’Donnell was a negligence action in which the defendant pleaded that the plaintiff had failed to mitigate her loss and in which the plaintiff failed to call the doctors who treated her in hospital. In the passage cited by Glass JA, Gillard J said (at 921):

In these proceedings, it might be interpolated that the onus of proof that the plaintiff failed to mitigate her loss was imposed upon the defendant. The plaintiff’s conduct whilst in and after leaving hospital in refusing, though advised, to have medical treatment, would become quite relevant on this issue. Was her conduct reasonable in the circumstances? It may be well assumed that the evidence of the three doctors could have shed some light on this matter. In relation to the plaintiff’s actions in leaving the hospital and her conduct thereafter in refusing to have medical treatment, the defendant should as a matter of commonsense be entitled to rely on the absence of proof of the treating doctors as a basis for the jury to draw an adverse inference that the plaintiff’s advisers were afraid to call the doctors, that if they had done so and the doctors had gone into the witness box that evidence would probably be unfavourable to the plaintiff, and that as the plaintiff failed to call the doctors, the plaintiff’s case on the question of mitigation of loss would have been impaired, or the weight of the defendant’s case on such matter would have been increased.

246    In the trial with which Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 was concerned the plaintiff did not give evidence and the defendant sought a Jones v Dunkel direction on the question of economic loss. Moffitt P described the rule in Jones v Dunkel at 360:

If a party wishing to prove a particular fact relied upon seeks to do so by inference from other facts, and fails to give or call available direct evidence of the fact, and there is no sufficient explanation for the failure to call that evidence, then, there will properly be less confidence in drawing the inference in question. The failure to call the available direct evidence may weaken the inference and in some cases this may lead a trier of the facts to decline to draw the inference. Thus, if a plaintiff, capable of proving by his direct evidence that he was at a particular place or that he suffered a loss, but sits in Court while inconclusive inferential evidence is led from others, he runs the risk that, by reason of his unexplained failure to testify, the inference he seeks to have drawn will be weakened and possibly rejected. These observations are consistent in principle with the decision in Jones v. Dunkel and are supported by the observations of Windeyer J.

247    Hutley JA commented on the principle at 367:

This principle is of general application, and operates in favour of and against parties on both sides of the record. A party is entitled to have some guidance given to a jury as to the consequences of the tactical withholding of relevant evidence which must be available to a party. In my opinion, the direction sought should have been given.

248    In O’Donnell at 921, Gillard J expressly endorsed the giving of a Jones v Dunkel direction in relation to the plaintiff’s failure to call her treating doctors even though the defendant carried the legal burden of proving she had failed to mitigate her loss. In Steele neither Moffitt P nor Hutley JA tied the availability of a Jones v Dunkel direction to a party holding some burden of proof, with Hutley JA stating additionally that it “operates in favour of and against parties on both sides of the record”. It is difficult to see why Glass JA would have cited those cases if he had intended to limit the availability of Jones v Dunkel inferences in the manner contended for by Mr Greiss.

249    In Jones v Dunkel itself, in which the defendant failed to give evidence, the majority held that a direction should have been given to the jury that they could more confidently draw inferences favourable to the plaintiff and assume that the defendant’s evidence would not have assisted his case (that the defendant was negligent), despite the fact that the burden of proving negligence lay with the plaintiff: at 308 (Kitto J), 312 (Menzies J) and 320–321 (Windeyer J). Indeed, at first instance counsel for the defendant made the same submission put to this Court in the present case (see Kitto J at 308, Menzies J at 311–12 and Windeyer J at 317), following which the trial judge declined to give such a direction. Windeyer J observed at 319 that the defendant’s “silence may amount to much more than an acquiescence in the primary facts[;] [i]t may be eloquent in support of an inference to be drawn from those facts”.

250    Dixon CJ and Taylor J dissented only, it appears, because they considered that the evidence the plaintiff adduced, which Kitto J described at 305 as “meagre in the extreme”, was insufficient to enable the drawing of an inference that the defendant was negligent.

251    In Ho v Powell at [15] Hodgson JA said that, in deciding whether limited material is sufficient to discharge the civil onus of proof, “it is important to have regard to the ability of parties, particularly [not exclusively] parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so” (emphasis added). In Cross (at [1215]) Ho v Powell is cited in support of the statement that “[t]he rule [in Jones v Dunkel] can operate against both parties not bearing the burden of proof and parties which do”. See also Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442 at [33] (Hill J) and the cases referred to there.

252    Similarly, in RPS v The Queen (2000) 199 CLR 620 at [26] Gaudron ACJ, Gummow, Kirby and Hayne JJ said:

In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party’s camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party’s case.

253    The learned author of Cross concluded at [1215], consistent with the above, that the rule in Jones v Dunkel “only applies where a party is ‘required to explain or contradict’ something” and that “[w]hat a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case”. While “the opponent is not required to answer” if “the party bearing the burden of proof has tendered no evidence” in relation to the issue in dispute, that is not the case here. The respondents adduced footage and evidence from several witnesses in support of their allegation that Mr Greiss had spat at, towards or in the direction of the victim which called for a response from Mr Greiss.

