mDEFAMATION LAW

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Evidence of a plaintiff's bad or good reputationshould be extended to after publication of thedefamatory material in assessing the mitigationof damages, argues JASON DONNELLY.

"Overseas jurisprudence In this area has clearly

recognised the diffiCUlty with the reasoning in Roehmrt?'

Electric Co Ply Ltd v Sonneoeld" Gillard Jof the Supreme Court of Victoria said: "Ire spectfully disagree with the ruling inRochfort'scase as it does not grapple withthe true basis for the admission of theconviction , and proceeds on an assump­tion that because the facts showed thatthe convictions occurred prior to publica­tion, the principles should be confined tothat situation. That, in my view, does notlogically follow."

For Gillard J in Middendorp, to exclude

action, I do not believe Palmer J's findingsare relevant in mitigation".'

There are at least three important rea­sons why a cour t, when conside ring miti­gation of damages in a defamation pro­ceeding, should be permitted and indeedobliged to consider evidence of the badre putation of the complainant adducedafter publication of the defamatory mate­rial. Although the foregoing point isclearly inconsistent and at odds with theprinciple in Rochfort, there is merit in theargument that Rochfori should no longerbe followed.

Contra casesFirst, there are various decisions in

Australia and overseas which have eithernot followed Rochfort or been critical ofthe decision to the extent that the cour tin th at case had determined that evidenceof th e bad reputation of the plaintiff inmitigation of damages in defamatory pro­ceedings is limited to pre-publication ofthe defamatory material. In Middendorp

evidence "accumulated from one sourceor another over the period of time thatpr ecedes th e occasion of the libel that is insuit"."In any event, if his Honour were notbound by the decision of Rochfori, Kirby Jappeared reluctant to tak e into considera­tion the adverse findings of the plaintiff'spurported bad reputation by Palmer J inSteele-Smith, on the basis that a judge'sreasoning is only an opinion, and not"vir tually indisputable".' Accordingly, hisHonour held that "for th e purposes of this

reputation wa s substantially impaired bythe effect of a series of findings by Palmer] in the decision of Steele-Smith v LibertyFinancial Ply Lid) despite the fact thoseadverse findings were mad e after thepublication of the defam atory material inMahommed.

His Honour Kirby J in Mahommed heldthat he could not take into considerationthe adverse findings of Palmer J in Steele­Smith in relation to the bad reputationof Mr Mahommed (the plaintiff) , on theba sis that he was bound by the NSWCourt of Appeal decision in Rochfort vJohn Fair/ax & SonsLtd,' which had deter­mined that evidence of bad reputation is

Jason Donnelly is a lecturerin law at the University ofWestern Sydneyand TipstafftoJustice McClellan, ChiefJudge at Common Law,Supreme Court of NSW.

Mitigation of damagesIt is clear that the conduct of eith er the

plaintiff or the defendant may act to miti­gate damages by decreasing the damagesuffered by th e plaintiff as a result of thedefamatory publication.I Evidenc e of thebad reputation of the plaintiff is admissi­ble for the purposes of mitigation of dam­ages.' In the decision of Mahommed, thedefendant submitte d that the plaintiffs

NUMBER OF IMPORTANTlegal questions regard­ing aspects of defamationlaw were raise d in lastyear's decision by IGrby Jin Mahommed v Channel

Seven Sydney Pty Ltd [2009] NSWSC 631.One of the key legal issues considered iswheth er a court, in considering mitiga­tion of damages for defamatory publishedmaterial, can take into account evidenceof the bad reputation of the author, in cir­cumstances where that evidence consid­ers the bad reputation of the plaintiff afterpublication of the defamatory material inquestion.

May 2010 LAwSOCIETY JOURNAL67

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III DEFAMATION lAW

evidence of convictions that affect tilereputation of a complainant in defama­tion proceedings, prior to the assessmentof damages and after publication of tiledefamatory material, would be to deprivethe court of material relevant to the vindi­cation of the complainant's case.' Gillard Jwas of the view that to do otherwise wouldfail to take into account one of the objectsof damages, which is to restore the plain­tiff's reputation in the eyes of those whoknow him and the community generally;"

In John Fairfax & Sons Ltd v Kelly"McHugh JA said: "A plaintiff in [a defa­mation action] sustains loss for each daythat the defendant fails to pay the appro­priate damages to him.... In many casesthe award will reflect an amount for con­tinuing injury to feelings and reputationto the date of verdict. Hence the amountawarded may, and usually will, be higherthan the amount which would have beenawarded as at the date of publication oreven as at the date of the writ."

