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Peros v Nationwide News Pty Ltd [No 3][2024] QSC 192

Peros v Nationwide News Pty Ltd [No 3][2024] QSC 192

SUPREME COURT OF QUEENSLAND

CITATION:

Peros v Nationwide News Pty Ltd & Ors (No 3) [2024] QSC 192

PARTIES:

JOHN PEROS

(plaintiff)

v

NATIONWIDE NEWS PTY LTD 

ACN 008 438 828

(first defendant)

AND

HEDLEY THOMAS

(second defendant)

AND

SHANNAH BLACKBURN

(third defendant)

FILE NO:

BS 7796 of 2023

DIVISION:

Trial Division

PROCEEDING:

Hearing of separate harm issue under Defamation Act 2005 (Qld), s 10A

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

27 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

29 and 30 July 2024

JUDGE:

Applegarth J

ORDERS:

The proceeding is dismissed. 

CATCHWORDS:

DEFAMATION – ACTIONS FOR DEFAMATION – OTHER PROCEEDINGS BEFORE TRIAL – SERIOUS HARM ISSUE – where the plaintiff was charged with, and later acquitted of, murder – where he was later found by a Coroner to have violently killed the deceased using a bladed instrument – where the Coroner’s finding was widely publicised – where the first and second defendants published an investigative podcast series into the killing – where Episode 13 is alleged to have imputed that the plaintiff murdered the deceased – where the plaintiff pleads that the episode “caused or is likely to cause serious harm” to his reputation so as to satisfy the serious harm element of the cause of action enacted by s 10A of Defamation Act 2005 (Qld) – where the defendants dispute the  “serious harm element” of the plaintiff’s cause of action on the grounds that his reputation had been practically destroyed by the widespread reporting of the Coroner’s finding – where the Coroner’s finding was reported in the first episode of the series – where an  order is made pursuant to s 10A of the Defamation Act 2005 (Qld) for the early determination of the serious harm issue – where the plaintiff objects to the admissibility of reports of the Coroner’s findings and other prior publications that are alleged to have injured his reputation prior to the publication of Episode 13 – whether the plaintiff has established the serious harm element of his cause of action against the first and second defendants over Episode 13 – whether the plaintiff has established the serious harm element of his cause of action against the third defendant over things she said in an interview that were included in Episode 13  

Defamation Act 2005 (Qld), ss 10A, 38

Defamation Act 2013 (UK), s 1

Alsaifi v Trinity Mirror Plc [2017] EWHC 2873 (QB), cited

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, cited

Associated Newspapers Ltd v Dingle [1964] AC 371, discussed

Banks v Cadwalladr [2023] EWCA Civ 219, cited

Barron v Vines [2016] EWHC 1226 (QB), cited

Blake v Fox [2024] EWHC 146 (KB), cited

Briginshaw v Briginshaw (1938) 60 CLR 336, cited

Burstein v Times Newspapers Ltd [2001] 1 WLR 579, cited

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, cited

Channel Seven Sydney Pty Ltd v Mohammed (2010) 278 ALR 232; [2010] NSWCA 335, followed

Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691, cited

Cornwall v Rowan (2004) 90 SASR 269, cited

Daryanani v Ramnani [2017] EWHC 183 (QB), cited

Dhir v Saddler [2017] EWHC 3155 (QB); [2018] 4 WLR 1, cited

Dingle v Associated Newspapers Ltd [1961] 2 QB 162, discussed

Dyson v MGN Ltd [2023] EWHC 3092 (KB), cited

Economou v De Freitas [2018] EWCA Civ 2591; [2019] EMLR 7, cited

Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77; (2018) 97 NSWLR 547, cited

Faruqi v Latham [2018] FCA 1328, cited

Goody v Odhams Press Pty Ltd [1967] 1 QB 333, cited

Hayson v The Age Company Pty Ltd [2019] FCA 1538, cited

Helton v Allen (1940) 63 CLR 691, cited

Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96, cited

Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504, cited

Inquest into the death of Kumanjayi Walker (Ruling No 2) [2022] NTLC 17, cited

Jameel v Dow Jones & Co Inc. [2005] (QB) 946, cited

Jones v Sutton (2004) 61 NSWLR 614, cited

Lachaux v Independent Print Ltd [2016] QB 402, cited

Lachaux v Independent Print Ltd [2020] AC 612, cited

Ley v Hamilton (1935) 153 LT 384, cited

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506, cited

Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749, cited

Napag Trading Ltd v Gedi Gruppo Editoriale SpA [2020] EWHC 3034, cited 

National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569, cited

Nine Network Australia Pty Ltd v Wagner (2020) 6 QR 64, cited

O'Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89, cited

O'Shea v Everingham Unreported, Supreme Court of Queensland number 128 of 1980, 30 October 1985, cited

Pamplin v Express Newspapers Ltd [1988] 1 WLR 116, cited

Peros v Blackburn [2024] FCA 177, cited

Peros v Nationwide News Pty Ltd [2024] QSC 80, cited

Peros v Nationwide News Pty Ltd & Ors (No 2) [2024] QSC 83, cited

Plato Films Ltd v Speidel [1961] AC 1090, cited

Price v MGM Ltd [2018] EWHC 3014 (QB); [2018] 4 WLR 150, cited

R v Carroll (2002) 213 CLR 635, cited

R v GJL [2021] QCA 175, cited

R v Storey (1978) 140 CLR 364, cited

Rader v Haines [2022] NSWCA 198, cited

Rahman v Arearose Ltd [2001] QB 351, cited

Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, cited

Rolfe v Northern Territory Coroner [2023] NTCA 8, cited

Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550, cited

Schiff v Nine Network Australia Pty Ltd (No 4) [2023] FCA 688, cited

Scott v Sampson (1882) 8 QBD 491, cited

Selkirk v Wyatt [2024] FCAFC 48, cited

Shakil-Ur-Rahman v ARY Network Ltd [2017] 4 WLR 22 at 24-25[9]-[14]; [2016] EWHC 3110 (QB), cited

Sicri v Associated Newspapers [2020] EWHC 3541 (QB), cited

Sim v Stretch [1936] 2 All ER 1237, cited

Sivananthan v Vasikaran [2022] EWHC 2938 (KB); [2023] EMLR 7 at 255, cited

Slipper v British Broadcasting Corporation [1991] 1 QB 283, cited

Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB), cited

Soriano v Societe D’Exploitation De L’Hebdomadaire Le Point SA & Anor [2022] EWHC 1763 (QB), cited

Spicer v Commissioner of Police for the Metropolis [2021] EWHC 1099 (QB), cited

Tesla Motors Ltd v British Broadcasting Corporation [2011] EWHC 2760; [2013] EWCA Civ 152, cited

Turley v Unite the Union [2019] EWHC 3547 (QB), cited

Turner v News Group Newspapers Ltd [2006] 1 WLR 3469, cited

Westpac Banking Corporation v Jamieson [2016] 1 Qd R 495, cited

Whittington v Newman [2024] NSWCA 27, cited

Wisher v Mirror Newspapers Ltd [1963] SR (NSW) 745, cited

Wright v McCormack [2022] EWHC 10, cited

COUNSEL:

D J Helvadjian for the plaintiff

D R Sibtain SC and P Morreau for the defendants

SOLICITORS:

Rostron Carlyle Rojas Lawyers for the plaintiff

Thomson Geer for the defendants

Table of ContentsPage

ADMISSIBILITY ISSUES7

The rule in Dingle’s case8

The plaintiff’s submissions8

The defendants’ submissions10

The plaintiff’s submissions in reply11

SERIOUS HARM13

CAUSATION AND THE RULE IN DINGLE22

Positioning the rule in Dingle and other laws about mitigation of damages in            their context22

The nature of the plaintiff’s claim26

Causation in law and in the law of defamation28

The interaction between principles of causation and the rule in Dingle39

Does the rule in Dingle render inadmissible other publications to the same or        similar effect that are relevant to the issue of causation?51

Does the rule in Dingle apply to “quasi-judicial” findings of a kind made by the Coroner?54

Notorious or contextual facts58

Conclusion on admissibility64

THE EVIDENCE64

Chronology64

The plaintiff’s evidence65

RELEVANT CONSIDERATIONS70

The gravity of the defamation70

The extent of publication of the podcast series and of Episode 1370

The extent of publication of other publications70

The Coroner’s Report and findings70

Publicity surrounding the Coroner’s findings71

The overlap issue72

By whom the publications were made74

The form of the publication74

The identity of the recipients74

The likely effect of earlier publications to the same or similar effect75

The state of the plaintiff’s reputation prior to the publication of Episode 1378

Episode 1379

The mystery novel analogy80

The summary and conclusion argument80

The reinforcement submission81

Proof of serious harm82

The plaintiff’s particulars and his evidence about his reputation82

The absence of reputation witnesses and witnesses about the effect of Episode 1385

The Reddit posts85

Direct evidence of the effect of earlier publications87

Has the plaintiff discharged the burden of proving serious harm was caused by   Episode 13?87

Has the plaintiff discharged the burden of proving that serious harm is likely to be caused by Episode 13?88

The position of the third defendant88

Conclusion and orders88

  1. [1]
    The plaintiff sues over a podcast episode that he says imputed that he murdered Shandee Blackburn.
  2. [2]
    In 2014, the plaintiff was charged with the murder of Ms Blackburn on 9 February 2013.  After a trial in 2017, he was found not guilty of that charge by a jury.
  3. [3]
    In 2019, a Coroner conducted an extensive investigation into the death of Ms Blackburn.  This included evidence that was not before the jury in 2017, including additional and enhanced CCTV recordings and police questioning of the plaintiff about his movements.  The Coroner questioned the plaintiff after he initially refused to give evidence on the ground that the evidence would tend to incriminate him.  The Coroner compelled the plaintiff to give evidence under the Coroners Act 2003 (Qld).  As a result, he was afforded the protections contained in s 39 of that Act against the use of that evidence in other proceedings.
  4. [4]
    On 21 August 2020, the Coroner published findings that remain available online. They include the finding that:

“Miss Blackburn died due to injuries sustained in an incident involving violence with Mr John Peros who used a bladed instrument.”

  1. [5]
    Unsurprisingly, the Coroner’s finding that the plaintiff violently killed Ms Blackburn was widely reported, including by newspapers and broadcasters, and in their online publications.  Those publications have remained online since their first publication.
  2. [6]
    On 14 October 2021, the first and second defendants began publishing an investigative podcast into the death of Ms Blackburn called Shandee’s Story. 
  3. [7]
    The podcast series as a whole examined the nature and quality of the evidence called at the plaintiff’s criminal trial and at the coronial inquest, including deficiencies in the DNA evidence that was presented at his trial.  It made the point that far more evidence was available to the Coroner than was available to the jury.  The second defendant interviewed relevant witnesses, including investigators and experts.  Parts of those interviews were published by the podcast.  
  4. [8]
    The plaintiff has sued in respect of the publication of Episode 13 of the podcast.
  5. [9]
    The third defendant is Shandee Blackburn’s sister.  She was interviewed on 24 May 2021 by the second defendant.  The plaintiff sues her over that interview and the republication in Episode 13 of some of the things that she said in the interview.  A limitation period issue remains to be resolved in the plaintiff’s case against her.
  6. [10]
    Episode 13 was first released to subscribers of The Australian from 17 December 2021, and across other platforms such as Spotify from 10 January 2022.  
  7. [11]
    The defendants contend that before Episode 13 of the podcast was published, the plaintiff’s reputation had been effectively destroyed or “decimated” by the widespread reporting of the Coroner’s finding that Shandee Blackburn “died due to injuries sustained in an incident involving violence with Mr John Peros who used a bladed instrument”.  They also rely on the fact that listeners to Episode 13 would already have formed an adverse view of the plaintiff from having listened to the first 12 episodes.  
  8. [12]
    The defendants’ case is that, prior to Episode 13 being published, the plaintiff was widely known to be the person who was found by an independent Coroner, acting judicially, to have violently killed Shandee Blackburn.
  9. [13]
    In those circumstances, and given the state of his reputation before Episode 13’s publication, the defendants contend that the podcast did not cause, and is not likely to cause, “serious harm to the reputation” of the plaintiff. 
  10. [14]
    In the absence of “special circumstances”, an order was made in accordance with s 10A of the Defamation Act 2005 (Qld) for the determination of the serious harm issue before the trial of other issues.[1] Orders also were made for the plaintiff to particularise the nature and extent of his reputation, and the harm he alleged was caused or is likely to be caused to it.[2]

ADMISSIBILITY ISSUES

  1. [15]
    The parties’ contentions raise the following admissibility issues:
  1. the admissibility of reports of the Coroner’s finding as being relevant to the issue of causation; 
  2. the admissibility of the first twelve episodes of the podcast, and the first episode in particular which reported the Coroner’s finding, on the causation issue;
  3. the “rule in Dingle’s case”;[3]
  4. the application of that rule to the determination of “serious harm”;
  5. whether the rule applies to “quasi-judicial” findings of the kind made by the Coroner; and
  6. the admissibility of evidence of the criminal proceedings and coronial proceedings and reporting of them as “directly relevant background material” to the publication of Episode 13.

The rule in Dingle’s case

  1. [16]
    A significant part of the serious harm hearing concerned the admissibility of prior publications that were to the same effect as Episode 13, in that they either imputed that the plaintiff murdered Ms Blackburn or that he had been found by a Coroner to have violently killed that defenceless woman.
  2. [17]
    The rule in Dingle has been expressed in different ways.  It may be formulated as a rule of evidence about the inadmissibility of prior publications as proof of a bad reputation.  It may be described as a rule about mitigation of damages in circumstances where other publications to the same or similar effect have injured the plaintiff’s reputation.  One simple formulation of the rule is that “where many have published words to the same or similar effect, it is not legitimate for a defendant to seek to reduce damages by proving the publications of the defendant or others, and inviting an inference that those other publications have injured the claimant’s reputation”.[4] It does not prevent a defendant from proving that the plaintiff had a bad reputation.  It concerns the kind of evidence that is admissible to prove that fact when seeking to reduce damages.
  3. [18]
    I will return to consider the rule in Dingle, its rationale, its possible application in the context of s 10A, and what may be treated as exceptions to the rule for judicial findings (as distinct from mere allegations) and notorious incidents.  

The plaintiff’s submissions

  1. [19]
    The plaintiff first submits:
    1. publications such as newspaper articles about the murder trial, the Coroner’s inquest, and the Coroner’s findings; and
    2. evidence of the first 12 episodes of the podcast;

are not admissible to prove that the plaintiff already had a bad reputation prior to Episode 13 being published.  The evidence is submitted to fall foul of “the Dingle rule”.

  1. [20]
    Second, he submits that the Coroner’s Report is not separately admissible as analogous to a judicial finding in the public domain under the principle discussed in Channel Seven Sydney Pty Ltd v Mohammed.[5]
  2. [21]
    Third, he submits that the evidence is not admissible as “directly relevant background context” in accordance with principles derived from Burstein v Times Newspapers Ltd.[6]
  3. [22]
    If the above evidence is not admissible, then, in the absence of other evidence to establish a prior bad reputation, the plaintiff submits that:
    1. Episode 13; and
    2. the third defendants’ statements that were included in that episode, each caused, or is likely to cause, serious harm to his reputation.
  1. [23]
    This submission relies on:
    1. the gravity of the imputation that the plaintiff murdered Shandee Blackburn;
    2. the extent of the podcast’s publication;
    3. the circumstances of the publication including:
      1. the authority of the first and second defendants in undertaking investigative journalism;
      2. the fact that the third defendant said that the family’s “100 per cent” view as to the plaintiff’s guilt was because the third defendant had seen more evidence than was presented at the trial; and
    4. the inherent probability that being labelled as a murderer must have caused, or must be likely to cause, serious harm to reputation.
  2. [24]
    Next, the plaintiff submits that even if the pre-Episode 13 publications, including media reports of the Coroner’s findings, are admitted, they do not prove that persons who came to listen to Episode 13 had a settled, generally-held view that the plaintiff was a murderer before they listened to that episode.  The evidence is submitted to show that Episode 13 convinced at least some listeners of his guilt and therefore caused serious harm to his reputation.  Further, to the extent Episode 13 may have reinforced a view created from earlier publications that the plaintiff murdered Ms Blackburn, this reinforcement is submitted to constitute “serious harm”.
  3. [25]
    Alternatively, Episode 13 is said to be “likely to cause” the plaintiff harm in the future because, even if the Coroner’s findings were notorious in 2020, knowledge of them will fade or be non-existent in, say, 2026.
  4. [26]
    According to the plaintiff, the defendants’ evidence cannot establish that a widespread and negative view of the plaintiff existed prior to Episode 13, and that a significant number of listeners to that episode would not have seriously reduced their estimation of him as a result of listening to it.  The inference is that the widespread publication of such a grave imputation by an authoritative, investigative journalist and a leading newspaper would cause serious harm.  
  5. [27]
    The plaintiff submits that the defendants’ evidence does not establish that every listener to Episode 13 had become aware, before listening to that episode, of the Coroner’s findings or other information that he had violently killed Ms Blackburn.  There may be some overlap between the persons to whom reports of the Coroner’s findings were published and listeners to Episode 13.  But they did not coincide.
  6. [28]
    If the defendants’ evidence is admitted, the plaintiff submits that there is no proper basis to infer that a sufficient number of the approximately 300,000 listeners to Episode 13 either knew of the prior publications or had a settled view about his guilt prior to that episode, and that hearing Episode 13 did not cause serious harm.
  7. [29]
    Even if relatively few listeners to Episode 13 were unaware of the Coroner’s finding and did not already have a low estimation of the plaintiff as a suspected murderer, who the Coroner, acting judicially, had found to have violently killed Ms Blackburn, the plaintiff submits that the serious harm element has been established. This is because a grave imputation can cause serious harm to reputation in the case of a publication to only a few listeners.

The defendants’ submissions 

  1. [30]
    The defendants identify the issue raised by s 10A as one of causation.  The claimant must prove that the publication complained of (Episode 13) caused, or is likely to cause, serious harm to his reputation.  The claimant in proving causation must “isolate” the harm caused by Episode 13 from any harm to reputation that may have been caused by other publications, including earlier publications by the defendants over which he has chosen to not sue.
  2. [31]
    The rule in Dingle is submitted to not relieve the court of the duty of “isolating” damage caused by the defendant from any other harm that other publications may have caused to the claimant.[7]
  3. [32]
    The defendants submit that the rule in Dingle is about the inadmissibility of prior publications of the same or a similar defamatory statement as proof of bad reputation in mitigation of damages.  Despite the application of the rule in Dingle to the question of serious harm under s 1 of the Defamation Act 2013 (UK),[8] the defendants submit that it does not affect the requirement for the claimant to prove causation.  A new legal regime displaces the common law presumption that a defamatory publication causes damage to reputation.  A claimant must prove loss was caused by the defendants’ publication that it sues over.  The defendants rely on English authorities that are said to hold that evidence of similar publications harmful to the claimant’s reputation are admissible on the question of serious harm, in particular, where they indicate that a specific harm asserted could not be attributed to the publication sued upon.[9] 
  4. [33]
    Next, the rule in Dingle does not make evidence of convictions, findings in civil proceedings and certain notorious incidents inadmissible.  The defendants submit that the rule in Dingle does not apply to judicial and quasi-judicial findings.  According to the defendants, the Coroner, acting judicially, in determining the cause of Ms Blackburn’s death made a finding that falls within this category, which may be distinguished from the kind of mere allegations, rumours or unsubstantiated claims to which the rule in Dingle is directed.  
  5. [34]
    Alternatively, the defendants rely on authorities to the effect that evidence of notorious matters that are directly relevant either to the subject matter of the alleged defamatory statement, or to the claimant’s reputation, are admissible to ensure that the assessment of harm to reputation does not occur in “blinkers” and so that the claimant is only compensated for the reputation he or she deserves.  The wide dissemination of the Coroner’s findings is submitted by the defendants to be such a matter. 
  1. [35]
    Ultimately, the defendants submit that while the plaintiff may rely on inference, rather than direct evidence, to prove serious harm, the plaintiff’s inferential case presumes ignorance of the Coroner’s findings and their wide publication.  The plaintiff’s evidence of harm resulting from Episode 13 is submitted by the defendants to consist of a few disparaging comments published by a few unknown persons on an internet chat forum, Reddit, and an argument that there must have been many listeners of Episode 13 like them, or that there were many listeners to Episode 13 who did not listen to any previous episode.
  2. [36]
    If it might be inferred that Episode 13 convinced some listeners that the plaintiff murdered Ms Blackburn, one must return to their estimation of the plaintiff prior to Episode 13.  If they believed or were almost convinced that the plaintiff killed Ms Blackburn, then Episode 13 will not have caused him serious harm.
  3. [37]
    Any listener to that episode probably would have listened to Episode 1 which reported the Coroner’s finding that the plaintiff violently killed Ms Blackburn.  But even if some listeners to Episode 13 were ignorant of the Coroner’s findings, they would be few in number and not distract from the plaintiff’s settled reputation by the time Episode 13 was published, as being the person whom the Coroner found to be Ms Blackburn’s violent killer.  According to the defendants, to determine serious harm without regard to that would be to approach the issue “in blinkers”.

The plaintiff’s submissions in reply 

  1. [38]
    In reply, the plaintiff reiterates that the gravity of being accused of being a murderer and the wide (and continuing) publication of Episode 13 means that his reputation must have been seriously harmed among at least some listeners to Episode 13, or is likely to be seriously harmed by that episode in the future.  He submits that the evidence does not establish that each and every listener in the past had a settled view that he violently killed Ms Blackburn prior to listening to Episode 13, or that every listener to that episode in the future will have that view before listening to it.  
  2. [39]
    The inference that every listener had a settled view because of Episode 1’s reporting of the Coroner’s finding and other matters implicating the plaintiff as the killer is said to be negatived by Episode 1 raising a question mark over who killed Ms Blackburn, and Episodes 1 to 12 identifying other suspects.  If the podcast series is likened to an unfolding story like a novel, then Episode 1 simply created an interest or a mystery and did not create a settled view that the plaintiff was Ms Blackburn’s murderer.  Alternatively, if Episode 1 provided enough content to seriously harm the plaintiff’s reputation and create a settled view among listeners to the series, the plaintiff submits that:
    1. the defendants’ approach is met by an equally probable inference that between Episodes 1 and 13 listeners simply forgot about the Coroner’s findings and did not have a settled view, or that any settled view had dissipated by the time they heard Episode 13; and
    2. one should not proceed on the basis that each listener religiously listened to each episode, vividly remembering its content so as to accumulate a settled view prior to listening to Episode 13, or binged earlier episodes and formed such a settled view prior to Episode 13.     
  3. [40]
    The plaintiff’s response to the defendants’ argument about the lack of evidence from any actual listener to Episode 13, the absence of any direct evidence from the plaintiff or other witnesses of the reaction of others to Episode 13 (as distinct from their reaction to earlier episodes), and the paucity of evidence in the form of a few Reddit comments, is that the Court can infer that the views of those few commentators were shared by others who did not post their views on social media.
  4. [41]
    The absence of direct evidence of serious harm from Episode 13 (or even evidence of how any listener reacted to it) is explained on the basis that the law recognises that mass media publications “of very serious defamatory allegations are likely to render the need for evidence of serious harm unnecessary”.[10]
  5. [42]
    To the extent the issue is one of causation (rather than proof of bad reputation in mitigation of damages), the plaintiff submits that any listeners who already had a negative view of him were likely to have that reinforced by the allegations in Episode 13.  According to the plaintiff, a listener with a settled view who heard the exchange between the second defendant and the third defendant in Episode 13 about the plaintiff’s guilt, and the third defendant’s certainty of that guilt, would have that settled view reinforced.  Reinforcement of the settled view is submitted to be sufficient to justify a finding of serious harm being caused by Episode 13.[11]
  6. [43]
    As to the rule in Dingle, the plaintiff relies on authorities that reiterate the general rule that proof of a bad reputation requires proof by calling persons who can speak to that bad reputation, and that previous publications to the same effect are inadmissible to prove a pre-existing bad reputation.  Following Lachaux, a rule that applies to proof of a bad reputation in mitigation of damages should apply to proof of bad reputation in the context of serious harm.
  7. [44]
    In summary, the plaintiff submits that:
    1. it is simply not possible for such a widespread mass media publication, conveying such a grave imputation, not to have caused serious harm to the plaintiff’s reputation, or not to be likely to cause serious harm;
    2. there is actual evidence (a few Reddit comments) that people believed that the plaintiff was a murderer because they listened to Episode 13;
    3. if the Reddit comments do not establish serious harm, numerous authorities establish that serious harm may be established by inference;
    4. the fact that the Coroner’s findings were reported widely and were referred to in an earlier episode does not mean that every listener to Episode 13 would have a settled view that the plaintiff was a murderer prior to listening to Episode 13; and
    5. in the circumstances, both limbs of s 10A(1) are established.

SERIOUS HARM

  1. [45]
    The new element of the cause of action for defamation created by s 10A of the Act is that “the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person”.[12]
  2. [46]
    The new element is expressed in the language of causation.  Its counterpart in s 1 of the Defamation Act 2013 (UK) includes serious harm as part of the definition of what is defamatory.  It similarly imposes a requirement about causation of serious harm.  

The publication of defamatory matter

  1. [47]
    Under s 10A, the claimant must prove either that “serious harm” was caused or is likely to be caused by the publication of “defamatory matter”, not by a certain defamatory meaning or a particular defamatory imputation.  Still, in pleading the cause of action upon which he or she relies, the claimant will be expected to specify the publication relied upon and, save in exceptional cases, inform the defendant and the Court of the defamatory meaning or meanings upon which he or she relies.
  2. [48]
    The terms of s 10A do not require the judge who determines the issue of serious harm to first make a finding that binds the tribunal of fact at any trial about the precise defamatory imputation that the publication conveyed.  Section 10A contemplates that the serious harm element will be determined as soon as practicable before the trial of the proceeding, unless the judge is satisfied that there are special circumstances justifying the postponement of that determination.  This differs from practice and procedure in other jurisdictions, such as the United Kingdom, where typically meaning, reference to the claimant, and serious harm will be determined at the same time.
  3. [49]
    Section 10A relates to the publication of defamatory matter, not defamatory imputations, and therefore a judge determining the issue of serious harm is not required to find that a certain imputation was conveyed.  Despite this, it would make no sense to proceed with a special harm hearing on the assumption that certain defamatory imputations pleaded by the claimant will not be found, and that the hearing should be conducted by reference to far less serious imputations which are likely to be found at trial.  One might do so if the more serious imputations were clearly untenable and liable to be struck out.  Given the presumptive timing of the s 10A hearing and the consequences of finding that serious harm is not established, a sensible course may be to proceed on the basis that the defamatory matter that was published conveyed the imputation or imputations pleaded by the claimant, imputations to a substantially similar effect, or imputations of a similar degree of seriousness.  Otherwise, an assumption that the publication only conveyed a substantially less serious defamatory meaning than those reasonably contended for by the claimant might see the claimant shut out of a claim that, if allowed to proceed to trial, might result in the more serious imputations being established.
  4. [50]
    Therefore, in this matter the serious harm hearing proceeded on the assumption that the defamatory matter imputed that the plaintiff murdered Shandee Blackburn or conveyed a similarly grave imputation about his responsibility for her violent death.