254    I infer from his failure to call Mr Petras that nothing Mr Petras could say would have assisted Mr Greiss’s case. I also consider that, without evidence from Mr Petras, the inferences the respondents invited the Court to draw can more comfortably be drawn.

Have the respondents established the substantial truth of the imputations?

255    The substance of each of the imputations is that Mr Greiss stared down the victim and spat towards her or in her direction. It is common ground that to succeed, the respondents must establish the substantial truth of both elements in relation to the first and third matters and in relation to the second matter complained of the substantial truth of the statement that he spat at the victim.

Did Mr Greiss stare down the victim?

256    The Macquarie Dictionary (8th ed, Macquarie Dictionary Publishers, 2020) defines the expression to “stare someone down” as “to gaze imperiously or angrily at a person with whom one is seeking an ascendancy, until they look away in defeat or discomfort”. The expression is defined in The New Shorter Oxford English Dictionary (4th ed, Clarendon Press, 1993) as to “stare at (a person) without being first to blink or lower one's gaze, [usually] as an expression of resistance or hostility; outstare”. The meaning given in the Macquarie Dictionary is implicit, if not explicit, in this definition. As Mr Greiss submitted, it implies a direct interaction or a “composite act” between two parties.

257    The respondents submitted that Mr Greiss was staring at the victim with whom he was angry.

258    It is clear from the CCTV footage that Mr Greiss walked towards the victim’s group as the victim left the building and that he moved towards where she was walking as she proceeded down the ramp and was focussed on her until she left the court precinct. I accept the respondents’ submission that he was staring at her. That, too, is evident from the footage. In this respect the CCTV footage supports Ms Ryan’s evidence that “he was staring at her and she did not notice”. Contrary to the submissions made for Mr Greiss, in this respect the evidence given by the reporters is consistent, not inconsistent, with the CCTV footage.

259    I also accept the respondents’ submission that he was angry with her.

260    After his friend was sentenced, Mr Greiss was admittedly angry. He believed Mr Hayne was innocent and the complainant (the victim) had not told the truth. Of course the mere fact that he was angry and had these beliefs does not mean that the respondents must succeed. However, in the light of those concessions, I cannot accept his evidence that he had no animus towards the victim, was not angry with her and had nothing against her. Indeed, I conclude that his evidence in these respects was dishonest. He plainly blamed the victim for his friend’s plight. I am satisfied that he bore her ill-will. I am also satisfied that he wanted to harm her because, by testifying against Mr Hayne, she had harmed his friend.

261    In cross-examination Mr Greiss admitted to calling the victim an escort in front of the journalists “moments after she left”, but only “once or twice”. He later accepted that he did so three times. He admitted that by referring to the victim as an escort he meant she was a prostitute and intended to convey that she was a person of little worth.

262    It is evident that Mr Greiss held the victim in contempt.

263    In cross-examination Mr Greiss denied wanting the media to write about her. But his denial defies credibility in the light of the statements he made in his confrontations with the journalists and Ms Ryan. He later claimed that he thought it would make a difference to Mr Hayne’s case if the jury were told she was an escort. But when I asked him why, he was unable to offer any explanation.

264    Within about 30 seconds of the victim having passed Mr Greiss, Ms Ryan can be heard saying: “He was staring the victim down and then spat towards her”. But was that an accurate description of what she saw? Was he actually staring her down?

265    The CCTV footage does appear to show that Mr Greiss was gazing imperiously or angrily at the victim. I am satisfied that he was pointing at or gesturing towards her repeatedly and forcefully, as the respondents contended. That is apparent from the CCTV footage. But the evidence does not indicate that their eyes ever met. The journalists’ language was imprecise in this respect. Thus, while I am satisfied that Mr Greiss was staring at her or staring down at her, I am not satisfied he was staring her down. I am conscious of the fact that all that is required is that “the sting of the libel” was true: Sutherland v Stopes [1925] AC 47 at 79 (Lord Shaw of Dunfermline). But the sting of the libel here is that Mr Greiss was intimidating or trying to intimidate the victim, not that he was trying to attract her attention in order to do so. This is a qualitative difference. In other words, it is different in substance from the imputations.

Did Mr Greiss spit at, towards, or in the direction of the victim?

266    I do not doubt that Mr Greiss spat while he was on the mezzanine at the top of the small staircase. Whatever limitations there were on the journalists’ vision, I am satisfied that it did not affect their ability to perceive this. The evidence on this question is overwhelming.

267    In closing submissions counsel for Mr Greiss asserted that Mr Greiss said he did not recall spitting, that he did not know what he was doing and that he suggested that he could have been sneezing. They also asserted that Mr Mateo only “thought” that Mr Greiss spat. I reject both assertions. They are inconsistent with the CCTV and video footage, the evidence given by the reporters, the evidence given by Mr Mateo, and the contemporaneous evidence of the exchanges between Ms Ryan, Mr Greiss and Mr Petras. I conclude that Mr Greiss was dishonest.