Although McHugh JA did not expresslyrefer to Rochfort in his decision, it is clearthat his Honour's reasoning in John Fair­fax & Sons Ltd is not consistent with tilereasoning of Rochfort:" There are vari­ous other authorities that have criticisedor doubted Rochfort: see, for example,Amalgamated Television Services Ply Ltdv Marsden;" Walter v Alltools Ltd;" Myer

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Stores Ltd v Soo;»Sadler & State of Victo­ria v Madigan;16 Television New Zealand vQuinn;!? Raux v Australian BroadcastingCommission;18 ABC v McBride;19 Andersonv Ah Kit;" discussion in Nationwide NewsPly Limited v William El-Azzi;" Bursteinv Times Newspapers Ltd [2001] 1 WLR579; Turner v News Group Newspapers Ltd[2006] 1 WLR 3469; Law of Torts in Aus­tralia, Fleming, 9th ed at 662 and Gatley10th ed at para 27.25.

For example, in Burstein v Times News­papers Ltd, an English decision, May LJexpounded the following principle in rela­tion to whether an author of a defama­tory publication can adduce evidence ofthe bad reputation of the plaintiff whichpost-dates the defamatory material: "Forpractical purposes, every publication hasa contextual background, even if the pub­lication is substantially untrue. In addi­tion, the evidence which Scott v Sampsonexcludes is particular evidence of generalreputation, character or disposition whichis not directly connected with the subjectmatter of the defamatory publication. Itdoes not exclude evidence of directly rel­evant background context To the extentthat evidence of this kind may also becharacterised as evidence of the claim­ant's reputation, it is admissible becauseit is directly relevant to the damage whichhe claims has been caused by the defama­tory publication" (Burstein v Times News­papers Ltd [2000] All ER (D) 2384 at [42]).

Following the decision of Burstein, thecourt in Turner v News Group NewspapersLtd described the principle expounded by

ENDNOTES

L Carson v John Fairfax & Sons Ltd (1993) 178CLR 44 at 72 (per Brennan J); Uren v John Fair­fax& Sons Ply Ltd (1966) 117 CLR 118 at 151 (perWindeyer J); Lemaire v Smith's Newspapers Ltd(1927) 28 SR (NSW) 161-2. Wishart v Mirror Newspapers lid [19631 SR(NSW) 745 at 755 (per Brereton J); Lang vBeardsmore[1968] 2 NSWR 673 at 687 (per WalshJA); Steele v Mirror Newspapers lid [1974] 2NSWLR 348 at 367 (per Hutley JA. at 380 per Sam­uelsJA).3. Steele-Smith v Liberty Financial Pty Ltd [2005]NSWSC 398 at para [1001-[103J.4. Rochfort v John Fairfax & Sons lid [1972J 1NSWLR16.5. Mahommed v Channel Seven Sydney Ply Ltd[2009J NSWSC 631 at [293J.6. (bid at [335].7. Ibid at [335J.8. Middendorp Electric Co Pty lid v Sonneveld[2001] VSC 312 at [320].9. Ibid at [338J.10. Ibid at [338].11. John Fairfax & Sons Ltd v Kelly (1987) 8NSWIR 131 at [l43J.12. See further Australian Broadcasting Corpora­tion 0 McBride (2001) 53 NSWLR430 at [II. [64J·[75] and [91]-[97J.13. Amalgamated Television Services Pty Ltd vMorsden [2002] NSWCA 419 at [1403]-[1406].14. Walter v Alltools lid (1944) 61TIR 39.15. Myer Stores Ltd v Soo [1991] 2 VR 597 at[633]-[634J.16. Sadler & State of Victoria v Madigan [1998]VSCA 53 at [63J.

May LJas representing "a development ofthe common law beyond the point whichit had reached in 1961".

Further, in New Zealand, the courtin Television New Zealand Ltd v Quinn[2006] EWCA Civ 540 at 51 (per KeeneLl.Moses and Pill LJJ agreeing) acceptedthat since damages for defamation con­tinue to be incurred after the publicationof the defamatory material, it follows thatevidence referring to a change in the rep­utation of the plaintiff after the publicationdate would be relevant

The relationship betweenharm and damagesSecond, the determination by Rochfort

that mitigating material occurring afterthe date of the defamatory publicationis inadmissible seems to be inconsistentwith the essential purposes of an awardof compensatory damages in defamation.The overarching principle in the awardof damages in defamation is to ensurean appropriate and rational relationshipbetween the harm suffered by the plain­tiff and the damages awarded. aa Surely,the most appropriate and rational relation­ship between the harm suffered by theplaintiff and the damages awarded mustencompass mitigating material occurringafter the date of the defamatory publica­tion. To suggest otherwise would be toignore the fact that the harm suffered bythe plaintiff plainly in many cases wouldcontinue to occur after the defamatorypublication, and, on that basis, if there istruthful evidence of the bad reputation ofthe plaintiff which has been established