Section 10A removes the common law presumption that the defamatory publication caused harm to reputation 

  1. [51]
    Section 10A has been held to remove the presumption of damage, together with any presumption of a good reputation, if the latter presumption was part of the common law.[13] This follows the approach adopted in the United Kingdom in Lachaux.[14] Lord Sumption (with whom the other members of the Supreme Court agreed) adopted the analysis of Warby J (as Warby LJ then was) at first instance.  Warby J accepted that s 1 means that libel is no longer actionable without proof of damage, and “that the legal presumption of damage will cease to play any significant role”.[15] Lord Sumption was more emphatic, observing that if the common law rule that damage to reputation was presumed survived, then there would be no scope for evidence of the actual impact of the publication.  Therefore, he concluded that the presumption of damage “cannot survive”.[16] The Full Court of the Federal Court has adopted the same approach in considering the effect of s 10A.
  2. [52]
    Had the point not been recently decided by the Full Court of the Federal Court, I would have adopted the same view and followed the reasoning of Warby J, as endorsed by the Supreme Court of the United Kingdom in Lachaux.  
  3. [53]
    In any event, if s 10A had merely burdened the presumption of damage rather than removed it, then the presumption would be one of harm, not a presumption of serious harm.  As Professor Rolph observes, the issue of whether the presumption of damage has been abrogated or merely burdened by the introduction of the serious harm element into the cause of action is probably of doctrinal importance only.[17]

The determination of serious harm

  1. [54]
    The determination of serious harm is made by a judge, rather than by a jury.  As noted, absent special circumstances, the determination is made if the issue arises, as soon as practicable before the trial.
  2. [55]
    The determination of serious harm is qualitative, not quantitative.[18] The judge’s task is to evaluate the material before the court and “arrive at a conclusion on an issue on which precision will rarely be possible”.[19]
  3. [56]
    The determination is made having regard to all of the circumstances of the case, not simply the circumstances of the publication.  This is a point of distinction with the former triviality defence.  The term “the circumstances of the publication” in the statutory defence of triviality was interpreted to include “the nature of the defamatory matter, the manner in which it is published, the persons to whom it is published and the place where it is published”.[20] A plaintiff’s bad reputation was held to not ordinarily be a relevant circumstance of publication for the purpose of the defence, unless the matter was published to a small audience who knew the plaintiff.[21] 
  4. [57]
    I shall consider some of the circumstances that may be relevant to the different issue of “serious harm” under s 10A.

The gravity of the defamation

  1. [58]
    Clearly, the gravity of the defamation is a relevant factor.[22] The more seriously defamatory the publication, the more likely it is to cause serious harm.

The extent of publication

  1. [59]
    Quantity counts in the evaluation of serious harm, but it is not necessarily decisive.  The extent of publication is only one of many potentially relevant circumstances.  The fact that the defamatory matter was published to only a few individuals does not necessarily mean that it did not cause “serious harm”.  Very serious harm to a reputation can be caused by the publication of defamatory matter to one person.[23]The gravity of the defamation and other circumstances may mean that only a few recipients is not too few to result in serious harm.
  1. [60]
    A mass media publication will not necessarily cause serious harm.  That said, mass media publications of “very serious defamatory allegations are likely to render the need for evidence of serious harm unnecessary”.[24] This does not mean, however, that the issue of serious harm is a “numbers game”.[25] 

By whom it is published

  1. [61]
    A defamatory publication that is made by or attributed to a credible and reliable source is more likely to cause serious harm than a publication made by a partisan and prejudiced person who recipients of the publication would regard as unreliable or poorly informed.  A defamatory publication that is presented as being the product of extensive research by an independent entity is more likely to cause serious harm than a publication that appears to be the product of no inquiry or consideration.

The form of the publication

  1. [62]
    A statement made in an ephemeral medium, apparently spontaneously, such as a social media post in response to an earlier post, may have less potential for harm than a statement made in a permanent form that appears to be the product of analysis and reflection.

The identity of the recipients

  1. [63]
    The defamatory matter may be published to persons who know or know of the claimant.  For example, a statement made to the family or close friends of the claimant who instantly disbelieve it, is less likely to cause serious harm than if the statement is made to persons who do not know the plaintiff and who believe it.
  2. [64]
    In some contexts, a defamatory publication may be made to a group that does not alter its estimation of the person being referred to.  For example, an email to members of a completely factionalised golf club about a protagonist may not shift the settled views of recipients about the protagonist.  
  3. [65]
    The same may be true of a publication to persons who have not previously heard of the claimant. In O'Shea v Everingham[26] a police officer, who was the officer in charge at an Aboriginal reserve, sued over a letter the defendant, a Member of Parliament, wrote to the Federal Minister for Aboriginal Affairs, and which was copied to the State Minister and several other Members of Parliament.  In assessing damages at $1,000, Connolly J observed that, “wounding though this attack obviously was to the plaintiff, his reputation suffered very little as a result of the publication of this letter”.  He continued:[27]

“Insofar as it was published to members of the Australian Labor Party, Federal and State, and their advisors, it was simply preaching to the converted.  So far as it was addressed to members of the Queensland Ministry and to a Liberal member of the Parliament of the Commonwealth, it was a sermon likely to have fallen on deaf ears.”

  1. [66]
    Had Connolly J been required to make a determination under s 10A, he might have concluded for similar reasons that the publication did not cause serious harm.

The state of the claimant’s reputation prior to the publication

  1. [67]
    If a publication injures a claimant only in a certain sector, then evidence of reputation must relate to that sector.[28]  For example, the claimant’s reputation as a talented musician may be unaffected by a report that she is a robber, but her reputation for being law-abiding will be, and is likely to be seriously harmed.
  2. [68]
    A claimant is not required to prove that he or she had a good reputation before attempting to jump the s 10A hurdle.  This must be so, otherwise the remedies and vindication given by the law of defamation would not be available for someone with a somewhat tarnished reputation, or even a person whose reputation was under a cloud because of earlier publications and whose reputation was completely destroyed by the subject publication.
  3. [69]
    A party may have a reputation, or reputations in different sectors of their life, among members of the community in which they live, by persons who know them, or by persons who know of them.  However, to have a remedy in defamation, a person is not required to prove that he or she had a pre-existing reputation among all of the recipients of the defamatory publication.  For example, a citizen who has never come to public prominence can complain about the harm to reputation caused by a mass media publication that is communicated to all parts of the nation.  In Lachaux, Lord Sumption said:[29]

“… there is no principled reason why an assessment of the harm to the claimant’s reputation should not take account of the impact of the publications on those who had never heard of him at the time.  The claimant’s reputation is harmed at the time of publication notwithstanding that the reader or hearer knows nothing about him other than what the publication tells him.”

  1. [70]
    A person with a bad general reputation or a bad reputation in a relevant sector will struggle to prove that a defamatory publication caused serious harm to that already badly damaged reputation.
  2. [71]
    A person’s bad reputation is relevant to the determination of serious harm.  In following English authorities, Besanko J (with whom Anderson and O'Sullivan JJ agreed) stated in Selkirk v Wyatt:[30]

“… a prior bad reputation is relevant to the decision whether the publication has caused, or is likely to cause, serious harm to the claimant.  It may mean the difference between the prior bad reputation and the harm caused by the publication is not serious harm.”

  1. [72]
    Besanko J also stated that the English cases were authority for the proposition that if the defendant seeks to rely on prior bad reputation in the context of the issue of serious harm, then the onus is on the defendant to prove that matter.  I defer discussion of how a bad reputation is proven in the context of “serious harm” and in the different, but related, context of mitigation of damages.  I will address that matter in discussing the rule in Dingle.

Proof of the cause of the serious harm

  1. [73]
    As a matter of first principle governing causation of loss and damage, a defendant is liable only for the harm to reputation and other loss caused by its publication.  The starting point under s 10A is that the defendant is responsible only for harm to a claimant’s reputation that is caused by the defamatory publication sued over, not for harm caused by other publications or other causes.  Applying this principle, Lord Denning in Dingle stated that the judge would have been “quite right” if he had “isolated” the damage for which the “Daily Mail were responsible from the damage for which they were not responsible”.[31]
  2. [74]
    In proving the “serious harm” element of the cause of action and in proving damages at trial, the plaintiff must attempt to isolate the damage caused by the publication of which he or she complains.  In Sicri v Associated Newspapers Ltd,[32] Warby J referred to the court’s duty of “isolating” the damage caused by the defendant tortfeasor from any harm that others may have caused to the same interest of the claimant.  This was in the context of a claim for the tort of misuse of private information.  However, it reflects a principle of causation in any case in which the claimant must prove that the defendant’s wrong caused the harm for which compensation is sought.
  3. [75]
    For reasons to be discussed, in some circumstances a plaintiff may be unable to isolate the harm that the relevant publication caused.  An example is where many publications at around the same time to the same or similar effect cause an indivisible loss.  In such a case, in which neither the claimant nor the court can isolate the harm caused by the subject publication, a plaintiff may choose to sue over one publication that is alleged to have caused, along with other publications, indivisible damage to reputation.  The combined and indivisible harm may be as a result of publications to the same effect by the same defendant or by other publishers.  The claimant may seek to invoke another general principle that renders a defendant liable in tort where its wrong was “a cause” or materially contributed to damage that is indivisible.  In those circumstances, it is sufficient that the wrong, along with other causes, caused the same loss or damage.  
  4. [76]
    A defendant who is made liable for the whole of the loss or damage where its tort was only one cause may seek contribution from a concurrent tortfeasor whose wrong caused the same loss or damage.  Further, as I will discuss, a defendant publisher may seek to mitigate damages pursuant to a statute or by proving that at the time of its publication the plaintiff already had a bad reputation.
  5. [77]
    If, however, the claimant does not sue over the combined and indivisible harm that was caused by numerous publications to the same or similar effect, then he or she may encounter a problem of proof under s 10A.  The following passage makes that point and is relevant in this case in which the plaintiff:
    1. sues only over Episode 13; and
    2. does not seek to claim on the basis that Episode 13 and other publications to the same or similar effect caused an indivisible loss, rather than harm to reputation that is able to be isolated. 
  6. [78]
    In Sivananthan v Vasikaran Collins Rice J stated:[33]

“Where a libel claimant selects some publications as examples of a wider campaign of allegations by a defendant, that claimant may face a daunting problem of causation.  If a defendant has undertaken a protracted course of conduct publicising allegations, a corresponding improbability arises that any member of that public later re-encountering them in published form will be impacted as an effect of that specific publication.  The serious harm test is about the impact of an individual publication by a defendant on its readership.  If the readership already knows everything about the defendant’s view of the claimant contained in the publication from the defendant’s own history and course of conduct, it is correspondingly unlikely that the publication will have material impact.”

Proof of serious harm by direct evidence or by inference

  1. [79]
    The serious harm element requires proof of actual harm to reputation.  Harm is not presumed.  Serious harm may be proven by direct evidence of harm to reputation, by inference, or by both means of proof.
  2. [80]
    By direct evidence, I include evidence from recipients of the publication or from persons who have heard others speak about the publication and its effect on their estimation of the claimant.  It includes publications in the media, in readers’ comments, in social media posts, abuse, criticism, and being avoided because of the defamatory publication.  Care is required in such cases that the abuse, criticism or other response (such as being avoided) is caused by the publication of the defamatory matter, and not by other publications.[34]  
  3. [81]
    Actual or likely serious harm may be established by inference, at least when the defamation conveys a gravely serious meaning about the claimant.[35] In some cases, a claimant may rely on inference and, if the inference is strong enough, serious harm may not be in issue.  As noted, it has been held that mass media publications of very serious defamatory allegations may render the need for evidence of serious harm unnecessary.  All depends upon the circumstances.  It may also be unnecessary to call direct evidence of serious harm in the case of grave defamation to a more limited number of recipients, if the circumstances make that inference compelling and there is no competing, reasonable inference.
  4. [82]
    This is not to say that serious harm is established by the inherent tendency of the words.  Lord Sumption in Lachaux stated:[36]

“… if serious harm can be demonstrated only by reference to the inherent tendency of the words, it is difficult to see that any substantial change to the law of defamation has been achieved by what was evidently intended as a significant amendment.”

  1. [83]
    The gravity of the defamation and the extent of publication may permit actual harm to be reasonably inferred.  However, reliance on inference alone may be a brave, forensic choice where there are competing and equally compelling inferences.  One example is that quoted above from Sivananthan v Vasikaran, where prior publications by the defendant make it unlikely in the circumstances that a further publication containing the same allegations will have a material impact and cause serious harm.  Another is a claimant who had a damaged reputation at the time of publication, and where the difference between that reputation and the reputation that resulted from the relevant publication may not be such as to constitute “serious harm”.
  2. [84]
    In Rader v Haines[37] the New South Wales Court of Appeal, in applying s 1 of the English statute stated:

“This requirement concerns the seriousness of the harm to the reputation, not of the imputation … the application of the test [for serious harm] is to be determined by reference to the actual facts about the impact of the imputation, and not just the meaning of the words; although the meaning is necessarily part of the impact, because all else being equal a grave imputation will cause more harm than a trivial one, it is only part of the equation, because the gravest imputation will cause no harm if it has no impact.”

  1. [85]
    The Court of Appeal emphasised that findings of serious harm should be based on all the relevant circumstances.  The same approach should be applied in a determination under s 10A.
  2. [86]
    Any expectation that a claimant should be able to call numerous witnesses who read or heard the defamatory publication and are prepared to say that they thought less of the complainant as a result, or overheard others speaking about the publication, should be tempered by the reality “that a claimant may struggle to identify, or to produce evidence from, all of those to whom an article was published and in whose eyes the claimant’s reputation was damaged”.[38]
  3. [87]
    A claimant may be able to rely in an appropriate case on “the grapevine effect” and an inability to know to whom the defamatory publication has spread along a traditional, oral grapevine or “by social media and modern methods of electronic communication”.[39]
  4. [88]
    The approach of Warby J at first instance in Lachaux about the effect of the enactment of a serious harm requirement and how serious harm must be proved by a claimant was approved by the Supreme Court of the United Kingdom on appeal.  I respectfully follow it in the context of s 10A.  Warby J stated:[40]

“The court is not confined, when deciding this question, to considering only the defamatory meaning of the words and the harmful tendency of that meaning.  It may have regard to all the relevant circumstances, including evidence of what has actually happened after publication.  Serious harm may be proved by inference, but the evidence may or may not justify such an inference.” (emphasis added)

The meaning of “serious harm”

  1. [89]
    Section 10A was intended to effect a substantial change to the law of defamation.  One purpose, which is evident from extrinsic material, is to deal with “insignificant claims early in the proceedings”.[41] Identical legislation was introduced in New South Wales.  The Minister in that State referred to concerns about defamation law being used for “trivial, spurious and vexatious backyard claims” and that the serious harm threshold is intended to filter out “trivial claims”.[42] The legislation is not, however, cast in terms of trivial or vexatious claims or for publications to a limited audience. It is not cast in a form that is intended to be a statutory reflection of the principle of proportionality derived from Jameel v Dow Jones & Co Inc.[43] It is not cast in terms of the triviality defence that was repealed when s 10A was introduced.  Section 10A creates a new element for the cause of action in defamation.  No extrinsic material suggests that it should be interpreted by applying the case law that applied to the triviality defence.  Given their different terms, s 10A may filter out certain claims that would not be defeated by the former triviality defence.  
  1. [90]
    The plaintiff submits, and I accept, that it is appropriate to consider the consequences of finding that a claimant has not established the threshold causal element of the cause of action enacted by s 10A.  Such a determination shuts the claimant out of a remedy.  This, however, is the consequence that the legislature intended, and which it intended should occur, absent special circumstances, as early as possible in a proceeding.  
  2. [91]
    The consequences of finding that “serious harm” is not established do not justify interpreting the provision other than according to its terms or giving “serious” something other than its ordinary meaning.  It does not justify tilting the scales unfairly in favour of claimants in allowing them to rely upon inferences of harm from the gravity of the publication, the extent of publication, and the authority of the source of the statement, but not to allow a defendant to rely upon the same kind of inferences in proving that earlier authoritative publications to the same effect caused serious harm, with the result that any further harm caused by the subject publication does not amount to serious harm.
  3. [92]
    The enactment of s 10A was one part of a package of reforms aimed at “protecting reputations from serious harm while encouraging responsible free speech”.[44] A Parliamentary statement about the compatibility of the amendments with the Human Rights Act 2019 (Qld) stated that the provisions were intended to strike a more appropriate balance between conflicting rights, and that the balance between “protecting individuals’ reputation and not unduly limiting freedom of expression” was to be achieved by introducing a serious harm threshold and omitting the defence of triviality.  It continued:[45]

“… preventing matters, which are trivial or minor in nature, or which do not result in any significant harm to a plaintiff, being the subject of lengthy and expensive litigation also promotes and encourages freedom of expression.”

This sentence confirms that the section is not confined to trivial or minor claims and limited publications.   

  1. [93]
    The interpretative provisions of the Human Rights Act 2019 (Qld) do not require me to interpret “serious harm” so as to favour the right to reputation or freedom of expression.  The provision is intended to balance both rights.
  2. [94]
    The requirement to prove “serious harm” should not be interpreted as being satisfied simply by proving that the defamatory meaning is grave, or that the publication was made through the mass media.
  3. [95]
    In applying s 10A I should not substitute some other term for the word “serious”.  I respectfully agree with Basten JA who stated in Rader v Haines:[46]

“There is a risk in seeking synonyms, which may later be treated as valid replacements for the ordinary English word adopted by the Parliament.  There is also a risk in seeking to place the term on a scale, between other terms of equal imprecision.  The critical concept is ‘serious harm to the reputation of the claimant’; it is that to which the court is required to attend by reference to the evidence of a range of matters.  Analysis of individual component words is apt to distract from that inherently impressionistic task.”

  1. [96]
    In the same case, Brereton JA observed that:[47]

“… ‘serious’ harm sits on the spectrum above ‘substantial’ harm but below ‘grave’.  Importantly, there can be harm which, though substantial, does not reach the level of serious harm.”  

  1. [97]
    Section 10A is not concerned with harm to feelings or consequences other than harm to reputation.
  2. [98]
    In summary, the term “serious harm” should be interpreted according to its ordinary meaning and to achieve the purpose for which s 10A was enacted.  Section 10A was intended to create a threshold requirement that a claimant must prove.  It has been interpreted as removing the common law’s presumption of harm to reputation.  It uses the language of causation and requires a claimant to prove actual harm and that the harm amounts to “serious harm”.  
  3. [99]
    Section 10A may require consideration of the state of the plaintiff’s reputation (if any) among recipients of the defamatory publication prior to their reading or listening to it, and regard to what evidence exists and what reasonable inferences can be drawn in all the circumstances about the harm to reputation that the publication caused.  Having reached a conclusion, on the basis that the material before the court, about the harm that was caused, the judge makes an evaluation as to whether it amounts to “serious harm”.  

CAUSATION AND THE RULE IN DINGLE

Positioning the rule in Dingle and other laws about mitigation of damages in their context

  1. [100]
    Before addressing the rule in Dingle’s case and other issues about admissibility, I will address in a general and preliminary way the common law of defamation’s approach to causation and proof of loss.  This is necessary to understand the significant change made by s 10A in enacting an additional element to the common law cause of action in defamation: serious harm. 
  2. [101]
    The general principle is that a defendant is liable only for the harm to reputation and other loss caused by its publication.  Proof of causation is aided by the common law’s presumption that a defamatory publication causes damage to reputation.
  3. [102]
    The effect of s 10A is, among other things, to remove that presumption.[48]
  4. [103]
    Prior to the enactment of a serious harm element for the cause of action, a claimant in defamation needed to only prove that the publication had a tendency to injure the plaintiff in the estimation of readers or listeners.[49] In defining what is defamatory, the common law refers to the tendency of a publication to lower the claimant in the estimation of the “hypothetical referee”,[50] the ordinary, reasonable reader.  Defamation in the common law does not depend on actual harm in the estimation of actual readers.  Actual harm to reputation does not have to be proved at common law.  The absence of evidence of actual harm to reputation, actual harm to feelings, or other loss or injury has implications for the quantum of an award of damages for an indefensible defamation.  However, some loss of reputation is presumed by the common law once a publication is found to be defamatory.
  5. [104]
    Because a claimant did not have to prove that the defamatory publication caused actual harm to reputation, the common law of defamation did not address issues of causation in the same way as other torts, such as negligence that causes personal injury or a negligent misstatement, where a plaintiff has to prove that the wrong caused actual loss or damage.  Still, as a matter of general principle, the common law makes a defendant liable only for the harm that was caused to the plaintiff’s reputation by the publication complained about.
  6. [105]
    The law of defamation recognises practical problems in isolating and proving the harm to reputation that was caused by a certain defamatory publication.
  7. [106]
    A difficulty in some cases is in calling as witnesses persons to whom the publication was made or to whom it was republished “on the grapevine”, and who are prepared to give evidence about the publication and its effect on their estimation of the claimant.  In rejecting an appeal against the quantum of a damages award, Lord Atkin famously wrote that “it is impossible to track  the scandal, to know what quarter the poison may reach”.[51] The law recognizes that defamations are republished and spread “on the grapevine”.[52] A plaintiff may not know of many of the persons to whom the defamation has spread and be unable to call them as witnesses.
  8. [107]
    Persons to whom the publication was made or been republished may be reluctant to give evidence or there may be too many of them to call as witnesses.  The latter problem is overcome by the inference of harm in many cases of mass communications, particularly by the seriousness of the defamatory matter and the extent of its publication. 
  9. [108]
    A different problem of proof is where, at about the same time as the subject publication, many parties published the same or similar defamatory imputations about the claimant. In such a case, the claimant has difficulty in isolating the harm to reputation he or she suffered because of a particular publication.  For instance, if the same defamation is published at about the same time by four television news networks, the claimant may struggle to attribute certain consequences to a certain network.  How could a decline in social invitations, being avoided, or being verbally abused by a stranger in the street be attributed to any one network?
  10. [109]
    In a situation in which the court is unable to isolate the harm the defendant’s publication caused, the law’s pragmatic and principled approach to causation is to treat the harm to reputation caused by the four networks as an indivisible loss that can be recovered from  each party whose publication contributed to the loss, with each potential defendant’s responsibility for the loss being resolved by contribution between tortfeasors pursuant to statute.
  11. [110]
    An alternative is for a defendant is to rely on certain statutory provisions in defamation law that enable a defendant, in mitigation of damages, to plead and prove that the claimant has brought proceedings against another publisher who published defamatory matter to the same effect or has received or agreed to receive compensation in relation to such a publication.[53]
  12. [111]
    A further alternative is for a defendant to seek to mitigate damages by proving that the plaintiff already had a bad reputation at the time of the defendant’s publication. 

The rule in Dingle

  1. [112]
    Dingle precludes a defendant relying in mitigation of damages on other publications that are alleged to have harmed the claimant’s reputation as proof of a bad reputation.  The general rule is that a bad reputation must be proven by reputation witnesses. 
  2. [113]
    In Lachaux v Independent Print Ltd Warby J stated :[54]

“In the class of case – of which the present is an example – where many have published words to the same or similar effect, it is not legitimate for a defendant to seek to reduce damages by proving the publications of the defendant or others, and inviting an inference that those other publications have injured the claimant’s reputation. This is a brief and deliberately general summary of what I shall call ‘the rule in Dingle’.”

  1. [114]
    While firmly entrenched in the law of defamation, the rule in Dingle is hard to categorise.  Since a defendant may rely on the claimant’s bad reputation in mitigation of damages, the rule in Dingle may be described simply as a rule of evidence that precludes a defendant from relying on earlier publications as proof of bad reputation in mitigation of damages. 
  2. [115]
    What is the rationale for a rule that permits a defendant to call witnesses to say that the claimant had a bad reputation before the subject publication, but not to tender publications to the same or similar effect as proof of that bad reputation?
  3. [116]
    To what kind of prior publications does the rule not apply?  Why, for example, does it not apply to proof of a criminal conviction and the assumed notoriety of such a fact?  If the rule does not apply to judicial findings in civil cases that are likewise assumed to follow a defamation claimant and damage reputation, should it not apply to the findings of a Coroner who, acting judicially and applying the demanding standard of satisfaction dictated by Briginshaw v Briginshaw, makes a public finding about the cause of a death, being a finding that is widely reported? 
  4. [117]
    I will return to address those questions and Dingle in greater detail, authorities that have considered it, and authorities that confirm the general principle that a defendant is liable only for the harm to reputation caused by its publication.  
  5. [118]
    The rule in Dingle may be said to be part of the law’s approach to problems of causation and proof of loss in cases where multiple publications cumulatively injure reputation and result in a loss that is treated as indivisible. The claimant’s and the court’s causation problem of isolating harm is addressed by permitting the claimant to recover the whole of a loss from a defendant whose publication contributed, along with other publications, to that loss.  The law also permits such a defendant to reduce or mitigate damages by proving that the claimant already had a bad reputation at the time of its publication.  A bad reputation must be proven by admissible evidence.  The rule in Dingle concerns the evidence that is admissible as proof of a bad reputation. 

Causation, problems of proof and mitigation of damages

  1. [119]
    Presently, it is sufficient to make two general observations about causation and proof of harm to reputation.
  2. [120]
    The first is that in a case involving only a single publication, whether by a mass media defendant or in a non-media setting such as an individual who makes a statement at a meeting, the common law recognised the practical problem of proof by creating a presumption of harm to reputation.
  3. [121]
    The second is the problem of proof where, at about the same time as the subject publication, or some time before it, many parties published the same or similar defamatory statements about the claimant.  The claimant must prove the harm caused by the subject publication and, if it can, isolate or disentangle that harm from the harm caused by other publications to the same or similar effect.  In a case in which the plaintiff cannot isolate the harm that only the publication sued over caused, the law treats the harm caused by that publication and other publications (including harm to reputation) as indivisible.  In such a case, the defendant’s publication is treated as a material cause of the indivisible damage.  The defendant is made liable for the harm to reputation to which it contributed.  It can seek contribution from other tortfeasors pursuant to statute, seek to mitigate damages if a statutory provision permits it to do so, or seek to mitigate damages by proving a pre-existing bad reputation.
  4. [122]
    The damages being mitigated or reduced on the basis of a bad reputation are the damages assessed to compensate for the indivisible loss to which the defendant’s publication contributed along with other publications to the same or similar effect.  The damages being mitigated are not damages that are awarded for harm that has been isolated as having been caused by the defendant’s publication and not by other publications or causes.
  5. [123]
    In summary, mitigation of damages on the grounds of bad reputation arises in cases where the claimant is unable to isolate the harm the publication complained of caused and seeks to recover damages for an indivisible loss to which the publication contributed.  This is the realm in which the rule in Dingle about proof of bad reputation and the inadmissibility of publications to the same or similar effect as proof of a bad reputation arises. 
  6. [124]
    The law’s approach to allowing a claimant to recover against a single defendant the indivisible harm caused by the defendant’s publication and other publications to the same or similar effect, subject to rules about mitigation and contribution between tortfeasors, is a pragmatic and principled approach in situations where a claimant, through no fault on his or her part, is unable to isolate the loss that only the defendant’s publication caused, and the defendant also is unable to assist the court in its duty of attempting to isolate that loss.  The alternative of denying the plaintiff a remedy in damages against a tortfeasor whose publication contributed to an accumulated and indivisible loss of reputation is unattractive as a matter of policy or justice.
  7. [125]
    The law’s approach to harm of reputation where multiple publications have caused a practically indivisible injury to reputation may be said to encourage over-compensation because a claimant might in separate proceedings against separate tortfeasors recover compensation for reputational loss to which the publication sued over contributed, but did not wholly cause.  The risk of over-compensation is addressed, however, by statutes that provide for contribution between tortfeasors and statutes that permit a court to mitigate damages in such a case.[55] The statutes ameliorate the harshness to a defendant of having to compensate for an indivisible loss to which it only partly contributed.  
  8. [126]
    The common law of defamation also has permitted defendants who seek to limit their liability for the accumulated damage to reputation caused by various earlier publications, including their own and earlier publications that are defensible, to prove that by the time the subject publication occurred, the claimant already had a bad reputation.  
  9. [127]
    The rule in Dingle is about proof of bad reputation in such a case.  Subject to certain exceptions, a bad reputation cannot be proved by tendering publications to the same or similar effect as the subject publication.