268    I reject the suggestion made by Mr Greiss in cross-examination that what others might have perceived to be a spit might have been a sneeze. It was never suggested to Ms Ryan that she could have mistaken the sound of a sneeze for a spit. More importantly, perhaps, I am convinced from the CCTV footage that Mr Greiss’s behaviour is much more consistent with a spit than a sneeze. I can see from the footage that he moved his head, as Ms Wakatama put it, in an ostrich-type movement and pursed his lips. His lips are not obscured by either his moustache or his beard. If someone were watching him, as Ms Ryan and Ms Genders were, they would have seen that. Obviously, if one were not watching him it is unlikely one would see it.

269    The fact that Mr Iuta did not see him spit is beside the point. As I have already observed, he was not focussing on him at the time. Mr Petras, who was in a position to have seen him, did not give evidence. While the other evidence does not indicate that Mr Greiss spat on the victim, Mr Petras’s contemporaneous statement to Ms Ryan in the presence of the other reporters indicates that Mr Greiss’s spit was an expression of his attitude towards the victim and that it was directed at, or intended to represent his contempt for, her.

270    Mr Greiss argued that even if he did spit, he spat into a garden bed facing the street when the victim’s group were “many metres” from him, having nearly exited the wheelchair ramp onto Hunter Street, and were at a 45 to 75-degree angle to the right of the direction he was facing. The angle varied from one paragraph of the submissions to another. The respondents accepted that on the CCTV Mr Greiss appears to turn left towards the street. But they submitted that “his focus of attention moves with [the victim]” from the moment he rose from the bench until the moment she left the court precinct and the angle with respect to her was “close enough as a matter of substance”. It was a “spit for her”, they argued, and his response to the victim walking past. I was not invited by the parties to undertake a view at the Newcastle courthouse to assess the inherent likelihood of the competing claims and no measurement of the distance between Mr Greiss and the victim’s group at the time of the spit is in evidence despite the importance of these matters. In these circumstances and in the absence of expert evidence on the subject, I am unimpressed by the submissions based on distance and angles.

271    When asked by his own counsel why he was speaking to journalists outside the court, Mr Greiss replied that he was upset about things that the jury was not told:

Why were you speaking to journalists outside the court?---I believe that there are things that didn’t come out. I – at the end of the day, he’s my friend, and there are things that didn’t come out in his trial. He didn’t get – yes. I can’t go into too much detail, but there were things that the jury weren’t told, and this was part of it.

And were you upset about that?---Yes.

272    As the respondents submitted, however, in each of the first and second escort conversations, Mr Greiss approached the media to make his views about the victim known.

273    At first, Mr Greiss denied that he wanted the media to report that she was an escort:

You wanted the media to write that about her, didn’t you?---No, it wasn’t – it wasn’t my business.

274    That evidence defies credibility and is inconsistent with the fact that his complaint about the Ryan tweet was that it failed to report that the victim was an escort.

275    To the extent that Mr Greiss sought to characterise the second escort conversation as a general complaint about the Ryan tweet, I reject it. The evidence clearly shows that the conversation began with Mr Greiss saying “You’re quick on Twitter” and the transcript prepared by the respondents captures the conversation in its entirety.

276    The respondents submitted that Mr Greiss’s fabrication of a benign reason for approaching the disability ramp together with his dishonest denial that he spat while on the mezzanine indicate a consciousness of guilt that evidences the contrary of what he asserted, namely that he engaged in the impugned conduct against the victim and, if he lied about having spat at all, then it may readily be inferred that he knew he had spat towards the victim or at the very least that his spit was an expression of his disgust and contempt for the victim.

277    In Edwards v The Queen (1993) 178 CLR 193 at 208–9 Deane, Dawson and Gaudron JJ explained:

There is a difference between the mere rejection of a person’s account of events and a finding that a person has lied. A lie is a deliberate untruth. To conclude that a statement is a lie is to conclude that the truth lies elsewhere. In some circumstances, a finding that a person lied will necessarily involve acceptance of the contrary. However, the fact that a person has lied does not of itself establish a specific contrary proposition.

Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence. When it does so, it may amount to corroboration provided that it is not necessary to rely upon the evidence to be corroborated to establish the lie. At one time it was thought that only a lie told out of court could amount to an implied admission, but the distinction is not logically supportable and is no longer drawn. When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to “convert what would otherwise have been insufficient into sufficient evidence of guilt” or as corroborative evidence.

But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that “if he tells the truth, the truth will convict him”.

(Footnotes omitted.)

278    The evidence is not sufficient to persuade me that the reason Mr Greiss gave for approaching the ramp was a fabrication, but I am satisfied that the evidence is sufficiently cogent to enable me to conclude that he lied about not spitting at the time he was first alleged to have spat.

