FEDERAL COURT OF AUSTRALIA

Edwards v Nine Network Australia Pty Limited (No 5) [2024] FCA 422

SUMMARY

In accordance with the practice of the Federal Court in cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet on the Court’s website. This summary is also available there.

A Current Affair is a television program produced and broadcast by, respectively, Nine Network Australia Pty Limited and TCN Channel Nine Pty Limited. In late May and early June 2021, two episodes of A Current Affair included a story which, broadly speaking, concerned a dispute about the ownership and custody of a supposedly famous cavoodle dog named Oscar. The reporter who was primarily responsible for the presentation of that story was Mr Steve Marshall. The broadcasts were both followed up by articles which were made available for viewing on a website and various social media platforms associated with Nine Network, TCN Channel Nine or A Current Affair. The articles reproduced, in text and still image form, material sourced from the broadcasts. I will collectively refer to Nine Network, TCN Channel Nine and Mr Marshall as the Publishers.

The broadcasts and articles were largely based around claims by a man named Mr Mark Gillespie that he was the rightful owner of Oscar, and that a woman named Ms Gina Edwards, and her husband Mr Ken Flavell, who were said to be Oscar’s “dog-sitters”, had refused to return Oscar to Mr Gillespie. That dispute had remarkably found its way into the Supreme Court of New South Wales, having previously been the subject of proceedings commenced by Ms Edwards in both the Local Court and the District Court. Mr Gillespie claimed that Ms Edwards, who was a barrister, had delayed those court proceedings. Mr Gillespie also claimed that, while Oscar was in their custody while he was overseas, Ms Edwards and Mr Flavell had exploited and “monetised” the dog by establishing an Instagram account and obtaining endorsements from pet food companies.

The two A Current Affair broadcasts were, it would be fair to say, sensationalist, if not hyperbolic. The articles were not much better. It would also not be unfair to say that both the broadcasts and the articles portrayed Ms Edwards in a most unfavourable light. Mr Marshall’s sarcastic and pun-laden commentary throughout the broadcasts mostly sided with Mr Gillespie’s version of events and disparaged and demeaned Ms. Edwards.

Ms Edwards commenced this proceeding against the Publishers claiming that she had suffered loss and damage as a result of several defamatory imputations allegedly carried by the broadcasts and articles. Those imputations included, in summary, that Ms Edwards, a barrister: was a thief who stole Oscar; had stolen Oscar for her own financial benefit; had deliberately delayed a court case about Oscar; had exploited Oscar for her own financial benefit; had adopted delay tactics so as to prolong her unlawful possession of Oscar; and had failed to fulfil her obligation to appear in court in relation to her AVO application against Mr Gillespie.

The Publishers defended the defamation action. They denied that the broadcasts and articles carried the alleged defamatory imputations, denied that some or all of the imputations were defamatory, and raised various positive defences under the Defamation Act 2005 (NSW) and common law. They pleaded that the alleged imputations which concerned Ms Edwards stealing Oscar were substantially true and that they therefore had available to them the defence of justification pursuant to s 25 of the Defamation Act and the common law. They also claimed that the broadcasts and articles conveyed other contextual imputations which were substantially true, and that the other imputations that were carried by the broadcasts and articles did not cause any further harm to Ms Edwards’ reputation. They therefore claimed that they had available to them the defence of contextual truth in s 26 of the Defamation Act.

I have decided that the Publishers are liable to Ms Edwards in defamation. My reasons for so finding are set out in detail in the judgment. What follows is no more than a short summary of my findings.

In relation to the issue as to whether the publications carried the imputations alleged by Ms Edwards, I have concluded that all but one of the imputations were carried by one or more of the publications. Most significantly, I have found that: the imputation that Ms Edwards, a barrister, is a thief who stole Oscar the cavoodle was carried by the first broadcast, the first article and the second article; and the imputation that Ms Edwards, a barrister, stole Oscar the cavoodle for her own financial benefit was carried by the first broadcast and the first article.

In relation to the Publishers’ justification defence in respect of those two imputations, I have found that the Publishers have not discharged their burden of proving that those imputations were substantially true. My reasons for so finding are set out in detail in the judgment.

In short summary, I have found that, while Ms Edwards employed deceptive means to obtain possession of Oscar from those who were entrusted by Oscar’s rightful owner, Mr Gillespie, to look after Oscar while he was overseas, she did so in circumstances where she believed that she was a co-owner and had a right to retain possession of Oscar. That belief was based on legal advice she had received, albeit in an informal setting, from a barrister. While in my view that advice was wrong, it was nevertheless reasonable for Ms Edwards to accept it, and her belief based on it was honestly and genuinely held. The Publishers’ contention that Ms Edwards knowingly gave the barrister false or misleading factual instructions was not made out by the evidence. In those circumstances, the imputation that Ms Edwards stole Oscar was in my view not substantially true having regard to the ordinary meaning of “stole” in the context in which it appears in the imputations.

The Publishers did not mount a justification defence in respect of any of the other imputations.

I have also found that the Publishers’ contextual truth defence was lacking in merit for the reasons given in the judgment. It is unnecessary to summarise those reasons here.

In relation to damages, I have concluded that an appropriate award of compensatory damages, including aggravated damages, is $150,000. In arriving at that sum, I have had regard to: the seriousness of the defamatory imputations carried by the publications; the number of people who viewed the broadcasts and read the articles, as well as the so-called “grapevine effect”; the need to signal to the public the vindication of Ms Edwards’ reputation; the extent of the damage to Ms Edwards’ reputation and the hurt she suffered by reason of the publications; the mitigatory effect of the evidence and findings concerning Ms Edwards’ use of deceptive means to obtain possession of Oscar; and the need to ensure that there is an appropriate and rational relationship between the harm sustained by Ms Edwards and the amount of damages awarded.

I will not make final orders until some outstanding issues, albeit fairly minor ones, are resolved one way or the other. Those issues include: whether prejudgment interest should be awarded and if so in what sum; whether the injunctive relief sought by Ms Edwards should be granted; and who should pay the costs of the proceedings and on what basis.

JUSTICE MICHAEL WIGNEY

26 April 2024

Sydney