The nature of the plaintiff’s claim

  1. [128]
    Against that background, it is appropriate to identify the nature of the plaintiff’s claim, and the type of claim he does not bring.
  2. [129]
    The plaintiff claims that Episode 13 and certain things said by the third defendant in that episode each caused serious harm to his reputation.  His case is that it is possible to isolate the harm that each of those publications caused.
  3. [130]
    The plaintiff’s case is not that a number of publications to the same or similar effect that include reports of the Coroner’s findings, parts of the first 12 episodes of the podcast, and Episode 13, caused harm to his reputation and he is unable to isolate the harm that Episode 13 caused.
  4. [131]
    The issue is whether he has proven the element of causation in the claim that he has chosen to litigate:  that Episode 13 caused him serious harm or is likely to cause him serious harm.
  5. [132]
    The defendants contest that he has discharged his burden of proof.  Part of their case on causation relates to the absence of direct evidence.  Another part is that, whereas ordinarily serious harm may be proved by inference in the case of the mass publication of a gravely defamatory allegation, proof by inference is not so compelling where, prior to the publication complained of, the plaintiff had been the subject of numerous mass publications to the same or a similar effect, including reports of the Coroner’s findings.  One way to describe the defendant’s challenge to the plaintiff’s case on causation of “serious harm” is to say that serious harm had already been done by other publications, and Episode 13 did not cause him any further serious harm.  The damage had already been done.  Little more damage could be done by Episode 13.
  6. [133]
    Therefore, whatever inference of serious harm might have been drawn had Episode 13 been the only publication that defamed him, it was not a stand-alone publication.  It was one of many publications that had come before it to the same or similar effect.  Therefore, the defendants contend that one cannot simply infer from the fact that it was a mass publication of a grave allegation that it caused serious harm in the circumstances.
  7. [134]
    Analysed this way, the issue raised by the defendants is one about causation, and rebutting a case on causation that relies almost entirely on inference.  The defendants do not seek to rely on the prior publications simply to prove a bad reputation and, in doing so, run the admissibility gauntlet of Dingle by arguing that the Coroner’s findings resemble judicial findings.  The defendants’ reliance on the prior publications is to contest the plaintiff’s case on causation.
  8. [135]
    In a case in which the plaintiff has set himself the task of isolating the harm that Episode 13 caused to his reputation and seeks to do so on the basis of inference, it seems legitimate for the defendants to meet that case by arguing that, in circumstances where there were numerous prior publications to the same or similar effect, the inference that Episode 13 caused serious harm, while arguable, should not be drawn.  Episode 13 may have caused some additional harm, but it falls short of “serious harm”.
  9. [136]
    That at least is the defendants’ argument about causation of serious harm.
  10. [137]
    The prior publications are being relied upon to contest causation in a case in which the plaintiff has set himself the task of isolating the harm that was caused by Episode 13 from the harm that was caused by other publications.  They are not being relied upon to prove bad reputation in aid of mitigation of damages.  They do not fall foul of the Dingle rule on admissibility. 
  1. [138]
    If a plaintiff claims that he suffered serious harm to his back because of his employer’s negligence on a certain occasion, then he has the burden of proving causation.  He has to isolate the harm that the alleged negligence caused and rebut any suggestion that the harm he claims was caused by other incidents.  In meeting the plaintiff’s case on causation in such a claim, the defendant is entitled to prove, if it can, that the serious harm to his back about which the plaintiff complains was caused by other incidents.  Doing so is part of assisting the Court in its duty to isolate the harm that the tort caused, and putting the plaintiff to proof that the incident caused his bad back.
  2. [139]
    In principle, proof and disproof of causation should be the same for harm to a back as for harm to a reputation.  Proof of harm may be aided by inferences supported by the evidence.  One might be about the harm that a mass media publication of a serious defamation is apt to cause to the plaintiff’s reputation among persons to whom it is published and to whom it spreads on the grapevine.  A defendant in either type of tort case should be permitted to call evidence that the claimed harm was not caused by its conduct but was caused by another incident or incidents, or that the harm that its conduct caused was not as serious as the plaintiff claims because the plaintiff had already been seriously injured as a result of those earlier incidents.  In that context, evidence of earlier incidents should be admissible on the issue of causation and to isolate the harm that the defendant’s conduct caused.
  3. [140]
    If earlier publications are admissible as relevant to the issue of causation, then there seems no sound reason why the defendant cannot rely on inferences about the harm that the earlier publications were likely to cause to the plaintiff’s reputation because of the gravity of the matters conveyed, the extent of publication, and the authority of the source of the relevant statement.
  4. [141]
    Subject to considering Dingle in greater detail and other authorities on causation and mitigation of damages on account of a prior bad reputation, my provisional view is that the defendants’ evidence to which the plaintiff objects is admissible on the issue of causation in a case in which the plaintiff seeks damages for harm that he claims was caused only by Episode 13 and that the evidence permits the court to isolate.  My provisional view is that I should not uphold the plaintiff’s “Dingle admissibility” objections as recorded in MFI-B.

Causation in law and in the law of defamation

  1. [142]
    Windeyer J stated that “questions of cause and consequence are not the same for law as for philosophy and science”.[56] Mason CJ in March v E & M H Stramare Pty Ltd[57] cited that observation and continued:

“In law … problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence.  The law does not accept John Stuart Mill’s definition of cause as the sum of the conditions which are jointly sufficient to produce it.  Thus, at law, a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage …”

  1. [143]
    Professor Stapleton’s scholarship[58] has explored and explained that causation in law encompasses two distinct inquiries.  The first is factual causation:  the role that something played in an outcome.  The second is concerned with legal responsibility for that outcome, or what Mason CJ referred to as “ascertaining or apportioning legal responsibility”.  
  2. [144]
    The second inquiry may be labelled “scope of responsibility” or “scope of liability”.[59] It inquires into whether legal responsibility should be attributed to the defendant for a given outcome, for example, economic or other loss.  In deciding whether or not to attribute legal responsibility, value judgments are made about the appropriate scope of liability.  A court may refuse recovery of all or part of claimed losses, despite, as a matter of incontrovertible fact, the defendant’s conduct was “a cause” of the loss, in the sense that the loss would not have occurred but for the defendant’s conduct.  In certain circumstances, the court limits recovery of losses on the basis of a judgment about the appropriate scope of legal responsibility, not on the basis of an inquiry into historical fact.[60] As was stated in Westpac Banking Corporation v Jamieson:[61]

“At law, a person may be responsible for a loss when his or her conduct was one of a number of conditions sufficient to produce that loss.  Whether or not the person is made legally responsible for all or part of a loss for which his or her conduct was a cause is an enquiry into whether it is appropriate to attribute legal responsibility for a given occurrence in the context of [a] particular legal norm.” 

  1. [145]
    Some statements of general principle may be found that in tort law “a defendant is liable for damage of which its wrongful conduct was a material cause”.[62] For example, Devlin J in Heskell v Continental Express Pty Ltd stated:[63]

“Where the wrong is a tort, it is clearly settled that the wrongdoer cannot excuse himself by pointing to another cause.  It is enough that the tort should be a cause and it is unnecessary to evaluate competing causes and ascertain which of them is dominant.”

  1. [146]
    Rather than state that a tortfeasor “is” liable for all of the loss of which its wrongful conduct was “a cause”, one might say that the tortfeasor “may” be legally responsible for all the loss or damage that its wrongful conduct and other causes produced.  This reflects the use of the word “may” in the passages I have quoted above from Mason CJ in March and the Court of Appeal in Jamieson.
  1. [147]
    In Sicri, Warby J referred to certain general principles and their application in a case where “the evidence establishes some identifiable item or category of damage, which is indivisible”.[64] In such a case, any risk of injustice to the defendant falls to be dealt with by means of a claim for contribution against concurrent tortfeasors.[65]
  2. [148]
    Warby J went on to state that the general principle that applies in a case where damage is indivisible and the defendant is liable for the whole of that damage:[66]

“… does not apply in a case where the evidence shows that (a) each tortfeasor caused some part of the damage, but (b) neither caused the whole, and (c) the claimant would have sustained some part (but not all) of the damage if only one of the torts had been committed, but (d) on the evidence, it is impossible to identify with any precision what part or element of the damage has been caused by which defendant.”

  1. [149]
    The following passage from Rahman v Arearose was quoted by Warby J as applying in such a case:[67]

“The fact-finding court’s duty is to arrive at a just conclusion on the evidence as to the respective damage caused by each defendant, even if it can only do it on a broad-brush basis which then has to be translated into percentages.”

  1. [150]
    After referring to the principles that apply in the case of “a single indivisible item or head of loss or damage caused by concurrent tortfeasors” in cases where the evidence fails to persuade the court that the defendant’s wrongdoing was a cause of a specific loss, Warby J stated that the rule in Dingle had no bearing on the above principles and that Jay J reached essentially the same conclusion in Napag Trading Ltd v Gedi Gruppo Editoriale SpA.[68] 
  2. [151]
    Warby J observed that “the rule in Dingle does not relieve the Court of the duty of ‘isolating’ the damage caused by the defendant tortfeasor from any harm that others may have caused to the same interest of the claimant”.[69]
  1. [152]
    The reference to “isolating” echoes a point made by Lord Denning about causation in Dingle.  Lord Denning stated:[70]

“The ‘Daily Mail’ are only responsible for the damage done to the plaintiff’s reputation by the circulation of the libel in their own newspaper.  They are not responsible for the damage done to the plaintiff’s reputation by the report of the select committee or by the publication of extracts from it in other newspapers.  If the judge isolated the damage for which the ‘Daily Mail’ were responsible from the damage for which they were not responsible, he would have been quite right …  But it is said that he did not isolate the damage.  He reduced the damages because the plaintiff’s reputation had already been tarnished by reason of the publication of the report of the select committee and of the privileged extracts from it in the ‘Daily Mail’ and other newspapers.  I think he did do this and I think he was wrong in so doing.”  

Causation in defamation law

  1. [153]
    Gatley on Libel and Slander states:[71]

“Causation  While there will be some cases in which a causative nexus is relatively easily established, difficult issues of causation may arise where it is sought to ascribe a specific consequence to a particular publication.  Where, for example, there is more than one publication making similar allegations about the claimant, ascribing serious financial loss to a specific publication is likely to prove more difficult.  Attributing the loss caused to the statement complained of may also be difficult where the defendant has made a number of unfavourable remarks about the claimant not all of which are actionable.” 

  1. [154]
    The authors cite Tesla Motors Ltd v British Broadcasting Corporation[72] as an example of where the need to distinguish the effects of the actionable falsehoods from other unfavourable, but true or time-barred statements, “raised an acute causation problem”.[73]
  2. [155]
    One of the authorities cited by Gatley relating to difficult issues of causation where more than one publication makes similar allegations about the claimant is the judgment of Devlin LJ in the Court of Appeal in Dingle v Associated Newspapers Ltd.[74] Another is Napag Trading Ltd v Gedi Gruppo Editoriale SpA.[75] I will return to Napag.  Devlin LJ in Dingle referred to what was said to be a fundamental principle in the law of damage, where injury has been done and the injury is “indivisible”.  Devlin LJ stated that “as between the plaintiff and the defendant it is immaterial that there are others whose acts also have been the cause of the injury, and it does not matter whether those have or have not a good defence”.[76] Devlin LJ also referred to a case in which four men, acting severally and not in concert, strike the plaintiff one after another and that the plaintiff could obtain judgment for “total compensation from anyone whose act has been a cause of his injury”.  
  3. [156]
    There follows a lengthy passage, which comes from a bygone era in its reference to a master and a servant and to a man who “reads four newspapers at breakfast”.  However, this important passage is cited by Gatley and I shall quote it.  It follows the earlier discussion of principles of causation and their application to cases in which a loss is “one and indivisible” (which was said to be a matter of fact and not a matter of law).  That contrasts with a case in which damage is sustained by two different acts by two wrongdoers, and it is possible to divide the loss.  Devlin LJ wrote:[77]

“These are elementary principles and readily recognisable as such in the law of damage for physical injury.  It is not so easy to distinguish and apply them in the law of damage for loss of reputation.  It may be easier to do so, I think, if one takes as an illustration separate publications to one man only and a piece of special damage flowing from them.  If a master during the course of a morning hears the same slander about the plaintiff, his servant, from four different defendants, he may after he has heard them all decide that coming from four sources it must be true and he may dismiss the plaintiff in the afternoon.  Subject to any defence he may have, each defendant is severally liable for the whole of the financial loss which the plaintiff suffers from the dismissal.  If one defendant has no defence, it will not help him at all that the other three can make out a good case on the grounds of qualified privilege.

The same principle must apply to general damage for loss of reputation.  If a man reads four newspapers at breakfast and reads substantially the same libel in each, liability does not depend on which paper he opens first.  Perhaps one newspaper influences him more than another, but unless he can say he disregarded one altogether, then each is a substantial cause of the damage done to the plaintiff in his eyes.  A fortiori, when a reader of the ‘Daily Mail’ picked up the issue for June 16 and read the article complained of, it is not possible to say how much damage was done by the privileged extract from the report and how much by Bromley’s story; all that can be said is that they combined to injure the plaintiff’s reputation.” 

  1. [157]
    These passages from the judgment of Devlin LJ in Dingle have been cited with approval by intermediate courts of appeal in Australia.[78] In Cornwall v Rowan[79] the Full Court of the Supreme Court of South Australia cited them and the statement of Lord Denning in Dingle[80]. It observed that it “may be impossible to determine which publication caused what damage”, and in those circumstances the law regards the injury to the claimant “as the joint result of each publication and each publisher will be liable for that damage”.[81]  Overcompensation is avoided by the statutory provision for mitigation where the claimant had already recovered damages, or brought an action for damages, or had received or agreed to receive compensation for “a libel to the same purport or effect as the libel for which such action has been brought”.[82]
  2. [158]
    Professor Rolph states:[83]

“At common law, questions of causation tended not to intrude into defamation law, particularly in relation to liability for defamation. Thus, the law on causation in defamation is under-developed.”

Now that a claimant is required to prove serious harm to reputation, issues of causation arise more regularly, including the interaction between serious harm and the rule in Dingle.  Professor Rolph observes:[84]

“The law on causation and defamation will need to develop.  Already in the English case law, difficult questions about causation in defamation have begun to arise.”

Bad reputation and its proof

  1. [159]
    As the passages I have quoted from Lord Denning’s speech in Dingle and from the judgment of Devlin LJ in Dingle indicate, the decision addresses questions of causation to some extent.  The authority is, however, more commonly regarded as an authority about mitigation or reduction of damages by proving that the claimant had a “bad reputation” and that prior publications to the same or similar effect are inadmissible as proof of bad reputation.
  2. [160]
    Dingle is well-established as part of the law of Australia.  In Carson v John Fairfax & Sons Ltd,[85] McHugh J was concerned with the totality of two awards over separate publications and whether they were manifestly excessive.  McHugh J dissented in the result.  However, the following passage cites Dingle.  The plaintiff quotes it and highlights a passage that I also will highlight to make the point that evidence of prior bad reputation is admissible.  The issue is the evidence that is admissible when a defendant seeks to prove a prior bad reputation.  McHugh J wrote:[86]

“The common law is clear, rightly or wrongly, that the defendant cannot mitigate damages by tendering evidence of other defamatory publications concerning the plaintiff. A fortiori, at common law evidence is not admissible that the plaintiff has recovered damages in respect of other defamatory publications. A defendant must answer for the effect of its own circulation without regard to what others have published. If a defendant wishes to contend that the plaintiff's reputation was already damaged at the time of publication, it can do so by calling witnesses to prove the nature of the plaintiff's reputation at that time. But it cannot tender other publications for that purpose. They may or may not have damaged the plaintiff's reputation.”

  1. [161]
    Chappell v Mirror Newspapers Ltd[87] is an example of the application of the rule in Dingle.  The newspaper defendant in that case tendered, over objection, a bundle of 60 newspaper articles, many of which were defamatory of the plaintiff.  The defendant contended that they were relevant to defences, including a triviality defence.  The trial judge admitted them and gave directions about their relevance.  Moffitt P (with whom Samuels and Priestley JJ agreed) ruled that prior reputation was not relevant to the defences.  As to the prior articles relevance to the issue of damages, Moffitt P referred to Dingle and other authorities and concluded that Dingle was against the admission of the articles to establish that the plaintiff had “a prior tarnished reputation”.[88]

The distinction between a settled reputation and reports and rumours

  1. [162]
    Dingle and other authorities refer to reputation as a person’s settled reputation, as distinct from some temporary change to it.  For example, Lord Radcliffe in Dingle did not regard answers given by the plaintiff under cross-examination to the effect that earlier publications of a report had the effect of making him “for the time being” a marked man and subject to much personal embarrassment, as amounting to “any evidence of a tarnished reputation in the sense that phrase can be relevant to an assessment of damages”.[89] Wigmore distinguished between reputation, on the one hand, and reports and rumours on the other:[90]

“Reputation, being the community’s opinion, is distinguished from mere rumour in two respects.  On the one hand reputation implies the definite and final formation of opinion by the community; while rumour implies merely a report that is not yet finally credited.  On the other hand, a rumour is usually thought of as signifying a particular act or occurrence, while a reputation is predicated upon a general trait of character; a man’s reputation, for example, may declare him honest, and yet today a rumour may have circulated that this reputed honest man has defaulted yesterday in his accounts.” 

  1. [163]
    In Hughes v Mirror Newspapers Ltd,[91] Hunt J stated:

“Evidence of a person’s reputation must demonstrate a settled reputation: Associated Newspapers Ltd v Dingle [1964] AC 371 at 399, 406, 412. A defendant is not entitled to show that the plaintiff’s reputation had immediately prior to the publication of the matter complained of been tarnished by a temporary cloud (ibid at 396, 397, 417).  It is otherwise if the defendant is able to show a permanent injury to the plaintiff’s reputation by a single event.  But emphasis must be placed on the word “permanent”.  The reputation, as I say, must be a settled one …”

  1. [164]
    The same point was made by Bromwich J in Hayson v The Age Company Pty Ltd:[92]

“A prior newspaper article is not capable of proving either the fact that a specific incident occurred, or notoriety arising out of such an incident even if not separately proven to have taken place.  A prior newspaper article cannot in and of itself prove notoriety and thereby the ultimate conclusion of bad reputation, because it says nothing about the impact of such an article on reputation, let alone reputation at the time of the publication of the matter complained of.  A witness must be called to do that, or somehow other admissible evidence led. Sight must not be lost of the long-standing compromise between competing public interest considerations.”

  1. [165]
    Passages in Dingle and other authorities recognise that certain matters may prove a bad reputation without a witness or witnesses being called to say that the person has a bad reputation.  Lord Radcliffe envisaged that there may be a proper case in which a person’s bad reputation “can be proved by giving evidence of some incident of notoriety”.  It was also possible that the court might receive “hazy generalities” such as a “well-known pickpocket” or a “notorious prostitute”.[93] A criminal conviction has long been accepted as being a matter of public knowledge and to therefore have affected a plaintiff’s reputation.[94] Channel Seven Sydney Pty Ltd v Mohammed[95] applies the same principle to judicial findings which, if relevant to the sector of the plaintiff’s reputation that is in question, are admissible in mitigation of damages on the basis that they took place in open court and can be regarded as a matter of public knowledge.[96] I will return to these and other instances in which an incident, conduct, or another matter, such as a judicial finding, is treated as notorious and admissible as evidence of a bad reputation, or at least as evidence of the state of the claimant’s reputation at the time of the subject publication.
  2. [166]
    The present point is that Dingle and other authorities in defining “reputation” refer to a settled reputation that has been accumulated over a period.  As Lord Radcliffe stated:[97]

“When one speaks of a plaintiff’s ‘actual’ reputation or ‘current’ reputation (to quote my own adjective) one means his reputation as accumulated from one source or another over the period of time that precedes the occasion of the libel that is in suit.”

  1. [167]
    Evidence of reputation does not embrace “evidence of the use of repetition of the same defamatory words by other persons dealing contemporaneously with the same incident or subject”.[98]
  2. [168]
    Subject to certain exceptions, proof of reputation depends on calling a witness or witnesses who can give evidence of the settled reputation that the claimant has accumulated over a period in the general community in which the claimant resides.

Associated Newspapers Ltd v Dingle

  1. [169]
    On 17 May 1958, the Daily Mail and other newspapers published a report of a Select Committee of Parliament that contained a matter that was defamatory of Mr Dingle.  The relevant reports were fair and accurate and therefore could not be the subject of suit.  On 16 June 1958 the Daily Mail published another article to similar effect.  However, it was not protected.  On 26 June 1958, it published a further article that stated that all interested parties had been cleared of any deliberate intent to defraud. Mr Dingle’s damages against the Daily Mail over the 16 June article were assessed by a judge who was found to have taken into account and mitigated damages on the basis that as at 16 June, Mr Dingle already possessed “a reputation tarnished to some extent by what had been said about him in the report and in its reproduction … in other newspapers”.[99] Damages were assessed at £1,100.  The Court of Appeal set aside the judgment and increased the damages to £4,000.  An appeal to the House of Lords was dismissed.
  1. [170]
    Lord Radcliffe held that the judge had not merely ascertained and isolated the actionable matter.  
  2. [171]
    One reason why it was an error to mitigate damages on the basis of other publications was that the newspaper extracts that were put into evidence at trial were tendered on the understanding that they were to be used to rebut an allegation of express malice.  
  3. [172]
    A second and more general ground was one of principle.  Lord Radcliffe stated:[100]

“A libel action is fundamentally an action to vindicate a man’s reputation on some point as to which he has been falsely defamed, and the damages awarded have to be regarded as the demonstrative mark of that vindication.  If they could be whittled away by a defendant calling attention to the fact that other people had already been saying the same thing as he had said, and pleading that for this reason alone the plaintiff had the less reputation to lose, the libelled man would never get his full vindication.”

  1. [173]
    Lord Radcliffe continued:[101] 

“It is, I think, a well understood rule of law that a defendant who has not justified his defamatory statements cannot mitigate the damages for which he is liable by producing evidence of other publications to the same effect as his; and it seems to me that it would involve an impossible conflict between this rule and the suggested proof of tarnished reputation to admit into consideration other contemporary publications about the same incident.  A defamed man would only qualify for his full damages if he managed to sue the first defamer who set the ball rolling:  and that, I think, is not and ought not to be the law.” 

  1. [174]
    Lord Radcliffe also concluded that the newspaper articles were not admissible as “evidence of general reputation” or “general evidence of reputation”.[102] As earlier noted, Lord Radcliffe and the other Law Lords considered the kind of evidence that is admissible to prove a bad reputation.  
  2. [175]
    Lord Morton agreed with the reasons of Lord Radcliffe for dismissing the appeal.  
  3. [176]
    Lord Cohen rejected a contention that the trial judge did not mitigate the damage on account of the report and the publications in other newspapers, the trial judge having “pointed out the importance of isolating the damage done by the appellants’ publication from the damage done to the respondent by the report and by the printing of extracts from it in other newspapers”.[103] Lord Cohen agreed that this was the correct approach provided the judge was not mitigating the damages on account of injury done to the plaintiff by the publication of the report.  However, the trial judge had mitigated damages.
  1. [177]
    As to proof of bad reputation, Lord Cohen stated:[104]

“It is possible that a single event (e.g., a conviction of a serious crime) might have such an effect, but bearing in mind that the only admissible evidence of bad reputation has been held to be general evidence, I do not think in this case there was any evidence on which the trial judge was justified in treating the respondent’s reputation as tarnished.  I adopt what was said in the Court of Appeal by Holroyd Pearce L.J.: ‘Can it here be said that there was some evidence of the plaintiff’s bad or partially bad reputation?  In my judgment there was none.  Evidence of bad reputation must be properly proved.  It is a grave matter.  One is not entitled to assume without evidence that the plaintiff’s reputation must have changed in the four weeks following the publication of the report’.”

  1. [178]
    Lord Denning, in the passage that I have earlier quoted, also was of the view that if the judge had isolated the damage for which the Daily Mail was responsible from the damage for which it was not responsible, he would have been quite right.  However, the judge did not isolate the damage.  Instead, he reduced the damages because the plaintiff’s reputation had already been tarnished by reason of publication of the report of the Committee and of privileged extracts from it in the Daily Mail and other newspapers.[105]
  2. [179]
    Lord Denning observed that in order to get around the law “about reports and rumours”, counsel for the newspapers argued that Mr Dingle’s current reputation was tarnished and that evidence of tarnished reputation was admissible in evidence.[106] Lord Denning then addressed the point about proof of a bad reputation by calling persons who know the plaintiff in relation to “a settled reputation which has been accumulated over a period”,[107] but no such witnesses were called.  Without such evidence, it was said “you immediately get into the realms of reports and rumours, often enough spread by busybodies who know nothing of the man …”[108]
  3. [180]
    Lord Morris framed the question as follows:[109]

“Was the judge warranted in assessing damages on the basis that the respondent came to court with a damaged reputation?”

He concluded that a defendant may, in order to mitigate the damages, adduce general evidence to show that the plaintiff is a man of bad reputation:[110]

“It ought not, however, to avail a defendant to prove that a plaintiff has been under a temporary cloud of suspicion when the success of the plaintiff in libel proceedings demonstrates that there need never have been any such suspicion.

Lord Morris likewise agreed that there was not any evidence that Mr Dingle was “a man of bad reputation”.[111]

Is Dingle about causation, proof of bad reputation in mitigation of damages, or both?

  1. [181]
    Different passages in the reasons of the House of Lords and passages from the judgments in the Court of Appeal confirm a point about causation, namely that it is the task of a judge in assessing damages to isolate the damage for which the defendant is responsible, namely the damage caused by the subject publication, from damage for which the defendant is not responsible.  The decision also is concerned with the accumulated effects of multiple publications by the defendant and by other newspapers over a relatively short timeframe.  If the judge assesses the indivisible damage that the subject publication and others combine to cause, and concludes that the defendant must assume responsibility for it, then the damages so assessed should not be mitigated on account of the contribution to that loss by other publications.  The defendant may seek to mitigate damages pursuant to a statute of the kind that was passed in England in 1888 and in 1952.  However, the judge is not to mitigate damages because other publications contributed to the loss of reputation for which the defendant’s publication is held responsible.  The defendant may seek to prove in an appropriate case that by the time of its publication, the claimant had a “bad reputation”.  It may only do so by admissible evidence.  Tendering copies of the other publications is not a permissible means of proving that at the time of the defendant’s publication the claimant had a settled, general reputation that was a bad reputation.  Allegations in other publications, reports or rumours may place the plaintiff under “a temporary cloud of suspicion”, but do not prove a settled, bad reputation.
  2. [182]
    To the extent Dingle is a case about causation, it emphasises the need to isolate the damage for which the defendant’s publication is responsible.  A settled principle is that a defendant is liable only for the damage that its publication caused.  As Warby J observed in Sicri, “the rule in Dingle does not relieve the Court of the duty of ‘isolating’ the damage caused by the defendant tortfeasor from any harm that others may have caused to the same interest of the claimant”.[112]
  3. [183]
    If the claimant is able to prove that only the defendant’s publication caused certain damage, then the position is clear.  The defendant is responsible for that damage and no issue of mitigation or reduction of damages arises because no other publication contributed to it.
  4. [184]
    If, on the other hand, the defendant’s publication caused damage that was also contributed to by other publications (whether actionable or not), then the defendant is liable for the whole of that damage in circumstances in which the damage caused by the defendant’s publication and it alone cannot be isolated.  The defendant may seek contribution from other tortfeasors pursuant to statute in the case of such an indivisible loss.  It may seek to mitigate damages pursuant to a provision like s 38(1)(c), (d) or (e) of the Defamation Act 2005 (Qld).  Alternatively, it may seek to mitigate damages by proving that, by the time of its publication, the defendant already had a bad reputation.  It cannot, however, seek a reduction of damages because other publications contributed to the damage that its publication also caused.