279    Here, Mr Greiss’s denial that he had spit at the top of the stairs on the mezzanine was not an inadvertent or innocent mistake but a deliberate untruth about a material issue. He offered no innocent explanation for the untruth, either directly in his evidence or indirectly through his counsel. In these circumstances I am persuaded that he was lying and that his lie was actuated by his consciousness that he had indeed spat towards the victim or in her direction.

280    In coming to this conclusion I am fortified by his and Mr Petras’s contemporaneous statements and behaviour during the escort conversations.

281    The hearsay rule, contained in s 59(1) of the Evidence Act, provides that evidence of a previous representation (that is, a previous out of court representation) is not admissible to prove the existence of a fact that it can reasonably be supposed the maker of the representation intended to assert by the representation (the asserted fact). There are numerous exceptions, however. One of those exceptions, contained in s 60, allows evidence of a previous representation to be admitted because it is relevant for a purpose other than proof of an asserted fact (a non-hearsay purpose), regardless of whether the person who made the representation had personal knowledge of the asserted fact. Another, contained in s 81, is evidence of an admission.

282    “Admission” is defined in the Dictionary to the Evidence Act as:

a previous representation that is:

(a)    made by a person who is or becomes a party to a proceeding …; and

(b)    adverse to the person’s interest in the outcome of the proceeding.

283    The statement made to Ms Ryan by Mr Greiss (“Yeah, I did spit”) was plainly adverse to his interest in the outcome of the proceeding, particularly since (despite his denial) it was a direct response to Ms Ryan’s statement that “he spat towards the victim”. On any view of the matter it was a statement against interest. The same must be said of the comment he made immediately after spitting towards Ms Ryan.

284    Section 81 provides:

Hearsay and opinion rules: exception for admissions and related representations

(1)    The hearsay rule and the opinion rule do not apply to evidence of an admission.

(2)    The hearsay rule and the opinion rule do not apply to evidence of a previous representation:

(a)    that was made in relation to an admission at the time the admission was made, or shortly before or after that time; and

(b)    to which it is reasonably necessary to refer in order to understand the admission.

285    It follows that Mr Petras’s statements (“He spat on an escort”; “He should spit on you”) were also admissible to understand the later admission by Mr Greiss (“Here’s another one for ya”).

286    In any event, no objection was taken to the tender of the evidence which included these statements.

287    Even so, in closing submissions counsel for Mr Greiss argued that Mr Petras’s statement that Mr Greiss “spat on” the victim was not admissible against Mr Greiss as evidence of the truth of the asserted fact because Mr Greiss did not consent to its use and he did not have Mr Greiss’s authority to make such an admission, relying on ss 83 and 87 of the Evidence Act. I reject the submission.

288    First, absent an order under s 136 limiting the use to which the evidence can be put, evidence which is admissible for a non-hearsay purpose is admissible for all purposes (see, for example, Moran v Amoret Installations Pty Ltd [2000] NSWCA 106 per Heydon JA (at [7]) with whom Meagher and Giles JJA agreed at [21] and [22] respectively). I did not understand any such order to have been made at the time the evidence was admitted.

289    Second, s 83 is irrelevant as Mr Petras is not a party to the proceeding. Read with the definition of “admission” in the Dictionary, s 83 provides, in effect, that s 81 does not prevent the application of either the hearsay rule or the opinion rule to evidence of an admission by one party if another party consents. Its purpose is to ensure that evidence of an admission by one defendant cannot generally be used against another defendant in the same proceeding: see Odgers S, Uniform Evidence Law (18th ed, Lawbook Co, 2023) p 652 [EA.83.60]; Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [125] (Campbell JA, with whom Sackar J agreed at [272]); Richards v Macquarie Bank Ltd (No 3) [2012] FCA 1523; 301 ALR 653 at [41] (Reeves J). It has no application to the present circumstances.

290    Third, s 87 is also irrelevant as it relates to admissions made under the authority of a party or in furtherance of a common purpose with a party and the respondents never submitted that Mr Petras’s statement constituted an admission by Mr Greiss or that it was made in furtherance of a common purpose.

291    In submissions in reply, however, counsel for Mr Greiss submitted that the circumstances in which the statement was made make it unreliable and therefore “[t]he evidence of Mr Petras’s representation should be limited pursuant to s 136 so that it is not evidence of the truth of the asserted fact”. For the following reasons I decline to do so.

292    First, I do not accept that the evidence is unreliable. It was a spontaneous, voluntary, unguarded statement made soon after the incident allegedly occurred. The evidence indicates that Mr Petras was standing close to Mr Greiss at the time and so was in a position to confirm or deny the truth of the allegation.

293    Second, s 136 gives the Court a discretion to limit the use to be made of evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party or misleading or confusing. No submission was made that it might be unfairly prejudicial to Mr Greiss or misleading or confusing such as to warrant the exercise of the discretion in his favour. The mere fact that the evidence would not otherwise have been admissible for a particular use does not justify the exercise of the discretion: Odgers at 1332.