17. TelevisionNew Zealand v Quinn [1996] 3 NZLR24 at [66J (per McGeehan J).18. Roux v Australian Broadcasting Commission[1992] 2VR577 at [603].19.ABC v McBrilk (2001) 53 NSWLR 430 at [68]­[751 (per 1ppAJA).20. Anderson v Ah Kit [2004J WASC 194 at [351­[38] (per Newnes M).21. Nationwide News PtyLimited v William EI-Azzi[20041 NSWCA 382 (per Splgelman 0. Mason Pand Beazley JA agreeing).22. Section 34 of the Defamation Act 2005 (NSW).23. Carson v John Fairfax & Sons Ltd (1993) 178CLR 44 at 60, 61 (per Mason CJ, Deane, Dawsonand Gaudron Il, at 70 per Brennan J).24. John Fairfax & Sons lid v Kelly (1987) 8NSWLR131at 139 (per SamuelsJA).25. Uren v John Fairfax & Sons Pty lid (1966) 117CLR 118 at 150 (per Wlndeyer J).26. Ratcliffe v Evans [1892] 2 QB 524 at 528 (perBowen I,l).27. Theophunous v Herald & Weekly Times Ltd(1994) 182CLR 104at 154 (per Brennan I): Uren v

John Fairfax & Sons Pty lid (1966) 117 CLR 118 at150 (per wlndeyer D.28. Broome v Cassell [1972] AC 1027 at [1125]­[1126J (per Lord Diplock].29. See further Carson v John Fairfax & Sons Ltd(1993) 178 CLR 44 at 72 (per Brennan J); Lemairev Smith's NewspapersLtd (1927) 28SR (NSW) 161.30. Scott v Sampson (1882) LR 8 QBD 491.31. ABC v McBride (2001) 53 NSWLR430 at [73].32. Mahommed v Channel Seven Sydney Pty Ltd[2009J NSWSC 631 at 335. 0

May 2010

after the defamatory publication, thiswould indeed reduce the hann sufferedby the plaintiff. The reason is simple. Theplaintiff's reputation would, in the eyesof the wider conununity, be tarnished forreasons other than the defamatory publi­cation. Ignorance of such material seemsillogical, especially given the fact that thereputation of the plaintiff does not, as amatter of commonsense, stop when defa­mation occurs.

In Carson v John Fairfax & Sons Ud~and John Fairfax & Sons Ltd v KellyU thecourt asserted that an amount awardedin damages must signal to the public thevindication of the plaintiffby indicating thebaselessness of the allegations. It seemsinescapable that mitigating material occur­ring after the date of the defamatory publi­cation may at least provide some basis forindicating there is some truth in the con­tents of the defamatory material or thatcould affect the plaintiff's reputation, andthus justify a reduction in the damages.

In Uren v John Fairfax & Sons PlyLtd~and Ratcliffe v Evans" it was made clearthat the plaintiff is entitled to damagesbecause he was injured in his reputation.If it is accepted that the plaintiff's repu­tation was injured after the date of thedefamatory publication and before deter­mination of damages on lawful grounds(namely, truth), for reasons not connected

to the defamatory material in question,then it seems logical that a court shouldbe able to take such material into accountin mitigation of damages. After all, thelaw of defamation is concerned with theprotection of a plaintiff's reputation," Byfailing to take into account in mitigationof damages mitigating material occur­ring after the date of the defamatory pub­lication, the court would not be properlyprotecting a plaintiff's reputation. Rather,it would be igooring evidence of the badreputation of the. plaintiff which clearly isrelevant to the plaintiff's reputation, andthus undermine a key purpose for whichan award of damages is given in defama­tion law.

InadmissibilitY of evidenceof bad reputationThird, it seems peculiar that damages

may be affected by the conduct ofa defend­ant after publication of the defamatorymaterial, yet not by evidence of the badreputation of the plaintiff after publication.As was made clear in Broome v Cassell."for example, a subsequent repetition of thedefamatory material by the defendant canincrease damages and a publication of anapology can reduce them," On that basis, itseems contradictory that adverse conductby the author of the defamatory publicationcan affect damages, yet cerlain evidence ofthe bad reputation of the complainant after

publication cannot be considered in dam­ages. As was made clear by Cave J in Scottv Sampson:" the damage which a plaiutiffhas sustained must depend entirely on theestimation in which he or she was previ­ouslyheld.

ConclusionOnce it is accepted that damages for

defamation continue to be sustained afterpublication of the defamatory material inquestion, then, to borrow the words ofIpp AlA in ABC v Mcbride." "it shouldfollow that evidence referring to a changein the reputation of the plaintiff after thepublication date would be relevant". Theadmission of §JJch material would, asKirby J said ni:M!Jhommed,~"involve anexpansion of the categories available inmitigation of damages". It is disappoint­ing that his Honour declined to expressa view in the form of dicta in relation tothe soundness of the principle in Roch­fort. While overseas jurisprudence in thisarea, such as the decisions of Burstein vTimes Newspapers Ltd and Turner v NewsGroup Newspapers Ltd in England, andTelevision New Zealand Ltd in New Zea­land have recognised the difficulty withthe reasoning in Rochfort, the jurisdictionof NSW has appeared content, at least todate, to continue with the application ofRochfort, 0

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