The interaction between principles of causation and the rule in Dingle

  1. [185]
    The enactment of a requirement to prove that a defamatory publication caused, or is likely to cause, serious harm has brought into sharper focus a problem of reconciling proof of causation and the rule in Dingle.  It is, however, a problem that pre-dates the enactment.
  2. [186]
    If a claimant seeks to recover more than presumed harm and to recover the actual harm that he or she contends the defendant caused, the claimant is required to prove causation.  Depending upon the circumstances, a claimant may be able to prove that the defendant’s publication and it alone caused the damage.  The circumstances may be such that the defendant’s publication and other publications combined to cause loss and damage.  In such a case, the court, in attempting to isolate the damage that was caused by the defendant, may adopt a broad-brush approach.[113] If, however, it cannot isolate or disentangle the damage that the defendant’s publication caused from damage that was caused by other publications, and the damage is treated as “indivisible”, then the defendant’s publication will be “a cause” of the damage.  The court having reached a conclusion about factual causation, may choose to hold the defendant responsible for all of the damage, leaving the defendant to seek contribution from other tortfeasors whose wrong caused the same damage, to seek mitigation of damages pursuant to statute, or to seek mitigation by proving that the claimant already had a bad reputation.

Sir David Eady’s insightful observations

  1. [187]
    The tension between principles of causation and the rule in Dingle was considered by Sir David Eady in Shakil-Ur-Rahman v ARY Network Ltd.[114] Counsel for the defendant in that case argued that the subject programs could not have caused any significant harm to the claimant’s reputation in the light of a number of factors that were much more likely to have done so.  During cross-examination counsel explored the effect of other publications on the basis that they related to causation.  The aim was to obtain a finding that both injury to reputation and distress, if they occurred in the jurisdiction, were brought about by those extraneous factors rather than by the offending broadcasts.[115] Sir David Eady stated:[116]

“It seemed to me at first, however, that the real objective was to establish that the claimant’s reputation, here and elsewhere, was so poor that any additional harm occasioned by the broadcasts could be discounted.  Once it is acknowledged that a defendant is seeking to mitigate the effect of his own conduct by establishing a general bad reputation on the part of the claimant, or at least one that has been tarnished, then there are certain well established constraining principles that come into play.

It is not permitted, first of all, to introduce damaging publications by others:  Dingle v Associated Newspapers Ltd [1964] AC 371; [1962] 3 WLR 229.  Secondly, a defendant cannot rely on individual acts, or instances of conduct, on the claimant’s part by way of mitigating damage (as opposed to evidence of general bad reputation):  Scott v Sampson (1882) 8 QBD 491 …”

  1. [188]
    After discussing other matters that can be legitimately placed before the court in the context of evaluating the claimant’s reputation when assessing compensation, Sir David Eady affirmed a distinction between matters relied upon as going to causation and matters in mitigation of damage.  These were said to be “subtle distinctions, but none the less important for that”.  
  2. [189]
    Presciently, Sir David Eady continued:[117]

“They are perhaps especially significant in the context of publications after the 2013 Act came into effect.  There will no doubt be many skirmishes in the years to come as to whether a particular claimant can establish “serious harm” to his/her reputation.  In that context, it may be appropriate for a proposed defendant to introduce evidence of other possible causes of any harm alleged in order to undermine that contention.  This, it is to be hoped, will more often occur early on in the litigation, at what is truly the threshold stage, but it may be raised at any point.  Whenever it occurs, however, it is an exercise in identifying whether the harm alleged can truly be attributed to the act(s) of the relevant defendant.  It is not about mitigation of damage, although in some respects it resembles it very closely.  Once that is recognised, it becomes apparent that the introduction of the evidence of (say) other defamatory publications, or of apparently discreditable conduct on the claimant’s part, will not in itself offend the traditional rules about mitigation to which I have referred.” 

  1. [190]
    These points were said to emerge from the words of Lord Denning in Dingle that I have earlier quoted to the effect that the Daily Mail was only responsible for the damage done to the plaintiff’s reputation by the publication in its newspaper, not for the damage done to the plaintiff’s reputation by the report of the Select Committee or by the publication of extracts from it in other newspapers.  According to Lord Denning, if the judge isolated the damage for which the Daily Mail was responsible from the damage which it was not responsible, the judge would have been quite right.
  2. [191]
    Applying this principle, Sir David Eady observed:[118]

“I must try to isolate such damage as flowed from the relevant broadcasts in this jurisdiction and compensate the claimant only in respect of those matters.  I should not attribute … any liability for distress or hurt feelings caused by others … who may have libelled or abused him.” 

  1. [192]
    Sir David Eady also observed:[119]

“The task may not always be easy, but in principle that is obviously correct.  So too, however artificial the exercise may seem, I should also leave out of account any harm to his reputation for which their broadcasts are not responsible.” 

  1. [193]
    This statement of principle is consistent with permitting evidence and argument about the effect that other publications may have had upon the plaintiff’s reputation, provided the other publications are not relied upon as proof of a bad reputation in breach of the rule in Dingle.
  2. [194]
    I shall next consider a number of authorities that have considered issues of causation and the rule in Dingle in the context of s 1 of the Defamation Act 2013 (UK).

Lachaux v Independent Print Ltd

  1. [195]
    In the trial of preliminary issues in Lachaux,[120] the defendants adduced evidence of a range of other publications and a chronology of when the other publications occurred.  Particular reliance was placed on certain publications in the Daily Mail which were given extensive publicity.  The claimant wanted to complain about them, but did not do so because he was advised they had the protection of privilege for fair and accurate reporting.  Objection was raised on behalf of the claimant that reliance on the material violated the rule in Dingle.  Counsel for the complainant submitted that Dingle is authority for a rule that at common law other publications to the same effect are inadmissible in relation to the assessment of general damages for injury to reputation, whether the other articles are published by the defendant or others, and whether or not they are the subject of complaint by the complainant.  Counsel for the defendants argued for a narrower ratio of Dingle as being a decision that related simply to what material is admissible in mitigation of damages, was not authoritative about proof of serious harm under s 1, and did not disturb established principles of causation in tort.
  2. [196]
    Warby J described the ratio in Dingle as follows:[121]

“The ratio of the decision is, however, not that it is irrelevant to consider the state of a person’s reputation at the time the words complained of are published.  The common law has always recognised that a person should only be compensated for injury to the reputation they actually possess.  A defendant may prove in mitigation that a person has a bad reputation in the relevant sector of his life.  The common law has however developed rules as to the means by which such a matter may be proved or, put another way, the evidence which is admissible to establish it.  Previous publications to the same effect are inadmissible.  The court will admit evidence from individuals who can speak of how a person is or is not esteemed, in the relevant sector of his reputation, or evidence of a conviction or possibly some other single notorious event.  Dingle is in my judgment properly understood as a reaffirmation of those long-established rules of common law, and the policy considerations that underlie them.”     

  1. [197]
    After considering Dingle and its ratio, Warby J observed:[122]

“There is no principled distinction to be drawn between the admission of other articles in mitigation of damages, as was attempted unsuccessfully in Dingle in a legal environment where damage was presumed, and the attempt to introduce such articles to reduce or limit damages in the present case, in the changed environment following the 2013 Act.”

  1. [198]
    I interpret the reference to “reduce or limit damages in the present case” as a reference to the evaluation of “serious harm”, rather than simply an assessment of damages.  In any event, Warby J concluded that the reasoning of Lord Radcliffe and Lord Denning in Dingle was persuasive both in terms of principle and pragmatism.  Arguments at trial were said to have underlined some of the practical problems that would flow from the approach urged by the defendants.  Rather than rival publications straining to scoop each other, there would be a contest not to be found to be first.  Also, it was not just a question of timing but of considering overlapping readerships.  However, in that case Warby J saw no reason to assume there was any substantial overlap between the readership of the various publications at issue.
  2. [199]
    The rule in Dingle was said to have a principled justification, as identified by the House of Lords and by Devlin LJ in the Court of Appeal, and to correspond with basic principles of causation.  The passage from Devlin LJ forms  part of the long quotation that appears above at [156] and is as follows:[123]

“If a man reads four newspapers at breakfast and reads substantially the same libel in each, liability does not depend on which paper he opens first.  Perhaps one newspaper influences him more than another, but unless he can say he disregarded one altogether, then each is a substantial cause of the damage done to the plaintiff in his eyes.” 

  1. [200]
    As noted, Warby J returned in Sicri to principles of causation in a case in which each publication is a substantial cause of the damage done to the plaintiff.    

Subsequent cases

  1. [201]
    Later cases to which I will refer establish that Dingle does not preclude an inquiry into causation.  Spicer v Commissioner of Police for the Metropolis[124] is such a case.  The claimant sued over an article that was published by the Metropolitan Police the day after certain verdicts.  The claimant sued, alleging that the article that was published on the Metropolitan Police’s website and a link to it that was posted on Twitter wrongly accused him of causing the victim’s death, a charge of which he had been acquitted.  The claimant had to prove serious harm and he gave evidence of being shunned by people he knew from around the university.  He dismissed the impact of his prosecution and the criminal trial on his reputation, and attributed reactions directly to the article.  Knowles J did not accept the claimant’s “very general and unparticularised assertions”.[125] He reached the same conclusion about assertions that other consequences had flowed as a result of the article.  It seemed inherently improbable that any of these people should have had any particular interest in the Metropolitan Police’s article as opposed to The Sun, The Mirror, Mail Online and other mainstream media which carried the story.[126] The claimant failed to prove that the article caused serious harm.  For present purposes, however, is the reliance placed upon other articles in disproof of the claimant’s case on causation.  
  1. [202]
    In Banks v Cadwalladr[127] Warby LJ (with whom Dame Victoria Sharp P and Singh LJ agreed) had occasion to consider the application of s 1 and proof that the relevant sector of the claimant’s reputation is bad among those to whom the statement complained of was published.  It arose in the context of a finding that the publication occurred in an “echo chamber”, namely a closed environment in which the information people receive is merely a repetition of the same thing that they have heard or said before and already believe.  This finding fed into a conclusion by the trial judge that serious reputational harm was not established. Warby LJ observed:[128]

“This is a legally permissible line of reasoning, up to a point.  Proof that the relevant sector of the claimant’s reputation is bad among those to whom the statement complained of was published can reduce damages, perhaps very substantially.  A claimant is only entitled to recover compensation for injury to the reputation he actually has.  By the same token proof of an existing bad reputation in the relevant sector must be relevant to the question of whether the publication of a statement caused serious harm to the claimant’s reputation.

However, the authorities set clear limits on the means by which a relevant bad reputation can be proved.”

  1. [203]
    Banks confirms that Dingle remains authority that it is impermissible for a defendant to attempt to prove a pre-existing bad reputation by reliance on earlier publications.  In Banks the evidence did not prove that the “claimant had a relevant pre-existing bad reputation”.[129] The evidence at trial also did not prove that most of those to whom the relevant publications were made already believed in the truth of the allegation that they contained.[130]
  2. [204]
    Earlier in Price v MGM Ltd[131] Warby J had essayed relevant principles concerning proof of a bad reputation.  These principles were cited with approval by the Full Court of the Federal Court in Selkirk v Wyatt.[132] It is helpful to set them out at this point:[133]

“Mitigation of damages/disproof of harm:

  1. A defendant may seek to show that the claimant’s reputation has not in fact suffered, or not much, by proving that at the time of publication the claimant had an existing bad reputation. This was a clear common law principle in relation to mitigation of damages. The same point holds good, but with greater force, in the modern legal context where a claimant must establish “serious harm” under s 1. In principle, a defendant can establish that there is no cause of action because the claimant’s reputation is so bad that the offending publication did not cause serious harm. Ahmed (above) is a case where it was so clear that this would be the outcome that summary judgment was appropriate.
  1. But there are clear limits to what is considered relevant and admissible for the purpose of, and the means by which a bad reputation can be proved.
    1. Reputation is not considered for this purpose to be a single indivisible thing. It is only the claimant’s reputation in the relevant “sector” of his life that matters for this purpose.
    2. It is not legitimate to plead or prove in mitigation of damages specific acts of misconduct, even if they concern the same ‘sector’ of the claimant’s life: the rule in Scott v Sampson (1882) 8 QBD 491.
    3. It is not legitimate to rely in mitigation of damages on the fact that the publication complained of contains other defamatory allegations about the claimant of which he has not complained: Plato Films Ltd v Speidel [1961] AC 1090, where the House of Lords refused to reverse or qualify Scott v Sampson.  At 1125, Viscount Simonds said this:

‘It surprises me that it should be considered a proper matter for pleading that a plaintiff has not thought fit to include in his action every libellous statement made about him by a defendant. It is, in my opinion, wholly improper.’

  1. Further, ‘it is not legitimate for a defendant to seek to reduce damages by proving [other] publications of the defendant or others, and inviting an inference that those other publications have injured the claimant’s reputation.’  Lachaux v Independent Print Ltd [2015] EWHC 2242 (QB) [2016] QB 402 [15(9)], summarising ‘the rule in Dingle’ (Associated Newspapers Ltd v Dingle [1964] AC 371). Bad reputation must be proved by calling witnesses to speak of a person’s actual reputation in the relevant sector.
  2. By way of exception to these general principles, criminal convictions may be admitted in evidence to prove a bad reputation in a relevant sector of a person’s reputation, as ‘they are the very stuff of reputation’: Goody v Odhams Press Ltd [1967] 1 QB 333. This is the principle applied in Ahmed.”
  1. [205]
    In subparagraph 2(d) Warby J treated the passage in Lachaux that summarised the rule in Dingle as referrable to proof of a bad reputation.  Warby J was not specifically addressing proof or disproof of causation.
  2. [206]
    In Sobrinho v Impresa Publishing SA[134] Dingemans J stated a number of propositions about the effect of s 1 of the Defamation Act 2013 (UK).  One was that difficult questions of causation might arise when other publications make similar allegations that are not the subject of complaint.  Dingemans J stated:[135]

“… where there are publications about the same subject matter which are not the subject of complaint (because of limitation issues or because of jurisdictional issues) there can be difficult points of causation which arise, see Tesla Motors v BBC [2013] (Civ) 152 and Karpov v Browder [2013] EWHC 3071 (QB); [2014] E.M.L.R. 8.  The decision of the House of Lords in Associated Newspapers v Dingle [1964] A.C. 371 does not prevent these difficulties.  That decision was not a decision on causation.  The decision in Dingle prevents a defendant from relying in mitigation of damages for libel on the fact that the same or similar defamatory material has been published in other newspapers about the same claimant.  Dingle does not address the issue of whether a publication has caused serious harm.” 

  1. [207]
    One might debate the proposition that Dingle “was not a decision on causation”.  That is because passages in it affirm the need to isolate the damage for which the defendant’s publication is responsible from the damage caused by other publications, and that where this cannot be done, a publisher may be liable for the damage which its publication and other publications caused.  However, this passage from Sobrinho highlights the fact that the rule in Dingle relates to reliance on other publications in mitigation of damages.
  2. [208]
    The passage that I have quoted from Sobrinho was quoted with approval by the Court of Appeal in Economou v De Freitas.[136] The case arose out of a succession of broadcasts and articles in November and December 2014, parts of which the claimant complained were defamatory of him.  One of the issues at trial included serious harm.  The judge found that “a number of publications” had not been shown to have caused serious harm.  
  3. [209]
    Lord Justice Sharp addressed the issue of causation:[137]

“The fact that an inference of serious harm can be drawn in an appropriate case does not in my view preclude the sort of causation analysis undertaken by the judge, depending always on the facts.  Ultimately, the judge had to be satisfied that it was the particular publication concerned that caused the claimant serious harm; and for the reasons he gave, when considering the complex facts that were before him, he was not so satisfied here.”

  1. [210]
    In Soriano v Societe D’Exploitation De L’Hebdomadaire Le Point SA & Anor[138] Collins Rice J observed in the context of a discussion about serious harm that:

“… the law of causation in this area can be relatively complex to apply, particularly in an international libel context.  It is fact-sensitive, and sensitive to the distinction between the general inferential process of establishing serious harm to reputation, and attempts to evidence it by the attribution of specific consequences.”

  1. [211]
    A leading authority on causation is Napag Trading Limited v Gedi Gruppo Editoriale S.p.A & Anor.[139] One of the issues addressed by Jay J was the extent to which Dingle obviates any inquiry into the causation of the claimant’s various losses.  Jay J had regard to authorities including Lachaux and Economou.  It is appropriate to quote the following three paragraphs which provide a synopsis of the relevant principles:[140]

“Dingle expresses the principle that a defendant cannot rely in mitigation of damages on the fact that similar defamatory statements have been published about the same claimant by others. The case was concerned with what may be described (but I hope the term is not misunderstood) as “general damage to reputation” in connection with a number of publications of substantially the same libel at more or less the same time. The legal policy behind the principle is that if a claimant had to identify which particular publication was causative or apportion the harm as between various publications each with an apparently similar causative impact he could not possibly do so.

However, that does not mean, as Sharp LJ explained (see para 41) in Economou, citing with approval paras 46-50 of the judgment of Dingemans J in Sobrinho v Impress Publishing SA [2016] EMLR 12, that difficult points of causation cannot arise under s.1 of the Defamation Act 2013. Dingle was understood to be a decision about mitigation of loss rather than causation, and I have already identified the factual structure of the case that was under consideration by the House of Lords, viz. various similar publications at more or less the same time. 

These causation problems may arise where there are limitation or jurisdictional issues. In my judgment, in line with principle and authority, they may also arise where a claimant seeks to ascribe a specific consequence to a particular publication, or where an examination of the claim for special damage demonstrates that the harm in question could not have been caused by the publication at issue. Thus, if a claimant says that X happened because of publication Y, or if it is clear to the court that the reason X happened was because of publication Y, it is no use the claimant suing publisher Z in respect of that consequence.”

  1. [212]
    In Wright v McCormack[141] Knowles J quoted at length from the authorities, including Lachaux, before stating:[142]

“It must not be thought, however, that the rule in Dingle means that evidence of other publications harmful to the claimant’s reputation along the same lines as that complained of can never be relevant or admissible in relation to the question of damage.” 

  1. [213]
    After citing Barron v Vines,[143] Knowles J stated:[144]

“Thus, publications to the same effect as that sued on may be admissible, for example, where a claimant sues publication X, claiming that a particular damaging consequence occurred because of something written by publication X.  It would in principle be permissible for publication X to plead and seek to prove that it was not its publication which caused the particular adverse event harmful to the claimant, but it was a story in a different publication to the same effect which caused the event.  This is sometimes known as the ‘rule of isolation’.”

Reference was then made to the observations of Jay J in Napag Trading Limited.

  1. [214]
    Knowles J then made the following important observation:[145]

“Put another way, Dingle does not abrogate the rules relating to causation in tort law.  This, I respectfully suggest, was among the points recently made by Warby J in Sicri v Associated Newspapers Ltd …” 

  1. [215]
    After quoting from Sicri, Knowles J stated:[146] 

“All of that said, it is worth reiterating for the purposes of the issues arising in this case that Dingle and Lachaux demonstrate that: (a) evidence of the claimant’s general bad reputation is admissible in relation to mitigation of damages, but such must be proved in a specific way by calling persons who know him and who have had dealings with him and who can speak to his bad reputation.  Subject to exceptions, evidence of specific conduct is not admissible.  Exceptions to that general prohibition include a previous conviction or possibly (per Warby J in Lachaux at [74]), a previous notorious incident, and ‘judicial strictures in previous civil litigation’ (Turner v News Group Newspapers Ltd [2006] 1 W.L.R. 3469, [48]).  Other than that, such evidence is generally only relevant to a plea of justification; (b) it is not permissible for a defendant to prove, in mitigation of damages, that, previously to his publication, there were reports and rumours in circulation to the same effect as the libel; (c) nor can a defendant rely on such publications to show that his publications could not have caused the claimant serious harm for the purposes of s 1 of the DA 2013 because other, similar, publications had already harmed him.”

  1. [216]
    The proposition at subparagraph (c) is somewhat elliptical.  It must be reconciled with what was earlier said at [163], namely that it is permissible for a publisher to plead and seek to prove that it was not its publication which caused a particular adverse event, but it was a story in a different publication to the same effect.  I understand subparagraph (c) in [167] as restating the general principle that a defendant cannot rely on other publications to the same effect to avoid liability on the grounds that those publications also harmed the claimant.  Expressed differently, the fact that earlier publications caused or contributed to the harm that the claimant experienced does not mean that the defendant’s publication did not also cause that harm.
  2. [217]
    Some of the authorities on causation relate to specific items of loss or certain events that are relied on as evidence of damage.  As Warby J explained in Sicri at [178](5), these are subject to the general rule that a claimant is entitled to succeed if he establishes that the defendant’s wrongdoing was a cause of the item or event.  Different considerations may arise in respect of special damage.[147]  
  3. [218]
    Issues of causation particularly arise in circumstances in which the complainant alleges that incidents, such as abuse, taunts or being avoided are attributable to the publication complained about.  As Spicer v Commissioner of Police illustrates, a defendant in such a case may seek to disprove the claimant’s case on causation by pointing to other publications that may have been responsible for those incidents, and rely on the absence of specific and direct evidence about what those individuals read, when they read it, and what their reaction was.[148] This may be seen to be an application of the general principle expressed by Lord Radcliffe and by Lord Denning in Dingle about the need to isolate the harm caused by the publication complained of from that caused by other publications.
  4. [219]
    The general principle of causation was stated by Warby J in Barron v Vines.[149] The following passage also helpfully summarises the impermissibility of relying upon rumours or reports to the effect that the complainant has done the things alleged in the publication complained of.  Warby J stated:[150]

“A person who has been libelled is compensated only for injury to the reputation they actually had at the time of publication.  If it is shown that the person already had a bad reputation in the relevant sector of their life, that will reduce the harm, and therefore moderate any damages.  But it is not permissible to seek, in mitigation of damages, to prove specific acts of misconduct by the claimant, or rumours or reports to the effect that he has done the things alleged in the libel complained of: Scott v Sampson (1882) QBD 491, on which I will expand a little …”

  1. [220]
    Warby J later stated:[151]

“Another exclusionary rule established by Scott v Sampson was a bar on reliance on rumours or reports to the same effect as the words complained of.  A consequence is that, as a rule, other publications to the same effect as the libel are inadmissible in mitigation of damages:  Dingle v Associated Newspapers Ltd [1964] AC 371 (see Lord Denning at 410-411).  But the court may need to ‘isolate’ the harm caused by the publication complained of from that caused by others:  see Lord Denning in Dingle at 397-8 explaining Harrison v Pearce (1858) 1 E & F 567.  This is relevant in this case, not least because the claimants rely on a variety of written and oral taunts and it will be necessary to consider whether these are shown to have resulted from the Vines libel, or the Collins speech.” 

  1. [221]
    In Dyson v MGN Ltd[152] the issue of serious harm arose in relation to a comment by a Mr Reade in The Mirror about the relocation to Singapore of the holding company in the Dyson group.  One of the reasons that Jay J gave for finding that the article had not caused Sir James Dyson serious harm was that Mr Reade was writing about something that “was very much old news and had already been much debated at all levels of the press and the agora”.[153] By the date of the publication in The Mirror, “most people must already have formed a view about the merits or demerits of what Dyson did three years previously, and Mr Reade was not adding to that debate”.[154]
  1. [222]
    Jay J considered that Dingle stood as “authority for the proposition that a defendant cannot seek to reduce its damages by proving the publications of itself or of others and inviting an inference that these have injured a claimant's reputation”.  Jay J continued:[155]

“However, in a multiple publication case a particular defendant is responsible only for the harm it has caused, and post-2013 that harm must transcend the ‘serious harm’ threshold. As Collins Rice J pointed out in Sivananthan at para 56, ‘the serious harm test is about the impact of an individual publication by a defendant on its readership’.” 

  1. [223]
    Dyson confirms the relevance of past publications and controversies to the pre-publication reputation of the claimant and to the issue of whether the individual publication that is sued over caused serious harm to that reputation.
  2. [224]
    Another recent authority, Blake v Fox,[156] supports the same conclusion.  The counterclaimant, Mr Fox, sued over tweets that referred to him as a “racist”.  He failed to prove that the tweets had caused his reputation serious harm.  This was despite them being highly derogatory and widely circulated.  Mr Fox failed to prove that the tweets caused him the harm that he claimed and caused “serious harm” to his reputation.  
  1. [225]
    Mrs Justice Collins Rice concluded that there were inherently more probable reasons for the harm that Mr Fox claimed.[157] An earlier appearance on Question Time had led to Mr Fox being accused of racism and had damaged his acting career.[158]
  2. [226]
    Collins Rice J concluded that the law required Mr Fox:[159]

“… to show, by reference to evidence and inherent probability, how his reputation – what people think of him – is seriously harmfully impacted in real life by their publications, as distinct from his, or indeed anyone else's, or anything else. That is what defamation law requires – demonstration of actual impact, and what difference a publication makes or is likely to make in real life. I have not been given a sufficient evidential basis for inferring that here, or for identifying any material causal connection between the impact of the tweets sued upon and Mr Fox’s reputation.”

  1. [227]
    Blake v Fox illustrates the relevance of earlier publications to the same or similar effect (in that case assertions that Mr Fox was a racist) to the issue of causation, and that consideration of their effect, and therefore the effect of the subject publication, is not precluded by the rule in Dingle. 

Summary of the English authorities

  1. [228]
    The causation principle in Dingle saves claimants from “falling between multiple stools, by stopping publishers blaming each other, or other publications, for the extent of the cumulative harm of their publications”.[160] It avoids a claimant having to sue over every publication to the same or similar effect that caused a cumulative and indivisible harm.  
  2. [229]
    Dingle does not relieve the Court of the duty of isolating, if it can, the damage caused by the publication sued over from any harm that may have been caused by another publication.[161] Dingle does not abrogate the rules relating to causation in tort law.[162] A claimant must establish that the publication it sues over caused the harm that is alleged. If a claimant seeks to isolate and attribute certain consequences to a particular publication, then the claimant must prove that those consequences were caused by that publication. In such a case, it is permissible for a defendant to contest that its publication had those consequences, and to contend that it was not that publication, but a different publication that caused the harm to reputation.[163]  
  3. [230]
    Therefore, the rule in Dingle does not mean that evidence of other publications harmful to the claimant’s reputation along the same lines as that complained of can never be admissible in relation to the issue of causation of serious harm.[164] The authorities show that other publications may be relevant to the issue of causation because they prove that the claimed harm had already been caused by an earlier publication, and that therefore the publication sued over did not cause the “serious harm” that the claimant alleges. 

Does the rule in Dingle render inadmissible other publications to the same or similar effect that are relevant to the issue of causation?

  1. [231]
    A consideration of the harm that a publication caused to the reputation of the claimant and whether that harm amounts to “serious harm” must commence with the state of the claimant’s reputation (if any) prior to the publication.
  2. [232]
    It may be only possible to properly assess the effect on reputation of a final publication in a series of articles, social media posts or other publications, and whether it caused “serious harm”, if one has regard to the likely state of the claimant’s reputation among readers of the earlier publications immediately before they read the final publication.  The point is very well made, with respect, by Collins Rice J in Sivananthan v Vasikaran,[165] which I have earlier quoted.  Part of the passage warrants repetition at this point: 

“If a defendant has undertaken a protracted course of conduct publicising allegations, a corresponding improbability arises that any member of that public later re-encountering them in published form will be impacted as an effect of that specific publication.  The serious harm test is about the impact of an individual publication by a defendant on its readership.  If the readership already knows everything about the defendant’s view of the claimant contained in the publication from the defendant’s own history and course of conduct, it is correspondingly unlikely that the publication will have material impact.” 