294    In any event, as McHugh J said in Papakosmas v The Queen (1999) 196 CLR 297 at [91]–[92] (footnotes omitted):

Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. In R v BD [(1997) 94 A Crim R 131 at 139], Hunt CJ at CL pointed out:

“The prejudice to which each of the sections [ss 135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way.”

(Footnote omitted.)

In its Interim Report, the Australian Law Reform Commission explained:

“By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.”

295    Similarly, in the context of a civil trial, Hunt AJA observed in Ainsworth v Burden [2005] NSWCA 174 at [98] that “[it] is not unfairly prejudicial to a party if the material tendered by his opponent merely proves or strongly supports the opponent’s case”.

296    In any event, even if I were to limit the use to which Mr Petras’s statements could be put to the non-hearsay purpose, that would not assist Mr Greiss. The significance of Mr Petras’s statements are that they were made in Mr Greiss’s presence and within his hearing and he did not repudiate or distance himself from them. I reject the submission for Mr Greiss that no weight should be put on his failure to deny Ms Ryan’s comment that he spat towards the victim when he approached her after the victim’s group had left the scene or after she repeated the comment during their contretemps. His silence is telling. He made no attempt to explain it at the time although he had more than one opportunity to do so.

297    Mr Greiss submitted that, as the conversation with Ms Ryan occurred soon after his attention had been drawn to the Ryan tweet, he could not have been expected to have formed a rational argument about it in that time and in the circumstances. He argued that it was “unrealistic” to expect him to deny that either the conduct occurred as described in the tweet or Ms Ryan’s statement during the contretemps on the footpath. He pointed out that “silence is not evidence of an admission, unless there are circumstances which render it more reasonably probable that a man would answer the charge made against him than he would not”: Wiedemann v Walpole [1891] 2 QB 534 at 539 (Bowen LJ), endorsed by the New South Wales Court of Appeal in Mundey v Askin [1982] 2 NSWLR 369 at 373 (Moffitt P, Reynolds and Samuels JJA). He also referred to Thatcher v Charles (1961) 104 CLR 57, seeking implicitly, if not explicitly, to draw an analogy with the circumstances in the present case.

298    I do not accept these submissions. No rational argument was called for. If Mr Greiss did not spit in the victim’s direction, all he needed to say was: “I did not spit towards her” or “I may have spat but not towards her” or “I did not do what you accused me of doing” or words to that effect. If Ms Ryan’s comment were false, it was scarcely unrealistic to expect Mr Greiss to deny it. Mr Greiss was no shrinking violet. He had no compunction about speaking to Ms  Ryan. After all, it was he who approached her. Nor did he have any compunction about telling Ms Ryan what she should have reported, namely that the victim was “an escort”. These are circumstances which “render it more reasonably probable than not that he would [have] answer[ed] the charge made against him” if it were false.

299    Yet, rather than correcting Ms Ryan, Mr Greiss effectively confirms what she said. When Mr Petras asked Ms Ryan why she called him a grub and she replied, “because he spat towards the victim”, Mr Greiss volunteered: “Yeah, I did spit”. When encouraged by Mr Petras to spit on Ms Ryan, he spits again, this time saying: “Here, another one for ya”.

300    Despite Mr Greiss’s denial in cross-examination, taken in context I am comfortably satisfied that his response to Ms Ryan’s explanation (“Yeah I did spit”) was an admission, not merely that he spat but that he spat towards the victim, and that his denial was dishonest. I find that Mr Greiss’s refusal to acknowledge that his remark which immediately preceded his spit towards Ms Ryan referenced his earlier spit (“Here, another one for ya”) was also dishonest. While he claimed not to know what he meant by that, that claim is not credible.

301    Thatcher v Charles was a very different case. The circumstances are not remotely similar. That case was relevantly concerned with the defendant’s failure to reply to comments made by a woman shortly soon after he reversed his car into her six year old daughter. The comments were: “Why did you do it? You drive too fast around here. We have always said you would collect somebody”. Two passages in the judgments were cited by Mr Greiss’s counsel in submissions. The first was from the judgment of Fullagar J (at 61), with whom Kitto J agreed (at 63):

… I do not think, generally speaking, that evidence of statements made to a person and not denied by him is admissible unless it is fairly open to a jury to infer an admission of a relevant fact from the silence of that person. Here it was, I think, out of the question for the jury to infer any admission… [T]he defendant (who denied the conversation) said that he was “very upset” after the accident – as he would naturally be – and the mother was most probably even more upset. He would naturally be most unwilling to enter into an argument with her. In the circumstances, it would be most unfair to treat his silence as an admission ...

302    The second was from the judgment of Windeyer J at 70:

[S]urely little if anything should be inferred against a man, who had just had the misfortune to run down a child, because he made no answer to the recriminations of a distraught mother?”.

303    In contrast, in the present case, for the reasons given above, it is fairly open to infer an admission from Mr Greiss’s silence.

Conclusion

304    For these reasons I am persuaded that Mr Greiss spat towards the victim. I do not think that there is any material difference between the adverb “towards” and the adverbial phrase “in her direction”. In substance, they mean the same thing. But I am not persuaded that he stared her down.

305    It follows that the substantial truth of imputations (1), (2), (3), and (4) is not made out. As Ms Ryan conceded that it was false to say that Mr Greiss spat at the victim, the substantial truth of imputations (5) and (6) is not made out either.

306    Accordingly, the justification defence fails.

CONTEXTUAL TRUTH

The law

307    Section 26 of the Defamation Act provides that:

(1)    It is a defence to the publication of defamatory matter if the defendant proves that—

(a)    the matter carried one or more imputations that are substantially true (contextual imputations), and

(b)    any defamatory imputations of which the plaintiff complains that are not contextual imputations and are also carried by the matter do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

(2)    The contextual imputations on which the defendant may rely to establish the defence include imputations of which the plaintiff complains.

308    The effect of the section is that a defendant can defeat an action in defamation “if its substantially true contextual imputation(s) outweigh the plaintiff’s defamatory imputations”: Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157 at [85] (McColl JA, Beazley JA and Giles JA agreeing at [1] and [2] respectively).

309    The following principles are largely taken from the respondents’ submissions. I do not understand them to be controversial.

310    First, a contextual imputation need not differ in kind from the pleaded imputations, only in substance: Fairfax Media Publications v Zeccola (2015) 91 NSWLR 341 at [69]–[84] (McColl JA), [112] (Macfarlan JA), [114] (Sackville AJA). See also Crosby v Kelly [2013] FCA 1343 at [28] (Rares J).

311    Mr Greiss submitted that, while the difference in substance test may be a useful guide, to treat it as a sufficient criterion involves effectively substituting a different formulation for the statutory language and is not a proper approach to statutory interpretation, citing Nassif v Seven Network (Operations) Ltd [2021] FCA 1286 at [128]–[132] (Abraham J). In Nassif at [128]–[132], however, Abraham J offered no such opinion. There, her Honour was addressing a submission made by counsel that Zeccola was wrongly decided, at least to the extent that it is to be taken as standing for the proposition that a difference in substance is sufficient and not merely necessary. While her Honour thought there was “some merit” in the submission, she did not decide the point because it was unnecessary to do so (at [132]). Counsel for Mr Greiss submitted that Zeccola was plainly wrong. As Abraham J observed at [130], however, Zeccola has been repeatedly cited with approval by courts around the country, including intermediate appellate courts in both New South Wales and Victoria. As a single judge I ought not depart from a decision of an intermediate appellate court of another jurisdiction unless I am convinced that it is plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). I am far from convinced that that is so in this instance.

312    Second, the task of the court is to assess the publications “as a whole, identifying its emphases and tonalities, and considering the latitude it gives to the ordinary reasonable person to draw defamatory inferences”: Russell v Australian Broadcasting Corporation [2023] FCA 38 at [19] (Lee J). See also Trkulja v Google LLC (2018) 263 CLR 149 at [32] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).

313    Third, as Lee J went on to observe in Russell (at [20]), the court is obliged to “focus on the impression the ordinary reasonable person gleans from a matter, particularly in the context of publications made and viewed online [and] where the Court is concerned with questions of meaning, context is everything”. Further, “[t]he reader’s interaction with publications on available platforms is often transient”.

314    Fourth, for the purpose of determining whether the defence is capable of being made out the Court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation rather than the terms of the contextual imputation itself”: John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541 at [5] (Spigelman CJ, Rolfe AJA agreeing at [70]). While counsel for Mr Greiss argued that Blake does not apply to s 26 of the Defamation Act (as it stood at the time of the publication of the matters), it being a decision under s 16 of the Defamation Act 1974 (NSW), it has been applied to s 26 by multiple appellate courts, most recently in Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77 at [98] (Gleeson JA, with whom Meagher JA agreed at [35]), and numerous single judges of this Court, most recently Lee J in Palmer v McGowan (No 5) [2022] FCA 893 at [321]. That may be thought to be unsurprising. After all, as Applegarth J observed in Nationwide News Pty Ltd v Weatherup [2018] 1 Qd R 19 at [46] (Fraser JA and Douglas J agreeing at [1] and [2] respectively), cited with evident approval in Kazal, the focus on the facts, matters and circumstances to establish the substantial truth of contextual imputations reflects the language of s 26.

315    Fifth, “a defence of contextual truth must defeat the whole defamatory matter (cause of action) of which the plaintiff complains, that is to say all of the plaintiff's stings”: Kermode at [78] (McColl JA).

The issues

316    It follows that the issues for resolution are as follows:

(1)    whether the first and third matters carried the alleged contextual imputation;

(2)    if so, whether the contextual imputation differs in substance from the imputations pleaded by Mr Greiss (the pleaded imputations);

(3)    if so, whether it is substantially true; and

(4)    whether, having regard to the contextual imputation, the publication of the pleaded imputations caused no further harm to Mr Greiss’s reputation.