  1. [233]
    In such a situation, the earlier publications are not in evidence to prove that the claimant had a bad reputation.  They are in evidence because they are relevant to the issue of causation.
  2. [234]
    In Spicer v Commissioner of Police, which I have earlier discussed, evidence of other publications that might be responsible for the claimed loss of reputation and other consequences that the claimant attributed to the defendant’s article were not in evidence as proof of a bad reputation.  The rule in Dingle would have prevented their admission into evidence for such a purpose.  They were in evidence because they were relevant to the issue of causation.  
  3. [235]
    Other publications, by the defendant or by others, particularly those that occur at around the same time as the subject publication, and are to the same or similar effect, may be relevant to the issue of causation.  If so, they are not made inadmissible by the rule in Dingle.
  4. [236]
    The rule in Dingle does not permit them to be relied on for a purpose other than the purpose for which they are admitted.  They are not admissible as proof of the existence of a bad reputation.  A bad reputation must be proven by the defendant by one of the means identified in Dingle and subsequent authorities.
  5. [237]
    Dingle is best regarded as an authority about the means of proof of bad reputation in mitigation of damages.  The occasion to mitigate or reduce damages may arise in circumstances in which the damage caused only by the defendant’s publication cannot be isolated, and the defendant is prima facie responsible to compensate for the whole of the damage to which its publication contributed or was “a cause”.  Mitigation of damages may be appropriate to reduce the damages to be awarded against the defendant, if the defendant is able to prove that, by the time of its publication, the claimant had a bad reputation in the relevant sector, such that it should not be made responsible for all of the damage that already had been done.
  6. [238]
    In this context, a bad reputation means a settled opinion of the plaintiff that reflects a general view held by the community in which the claimant moves.[166] Reputation, being the community’s opinion, is distinguished from allegations, reports and rumours.
  7. [239]
    If the rule in Dingle is understood as a rule that relates to mitigation of damage on account of bad reputation and the means of proving bad reputation, then does it apply, by analogy, to the issue of causation, particularly the issue of causation that arises in proving “serious harm”?
  8. [240]
    Logic and the authority of Lachaux[167] suggest that it should.  The context is different:  serious harm is about a threshold element to establish a cause of action, rather than the assessment of damages for harmed reputation and other loss suffered by a claimant who proves that he or she has been indefensibly defamed.  However, a defendant that seeks to resist a finding of serious harm on the basis that the claimant already had a bad reputation, should be subject to the same rules about the means by which a bad reputation is proven.  Dingle establishes that, subject to certain exceptions, a bad reputation is not proven by tendering other publications.
  9. [241]
    The rule in Dingle concerns proof of a bad reputation in mitigation of damages.  It does not preclude reference to other publications to the same or similar effect as being relevant to the question of causation.  The English authorities I have considered and principles about proof (and disproof) of causation support this conclusion.  
  10. [242]
    A party that resists a finding of serious harm does not necessarily have to prove that the claimant had a bad reputation.  By the same token, a claimant seeking to prove serious harm does not need to prove that he or she had a good reputation.  The claimant may have had a damaged reputation and still prove that the defendant’s publication caused him or her serious harm.  Someone who is already on the ground can be badly injured by a well-directed kick.
  11. [243]
    This approach may be criticised as drawing too fine a distinction between a damaged reputation and a bad reputation.  However, I consider the distinction is a sound one.  The distinction emerges from some of the serious harm cases I have considered, in which other publications have been relevant to the assessment of serious harm.  It draws on authorities like Dingle that distinguish between a party whose reputation is under a cloud (temporary or otherwise) and a party who has a settled, bad reputation in the general community.  I use the word “damaged” rather than “tarnished” because some of the authorities use “tarnished” interchangeably with “bad” in this context.
  1. [244]
    Because of earlier publications, a further publication to the same or similar effect may be unlikely to have a material effect on a person’s reputation.  For example, a former member of a religion may have acquired a reputation for being an atheist, so that another publication that repeats this fact will not cause or be likely to affect the person’s reputation among adherents to that religion.  The same would be true of a former atheist who converts to a religion.  The estimation of atheists who are already aware of the conversion would be unlikely to alter much because they read another publication that repeats or summarises what they already know about the convert. 
  2. [245]
    Strictures about the means of proving a bad reputation should not necessarily apply to an assessment of the harm that has been caused, or is likely to be caused, to the reputation of a person.  This is not to say that tendering a report or article proves that the claimant’s reputation was damaged by it.  A damaged reputation is not established by the simple fact that a publication to a certain effect occurred.  The publication may be from a source that lacks credibility or the claims made in it may be refuted in the same publication or immediately after it.  Depending upon the circumstances, the earlier publication or publications may or may not have damaged the claimant’s reputation.  However, there seems no reason in principle why a defendant should not be able to tender those publications and submit that in the circumstances they affected the reputation of the claimant among readers, including readers of the subject publication.  In making such a submission the defendant may rely on direct evidence or reasonable inferences that the claimant’s reputation was adversely affected by the earlier publications.  For example, a reasonable inference may be that a person’s reputation was affected by an earlier publication that reported an authoritative source and no contrary view about the person’s conduct.
  3. [246]
    Permitting a defendant to rely on other publications by it or by others to the same or similar effect on the issue of causation might be said to carry the risk of practical consequences for the conduct of trials, in which defendants compete to minimise the effect of their publications compared to others.  However, in my view, this is a necessary consequence of a requirement to prove that the publication sued over caused the claimant serious harm.  Moreover, this is a consequence of causation being an issue in any case in which the claimant seeks to prove that the defendant’s publication caused him or her actual harm.  The problem of proving causation pre-dates the enactment of the serious harm requirement.  Sir David Eady made this point in Shakil-Ur-Rahman v ARY Network Ltd.[168]  
  4. [247]
    The situation is no different in principle from an injured worker, who claims that his bad back was caused by a certain incident, being asked about other incidents that may have caused that injury, and the defendant calling evidence about those other incidents.  As Sir David Eady observed, subtle distinctions exist between relying on other publications as relevant to causation and in mitigation of damage, but these distinctions are important.[169]   
  5. [248]
    In conclusion, I do not consider that the rule in Dingle renders inadmissible other publications that are relevant to the issue of causation under s 10A.  I confirm my provisional view that the defendants’ evidence to which the plaintiff objects is admissible on the issue of causation, and I decline to uphold the plaintiff’s “Dingle admissibility” objections as recorded in MFI-B.

Does the rule in Dingle apply to “quasi-judicial” findings of a kind made by the Coroner?  

  1. [249]
    In case I am wrong about the application of the rule in Dingle to the issue of causation and the admissibility of publications that are relevant to causation, I should address a further issue.  Is the Coroner’s Report (and reports of its findings) separately admissible on the basis that the Report is a quasi-judicial finding that is analogous to a judicial finding?  
  2. [250]
    The plaintiff submits that it is not and that it is inadmissible as a prior publication on the same or a similar subject matter as Episode 13.  The Coroner’s Inquest is not a criminal or civil trial.  According to the plaintiff, a finding about the cause of Ms Blackburn’s death is not a “judicial finding” in adversarial proceedings that apply the rules of evidence.
  3. [251]
    The authority upon which the defendants rely by way of analogy, Channel Seven Sydney v Mohammed,[170] is submitted to not be authority for an extension of admissibility to the Coroner’s Report.  
  4. [252]
    The defendants submit that, just as findings in civil proceedings are admissible in proof of reputation, a finding by the Coroner, a judicial officer, that is the result of a quasi-judicial process, conducted in a judicial manner, is admissible.  According to the defendants, a finding that is the product of such a process, by an independent judicial officer, is like a judicial finding, and distinguishable from the mere allegations, reports or rumours to which the rule in Dingle is directed.
  5. [253]
    As to the authorities, Dingle recognised that convictions for criminal offences that are known are admissible in mitigation of damages.  Goody v Odhams Press Ltd[171] ruled that whereas specific past acts of misconduct are generally inadmissible because admitting such evidence would “throw upon the plaintiff the difficulty of showing a uniform propriety of conduct during his whole life”,[172] evidence of a criminal conviction might be said to demonstrate the reputation that the claimant should have had, rather than the reputation that he or she actually enjoys.[173] This may be so even where the conviction postdates the relevant publication.[174] The exception that permits criminal convictions to be admitted into evidence to prove a bad reputation in a relevant sector of a person’s reputation is said to be justified because “they are the very stuff of reputation”.[175]
  6. [254]
    In Channel Seven Sydney Pty Ltd v Mohammed, the New South Wales Court of Appeal applied the same principle to adverse findings made about a party in a judgment delivered in civil proceedings.  McColl JA (with whom Spigelman CJ, Beazley JA, McClellan CJ at CL and Bergin CJ in Eq agreed) said:[176]

“In so far as the Steele-Smith adverse findings are concerned, however, Marsden supports the proposition that judicial findings which are in the public domain – even if made post-publication, may be admissible.  The Court did not elaborate on the distinction it perceived between convictions and judicial findings – although some distinctions are self-evident: at the most elemental level the standard of proof required before the requisite conclusion is reached.  Another distinction may be whether the findings are of an intermediate or ultimate nature.  These issues were not debated on appeal.  The respondent did not contend that the Steele-Smith adverse findings were inadmissible on any basis other than their post-publication status.

In my view, such findings, if relevant in the senses already discussed, should be admissible.  Save as to the standard of proof, they appear otherwise to stand on much the same footing as convictions: they took place in open court and can be regarded, accordingly, as matters of public knowledge.  The tribunal of fact should not be kept in the dark about the plaintiff’s reputation at the time it comes to consider the award of damages.” 

  1. [255]
    The plaintiff submits that the real question being determined in Mohammed was whether post-publication findings were admissible in mitigation of damages.  This is so.  However, in order to determine that question the Court accepted that judicial findings should stand on much the same footing as convictions.  In a concurring judgment, Beazley JA considered the difference between a criminal conviction and a judicial finding in civil proceedings, particularly when the finding relates to a demeanour-based credit finding.[177] I should follow the decision of the New South Wales Court of Appeal that judicial findings that are in the public domain are admissible as proof of reputation.     
  2. [256]
    In Wright v McCormack[178] Knowles J stated that exceptions to the general prohibition on the admissibility of specific conduct in mitigation of damages included a previous conviction, possibly a previous, notorious incident,[179] and “judicial strictures in previous civil litigation”.[180]
  3. [257]
    As to the parties’ submissions, the fact that the Coroner’s decision is publicly released and in the public domain is something that it has in common with judicial findings that are in the public domain.  However, many other findings, such as those of Parliamentary Committees, are in the public domain and do not qualify as an exception to the rule in Dingle.  
  4. [258]
    The Coroner does not decide criminal guilt,[181] but nor does a civil proceeding that results in a finding that the plaintiff is a killer or engaged in other conduct that, if proven beyond reasonable doubt, would constitute a crime.  Such a finding may be made in a civil proceeding despite the plaintiff having been acquitted of a criminal offence in respect of the same conduct.[182] No estoppel arises from the acquittal in subsequent civil proceedings.
  1. [259]
    In civil litigation in which such a grave finding is made, the judicial officer is required to apply Briginshaw in finding that one person killed another.  The same standard is applied by the Coroner.  
  2. [260]
    Unlike civil litigation, a Coroner is engaged in an inquisitorial process that is unlike a trial that operates according to the principle of party presentation.  However, this feature does not necessarily diminish the authority of its findings, provided it conducts the inquest in a fair and judicial manner, according affected parties procedural fairness.  The Coroner is required to act in such a manner.[183] Interested parties are given leave to appear and are able to cross-examine witnesses.  [261] The Coroner’s Report is not a judicial determination of rights and liabilities. 

However, as Derrington J observed in Peros v Blackburn:[184]

“… it is not immediately self-evident that the publication of the findings of an organ of State which followed a process to which the rules of natural justice applied, and at which Mr Peros appeared, would be excluded in the same manner as the publications of media outlets are.” 

Derrington J observed that the reasoning in Mohammed “by no means excludes such material and, though the findings might not fit within the concept of ‘judicial findings’, it is difficult to detect any relevant distinction”.[185]

  1. [262]
    The present issue is assisted, but not resolved, by identifying similarities and differences between judicial findings in civil litigation and the findings of a Coroner.  
  2. [263]
    Additional assistance may be obtained by considering the rationale for the rule in Dingle and the rationale for exceptions to it for criminal convictions and judicial findings.  
  3. [264]
    The rule in Dingle has been justified on different grounds. They include considerations of fairness to a claimant, whose vindication should not be reduced merely because others have said the same thing about him.[186] Another justification is the pragmatic one of not prolonging a trial in which a defendant has indefensibly defamed the claimant, and in which a publisher seeks to minimise its responsibility by pointing the finger at other publications that are alleged to have damaged the claimant’s reputation.  
  4. [265]
    A further justification is that a mere report, allegations, suspicions, publications by rumour-mongers, and publications from unreliable sources should not be admitted as proof of a settled reputation.  Judicial findings have a different authority and might be more readily accepted as affecting reputation, or at least to demonstrate that the claimant should not have the reputation that he or she claims was injured. One rationale for admitting evidence of convictions (and by extension judicial findings) as evidence of a bad reputation is that they are “very different from previous instances of misconduct, for those have not been tried out or resulted in convictions or come before a court of law.”[187] While there is a distinction with convictions for criminal offences in terms of the standard of proof, findings in civil litigation made in open court may be regarded as evidence of bad reputation because they are taken to be a matter of public knowledge or because they are likely to come to the attention of those who know the claimant.[188]
  1. [266]
    Having regard to the rationale for the rule in Dingle and the rationale for an exception for findings made by a court of law, the issue is whether the publicly-disclosed findings in the Coroner’s Report should be placed in the same category as mere reports, rumours and miscellaneous publications, or exempted from the rule in Dingle for essentially the same reasons as a judicial finding.  A finding by a judicial officer acting as a Coroner who accords natural justice, who applies principles of proof and who provides reasons for findings, is the result of a quasi-judicial process.  Such findings must be made in accordance with law and a failure to do so is subject to judicial review.  The finding is made by an independent person. 
  2. [267]
    If I had been required to decide the point, I would have found that, for the purpose of the application of the rule in Dingle, the Coroner’s findings as to the cause of death have a similar status to a finding in a civil proceeding as to the cause of death.  The Coroner’s finding is not a judicial determination.  However, the nature of the finding is analogous to a finding by an independent judicial officer in civil litigation, who accords natural justice and makes findings based on a process of proof if satisfied that the evidence supports such a finding.  In the circumstances, I conclude that the Coroner’s Report and accurate reports of his findings are admissible on the issue of causation.  Had I been determining an issue in relation to mitigation of damages, I would have found that they are admissible as an exception to the rule in Dingle.
  3. [268]
    The proposition that a criminal conviction follows a person and should be taken to be a matter of public knowledge may be open to debate.  Notorious convictions may be taken to be well-known in the general community.  A conviction of a person who is well-known in a local community may be well-known in that community.[189] Many criminal convictions do not become well-known, yet they fall within an exception to the rule in Dingle.  
  4. [269]
    Similar doubts arise as to whether adverse judicial findings in civil proceedings are so widely known in the general community to found a plea of bad reputation.[190] However, the law in this area appears to proceed on the assumption that they are, or at least should be regarded as if they were matters of public knowledge, lest the claimant recovers compensation for harm to a reputation that the claimant should not have because of the findings of a court. 
  5. [270]
    For the same reason, the Coroner’s finding that the plaintiff violently killed Ms Blackburn with a bladed instrument should be taken to have followed him, with the result that prior to Episode 13 he had a general reputation for having been found by the Coroner to be her violent killer.

Notorious or contextual facts

  1. [271]
    The defendants additionally submit that, even assuming the application of Dingle, evidence of the publication of the Coroner’s widely-publicised findings would be admissible at the trial under other recognised exceptions going to his pre-publication reputation.  Two exceptions to the rule in Dingle are sought to be engaged.  The first relates to a notorious incident that may cause a permanent injury to the plaintiff’s reputation.  The second relates to evidence of “facts directly relevant to the context in which the defamatory publication came to be made” or what may be described as “directly relevant background context”.  The phrase is drawn from Burstein v Times Newspapers Ltd.[191]
  2. [272]
    Before going further, it is important to distinguish between evidence that may be, or would be, admissible at the trial of the proceeding, and evidence that is admissible as relevant to the issue of serious harm.  I am not concerned, for example, with evidence that may be admissible at a trial on a defence of justification or some other defence, and that can be considered in mitigation of damages in accordance with Pamplin v Express Newspapers Ltd.[192]
  3. [273]
    The present issue arises for determination if my earlier conclusion that the evidence is admissible as relevant to the issue of causation is wrong, and the rule in Dingle applies to it, subject to established exceptions to that rule and other rules that govern the admissibility of evidence as proof of bad reputation.
  4. [274]
    It is appropriate to identify the exceptions contended for in the context of the rule in Dingle and other exclusionary rules that govern the admissibility of evidence of incidents, facts and misconduct as proof of bad reputation.
  5. [275]
    In Faruqi v Latham[193] Wigney J helpfully summarised the law about evidence of bad reputation in mitigation of damages:

“First, evidence of the plaintiff’s bad reputation is, subject to certain conditions and exceptions, generally admissible in a defamation proceeding as going to the mitigation of damages: Scott v Sampson (1882) 8 QBD 491.

Second, the evidence of bad reputation must relate to the ‘sector’ of the plaintiff’s life relevant to the defamation: Plato Films Ltd v Speidel [1961] AC 1090 at 1123, 1139, 1140 and 1147; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 801; Australian

Broadcasting Corporation v McBride (2001) 53 NSWLR 430 at [17][21], [28]; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [162].

Third, the evidence of a person’s reputation must demonstrate a settled view of the community and must be a permanent, not transitory view: Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504 at 513; Associated Newspapers Ltd v Dingle [1964] AC 371 at 396-399, 406, 412, 417. 

Fourth, subject to certain exceptions, evidence of particular previous acts of misconduct by the plaintiff are not admissible under the guise of bad reputation: Scott v Sampson at 504-505; O'Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89 at [6]; except perhaps if those acts are sufficiently notorious: O'Hagan at [38]; Speidel at 1131; Goody v Odhams Press [1967] 1 QB 333 at 342. The main exception to this exclusionary rule is that evidence which provides directly relevant background context to the defamatory conduct is admissible: Burstein v Times Newspapers Ltd [2001] 1 WLR 579 at 598-602. Evidence that may be admitted under the so-called Burstein principle includes, in general terms, evidence of specific conduct that is directly relevant to either the subject matter of the alleged defamatory statement, or the plaintiff’s reputation in that part or sector of his or her life which is the subject of the defamatory publication, but does not include evidence of rumours that the plaintiff had done what was alleged in the defamatory material: see Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550 at [32]-[46] and the cases there cited.

Fifth, the rationale or policy that lies behind the various exclusionary rules relevant to evidence of reputation is to ‘prevent [defamation] trials from becoming roving inquiries into the plaintiff’s reputation, character or disposition’: Burstein at 596; Speidel at 1143-1144.”

  1. [276]
    While evidence of a bad reputation is admissible in mitigation of damages, evidence of specific conduct is not, nor is evidence of rumours or suspicions about the claimant.[194] The reason for excluding evidence of rumours or suspicions in mitigation of damages may be found in the judgment of Cave J in Scott v Sampson:[195]

“If these rumours and suspicions have, in fact, affected the plaintiff’s reputation, that may be proved by general evidence of reputation.  If they have not affected it they are not relevant to the issue.” 

This passage has been cited with approval, including by Lord Radcliffe in Plato Films Ltd v Speidel[196] and by Lord Denning in Dingle.[197]

  1. [277]
    The inadmissibility of evidence of particular acts of misconduct was explained by Cave J on the basis that to permit it would:[198]

“… give rise to interminable issues which would have but a very remote bearing on the question in dispute, which is to what extent the reputation which he actually possesses has been damaged by the defamatory matter complained of.”

  1. [278]
    More than a century later, May LJ in Burstein referred to the need to “prevent trials from becoming roving inquiries into the plaintiff’s reputation, character or disposition”.  Jackman J described this as a matter of fairness to a claimant “because he or she cannot be expected to come to Court prepared to defend his or her entire life”.[199] Another recurring theme in the cases is the need to facilitate the just resolution of disputes as expeditiously, inexpensively and efficiently as possible.  The rules prevent a defendant from introducing material that has “only a tenuous connection to the real issues in dispute in the proceedings”.[200] Being rules that govern the admissibility of evidence in mitigation of damages, they control the reception of evidence and the prolongation of a trial in respect of a publication that indefensibly defamed a claimant.
  2. [279]
    Subject to certain exceptions, a bad reputation is not proven by tendering evidence of reports, rumours or previous articles.  It is not proven by evidence of specific acts of misconduct.  Exceptions include evidence of prior convictions and judicial findings, a topic that I have canvassed.  Another exception is evidence that is before the Court on a defence such as justification and that may be described as providing a “partial justification”.  Another, based upon Burstein, is evidence of specific conduct by the claimant if it is “directly relevant background context” to the publication of the defamatory matter.  Another arguable exception are acts or incidents that are sufficiently notorious.  

Notorious facts

  1. [280]
    In Plato Films Ltd v Speidel[201] Lord Radcliffe stated:

“These considerations lead me to the opinion that it would be wrong to hold the general evidence of reputation, which must mean reputation in that sector of a plaintiff’s life that has relevance to the libel complained of, cannot include evidence citing particular incidents, if they are of sufficient notoriety to be likely to contribute to his current reputation.”

  1. [281]
    In Dingle Lord Radcliffe also stated:[202]

“It may still be that in a proper case a man’s bad reputation can be proved by giving evidence of some incident of notoriety without a witness or witnesses being called to say what character he enjoys in the estimation of themselves or others than themselves …”

  1. [282]
    Earlier at [163] and [164] I have quoted Hughes v Mirror Newspapers Ltd[203] and Hayson v The Age Company Pty Ltd.[204] Hughes recognises that evidence of a single event that causes “a permanent injury to the plaintiff’s reputation” is admissible.  However, as Hayson states, a prior article is not capable of proving either that the specific incident occurred or that it became notorious.
  1. [283]
    The passage from Lord Radcliffe in Plato Films Ltd v Speidel that I have quoted was adopted by Salmon LJ in Goody v Odhams Press Ltd.[205] It also was cited by Stein JA in O'Hagan v Nationwide News Pty Ltd[206] as supporting the conclusion that evidence of specific events which lead to the notoriety of a plaintiff and contribute to bad reputation may be admissible.  Brownie AJA likewise concluded that the cases establish that, if a specific incident relating to a plaintiff is sufficiently notorious to produce an effect upon his reputation, evidence of that specific incident may be led.[207] [284] In Wright v McCormack[208] Knowles J noted that evidence of specific conduct is admissible if it is evidence of “previous convictions or possibly, a previous notorious incident, and ‘judicial strictures in previous civil litigation’”.  The possibility of a previous notorious incident being admissible had been noted by Warby J in Lachaux.[209]
  1. [285]
    The exception envisages proof of an incident, and that the incident became so notorious to contribute to the claimant’s settled or permanent reputation.  The exception is not a gateway to permit evidence of allegations of an incident concerning the claimant or reports of such an incident.  To do so would be to undermine the purpose of the admissibility rules established in Scott v Sampson and in Dingle.  It would undermine the rule in Dingle that a bad reputation is not proven by admitting evidence of other publications, reports or rumours to a certain effect.  Mr Helvadjian correctly submitted that what is required is evidence that a specific incident occurred, was known, and led to a settled view in the community about the claimant.
  2. [286]
    The type of incident contemplated by the exception ordinarily would be one in which the claimant was involved.  I struggle to accept that a Coroner’s Report is the kind of incident that Lord Radcliffe had in mind.  In any event, I have found that the Coroner’s Report (and the widespread reports of its findings) fall within an exception that applies to judicial and quasi-judicial findings.    
  3. [287]
    If I am wrong in that conclusion, then I do not consider that evidence of the Coroner’s findings is admissible under the “notorious incident” exception.  Such an exception may have work to do in a case in which a defendant proves at a trial that the claimant had killed or violently attacked a different victim on a different occasion, and that the earlier incident was notorious.  Proof of such an incident and its notoriety would be relevant to the claimant having a reputation for unprovoked violence at the time of a publication that alleged that he was violent in another incident.
  4. [288]
    In this matter, the defendants intend to prove, if they can, that the plaintiff killed Ms Blackburn.  The evidence they rely upon in support of a defence of justification at a trial may be relevant to issues of mitigation of damages in accordance with Pamplin.  I am not concerned with such a situation.
  1. [289]
    In summary, the defendants cannot rely on reports and other publications, including reports of findings made by the Coroner, to prove an incident that became notorious.  The “notorious incident” exception does not permit the admission into evidence of earlier publications that alleged that the plaintiff had killed Ms Blackburn.  Such an incident and its notoriety is not proven by the tender of the Coroner’s Report.  

The Burstein principle 

  1. [290]
    Mitigation of damages and the Burstein principle were extensively considered by Wigney J in Rush v Nationwide News (No 2).[210]
  1. [291]
    The plaintiff relies upon [39] of Rush, where Wigney J stated:

“To understand the reference, in that passage, to ‘facts directly relevant to the context in which a defamatory publication came to be made’, it is necessary to go back to the speech of Lord Denning in Speidel, which was one of the two speeches that May LJ was plainly referring to. In Speidel, Lord Denning had given an example of a publication that a man had been convicted six times for dishonesty, when in fact he had only been convicted twice. According to Lord Denning, in such a case, the defendant could adduce evidence of the two convictions ‘in partial justification’ because, otherwise ‘the plaintiff would recover damages for a character which he did not possess or deserve; and this the law will not permit’.” (emphasis added)

  1. [292]
    Reference should also be had to [42] where Wigney J stated:

“It is tolerably clear, when paragraphs [42] and [47] of the judgment of May LJ are read in context, that the expression ‘directly relevant background context’ is a reference to evidence of misconduct on the part of the claimant which, while not sufficient to make out a defence of justification, nevertheless was conduct which was in the same sector of the claimant’s life as the defamatory publication and was therefore directly relevant to his or her reputation. The example given by Lord Denning in Speidel is a classic example of such evidence. ‘Directly relevant background context’ does not include rumours or mere allegations that the claimant had done what was charged in the libel. That type of evidence is properly excluded by what was said in Scott v Sampson. Nothing said by May LJ in Burstein suggested that Scott v Sampson did not continue to apply in the case of such evidence.”

  1. [293]
    After quoting passages from Turner v News Group Newspapers Ltd,[211] Wigney J said that they: 

“… supported the proposition that the facts which are able to be pleaded and proved in the mitigation of damages pursuant to the Burstein principle must concern specific conduct that is directly relevant to either the subject matter of the alleged defamatory statement, or the claimant’s reputation in the part of his or her life the subject of the defamatory publication”.

  1. [294]
    Wigney J continued:

“The rationale for permitting evidence of such facts being led is that otherwise damages may be assessed on a false basis.  It is equally clear that courts, including this Court, must proceed with caution in applying Burstein, should guard against ‘extending too creatively’ the concept of ‘directly relevant background’, and should subject the proposal to adduce facts under the Burstein principle to careful scrutiny.  Mere resort to the label ‘directly relevant background context’ will not suffice.”   