The allegation

317    The respondents plead in relation to each of the first and third matters an additional imputation to the effect that Mr Greiss behaved disgracefully outside court to the woman Mr Hayne had been sentenced for raping (see paras 15A and 15B of the further amended defence). The particulars given for the additional (contextual) imputation were:

1.    In March 2021, Mr Jarryd Hayne was found guilty of two charges of sexual assault without consent (Hayne Proceedings). Mr Hayne was to be sentenced on 6 May 2021.

2.    On 6 May 2021, the applicant attended Newcastle Court House to support Mr Hayne and his family at the sentencing hearing.

3.    At the sentencing hearing, Mr Hayne was sentenced to 5 years and nine months in gaol.

4.    The applicant did not consider the sentence to be justified, for reasons including that he alleged the Victim was an escort.

5.    After the sentencing hearing occurred, the applicant stood with other supporters of Mr Hayne outside of the court building in an area next to a walkway, which walkway hugged the court building (Walkway).

6.    When the victim in the Hayne Proceedings (Victim) left the court building, she left via the Walkway.

7.    The Applicant faced the Walkway and stared at the Victim and spat in her direction as she passed by him to exit the court precinct.

8.    After the Victim had left the Court precinct the Applicant described her as an “escort” to a member of the media.

9.    The imputations pleaded in paragraphs 5(a)-(d), 8(a)-(b) and 11(a)-(c) of the ASOC are substantially true by reason of the facts, matters and circumstances set out in particulars 1 to 8 above.

Was the contextual imputation conveyed?

318    I am satisfied that the contextual imputation was conveyed. Ordinary decent people would regard any expression of contempt for a sexual assault victim as disgraceful, particularly when, as in the case of the first matter, they were informed that the sexual assault was “brutal” and that “the vile act” of Mr Greiss spitting in the victim’s direction had occurred “just hours after she declared that [her assailant] had destroyed her life …”.

Does the contextual imputation differ in substance from the pleaded imputations?

319    The respondents submitted that:

The contextual imputation differs in substance from any of Mr Greiss’ imputations which focus on specific acts. In contrast, the contextual imputation is a general charge against Mr Greiss reflective of the gravity of his alleged conduct against a rape victim: Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255 at [60]-[63]. Such a general charge will differ in substance from a specific imputation also conveyed by the same matter and may arise just from the gravity of the specific imputation: Abou Lokmeh v Harbour Radio [2016] NSWCA 228 at [33] and [45]. Indeed, even without the reference to “disgusting scenes” the single act of spitting towards a rape victim is sufficiently serious to support a general meaning of disgraceful behaviour. An ordinary reasonable reader would view the conduct as described as embracing disgraceful behaviour outside of the Court. It is in no way determinative of the questions of whether the contextual imputation is conveyed or differs in substance that it does not plead any further or different conduct engaged in by Mr Greiss.

(Original emphasis.)

320    I accept the submission.

321    In Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 at [32]–[35] McColl JA, with whom Gleeson and Payne JJA agreed at [108] and [112] respectively, observed:

32    The “differ in substance” test can also be satisfied by a defendant pleading a contextual imputation in general terms in the sense permitted by Maisel.

33    Hunt J explained the Maisel approach in the contextual truth context in Allen as follows:

“If the matter complained of conveys to the same ordinary reasonable reader two imputations at the same time, one of a general nature (of a Maisel type) and another of a specific nature which, even although related to the same subject matter of the general imputation, differs in substance from it, the policy behind s 16 requires that the defendant be permitted to plead the former as a contextual imputation to the plaintiff's cause of action based upon the latter.”

34    The “policy” of which Hunt J was speaking was that introduced by the contextual truth defence. Under that defence as available both pursuant to s 16 of the 1974 Act and s 26 of the 2005 Act, a plaintiff cannot by selective pleading of a less serious imputation, when a more serious one is carried by the matter complained of, prevent a defendant from seeking to justify that more serious imputation. That had been the position at common law.

35    The requirement that the contextual imputation(s) be conveyed at the same time as the plaintiff’s imputation(s) is to enable the tribunal of fact to “weigh or.. measure the relative worth or value of the imputation or imputations for which each party contends”.

(Footnotes omitted.)

322    While counsel for Mr Greiss submitted that Abou-Lokmeh was also wrong, I am bound by it. I note that an application for an extension of time to apply for special leave to appeal to the High Court was refused: Abou-Lokmeh v Harbour Radio Pty Ltd [2017] HCASL 18.

323    In any event, particular 7 is that Mr Greiss “stared at the [v]ictim ….” whereas none of the pleaded imputations invoke this meaning. As I observed above, to stare someone down is different from staring at them. Further, particular 9 is not captured by any of the pleaded imputations. For these reasons the additional imputation captures a broader range of conduct than does the pleaded imputation.

324    Mr Greiss also submitted that the contextual imputation is not carried in addition to the pleaded imputations because there is nothing in the article to provide the basis for any imputation that Mr Greiss behaved disgracefully towards the victim, other than by staring her down and spitting towards her. He submitted that “the evidence relied on to prove the contextual imputation must comprise matters that were communicated to the reader”.

325     I reject this submission. As the respondents submitted, it is contrary to longstanding authority. In Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299 at [313]–[316] the New South Wales Court of Appeal explained:

313    The general rule is that an imputation must be justified by reference to the facts in existence at the time of publication. However the general rule may be departed from in circumstances where an imputation amounts to a general charge against the character of the plaintiff: P Milmo and W V H Rogers, Gatley on Libel and Slander 11th ed (2008) Sweet & Maxwell at [11.8]; see also Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 735 at 737 per Hunt J; John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 at [9] per Spigelman CJ and at [79] per Hodgson JA.

314    The permissible grounds for departure from the general rule to which Gatley on Libel and Slander refers were established in two cases involving Mr Maisel. He sued the Financial Times for defamation, alleging that an article it published setting out the circumstances of his arrest on a charge of fraud conveyed the imputation that “he was a man of dishonest character and unfit to be a director”. The newspaper sought to justify the imputation by relying on dishonest acts other than those referred to in the article. The plaintiff moved to strike out those particulars of the justification defence arguing that the defendant could not justify the defamation by matters not referred to in the article. The House of Lords rejected that argument, saying that where a plaintiff pleaded that the defendant published an imputation alleging “general dishonesty”, the defendant was entitled to give particulars demonstrating why that was true and were not confined to the facts in the article: Maisel v Financial Times Ltd (No 1) (1915) 112 LT 953 at 955; 84 LJKB 2145 at 2147. That case established the entitlement of the respondent in this case (which the appellant did not dispute) to plead substantial truth in respect of a wide variety of matters, none of which, as earlier observed, sought directly to justify the principal sting of the matter complained of.

315    After the House of Lords’ decision, further pleadings were then exchanged in Mr Maisel’s action. The plaintiff amended his imputations to include one asserting that “his character and reputation were such that he was likely to have misappropriated funds of companies with which he was connected”. The defendant filed an amended defence pleading justification and relied in its particulars on events which had taken place after the date of publication of the matter complained of. The plaintiff sought to strike out the particulars of post-publication facts. He was unsuccessful: Maisel v Financial Times Ltd [1915] 3 KB 336. Lord Cozens-Hardy MR said (at 339 - 340):

“In a general allegation by way of justification of general character and general tendency, which are the only words I can think of at the moment as the meaning of the word ‘likely’, I do not see how you can exclude events which happen, I will not say years later, but within a reasonable time from the date of the publications. I instance a case which seems to me to be rather analogous; an allegation that the plaintiff was addicted to drink and would get drunk if he could. Could you exclude evidence that the day after publication of that libel he had been found suffering from delirium tremens? It seems to me you could not in answer to a general allegation of what the man was likely to have done if he could.”

(Emphasis added)

316    Pickford LJ said (at 340) that there could be no direct answer to the question whether particulars of justification alleging facts which occurred after the libel could be allowed. In his view, it depended on the nature of the libel and on the nature of the acts. Dealing with the case in hand, he said (at 341):

“…the innuendo of the plaintiff … alleges that this libel has three meanings …: that he was of a character and reputation such that he was likely to have misappropriated; that he would have misappropriated if he had had the opportunity and that he was an unfit person to be a director — the third one I have left out. That being the meaning as alleged and the defence of justification which is set up, it seems to me that it is impossible to exclude, by one general proposition, any particulars of acts that took place after the libel. The allegation is that he was of a character to misappropriate funds and that he would misappropriate funds if he got the chance. It seems to me that it cannot be irrelevant to show that very shortly after the libel, as soon as he did get the chance, he did misappropriate.” (Emphasis added)

326    Here, the additional matters relied upon include conduct which occurred both at the time, and within minutes of, the matters reported in the publications in issue.

Was the contextual imputation substantially true?

327    For the reasons given earlier I am satisfied that the additional imputation is substantially true. I accept the respondents’ argument that it does not matter for this purpose that the victim did not hear what Mr Greiss said to the journalists or that the victim did not witness the spit. As the respondents put it, urging a large contingent of journalists to print that she is an escort, even just proclaiming it in a public place, is conduct “to” the victim in that it is conduct that relates to the victim, just as the spit was a sign of Mr Greiss’s hostile attitude to, and contempt for, the victim.

Have the respondents proved that such of Mr Greiss’s imputations as are not found to be substantially true did no further harm to his reputation?

328    In circumstances in which I am satisfied that Mr Greiss spat towards the victim as a gesture of his contempt for her and publicly denounced her as a prostitute signifying that she was a person of little worth, I am persuaded that no further harm was done to his reputation by the imputation that he stared the victim down. I would add that if I am wrong to conclude that Mr Greiss spat towards the victim, the outcome would be no different as, regardless, I am satisfied that it was a gesture of his contempt for her.

Conclusion