  1. [295]
    Burstein was followed by the New South Wales Court of Appeal in Holt v TCN Channel Nine Pty Ltd[212] and was more recently considered by Jackman J in Schiff v Nine Network Australia Pty Ltd (No 4).[213] Jackman J noted that Wigney J in Rush and some other authorities referred to evidence of “misconduct” (as distinct from rumours or mere allegations), but that the word “misconduct” should be avoided in any general expression of the Burstein principle in favour of the term “facts”.[214]
  2. [296]
    Jackman J reiterated the exclusion in Scott v Sampson of rumours, suspicions and allegations.  The Burstein principle was said to be confined “to the underlying facts, not opinions drawn by people other than the claimant as to those facts”.[215] Schiff considered the conclusions of various regulators and law enforcement agencies after their investigations.  Jackman J concluded that such opinions could only be “indirectly” relevant, since one would have to ascertain the facts (if any) on which they were based before one could say that any such facts were directly relevant, and there would be a need to ascertain the quality of the evidence in support of the facts. That would produce “a trial or trials within a trial” and that would be “anathema to principles of efficient case management”.[216]
  1. [297]
    Unlike Jackman J in Schiff, I am not concerned in this matter with a pleading point in which a defendant particularises “Background Facts” as providing the background context to a publication, being facts that are relied upon in mitigation of damage, or the admissibility of such facts at a trial in relation to damages.  Instead, the issue arises on the assumption that the rule in Dingle applies in determining the issue of causation, and the defendants cannot rely on earlier publications to prove a bad reputation, unless they bring themselves within an exception to the rule in Dingle.  The issue arises if I am wrong in my earlier ruling concerning the admissibility of evidence on the issue of causation, and am wrong in my conclusion about the admissibility of findings by a court.
  2. [298]
    Insofar as the evidence sought to be admitted concerns evidence of specific acts of misconduct, the rule in Scott v Sampson does not permit it to be relied upon to prove a bad reputation.
  3. [299]
    The principle in Burstein permits evidence of specific conduct by the claimant to be admitted in mitigation of damages if it is “directly relevant background context”, as that vague term has been explained.  That concept should not be used too creatively as a basis to admit evidence of allegations and publications to the same or similar effect as the publication in suit.  I agree, with respect, with Jackman J in Schiff that it applies to underlying facts and not opinions.  The exception to the rule in Dingle that applies to convictions and judicial findings may provide a basis for the admission of conclusions reached by judges and other judicial officers in certain proceedings.  The Burstein principle does not throw open the door to admit allegations of misconduct or other specific acts by a claimant.
  4. [300]
    The precise facts that the defendants contend are admissible under the Burstein principle are somewhat elusive.  They are not the subject of a pleading or particulars in support of a defence or in mitigation of damages.
  5. [301]
    I have found that the Coroner’s Report and the widespread reporting of it are admissible under another exception to the rule in Dingle.  I am not persuaded that the Burstein principle provides a separate basis for their admission, let alone the admission of the other evidence to which a “Dingle admissibility” objection was taken.    

Conclusion on admissibility

  1. [302]
    I have found that the evidence to which the Dingle admissibility objection was taken is admissible as relevant to the issue of causation.  It is admitted on that basis and not on the basis that previous publications are generally admissible to prove a bad reputation.  Dingle is authority that they are not admissible as proof of a bad reputation unless they fall within a certain exception.
  2. [303]
    I have separately found that the Coroner’s Report and reports of its findings are admissible as falling within an exception to the rule in Dingle that applies to judicial findings, and that applies, by analogy, to a quasi-judicial finding of the kind made by the Coroner.     

THE EVIDENCE

Chronology

  1. [304]
    To place the evidence about the publications and other events to which reference will be made in their context, I provide the following basic chronology:

09.02.13

Shandee Blackburn murdered 

Sep 2014

The plaintiff charged with the murder of Shandee Blackburn

2014 - 2015

Publicity surrounding court appearances and committal proceeding

March -

April 2017

Murder trial in Mackay

07.04.17

Plaintiff acquitted

7 - 8.04.17

Publicity surrounding his acquittal

2019

Coroner’s Inquest

1 - 16.07.19

Public hearings conducted by the Coroner

21.08.20

Coroner’s finding that the plaintiff killed Ms Blackburn

21 - 24.08.20

Extensive reporting of the Coroner’s finding

2020 - 2021

Publications in The Australian, The Courier Mail, other media and social media into the murder of Shandee Blackburn, including the

Coroner’s findings

08.10.21

Trailer for Shandee’s Story podcast series

14.10.21

Episode 1 released

21.10.21 -

10.12.21

Episodes 2 to 12 released at various intervals

17.12.21

Episode 13 first released to subscribers of The Australian

10.01.22

Episode 13 released across other platforms

The plaintiff’s evidence

  1. [305]
    The plaintiff did not rely on any affidavit by him about his reputation or the effect of Episode 13 on it.
  2. [306]
    The defendants relied on certain paragraphs of an affidavit sworn by the plaintiff on 23 March 2023, that before Episode 13 was published, his employment was terminated.  In October 2021, the plaintiff was contracting to a civil engineering company in Western Australia.  On 15 October 2021, he was called into a meeting in an office at a mine site and informed that a superintendent had seen him on television and that people at the mine site were talking about “a podcast which was about me”, and that because of the “charge of murder”, his services were no longer required.
  3. [307]
    The television program was not identified, nor was the podcast, but Episode 1 of Shandee’s Story had been released to subscribers to The Australian on 14 October 2021.  It is reasonable to infer that this was the podcast that people at the mine site were talking about.  The reference to a “charge of murder” is odd since the murder charge had been resolved by an acquittal four-and-a-half years earlier.  One interpretation is that the podcast charged him, in the sense of accusing him of murder.
  1. [308]
    The plaintiff’s solicitor gave an affidavit on information and belief that deposed to:
    1. the extent of publication of Episode 13;
    2. where the plaintiff had lived and owned properties;
    3. telephone calls the solicitor had with three co-workers or friends of the plaintiff;
  1. what has become known as the “Reddit publications”;
  2. the plaintiff’s acquittal on 7 April 2017; and
  3. media reporting of it. 

The extent of publication

  1. [309]
    Additional evidence was given by the defendants about the extent of publication of Episode 13 and of other publications.  The following table is drawn from the affidavit of one of the defendant’s solicitors and is taken from Annexure G to MFI-A:

Episode

First date of publication

Total downloads (as at 22 March 2023) 

Trailer  

8 October 2021

121,531

Episode 1

14 October 2021

431,917

Episode 2

21 October 2021

334,383

Episode 3

28 October 2021

295,133

Episode 4

4 November 2021

284,979

Episode 5

11 November 2021

259,858

Episode 6

18 November 2021

237,568

Episode 7 

24 November 2021

241,845

Episode 8

25 November 2021

223,141

Episode 9 

26 November 2021

229,265

Episode 10

2 December 2021

252,452

Episode 11

9 December 2021

224,072

Episode 12

10 December 2021

231,808

Episode 13

17 December 2021

239,775 (as at 22 March 2023)

372,100 (as at 2 April 2024) 

Episode 14

10 February 2022

191,041

Episode 15

17 February 2022

168,151

Episode 16

25 February 2022

161,155

Episode 17

4 March 2022

155,437

Episode 18

11 March 2022

173,688

Episode 19

9 June 2022

133,700

Episode 20

16 June 2022

141,619

  1. [310]
    The 239,775 downloads of Episode 13 as at 22 March 2023 were distributed as follows:

State or Territory  Number of downloads

ACT  4,027

NSW  87,251

NT  547

QLD  62,779

SA  12,582

TAS  2,411

VIC  57,226

WA  17,952

  1. [311]
    Of the 239,775 downloads of Episode 13 by 22 March 2023, 113,332 took place in January 2022.  Only 4,691 downloads of Episode 13 occurred in December 2021 when it was only available to subscribers to The Australian.

The plaintiff’s residence

  1. [312]
    The plaintiff resided in Mackay for about seven years before the death of Shandee Blackburn.  He had owned properties in Queensland.  His solicitor’s affidavit does not disclose when the plaintiff commenced residing in Western Australia, however, he purchased a property there in around July 2022. 

The co-workers

  1. [313]
    The plaintiff’s solicitor had telephone conferences in March, April and June 2024 with three of the plaintiff’s co-workers. 
  2. [314]
    He spoke on two occasions to Mr Brian Morhan who operates an earth-moving company and who became acquainted with the plaintiff when they worked at the same mine site in Western Australia in around September to October 2019.  Mr Morhan resides in Victoria and says that he and the plaintiff remained friends after they worked at the mine site and met on a couple of occasions in late 2021, when Mr Morhan again visited Western Australia for work.
  3. [315]
    Mr Kyle King was employed by the same employer as the plaintiff in Perth, Western Australia.  They formed a close working relationship and friendship, and Mr King considered, and continues to consider, the plaintiff a friend.
  4. [316]
    Mr Tori Bellotti resides in Western Australia.  Throughout 2021 he was employed as a heavy-diesel mechanic at a mine site and met the plaintiff who was a heavy-diesel mechanic at that site.  Mr Bellotti told the plaintiff’s solicitor that in mid-to-late 2021 he had overheard several other mechanical fitters he was working with discussing a podcast, and that one of those mechanical fitters had said words to the effect:

“One of the guys we work with is a murderer.”

  1. [317]
    Given the timeframe of “mid-to-late 2021”, this evidence does not make it probable that the podcast episode that the mechanical fitters were discussing was Episode 13.  It was only released to subscribers to The Australian on 17 December 2021 and was first released to the general public on 10 January 2022.  The reference to “a podcast” during that period is more likely to refer to earlier episodes of the podcast series.  Support for the conclusion that the discussion among workers occurred prior to December 2021 emerges from the evidence in the plaintiff’s affidavit of people at the mine site talking about a podcast in October 2021.
  2. [318]
    Mr Bellotti says that he developed a relationship with the plaintiff and on occasions would catch up with him in Perth for a beer.  Mr Bellotti also says that he “had listened to the Podcast” which may refer to the Shandee’s Story podcast series or Episode 13.  In any event, Mr Bellotti says nothing about the effect that listening to the Podcast had upon his estimation of the plaintiff.  
  3. [319]
    Mr Morhan and Mr King make no mention of the podcast, and so one might infer that they did not listen to it.  

The Reddit publications

  1. [320]
    In June 2024, the plaintiff’s solicitors undertook a search of a Reddit topic known as r/TrueCrimeGenre.  Reddit is a platform for people to post about a myriad of topics.  Particular reliance is placed by the plaintiff upon three posts that occurred on 23 January, 3 February and 8 February 2022.  Annexure F to MFI-A refers to these as the “First Reddit Post”.  However, they postdate what is referred to as the “Second Reddit Post”.  I will refer to the five Reddit posts that constitute the First and Second Reddit Posts in their chronological order.
  2. [321]
    On 6 January 2022 there was a post by a Reddit user, OzTm, on a thread Shandee’s Story which stated:

“I’ve been listening to a podcast about a murderer in my home state which deals specifically with failings in the state-run forensics lab. 

Some of the crazy stuff includes: 

  • Blood from a murder victim captured at the crime scene (it was a stabbing) did NOT test positive for DNA, 
  • Presumptive testing/luminal of the car of the boyfriend of the victim indicates blood, but NO DNA could be found (victim or driver). 

The lab was using ‘new’ software at the time which had a known bug corrected around the same time frame (early 2000s). 

There all was a re-opened inquest into the handling of the case and the DNA. 

I guess it is just one more example of where the science is fallible and

I wonder if similar things happen all over the world (incl Wisconsin).”

  1. [322]
    On the same day there was a post on the same thread by Longjumping_Visit_38 that stated:

“I’m from Mackay, I live about 1.5km from where this happened and can assure you the police here are of a very high quality in fact most aren’t local residents, all the main offices [sic] involved were from the city and had prior experiences in these sorts of crimes.  The ball was definitely dropped by those testing DNA in the lab, she was brutally murdered and I mean brutally.  They didn’t even find DNA in the blood taken directly from her blood on the scene, this crime shook the community and still has to this day, I used to always walk past where it happened on the way home from the nightclubs, feel bad for the family, John Peros is a murderer and I hope he’s brought to justice.”  

  1. [323]
    On 23 January 2022, there was a comment posted on a different Reddit thread that had the title “Shandee Blackburn’s unsolved murder investigation in new podcast series Shandee’s Story”.  A comment was posted by Bardgirl23, who stated:

“Just listened to this. Her ex absolutely did it.”

  1. [324]
    On 3 February 2022, a comment was posted by Blonde_arrbuckle:

“100% he did.”

  1. [325]
    On 8 February 2022, there was a comment by noraludora, which stated:    

“I’m listening now – and feel it is so clear that it was the ex! William was literally only a suspect due to local people whispering, nothing else. I was wondering if he couldn't provide an alibi because maybe he was doing [something] else illegal at the time. The crime was personal and John was [abusive] to Shandee. It’s crazy he was acquitted.”

  1. [326]
    The last three posts occurred after Episode 13 became available to the general public on 10 January 2022.  The two posts from 6 January 2022 occurred before that date, but after Episode 13 was first published to persons who subscribed to the podcast via their subscription to The Australian.  The terms of those two posts do not make it apparent that either listener had just been listening to Episode 13.  It is consistent with them having listened to earlier episodes, particularly the earlier episodes that investigated problems with the DNA testing and the introduction of new software at the DNA laboratory.
  2. [327]
    Episode 14 was first published to subscribers of The Australian on 10 February 2022, and then to the general public after that date.  Therefore, the Reddit posts of 23 January, 3 February and 8 February 2022 could not have been based upon Episode 14.
  3. [328]
    While it is possible that each of these three individuals posted what they did after listening to an earlier episode, a reasonable inference is that the state of belief that they recorded occurred after each of them listened to Episode 13.
  4. [329]
    A question remains, however, what their state of belief was about the plaintiff’s responsibility for the violent killing of Ms Blackburn, and what their estimation of the plaintiff was, before each of them listened to Episode 13.
  5. [330]
    A possibility exists that they and other listeners simply “jumped on” to Episode 13, knowing nothing about Shandee Blackburn’s case, the Coroner’s findings, or not having listened to an earlier episode.  This seems improbable.  It seems more probable that they had listened to at least some of the earlier episodes.

RELEVANT CONSIDERATIONS

The gravity of the defamation

  1. [331]
    In imputing that the plaintiff had murdered Ms Blackburn, or in conveying a similarly serious meaning about his responsibility for her violent death, Episode 13 conveyed a grave defamation.

The extent of publication of the podcast series and of Episode 13 

  1. [332]
    I have set out above a table of data about the total number of downloads of each episode.  The evidence does not dissect the number of downloads that were made by subscribers to The Australian who downloaded an episode that required a subscription and, presumably, an application that enabled only subscribers to download an episode.  Given other evidence about the readership of The Australian and The Weekend Australian compared to the total number of downloads, it is reasonable to infer that a majority of the downloads occurred from publicly-available platforms such as Spotify and iTunes.

The extent of publication of other publications

  1. [333]
    The evidence includes information about publications concerning the plaintiff’s murder charge and his trial.  These are summarised in Annexure A to MFI-A.  They include downloads of various online newspaper articles and online articles posted by electronic media, including Nine News and ABC News.  They culminate in articles covering counsel’s addresses at the trial, with headlines about the prosecutor’s argument that “Shandee must have known her attacker” and defence counsel’s criticism of the police investigation.
  2. [334]
    The plaintiff’s acquittal on 7 April 2017 was the subject of news items that day and the following day.  There also were posts on social media sites operated by commercial television stations of the breaking news that the plaintiff had been found not guilty of the murder of Shandee Blackburn.  These are summarised in Annexure C to MFI-A and include online articles in the Courier Mail and ABC News.  ABC’s online news website over the two years between 2017 and 2019 had 492,000 visitors on average each day.  The number who viewed the article about the plaintiff’s acquittal is unknown.  

The Coroner’s Report and findings

  1. [335]
    I am not concerned with the correctness of the Coroner’s findings.  The relevant issues are whether the findings are analogous to judicial findings, and what effect reporting of those findings had on the plaintiff’s reputation prior to the publication of Episode 13.    
  2. [336]
    Earlier I reached the conclusion that for the purpose of the rule in Dingle, the Coroner’s findings are analogous to judicial findings.  To return to that topic, the Coroner’s Report resembles a carefully-written judgment.  The Coroner considered the nature of his task and the demanding standard of proof.  Although a Coroner’s Court is not bound by the rules of evidence, the Coroner followed authority that this does not mean the rules of evidence are to be ignored.  In particular, the Coroner followed authorities such as Helton v Allen[217] and Briginshaw v Briginshaw[218] about the state of satisfaction required and that one will not lightly find that a crime has been committed, and if the crime is a grave one, the Court will require a greater strictness of proof.  
  3. [337]
    The Coroner heard from 53 witnesses.  A huge volume of documents, audio files and CCTV recordings was before him.  The Coroner remarked that the Inquest was more comprehensive than the Supreme Court trial as to the available evidence that could be received, given the different nature of their processes.  Inquests have the benefit of receiving additional evidence that is not permitted at a criminal trial.  This inquest included enhanced and a more complete analysis of CCTV footage.
  4. [338]
    The Coroner analysed the evidence before him, having had the benefit of cross-examination and submissions from interested parties, including the plaintiff’s counsel who had appeared for him at his trial.  
  5. [339]
    The Coroner referred to persons of interest and analysed the relationship between the plaintiff and Ms Blackburn.  He assessed the weight of the alleged Australia Day 2013 conversation, in which the plaintiff was alleged to have said that he hated Ms Blackburn, and something like “she would be better off dead” or that he wanted to stab her.
  6. [340]
    The Coroner analysed the plaintiff’s movements and remarked on the plaintiff’s ability to remember, with quite some detail, his movements on the day of 8 February 2013, but his poor recollection of that night when asked about it by police, and whether or not he drove his car in the streets near where Ms Blackburn was attacked. [341] The Coroner analysed the CCTV images, including images of a person seen running.
  1. [342]
    Ultimately, the Coroner concluded that Ms Blackburn died due to injuries sustained in an incident involving violence with the plaintiff who used a bladed instrument.  This was said to be the only rational conclusion that could be drawn from the whole of the circumstances and the evidence presented, the Coroner having taken time to consider other reasonable hypotheses, including that Ms Blackburn was killed by William Daniel when Mr Daniel was in company with a Mr Norman Dorante.
  2. [343]
    I mention these matters at this point to explain why, in my view, the Coroner’s finding is analogous to a judicial finding in a civil proceeding.  While it occurred in a different context to civil proceedings between parties, it resembled the process of proof and decision-making that one might expect in a civil proceeding, such as a wrongful death civil proceeding by a dependant who accuses the defendant of having killed the deceased. 

Publicity surrounding the Coroner’s findings

  1. [344]
    The Coroner’s findings were the subject of extensive publicity on and after 21 August 2020, across a variety of newspaper, broadcasting and online media.  The coverage was particularly intense in the few days following the release of the findings on 21 August 2020.  However, reports of the Coroner’s findings continued in late 2020 in parallel with articles in which Shandee Blackburn’s mother, Vicki Blackburn, expressed her disappointment in the conduct of the prosecution.
  1. [345]
    Reporting of the Coroner’s finding resumed in late 2021, with publicity in October 2021 surrounding the pending podcast series and articles in The Weekend Australian and The Australian.  The relevant publications that reported the Coroner’s findings are tabulated in Annexure D to MFI-A.  Some went beyond reporting the Coroner’s findings.  The flavour of some of the articles that occurred in late October and November 2021 are apparent from their headlines.  They were published in parallel with early episodes of the podcast:

30 October 2021

Article published in The Weekend Australian and by The Australian online, “Murder victim was told ‘one call and you’re dead’”

1 November 2021

The Australian article published in print and online, “Shandee’s ex ‘deeply distrusted women, had mental scars’”

5 November 2021

The Australian article published in print and online, “In stealth mode: ‘ex-lover went dark’”

8 November 2021

The Australian article published in print and online, “Devil in the detail of a letter ‘written with visceral hatred’”

25 November 2021

ABC News online article, “Forensic biologist labels Shandee Blackburn’s murder investigation a ‘forensic train wreck’”

The overlap issue

  1. [346]
    The extent of overlap between, on the one hand, readers of publications like The Courier Mail, The Australian, ABC News and other news services and, on the other hand, listeners to the Shandee’s Story podcast series is hard to assess.
  2. [347]
    One may infer that there is some, perhaps a significant, overlap between the hundreds of thousands of persons who consumed publications about the criminal proceeding, the coronial proceeding, the Coroner’s findings and its aftermath, and listeners to the podcast series.  However, I decline to find, because the evidence does not adequately support this inference, that most listeners to the Shandee’s Story podcast series were readers of newspapers in either print or online editions, or followed other news items about the Coroner’s findings.  There is a distinct possibility that some, perhaps many, True Crime podcast consumers rarely read newspapers or follow current affairs.  
  3. [348]
    Therefore, I conclude that there was an overlap, but not a coincidence, between listeners to the podcast series (including Episode 13), and readers of and listeners to earlier publications that reported the criminal proceedings, the coronial proceedings, the Coroner’s findings and their aftermath.  The evidence does not permit one to be precise about the extent of the overlap. 
  4. [349]
    It is reasonable to conclude that there was a substantial number of listeners to the podcast series who downloaded it knowing little about the case or about the plaintiff, before they listened to Episode 1.  They may have been encouraged to download the podcast by a friend.  Others may have located the series because it was in a True Crime genre.  Others may have commenced downloading the series, having had their interest engaged by the kind of media reports that I have listed or newspaper articles that promoted the series in mid-October 2021.
  1. [350]
    The existence of an overlap, but not a coincidence, between consumers of the podcast and consumers of earlier publications, including publications that reported the Coroner’s findings, seemed to me, when I heard a preliminary matter in April 2024 and also when I was preparing to hear this matter in late July 2024, to present a significant problem for the defendants’ case on “serious harm”.  That problem would have been acute if Episode 13 had been a stand-alone publication, to which many listeners came “cold”, not knowing anything about the Coroner’s findings or little else about the case.
  2. [351]
    The problem for the first and second defendants would have been acute if the plaintiff had sued over Episode 1 and subsequent episodes, including Episode 13.  However, he did not do so.
  3. [352]
    A problem for the plaintiff’s proof that Episode 13 caused serious harm to his reputation is that while many listeners to that episode may not have heard of the Coroner’s findings or other publications that asserted that the plaintiff killed Ms Blackburn by September 2021, they soon came to learn of those findings once they were introduced to the podcast and listened to Episode 1.
  4. [353]
    In Episode 1, Mr Thomas introduced the facts of Ms Blackburn’s death, witness observations, the CCTV evidence, and the topic of who killed her.  The plaintiff was identified as a suspect, who denied his guilt, and ran a case that another man, William Daniel, was the killer.  Mr Thomas told listeners that the plaintiff was found not guilty of murder or manslaughter.  He then told listeners about the Coroner’s finding:

“But then there was an inquest with public hearings over long days in the same courthouse as where the trial had been heard. The inquest in 2019 covered more evidence and heard from more witnesses than the actual murder trial two years earlier. 

Finally, there was a finding in 2020 by the Coroner David O'Connell who ran the inquest. He found that John Peros did indeed kill Shandee - despite John having been found not guilty of murder in 2017 in the jury’s unanimous verdict.

It’s important to emphasise that Coroner O'Connell’s controversial finding against John Peros - a finding which was as emphatic as the jury’s acquittal of him - does not make John guilty of murder. This might seem confusing but it’s due to the fact John was already acquitted of murder. That’s how the criminal justice system works. But it still does make John a killer in the eyes of Mackay’s Coroner David O'Connell. The Coroner’s finding effectively vindicated the work of the police. 

These outcomes in this kind of sequence are a bit unusual. We’re going to look at some remarkable evidence in two very different proceedings.”

  1. [354]
    I will return to the likely effect of Episode 1 and also Episodes 2 to 12 on the plaintiff’s reputation among listeners by the time they came to listen to Episode 13.
  2. [355]
    The present point relates to the lack of coincidence between consumers of other media and listeners to Episode 13.  That lack of coincidence is less of a problem for the defendants because of the podcast’s earlier report of the Coroner’s findings and its lengthy accounting in the following 11 episodes of evidence that was not before the jury.  This evidence helped explain to listeners why the plaintiff was acquitted at his trial, but found by the Coroner to have brutally killed Ms Blackburn. 

By whom the publications were made 

  1. [356]
    The plaintiff in his submissions and in his particulars relies upon the reputation of the first defendant as a well-regarded provider of news, and on the second defendant’s reputation as an investigative journalist who had won the Gold Walkley award for his work on a previous podcast, The Teacher’s Pet, about the disappearance and murder of the late Lynette Dawson, the wife of convicted murderer, Chris Dawson.  
  2. [357]
    The standing and authority of the first and second defendants gave Episode 13 a greater potential to seriously harm the plaintiff’s reputation, compared to a less credible or authoritative source.  However, the inference of serious harm arising out of the first and second defendants’ status and reputation must apply with the same force to the first 12 episodes.  
  3. [358]
    Moreover, insofar as earlier episodes referred to the Coroner’s findings, as did other publications that reported his findings after 21 August 2020, those publications were apt to injure the plaintiff’s reputation because their source was an independent judicial officer who had undertaken an investigative process in which he was required to weigh the evidence.  This has implications for the state of the plaintiff’s reputation prior to Episode 13 being published.

The form of the publication

  1. [359]
    A podcast episode differs from a book.  Many listeners may give it less attention and analysis than an article that is read in a newspaper or magazine.  It differs, however, from an ephemeral medium.  It can be rewound and listened to more than once.  Regard should be had to the diverse circumstances under which listeners may have come to listen to Episode 13 and earlier episodes, as well as the circumstances under which they came to read or listen to other publications, including publications that reported the Coroner’s findings.

The identity of the recipients

  1. [360]
    The evidence permits a geographical breakdown of the jurisdictions in which the podcast was downloaded, and the parties agreed for the purpose of this proceeding that Queensland was the Australian jurisdiction with which the harm occasioned by the publication as a whole had its closest connection.
  2. [361]
    There is no evidence that members of the plaintiff’s family or his friends were affected by Episode 13, or indeed by earlier episodes, in their estimation of the plaintiff.
  3. [362]
    Given the nature of the series that told a story over many episodes, listeners to Episode 13 were likely to have listened to earlier episodes of the podcast.
  4. [363]
    The possibility exists that a few people jumped into the podcast series at Episode 13.  This is largely speculative.  Very few of the few hundred thousand listeners to Episode 13 would have done so.
  5. [364]
    The possibility that a very small number of people did so does not make the publication like a publication to a limited number of recipients.  While the authorities clearly establish that serious harm to reputation can be caused by the publication of defamatory matter to a few persons, that principle has its clearest application in a case in which the publication is made to only a few people.  The principle still applies to a mass publication, but in evaluating whether a mass publication caused serious harm, consideration should be given to the normal reading, listening, or viewing habits of recipients.  A few people may have started listening at Episode 13.  There is no direct evidence that any did.  But if some did, I infer that they were few and presumably had some acquaintance with the background to the podcast.  In circumstances in which most listeners to Episode 13 had listened to earlier episodes, I am not persuaded that the unusual listening habits of a few justifies a finding of serious harm in all the circumstances.
  6. [365]
    It also seems inconsistent with the purpose of s 10A that the element of serious harm should be satisfied in circumstances in which a few listeners to a podcast are assumed to begin listening at Episode 13, knowing nothing about the plaintiff before they do so, whereas most listeners to Episode 13 were acquainted with him, and would have had an adverse view of him because of the earlier episodes and the Coroner’s finding.
  7. [366]
    I decline to find that any significant number of listeners to Episode 13 came to listen to it without having either been aware of the Coroner’s finding, or without already having an adverse view of the plaintiff as a result of other publications, including the earlier episodes.

The likely effect of earlier publications to the same or similar effect

Reports of the Coroner’s findings

  1. [367]
    For present purposes I leave to one side any assumption that judicial and similar findings are taken to be widely known in the community, or that a claimant’s reputation is taken by defamation law to be a reputation that reflects those findings.  Instead, I will consider the evidence of the actual reporting of the Coroner’s findings.
  2. [368]
    The many publications that reported the Coroner’s findings, either as a news report or in the context of later reports into the death of Shandee Blackburn, were apt to injure the reputation of the plaintiff among readers and listeners in general.  They would be given to understand that the plaintiff had been found by the Coroner to have violently killed Ms Blackburn.  They would include listeners to Episode 1 in which this finding was reported.

Episodes 1 - 12

  1. [369]
    Before the hearing on 29 July 2024, the parties requested that I listen to Episodes 1 and 13 as a means of saving time at the hearing, and I did so.  Since reserving the matter I have listened, also at the parties’ request, to the intervening episodes, doing my best to consider how a typical listener to them would consider their contents and how their contents probably would affect their estimation of the plaintiff.  My approach has been similar to that which judges direct jurors to adopt in determining the meaning that would be conveyed to an ordinary, reasonable listener.  I listened to the podcast episodes without replaying them.  I did not rely upon transcripts.  The discussion of the episodes which follows does not purport to be a summary of each of them.  The purpose of the exercise was to assess the likely state of listeners’ estimation of the plaintiff before they heard Episode 13.
  2. [370]
    The passage from Episode 1 that I have earlier quoted is relevant to a point raised in the plaintiff’s submissions to the effect that Episode 1 posed a question, or even a mystery, as to how the plaintiff could have been found not guilty of murder in 2017, but have been found by the Coroner to have violently killed Ms Blackburn.  That question was virtually answered in the same passage when Mr Thomas said that the inquest in 2019 “covered more evidence and heard from more witnesses than the actual murder trial two years earlier”.  Episodes 1 to 12 explored what was previewed in that passage as “some remarkable evidence in two very different proceedings”, and how the Coroner’s findings “effectively vindicated the work of the police”.
  3. [371]
    A major theme of the first 12 episodes was the flawed DNA analysis.  Dr Kirsty Wright became something of the hero of the podcast by her exposing systemic flaws in the approach undertaken by the Government laboratory in testing samples.
  4. [372]
    The fact that none of Ms Blackburn’s DNA was found on the plaintiff or in his vehicle, despite the extensive examination of that vehicle, and none of his DNA was found at the crime scene on her body or clothes, created a major forensic barrier for the prosecution at the trial.  The first 12 episodes explained this.  Episode 12 was particularly effective in highlighting the points that defence counsel at the murder trial was able to make about the absence of any forensic link to the plaintiff.  The episodes reported related matters, including the pre-trial exclusion of presumptive, positive tests for blood in the plaintiff’s vehicle.  Because DNA testing did not reveal any DNA, the relevant scientific officer had to concede that the presumptive positive tests were probably false positives.  Those tests were appropriately excluded from the evidence that went to the jury.
  5. [373]
    The episodes also explained how a statistically irrelevant figure associated with another suspect, William Daniel, was able to be relied upon in the defence case before the jury as being consistent with William Daniel being the killer, even if it did not prove this fact.  Simply put, that DNA evidence excluded the plaintiff, but did not exclude Daniel. 
  6. [374]
    Those episodes exposed extraordinary shortcomings in the analysis of DNA evidence.  Listeners to the podcast came to understand, with the benefit of Dr Wright’s analysis and Mr Thomas’ explanations, that the DNA tests were unable to find DNA from the blood samples taken from the crime scene.  Another extraordinary matter was that DNA testing did not find any of the plaintiff’s DNA in the cabin of the Toyota HiLux vehicle that he used for many months and did not clean.  Unsurprisingly, the shortcomings in the DNA testing and analysis were apparent to one of the Reddit commentators.  
  7. [375]
    Those shortcomings would have been well-known to listeners to the podcast series who would have understood that the jury, the judge, and the lawyers at the plaintiff’s murder trial were in blissful ignorance of these systemic failures in DNA testing procedures.  Listeners to the podcast series would have understood the difficulty which the prosecution had in proving its case at trial because of the failings in the DNA testing procedures.
  8. [376]
    Episodes 1 to 12 disclosed that the prosecution did not call evidence that was available to it from potential witnesses and from text messages that would have placed the relationship between the plaintiff and Ms Blackburn in a very different light.
  9. [377]
    The episodes were critical of various aspects of the prosecution case.  An example is that a document that was placed before the jury by the parties of text messages between the plaintiff and Ms Blackburn was said to be completely unrepresentative of the contents of their numerous exchanges.  It tended to place Ms Blackburn in a poor light and did not include numerous texts that were featured in the podcast that placed the plaintiff in a bad light.  
  10. [378]
    Another explanation given by the episodes for the different outcomes of the two proceedings was the failure of the prosecution to call numerous witnesses.
  11. [379]
    Episodes 1 to 12 left listeners with the strong impression that the prosecution at the trial was out-gunned, out-manoeuvred, and out-played by the superior forensic skills of defence counsel and defence solicitors.
  12. [380]
    Another explanation given in those episodes for the not guilty verdict was the criminal justice system which has a number of protections for an accused against prejudicial evidence, but does not give the same protections to prosecution witnesses.  These include the exclusion of conversations recorded between police and a suspect in circumstances in which the cautions required by law are not given.
  13. [381]
    Listeners to the first 12 episodes were told of an analysis undertaken at the request of Queensland Police by FBI profilers which concluded that the nature and ferocity of the injuries sustained by Ms Blackburn were consistent with a frenzied attack by someone who was known to her, rather than an opportunistic mugger who simply wanted to steal her handbag.  The crime was depicted as “personal”.
  14. [382]
    The podcast interviewed individuals who were familiar with the toxic relationship between the plaintiff and Ms Blackburn.  It included reports by Ms Blackburn of being threatened by the plaintiff, including a threat that he could arrange to have her killed by others.
  15. [383]
    The Coroner’s finding, as reported initially in Episode 1, was not an unremarkable detail that was likely to fade from the memory of most listeners.  It was the matter that gave rise to the question of how the plaintiff came to be acquitted.  
  16. [384]
    Overall, Episodes 1 to 12 enabled listeners to understand how the inquest in 2019 covered more evidence and heard from more witnesses than the jury did at the murder trial.  
  17. [385]
    The podcast series did not purport to clear William Daniel or his associate from suspicion.  However, it made the point that a statistically meaningless probability ratio may have been given more weight by the jury than it warranted in considering the possibility that William Daniel was the killer.
  1. [386]
    While parts of some episodes included content that was favourable to the plaintiff (and his particulars identify some matters in that regard), overall Episodes 1 to 12 depicted the plaintiff as a deeply-troubled individual whose dislike of Shandee Blackburn continued long after the relationship ended.  The episodes included the Australia Day 2013 witnesses who said that the plaintiff expressed his hatred of Ms Blackburn that day and a desire to stab her.  Those witnesses were discredited at the trial because of their false denial of being involved in drugs.  However, the podcast, like the prosecutor’s address that was summarised in Episode 12, made the point that any such remarks by the plaintiff on Australia Day 2013 (a few weeks before Ms Blackburn’s murder), were the kind of thing that would be remembered by those individuals, even if they were affected by alcohol or drugs at the time they were said.  One reason is that the remarks were completely out of character as far as the witnesses were concerned.  
  2. [387]
    Listeners to the first 12 episodes were likely to be highly influenced by what was said about the CCTV images of a vehicle that matched the plaintiff’s and which was in the vicinity of where she was killed at about the time she was killed.  Listeners might have noted that the plaintiff, while recalling where he was that day, was unable to recall where he was that night.  Listeners were likely to be influenced by the abundant evidence in earlier episodes of botched DNA testing that left the prosecution without forensic evidence at the trial linking the plaintiff to the crime, or even to the interior of the vehicle in which he travelled each day and never cleaned.  As noted, the DNA evidence led to the exclusion of presumptive positive tests for blood inside the plaintiff’s vehicle.
  3. [388]
    After the first 12 episodes, William Daniel remained a suspect, but the episodes highlighted evidence, including a great deal of evidence that was not placed before the jury, that overwhelmingly pointed to the plaintiff as the person who had brutally killed Ms Blackburn.  To be clear, I am not making any finding of responsibility in this regard nor am I agreeing with the Coroner’s findings.  Instead, I am concerned with the impression that the first 12 episodes would have left upon listeners.

Conclusion

  1. [389]
    I find that listeners to the first 12 episodes were likely to conclude that the Coroner’s findings were right, and that the plaintiff had violently attacked Ms Blackburn with a bladed instrument in a fast, frenzied and personal attack at around 12.15 am on 9 February 2013.
  2. [390]
    This conclusion is not based simply on the tendering of those earlier publications.  It relies on the perceived authority of the persons who made those publications, and the form of the publications as being the product of investigative journalism.  That distinguishes the publication from a publication of rumours and bare allegations.  

The state of the plaintiff’s reputation prior to the publication of Episode 13

  1. [391]
    Prior to Episode 13 being published, numerous other publications, including the first 12 episodes of the podcast, had seriously injured the plaintiff’s reputation.  Listeners to the podcast series were told that the plaintiff was the person who the Coroner had found to have violently killed Ms Blackburn, and most listeners would have concluded on the strength of the first 12 episodes that the Coroner’s findings were firmly based in evidence that was not placed before the jury at the plaintiff’s criminal trial.
  1. [392]
    Listeners would have regarded William Daniel as a suspect.  However, by the end of Episode 12, they would have reached the view that, despite his acquittal, the plaintiff was Ms Blackburn’s killer.

Episode 13

  1. [393]
    Episode 13 is titled “Unheard Evidence”.  It continued a theme that ran through the podcast series and that was introduced in Episode 1, namely that the jury at the murder trial did not hear a great deal of the evidence that was potentially available at the time of the trial, but was either not relied upon by the prosecution or excluded from the evidence as the result of principles governing criminal trials and rulings by the trial judge.  Another theme of the podcast series prior to Episode 13 was that the jury, the judge, the prosecutor, the police, and others were unaware, at the time of the trial, of the deep flaws in the system for DNA testing.  These flaws were the subject of many episodes in the podcast series.  Episode 13 did not bring these issues to light.  It repeated them.
  2. [394]
    Episode 13 was introduced by Mr Thomas saying:

“We are a long way into this series.  And up to now, you haven’t heard Shandee’s sister, Shannah, or her mother, Vicki, disclose their views about the murderer’s identity.  This has been a deliberate omission.  I wanted listeners to make their own judgments about this, untainted by the family’s position, but it’s now time to hear it and to understand some of the reasons which have informed their views.” 

  1. [395]
    This accords with my view that Episodes 1 to 12 had enabled, and indeed encouraged, listeners to reach a view about the identity of Ms Blackburn’s murderer and, in doing so, conclude that the Coroner’s findings were correct.
  2. [396]
    Episode 13 proceeds to take Ms Shannah Blackburn, the third defendant, through items of evidence and asks her to explain why she has an absolute “100 per cent confidence” that the plaintiff killed Shandee.  This included the CCTV footage of the car and the evidence of what Mr Thomas described as “our experts” who had looked at it.  In different ways, Episode 13 reiterates that what the jury heard was not the case that the Coroner would hear two years later, and that the jury heard only a “whittled down brief of evidence” (Mr Thomas’ words in Episode 13).  My recollection is that during the first 12 episodes Mr Thomas referred on more than one occasion to the evidence being “filleted” before it was presented to the jury.
  3. [397]
    Episode 13 introduced a few new topics, including the apparent failure to conduct DNA testing of another person of interest, Scott McPherson.  However, in general it repeated topics that had been explored in earlier episodes.

The mystery novel analogy   

  1. [398]
    In addressing the causal potency of Episode 13, counsel for the plaintiff likened the podcast series to an unfolding story that creates a mystery, or at least poses a question at the start, and provides the answer in a final chapter.  One question was how the jury and the Coroner could come to apparently different conclusions.  The second, related question was “Who killed Shandee Blackburn?”
  2. [399]
    The first question was effectively answered at the outset of Episode 1 by the statement that the Inquest in 2019 “covered more evidence and heard from more witnesses than the actual murder trial two years earlier”.  The subsequent episodes develop this point and, in different places, identify evidence that was not presented by the prosecution at the trial or that was excluded from the jury’s consideration by pre-trial rulings.
  3. [400]
    As to the second question, any analogy with a murder mystery novel cannot be sustained.  This is not a case where the final chapter (assuming it to be Episode 13, with the seven episodes that followed being some kind of long epilogue) revealed the killer, after which all the evidence falls into place.  The podcast was not like a mystery novel set in a stately home in England, and where there is some clever plot twist or revelation in the final chapter.  
  4. [401]
    The question of how the plaintiff came to be acquitted by the jury but found by the Coroner to have killed Ms Blackburn was answered long before Episode 13.  The answer included different evidence, the different rules that apply to a criminal trial and that are tilted in favour of the accused, and the DNA bungle within the State DNA laboratory about which the trial participants were ignorant.
  5. [402]
    The outcome of the criminal trial having been explained, Episodes 1 to 12 also conveyed the message that, because of these matters, the Coroner had reached the correct conclusion about the identity of Ms Blackburn’s killer.
  6. [403]
    Mr Thomas’ introduction to Episode 13, which I have earlier quoted, reinforced the fact that the series had come “a long way” and that the views of Ms Blackburn’s sister and mother had not been disclosed in the earlier episodes, so as to allow listeners to make their own judgments “untainted by the family’s position”.  Episode 13 did not present startling new evidence that would enable listeners to finally answer the question, “Who killed Shandee Blackburn?”
  7. [404]
    Episodes 1 to 12 provided enough content to enable listeners to answer that question and to reach the conclusion that, while William Daniel remained a suspect, the Coroner had correctly identified the plaintiff as Ms Blackburn’s killer.  

The summary and conclusion argument

  1. [405]
    Mr Helvadjian of counsel, who prepared and presented the plaintiff’s case with great skill, alternatively likened Episode 13 to the summary or conclusion to a long work of non-fiction.
  2. [406]
    Each episode went for an hour or more, and most listeners would not have binged the first 13 episodes.  Many would have listened to the episodes over a period of weeks or months.  Although some key interviews and pieces of evidence were repeated across different episodes, one would not expect listeners to have a photographic memory of the detail of each episode.  Mr Helvadjian is correct in submitting that one should not proceed on the basis that each listener “religiously listens to each episode, vividly remembering its content”.  
  3. [407]
    The argument is that Episode 13 operated as a kind of summary and conclusion, much like the kind that may appear at the end of an expert report or a long judgment.  The reader of such a document may have generally followed its contents, however, the summary and conclusion bring matters together with a clarity that may be lacking in the preceding chapters.  The fact that a careful reader might have been able to predict the report’s summary and conclusion if one had not been included, does not mean that the summary and conclusion lack influence.  Their purpose is to distil and to clarify.
  4. [408]
    During the hearing I encouraged the summary and conclusion argument to some extent by noting the marked decline in the total number of downloads after Episode 13.  But other explanations may exist for that decline, including the fact that Episode 13 was available over the usual summer holiday period.  Another is that readers had heard enough by Episode 12 and found Episode 13 repetitive, save for hearing from Ms Blackburn’s sister and mother.  
  5. [409]
    Their contribution to Episode 13 would not be likely to alter the views that listeners held after Episode 12.  They were members of the victim’s family and lacked independence.  The sympathy which listeners had for them might tend to reinforce views that had developed and settled by the end of Episode 12.  They would be unlikely to cause any significant change to those views, since Episode 13 largely repeated what had gone before.

The reinforcement submission

  1. [410]
    The plaintiff submits that reinforcement of a settled view is sufficient to justify a finding of serious harm being caused by Episode 13.  Some care is required in elevating a passing observation in Turley v Unite the Union[219] to a proposition that reinforcement is sufficient to cause serious harm.  It would be an odd thing if reinforcement necessarily caused serious harm.  Otherwise, the boring repetition of a proposition that had been made many times in previous publications to the same recipients would cause serious harm.  The passage that I have earlier quoted from Sivananthan v Vasikaran[220] identifies the improbability that such a repetitive publication will satisfy the serious harm test.
  2. [411]
    I conclude that most listeners to Episode 13 had already formed a very adverse view of the plaintiff because of the contents of Episodes 1 to 12, which included a report of the Coroner’s findings.  To the extent Episode 13 reinforced their views about the plaintiff’s responsibility for the death of Ms Blackburn, I am not satisfied that any additional harm that it caused to his reputation amounts to “serious harm”.  

Proof of serious harm

  1. [412]
    As Warby J stated in Lachaux, “Serious harm may be proved by inference, but the evidence may or may not justify such an inference”.[221]  
  2. [413]
    The proposition that a podcast episode that accuses a person of murder, and that is heard by a few hundred thousand listeners, does not cause serious harm to reputation is confronting.  The causation issue depends, however, on all the circumstances.  For example, if the claimant was a notorious murderer at the time the episode was published, serious harm would not be inferred.  Some compelling direct evidence of actual harm to reputation that amounted to “serious harm”  would be required.
  3. [414]
    Depending on the circumstances and the evidence, a newsletter or blog that defames an individual by accusing the person of certain conduct or having a certain character may not cause serious harm if it simply repeats what has been said in earlier publications in the same medium by the same publisher. If the readership already knows of the publisher’s claims about the person, a further publication is unlikely to have a material impact.[222]
  4. [415]
    The defendant in such a case is not required to prove that its latest publication caused no harm, and it is insufficient for the claimant to prove some harm to reputation.  The claimant must prove that a specific publication caused, or is likely to cause,  serious harm to reputation. 
  5. [416]
    An inference is not to be confused with speculation. To prove serious harm by inference, or almost exclusively by inference, the inference must be more compelling than competing inferences that are reasonably open on the evidence. 
  6. [417]
    In Sivananthan v Vasikaran, Collins Rice J stated:[223]

“The components of an inferential case must themselves be sufficiently evidenced and/or inherently probable to be capable of adding up to something which discharges a claimant's burden.”

  1. [418]
    Has the plaintiff discharged his burden?  

The plaintiff’s particulars and his evidence about his reputation

  1. [419]
    I have summarised the evidence that the plaintiff called on the serious harm issue. Neither the plaintiff’s evidence nor any other evidence supports certain assertions contained in his particulars of pre-publication reputation and serious harm.
  1. [420]
    The defendants do not contest the plaintiff’s particulars that he was generally regarded as a murderer among immediate family members and friends of Shandee Blackburn, including those who attended the tenth anniversary of her death in Mackay.  
  2. [421]
    As for his reputation in and around Australia more broadly, the plaintiff particularises that he had been referenced on national television and in news articles by reports that stated that he was suspected of the murder of Ms Blackburn, that he had been charged with her murder, and that he had been acquitted of her murder.  Originally, the plaintiff particularised that he also had a reputation that the Central Queensland Coroner, who oversaw the inquest, had determined that Ms Blackburn died as a result of a violent altercation involving a bladed instrument with the plaintiff.  At the hearing in late July 2024, the plaintiff sought and obtained leave to amend his particulars to remove this reputation.  However, the evidence establishes that he was widely, but not universally, known to have been the subject of such a finding by the Coroner.  I conclude that he was widely known to have been subject to that finding by persons who read reports of the Coroner’s findings, and by listeners to the podcast who listened to Episode 1 and other episodes that referred to the inquest.
  3. [422]
    Notwithstanding these matters, the plaintiff’s case is that he was not generally regarded by members of the general public to be the murderer of Ms Blackburn, since it had never been reported that he had been found guilty of her murder.  
  4. [423]
    As to his reputation among listeners of the matter complained of, the plaintiff particularises in subparagraph (e) that prior to the publication of Episode 13, listeners:

“(i)were aware that the plaintiff had been successful, in that, he had owned multiple investment properties.

  1. that he had assisted the late Shandee Blackburn, after their relationship had been terminated, with:
    1. obtaining compensation from her former employer;
    2. purchasing a flight to the Gold Coast;
    3. paying to her $500.00 per week for a period of approximately a month to financially support her;
    4. selling her car, and transferring the proceedings to her.
  2. that, notwithstanding the plaintiff and the late Shandee Blackburn having had, at times, a difficult relationship, they had both legitimately and genuinely loved each other.
  3. that the plaintiff was an extremely loyal individual.”
  1. [424]
    This is said to be based upon the contents of Episode 2.  The matters in subparagraph (e)(ii) involve some “cherry picking” to find some favourable things that were said about the plaintiff in that episode.  His reputation in owning multiple investment properties is not in the relevant sector.  Particular (e)(iii) is an accurate enough account of an aspect of the complex and toxic relationship that the plaintiff and Ms Blackburn had, according to the podcast.  Particular (e)(ii)(4) may be incomplete because, as I recall it, another episode included a complaint by Ms Blackburn about the failure of the plaintiff to deliver on his promise to sell her car and give the proceeds to her.  
  2. [425]
    Subparagraph (f) of the particulars refers to the plaintiff’s reputation among his family and friends.  He is said to have been known among them, prior to the publication:

“(i)to be a qualified, skilled heavy diesel fitter;

  1. to be a hard worker;
  2. as a friendly, approachable person;
  3. as an accomplished amateur boxer, having competed in the Middleweight division at the National Boxing Titles in November 2012 in Mackay, Queensland;
  4. to have had many friends in and around Mackay, Queensland, where he previously:
    1. resided
    2. was employed; and
    3. owned property.
  5. to have provided financial assistance to his former girlfriend, the late Shandee Blackburn; and
  6. to have formed work-based friendships with the following persons:
    1. Mr Kyle King;
    2. Mr Tori Bellotti; and
    3. Mr Brian Morhan.”
  1. [426]
    It is unnecessary to dwell on these matters because the plaintiff’s reputation as a qualified tradesperson, as a hard worker, and as an accomplished boxer who competed in national titles, is not in the relevant sector.  The plaintiff did not call or give evidence about the regard in which he was held by friends in and around Mackay.  The podcast itself included some individuals in this category.  One might assume that many close friends and family had a high opinion of him, and the estimation in which he was held by them was unaffected by the podcast or other publications.  However, there is no evidence about this, save for the evidence given by his solicitor about the solicitor’s conversations with Mr King, Mr Bellotti and Mr Morhan.  It provides some evidence of the regard in which the plaintiff was held.  It is completely silent about the effect which Episode 13 had upon Mr Bellotti, and there is no evidence that Mr King or Mr Morhan ever listened to the podcast.
  2. [427]
    Particular (g) recites the same seven matters in relation to what is said to have been the plaintiff’s general reputation, prior to the publication of the matter complained of.
  3. [428]
    The plaintiff’s particulars cite R v GJL[224] in which McMurdo JA (with whom Bradley J agreed) considered authorities about the incontrovertibility of an acquittal.  Gibbs J in R v Storey[225] referred to the “well-established principle that a verdict of acquittal once given is binding and the Crown cannot in subsequent proceedings seek to show that that the accused was guilty of an offence of which he has previously been acquitted”.  The principle was applied in R v Carroll.[226] However, the principle applies for the purposes of the criminal law.  As Gleeson CJ  and Hayne J explained in Carroll, the principle of incontrovertibility has been held to not “preclude persons other than the prosecution asserting that the person committed the crime of which he or she was acquitted”.[227] McHugh J also stated that the principle applied to a “subsequent criminal proceeding” and would not have prevented a court in a civil action determining that Carroll killed Deidre Kennedy.[228]  That principle of incontrovertibility does not apply to a coronial inquest.[229] It would not preclude the defendants from pleading a truth/justification defence in the current proceeding.
  4. [429]
    The present issue is further removed from that issue or the correctness of the Corner’s finding.  It concerns the effect of earlier publications on the plaintiff’s reputation.  The principle of incontrovertibility does not preclude a finding that the plaintiff was reputed among listeners to have killed Ms Blackburn, notwithstanding his acquittal.  This is, after all, the finding that the plaintiff seeks at trial, namely that he had that reputation because of Episode 13.  The present issue is whether he had that reputation among listeners prior to Episode 13. 

The absence of reputation witnesses and witnesses about the effect of Episode 13

  1. [430]
    Earlier I acknowledged, as do the authorities, the difficulty which plaintiffs in defamation actions experience in calling witnesses who are prepared to say that they heard or read the relevant publication and thought less of the plaintiff as a result.  These problems include seeking out individuals and asking them whether they have heard or read a publication and thereby inadvertently engaging in self-publication.  Another is the grapevine effect.  I again acknowledge these difficulties of proof.  
  2. [431]
    None of the plaintiff’s friends, work colleagues, acquaintances, or family members have said a single thing about the effect that Episode 13 had upon their estimation of the plaintiff, or what their estimation of him was immediately before listening to Episode 13.  The highest the evidence goes is that Mr Bellotti would see the plaintiff and catch up in Perth with him to have a beer, and that Mr Bellotti had listened to the Podcast.
  3. [432]
    The only direct evidence of the effect of the podcast series upon the plaintiff and his reputation are the matters that I have already mentioned.  The first relates to the termination of his employment well before Episode 13 was published, and the day after Episode 1 was first published, when workers on the site were talking about a podcast.  The second is the account given by Mr Bellotti to the plaintiff’s solicitors about overhearing a conversation in mid-to-late 2021 which, for the reasons I have given, cannot be reasonably attributed to Episode 13 as distinct from earlier podcasts or earlier publications.  The third are the Reddit posts.

The Reddit posts

  1. [433]
    As discussed, the Reddit posts on 6 January 2022 cannot be attributed to Episode 13 as distinct from earlier podcasts.  The remaining three Reddit posts are consistent with the individuals having listened to Episode 13.  However, there is nothing to suggest that Episode 13 was the first episode that those three individuals had listened to.  
  1. [434]
    The timing of the post by Bardgirl23 that “her ex absolutely did it” is consistent with Episode 13 influencing her in reaching this view.  It leaves uncertain what the state of that person’s estimation of the plaintiff was before she listened to Episode 13.  The same applies to the comment by Blonde_arrbuckle “100% he did” on 3 February 2022.
  2. [435]
    The comments by noraludora on 8 February 2022 about William Daniel, that “the crime was personal”, that the plaintiff was abusive to Ms Blackburn, and that “It’s crazy he was acquitted” are consistent with these views having been formed before Episode 13 and being confirmed by it.
  3. [436]
    The Reddit posts are consistent with what those three individuals thought of the plaintiff after listening to Episode 13, but that does not show what they thought about the plaintiff before they listened to Episode 13.  They provide a limited basis upon which to infer that Episode 13 caused serious harm to the reputation of the plaintiff in their estimation or in the estimation of other listeners.  Their views are consistent with serious harm already having been caused to the plaintiff’s reputation by the Coroner’s findings, by the reporting of them in Episode 1, and by earlier episodes of the Podcast, and that any further harm caused by Episode 13 was not to such an extent as to constitute “serious harm” in the circumstances.
  4. [437]
    The Reddit posts do not suggest that Episode 13 changed their minds from having no opinion as to who the killer was, or believing that William Daniel or someone else was the person responsible, to having an absolute or 100 per cent belief that the plaintiff was responsible.  One might reasonably infer that Episode 13 contributed to each of the three Reddit commentators being convinced that the plaintiff was the killer (e.g. “100% he did”).  However, it is also reasonable to infer that those listeners were at least fairly convinced of the plaintiff’s responsibility, or strongly believed that he was responsible for the killing, before they listened to Episode 13.
  1. [438]
    It is reasonable to infer that in January and February 2022 (the period of the three relevant Reddit posts) and at subsequent times, other listeners shared the views of the three anonymous Reddit commentators.  Just as relatively few people write letters to the editor, write to MPs, or attend public meetings, compared to the number who have strong beliefs on topics, it is reasonable to conclude that the views of the three Reddit commentators were shared by many other listeners.  This does not permit, however, the conclusion to be drawn that Episode 13 significantly altered their pre-existing beliefs about the plaintiff’s responsibility for the killing.  That is one possible inference.  However, there are equally strong inferences that Episode 13 did not have this effect.  Assuming the posts were prompted by Episode 13, it simply was the occasion for the Reddit commentators, having now heard Ms Blackburn’s sister and mother’s views, to record their already settled view that the plaintiff, rather than William Daniel or anyone else, was responsible for the death of Ms Blackburn.  
  2. [439]
    Prior publications, including the findings of the Coroner, the widespread reporting of those findings, and Episodes 1 to 12 of the Podcast, provide a basis to conclude that, prior to Episode 13, listeners had reached the view that an independent Coroner, having analysed more evidence than was available to the jury, found that the plaintiff killed Ms Blackburn, and that his finding was correct.  
  3. [440]
    Because of the contents of other publications, particularly the first 12 episodes,  a reasonable inference is that listeners to Episode 13 (including the three Reddit commentators) already had an extremely adverse view of the plaintiff prior to listening to Episode 13.  
  4. [441]
    The extent to which Episode 13 further harmed their estimation of the plaintiff depends on inference, rather than direct evidence from any of those listeners.  The Reddit evidence does not prove that Episode 13 caused such a significant change in those listeners’ estimation of the plaintiff so as to constitute serious harm.

Direct evidence of the effect of earlier publications

  1. [442]
    As noted, there is evidence from the paragraphs of the plaintiff’s own affidavit that were relied upon by the defendants that the first episode of the Podcast (and perhaps publicity in the media surrounding its release), led to the termination of his employment.  The evidence of Mr Bellotti of overhearing conversations in the workplace about the Podcast also supports the conclusion that early episodes of it led to the plaintiff having a reputation as a murderer.

Has the plaintiff discharged the burden of proving serious harm was caused by Episode 13?

  1. [443]
    The defendants are not required to prove that the plaintiff had a bad reputation prior to Episode 13.  The plaintiff is required to prove that Episode 13 caused, or is likely to cause, “serious harm” to his reputation.  
  2. [444]
    Had Episode 13 been a stand-alone publication, then serious harm would be easily inferred from the gravity of the defamation and the extent of its publication.  Episode 13 was not, however, a stand-alone publication.  It was the 13th episode in a series, the first 12 episodes of which seriously injured the plaintiff’s reputation.  This is before regard is had to the separate and extensive reporting of the Coroner’s findings.
  3. [445]
    Direct evidence points to earlier episodes of the series, rather than Episode 13, leading listeners to believe that the plaintiff was a murderer.  The contents of the earlier episodes and the authority of those who produced them support the inference that, while William Daniel remained a suspect, listeners to the first 12 episodes were likely to conclude that the Coroner’s findings were right, and that the plaintiff had violently attacked Ms Blackburn in a frenzied and personal attack.
  4. [446]
    The Reddit posts provide limited support for the conclusion that Episode 13 did any more than reinforce or confirm views already held by those commentators, or that any further harm that it caused to the plaintiff’s reputation in their eyes or in the eyes of others was to such an extent as to constitute “serious harm”.  I decline to speculate that Episode 13 did more than confirm a view already held that the plaintiff killed Ms Blackburn.  The proposition that Episode 13 significantly changed the Reddit commentators’ or other listeners’ views about the plaintiff is unproven.  Any inference (as distinct from speculation) that it did is met by an inference of equal force that it did not.
  5. [447]
    The evidence of earlier publications, including the first 12 episodes, inferences about their likely effect on listeners’ estimation of the plaintiff, and the evidence of the actual effect which an earlier episode had on his reputation at the mine site, lead me to conclude that, by the time Episode 13 was first published, the plaintiff had a damaged reputation in the relevant sector among listeners to the podcast.  He would have been viewed by listeners to be the person who killed Ms Blackburn.  They would not simply have known him to be the person who a Coroner found to be Ms Blackburn’s killer.  They would have formed the view, based on the evidence and arguments placed before them in the series, that the Coroner’s finding was correct.
  1. [448]
    If one infers that Episode 13 caused some harm to reputation in fortifying or reinforcing a view already held, or even convincing some listeners of a view that they already strongly held, then I am not persuaded that the extent of that harm amounts to “serious harm” for the purpose of s 10A.  
  2. [449]
    I am not persuaded that Episode 13 probably caused a significant change in the strength of listeners’ beliefs about the plaintiff’s responsibility for the death of Ms Blackburn.  However, if it did, I am not satisfied that any further harm to his reputation in that regard amounts to “serious harm” for the purpose of s 10A.
  3. [450]
    The plaintiff has not discharged his burden of proof that Episode 13 caused serious harm to his reputation.

Has the plaintiff discharged the burden of proving that serious harm is likely to be caused by Episode 13?

  1. [451]
    For essentially the same reasons, I am not satisfied that Episode 13 is “likely to cause” the plaintiff harm in the future.  One can no more expect listeners in the future to “jump in” at Episode 13 without knowing anything about the earlier episodes or about the plaintiff than one can conclude that this happened in the past.  Episode 13 is not labelled something like “Summary and Conclusion”  to which an eager listener would go first.  It is the 13th of 20 episodes, and one would expect a person interested in the series to listen to at least the start of Episode 1.
  1. [452]
    The plaintiff submits that Episode 13 is “likely to cause” him harm in the future because, even if the Coroner’s findings were notorious in 2020, knowledge of them will fade or be non-existent in, say, 2026.  I am not persuaded of this, if for no other reason than the Coroner’s findings feature in Episode 1, and are not likely to be forgotten by a listener to Episode 1.  

The position of the third defendant

  1. [453]
    Episode 13 has not been shown to have caused, or be likely to cause, serious harm.  The same conclusion applies to the contribution that the third defendant made to that episode, essentially for the same reasons.  In addition, the things said by the third defendant to the second defendant on 24 May 2021 seem unlikely to have altered the second defendant’s pre-existing estimation of the plaintiff.  There is no evidence or submission that they did. 

Conclusion and orders

  1. [454]
    The plaintiff has not proven the serious harm element of his cause of action against the first and second defendants, and he has not proven the serious harm element of his cause of action against the third defendant.
  2. [455]
    The appropriate order is that the proceeding is dismissed. 
  3. [456]
    Subject to any submissions about the costs that were reserved by paragraph 14 of my order of 13 May 2024 to reflect the parties’ mixed success on the interlocutory applications, costs should follow the event of the proceeding being dismissed.  My provisional view in May 2024 was that the costs of the earlier applications should be the parties’ costs in the proceeding.  Therefore, absent further submissions on that point or any submissions about the basis upon which costs are to be awarded, the costs order will be that the plaintiff pay the defendants’ costs of and incidental to the proceeding to be assessed on the standard basis, if not agreed. 

Footnotes

[1] Peros v Nationwide News Pty Ltd [2024] QSC 80.

[2] Peros v Nationwide News Pty Ltd & Ors (No 2) [2024] QSC 83.

[3] Associated Newspapers Ltd v Dingle [1964] AC 371 (“Dingle”).

[4] Lachaux v Independent Print Ltd [2016] QB 402 at 413 [15](9) (emphasis added).

[5] (2010) 278 ALR 232.

[6] [2001] 1 WLR 579.

[7] Dingle at 410 (Lord Denning); Sicri v Associated Newspapers [2020] EWHC 3541 (QB) at [178] (7) (“Sicri”); Napag Trading Ltd v Gedi Gruppo Editoriale SpA [2020] EWHC 3034 at [56]-[57] (“Napag”); Economou v De Freitas [2019] EMLR 7 at [41] (“Economou”).

[8] Lachaux v Independent Print Ltd [2020] AC 612 at 628 [24].

[9] Wright v McCormack [2022] EWHC 10 at [160]-[168] (“Wright”); Spicer v Commissioner of Police for the Metropolis [2021] EWHC 1099 at [361]-[378] (“Spicer”); Soriano v Societe D’Exploitation De L’Hebdomadaire Le Point SA & Anor [2022] EWHC 1763 (QB) at [10]-[12] (“Soriano”).

[10] Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB) at [47], [2016] EMLR 12 (“Sobrinho”).

[11] Turley v Unite the Union [2019] EWHC 3547 (QB) at [114] (“Turley”).

[12] Defamation Act 2005 (Qld), s 10A(1). An identical provision was enacted in most other Australian jurisdictions as part of a national defamation law reform process.

[13] Selkirk v Wyatt [2024] FCAFC 48 at [94].

[14] Lachaux v Independent Print Ltd [2020] AC 612 at 626 [20].

[15] Lachaux [2016] QB 402 at 423 [60].

[16]Lachaux [2020] AC 612 at 626 [20].

[17] D Rolph, Rolph on Defamation (2nd Ed) 2024 Lawbook Co [9.120].

[18] Dhir v Saddler [2017] EWHC 3155 (QB); [2018] 4 WLR 1 at [55].

[19] Lachaux [2020] AC 612 at 627 [21].

[20] Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 800.

[21] Ibid; Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 68,946-68,948; Jones v Sutton (2004) 61 NSWLR 614 at 621.

[22] Rader v Haines [2022] NSWCA 198 at [28]-[29], in which the New South Wales Court of Appeal considered the authorities on s 1 of the United Kingdom Act.

[23] Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB) at [47].

[24] Ibid.

[25] Ibid.

[26] Unreported, Supreme Court of Queensland number 128 of 1980, 30 October 1985.

[27] At page 23.

[28] Peros v Nationwide News Pty Ltd & Ors (No 2) [2024] QSC 83 at [17]; O'Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89 at 91[5].

[29] [2020] AC 612 at 628 [25].

[30] [2024] FCAFC 48 at [98].

[31] Associated Newspapers Ltd v Dingle [1964] AC 371 at 410.

[32] [2020] EWHC 3541 (QB) at [178] (7).

[33] [2022] EWHC 2938 (KB) at [56] (emphasis in original).

[34] Daryanani v Ramnani [2017] EWHC 183 (QB) at [7]; Spicer v Commissioner of Police for the Metropolis [2021] EWHC 1099 (QB) at [374]-[375].

[35] Whittington v Newman [2024] NSWCA 27 at [42].

[36] [2020] AC 612 at 624 [16].

[37] [2022] NSWCA 198 at [19].

[38] Turley at [109].

[39] Ibid.

[40] [2016] QB 402 at 424 [65].

[41] Explanatory Note - Defamation (Model Provisions) and Other Legislation Amendment Bill 2021 (Qld), page 2.

[42] Second Reading Speech, Defamation Amendment Bill 2020 (NSW), Hansard, pp 2867-2868. Reference to extrinsic material from another jurisdiction is unusual but the plaintiff’s citation of it was not misplaced where identical legislation was prepared to achieve a shared policy of law reform.

[43] [2005] (QB) 946, as to which see D Rolph, Rolph on Defamation (2nd Ed) [9.20]-[9.30].

[44] Second Reading Speech, Defamation (Model Provisions) and Other Legislation Amendment Bill 2020, Hansard, 15 June 2021 (Attorney-General), page 1797.

[45] Statement of Compatibility, Defamation (Model Provisions) and Other Legislation Amendment Bill 2021 (Qld).

[46] [2022] NSWCA 198 at [91].

[47] Ibid at [27].

[48] Selkirk v Wyatt [2024] FCAFC 48 at [94].

[49] Sim v Stretch [1936] 2 All ER 1237; Banks v Cadwalladr [2023] EWCA Civ 219 at [41].

[50] Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506.

[51] Ley v Hamilton (1935) 153 LT 384 at 386.

[52] Turley at [109] quoting the memorable words of Bingham LJ in Slipper v British Broadcasting Corporation [1991] 1 QB 283 at 300, that defamatory statements are objectionable not least because of “their propensity to percolate through underground channels and contaminate hidden springs”.

[53] Defamation Act 2005 (Qld), ss 38(1)(c), (d) and (e).

[54] [2016] QB 402 at 413 [15](9).

[55] Statutes have long provided for a defendant to give evidence in mitigation of damages. The Defamation Act 1889 (Qld), s 24, drafted by Sir Samuel Griffith, provided that in the trial of an action for defamation “in a periodical” the defendant may give evidence in mitigation of damages that the plaintiff has already recovered, or has brought action for, damages, or has received or agreed to receive compensation, in respect of other publications of defamatory matter “to the same purport or effect as the matter for the publication on which the action is brought”. The Defamation Act 2005 (Qld), ss 38(1)(c), (d) and (e) provide for mitigation in similar circumstances, but are not confined to publication in a periodical.

[56] National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 at 591.

[57] (1991) 171 CLR 506 at 509 (“March”) (footnotes omitted).

[58] J Stapleton ‘Perspectives on Causation” in Oxford Essays in Jurisprudence 4th series (J Horder ed) Oxford Univ Press 2000 at p 61, ‘Legal Cause: Cause-in Fact and the Scope of Liability for Consequences’ (2001) 54 Vanderbilt Law Review 942, ‘Unnecessary Causes’ (2013) 129 LQR 39, ‘An “Extended But-For” Test for the Causal Relation in the Law of Obligations’ (2015) 35 OJLS 697, ‘Unnecessary and Insufficient Factual Causes’ (2023) J. Tort Law.

[59] Civil Liability Act 2003 (Qld), s 11(1)(b).

[60] Westpac Banking Corporation v Jamieson [2016] 1 Qd R 495 at 534 [102] (“Jamieson”).

[61] At 534 [103] (emphasis in original, footnote omitted).

[62] [2020] EWHC 3541 (QB) at [178(1)] (emphasis added).

[63] [1950] 1 All ER 1033 at 1047 (citation omitted), cited in Sicri at [178(1)].

[64] Sicri at [178(2)].

[65] Ibid, citing Rahman v Arearose Ltd [2001] QB 351 at [19].

[66] Sicri at [178(3)].

[67] [2001] QB 351 at [23].

[68] [2020] EWHC 3034 (QB) at [55]-[57] and [60]; Sicri at [178(6)].

[69] Sicri at [178(7)].

[70] [1964] AC 371 at 410 (emphasis in original, citation omitted).

[71] Thomson Reuters, 13th ed, 2022 at [4-028] (citations omitted).

[72] [2013] EWCA Civ 152.

[73] Ibid.

[74] [1961] 2 QB 162 at 189-190.

[75] [2020] EWHC 3034 (QB) at [51]-[60].

[76] [1961] 2 QB 162 at 188.

[77] [1961] 2 QB 162 at 189-190.

[78] The passage was quoted in Nine Network Australia Pty Ltd v Wagner (2020) 6 QR 64 at 90 [5]; [2020] QCA 221 at [56] as a “useful statement of correct principle”.

[79] (2004) 90 SASR 269 at 444 [794]-445[796].

[80] [1964] AC 371 at 410-411.

[81] (2004) 90 SASR 269 at 444 [794].

[82] Ibid at 445 [797].

[83] Rolph on Defamation, Thomson Reuters, 2nd ed, 2024 at [9.130].

[84] Ibid at [9.130]; citing as an example the interaction between serious harm and the rule in Dingle.

[85] (1993) 178 CLR 44.

[86] At 99 (emphasis added, citation omitted).

[87] (1984) Aust Torts Reports 80-691.

[88] Ibid at 68,955.

[89] [1964] AC 371 at 398.

[90] Wigmore on Evidence (Chadbourne revision) vol 5, para 1611 cited in T Tobin, M Sexton and J Gibson, Australian Defamation Law and Practice, LexisNexis August 2024 at [21,020].

[91] (1985) 3 NSWLR 504 at 513.

[92] [2019] FCA 1538 at [14].

[93] Dingle at 398-399.

[94] Goody v Odhams Press Pty Ltd [1967] 1 QB 333 at 340-341. Lord Denning in Dingle at 412 referred to the case of “a reputation which has been destroyed at one blow by a single conviction”.

[95] (2010) 278 ALR 232.

[96] At 285 [253].

[97] (1964) AC 371 at 399.

[98] At 399 per Lord Radcliffe.

[99] Dingle (1964) AC 371 at 395.

[100] At 396.

[101] At 396.

[102] At 398.

[103] At 405-406.

[104] At 406 (citation omitted).

[105] At 410.

[106] At 412.

[107] At 412.

[108] At 412.

[109] At 417.

[110] At 417.

[111] At 418.

[112] [2020] EWHC 3541 (QB) at [178](7).

[113] Sicri at [187(3)].

[114] [2017] 4 WLR 22 at 24-25[9]-[14]; [2016] EWHC 3110 (QB) (“Rahman”).

[115] At [9].

[116] At [10]-[11].

[117] At [13] (emphasis in original).

[118] At [14].

[119] At [14].

[120] [2016] QB 402.

[121] At 426 [74] (emphasis in original).

[122] At 429 [83].

[123] At 429 [85].

[124] [2021] EWHC 1099 (QB)

[125] At [375].

[126] At [375].

[127] [2023] EWCA Civ 219 (“Banks”).

[128] Banks at [58]-[59].

[129] At [59].

[130] At [60].

[131] [2018] EWHC 3014 (QB); [2018] 4 WLR 150.

[132] [2024] FCAFC 48 at [101]-[102].

[133] At [101].

[134] [2016] EWHC 66 (QB).

[135] At [49].

[136] [2018] EWCA Civ 2591 at [28]; [2019] EMLR 7.

[137] At [41].

[138] [2022] EWHC 1763 (QB) at [89].

[139] [2020] EWHC 3034 (QB).

[140] At [55]-[57].

[141] [2021] EWHC 2671 (QB).

[142] At 372 [160] (emphasis in original).

[143] [2016] EWHC 1226 (QB).

[144] [2021] EWHC 2671 (QB) at [163] (emphasis in original).

[145] Wright at [164].

[146] Wright at [167].

[147] Tesla Motors Ltd v British Broadcasting Corporation [2011] EWHC 2760.

[148] Spicer at [375].

[149] [2016] EWHC 1226 (QB) at [24].

[150] At [21(5)].

[151] At [24].

[152] [2023] EWHC 3092 (KB).

[153] At [157].

[154] Ibid.

[155] At [151].

[156] [2024] EWHC 146 (KB).

[157] At [139].

[158] At [142]-[143]

[159] At [157] (emphasis in original).

[160] Soriano at [11] (emphasis added).

[161] Sicri at [178](6); Wright at [164]-[166].

[162] Wright at [160]-[164].

[163] Wright at [163].

[164] Wright at [160].

[165] [2022] EWHC 2938 (KB); [2023] EMLR 7 at 255 [56] (emphasis in original).

[166] T Tobin, M Sexton and J Gibson, Australian Defamation Law and Practice, LexisNexis August 2024 at [21,035], citing Pickens v State (1884) 61 Miss 563 at 565 (as quoted in Wigmore on Evidence).

[167] [2020] AC 612 at 628 [24].

[168] [2016] EWHC 3110 (QB) at [9]-[14].

[169] At [13].

[170] (2010) 278 ALR 232; [2010] NSWCA 335 at [253]-[254] (“Mohammed”).

[171] [1967] 1 QB 333 at 340-341 (“Goody”).

[172] Scott v Sampson (1882) 8 QBD 491 at 505.

[173] Goody at 343.

[174] Mohammed at [250].

[175] Price v MGN Ltd [2018] EWHC 3014 (QB); [2018] 4 WLR 150 at [46](2)(e), citing Goody.

[176] (2010) 278 ALR 232 at 285 [253]-286 [254].

[177] At 236 [3]-237 [10].

[178] [2021] EWHC 2671 (QB) at [167].

[179] As to which see Lachaux [2016] QB 402 at [74] per Warby J.

[180] Citing Turner v News Group Newspapers Ltd [2006] 1 WLR 3469; [2006] EWCA Civ 540 at [48].

[181] In fact, the Coroner must not make such a finding: Coroners Act 2003 (Qld), s 45(5).

[182] Helton v Allen (1940) 63 CLR 691.

[183] Rolfe v Northern Territory Coroner [2023] NTCA 8 at [47].

[184] [2024] FCA 177 at [56].

[185] Ibid.

[186] Dingle [1964] AC 371 at 396 and 410-411.

[187] Goody [1967] 1 QB 333 at 340-341.

[188] Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1402].

[189] Wisher v Mirror Newspapers Ltd [1963] SR (NSW) 745 at 755.

[190] Alsaifi v Trinity Mirror Plc [2017] EWHC 2873 (QB) at [105].

[191] [2001] 1 WLR 579 (“Burstein”).

[192] [1988] 1 WLR 116 at 120.

[193] [2018] FCA 1328 at [160]-[164].

[194] Schiff v Nine Network Australia Pty Ltd (No 4) [2023] FCA 688 at [6] (“Schiff”), citing Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77 (“Kazal”); (2018) 97 NSWLR 547 at 176-177; Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550 at [35] (“Rush”); Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632 at [94] (“Chau Chak”).

[195] (1882) 8 QBD 491 at 504.

[196] [1961] AC 1090 at 1130 (“Speidel”).

[197] [1964] AC 371 at 410-411.

[198] (1882) 8 QBD 491 at 505.

[199] Schiff at [7].

[200] Schiff at [7], citing Kazal at 177; Chau Chak at [94].

[201] [1961] AC 1090 at 1131.

[202] [1964] AC at 389-390.

[203] (1985) 3 NSWLR 504.

[204] [2019] FCA 1538.

[205] [1967] 1 QB 333 at 342.

[206] (2001) 53 NSWLR 89 at 94 [22].

[207] At 97 [38].

[208] [2021] EWHC 2671 (QB) at [167].

[209] [2016] QB 402 at [74].

[210] [2018] FCA 550 at [32]-[46].

[211] [2006] 1 WLR 3469.

[212] (2014) 86 NSWLR 96 at 103-104.

[213] [2023] FCA 688.

[214] Schiff at [12]-[14].

[215] At [15].

[216] Schiff at [15].

[217] (1940) 63 CLR 691 at 711.

[218] (1938) 60 CLR 336 at 361-362.

[219] [2019] EWHC 3547 (QB) at [114(iii)].

[220] [2022] EWHC 2938 (KB) at [56].

[221] Lachaux [2016] QB 402 at 424 [65].

[222] Sivananthan v Vasikaran at [56].

[223] At [53].

[224] [2021] QCA 175.

[225] (1978) 140 CLR 364 at 387.

[226] (2002) 213 CLR 635.

[227] At 650 [45].

[228] At 676 [138].

[229] Inquest into the death of Kumanjayi Walker (Ruling No 2) [2022] NTLC 17 at [40].

Close

Editorial Notes

  • Published Case Name:

    Peros v Nationwide News Pty Ltd & Ors (No 3)

  • Shortened Case Name:

    Peros v Nationwide News Pty Ltd [No 3]

  • MNC:

    [2024] QSC 192

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    27 Aug 2024

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2024] QSC 19227 Aug 2024-
Notice of Appeal FiledFile Number: CA12676/2424 Sep 2024-

Appeal Status

Appeal Pending

Cases Cited

Case NameFull CitationFrequency
ABC v McBride (2001) 53 NSWLR 430
1 citation
Jump To
Cite 1 - (2001) 53 NSWLR 430
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
2 citations
Jump To
Cite 1 - [2002] NSWCA 419
Cite 2 - [2002] NSWCA 419
Associated Newspapers Ltd v Dingle (1964) AC 371
16 citations
Jump To
Cite 1 - (1964) AC 371
Cite 2 - (1964) AC 371
Cite 3 - (1964) AC 371
Cite 4 - (1964) AC 371
Cite 5 - (1964) AC 371
Cite 6 - (1964) AC 371
Cite 7 - (1964) AC 371
Cite 8 - (1964) AC 371
Cite 9 - (1964) AC 371
Cite 10 - (1964) AC 371
Cite 11 - (1964) AC 371
Cite 12 - (1964) AC 371
Cite 13 - (1964) AC 371
Cite 14 - (1964) AC 371
Cite 15 - (1964) AC 371
Cite 16 - (1964) AC 371
Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125
1 citation
Jump To
Cite 1 - [2019] FCAFC 125
Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632
1 citation
Jump To
Cite 1 - (2019) 271 FCR 632
Banks v Cadwalladr [2023] EWCA Civ 219
3 citations
Jump To
Cite 1 - [2023] EWCA Civ 219
Cite 2 - [2023] EWCA Civ 219
Cite 3 - [2023] EWCA Civ 219
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Burstein v Times Newspapers [2001] 1 WLR 579
4 citations
Jump To
Cite 1 - [2001] 1 WLR 579
Cite 2 - [2001] 1 WLR 579
Cite 3 - [2001] 1 WLR 579
Cite 4 - [2001] 1 WLR 579
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
2 citations
Jump To
Cite 1 - (1993) 178 CLR 44
Cite 2 - (1993) 178 CLR 44
Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232
5 citations
Jump To
Cite 1 - (2010) 278 ALR 232
Cite 2 - (2010) 278 ALR 232
Cite 3 - (2010) 278 ALR 232
Cite 4 - (2010) 278 ALR 232
Cite 5 - (2010) 278 ALR 232
Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335
3 citations
Jump To
Cite 1 - [2010] NSWCA 335
Cite 2 - [2010] NSWCA 335
Cite 3 - [2010] NSWCA 335
Chappell v Mirror Newspapers (1984) Aust Torts Reports 80
3 citations
Jump To
Cite 1 - (1984) Aust Torts Reports 80
Cite 2 - (1984) Aust Torts Reports 80
Cite 3 - (1984) Aust Torts Reports 80
Cornwall & Ors v Rowan (2004) 90 SASR 269
3 citations
Jump To
Cite 1 - (2004) 90 SASR 269
Cite 2 - (2004) 90 SASR 269
Cite 3 - (2004) 90 SASR 269
Dhir v Saddler [2018] 4 WLR 1
2 citations
Jump To
Cite 1 - [2018] 4 WLR 1
Cite 2 - [2018] 4 WLR 1
Dingle v Associated Newspapers Ltd [1961] 2 QB 162
4 citations
Jump To
Cite 1 - [1961] 2 QB 162
Cite 2 - [1961] 2 QB 162
Cite 3 - [1961] 2 QB 162
Cite 4 - [1961] 2 QB 162
Dingle v Associated Newspapers Ltd [1962] 3 WLR 229
1 citation
Jump To
Cite 1 - [1962] 3 WLR 229
Economou v De Freitas [2019] EMLR 7
3 citations
Jump To
Cite 1 - [2019] EMLR 7
Cite 2 - [2019] EMLR 7
Cite 3 - [2019] EMLR 7
Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77
2 citations
Jump To
Cite 1 - [2018] NSWCA 77
Cite 2 - [2018] NSWCA 77
Fairfax Digital Australia and New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547
2 citations
Jump To
Cite 1 - (2018) 97 NSWLR 547
Cite 2 - (2018) 97 NSWLR 547
Faruqi v Latham [2018] FCA 1328
2 citations
Jump To
Cite 1 - [2018] FCA 1328
Cite 2 - [2018] FCA 1328
Goody v Odhams Press Ltd. [1967] 1 QB 333
7 citations
Jump To
Cite 1 - [1967] 1 QB 333
Cite 2 - [1967] 1 QB 333
Cite 3 - [1967] 1 QB 333
Cite 4 - [1967] 1 QB 333
Cite 5 - [1967] 1 QB 333
Cite 6 - [1967] 1 QB 333
Cite 7 - [1967] 1 QB 333
Harrison v Pearce (1858) 1 E & F 567
1 citation
Jump To
Cite 1 - (1858) 1 E & F 567
Hayson v The Age Company Pty Ltd [2019] FCA 1538
3 citations
Jump To
Cite 1 - [2019] FCA 1538
Cite 2 - [2019] FCA 1538
Cite 3 - [2019] FCA 1538
Helton v Allen (1940) 63 CLR 691
3 citations
Jump To
Cite 1 - (1940) 63 CLR 691
Cite 2 - (1940) 63 CLR 691
Cite 3 - (1940) 63 CLR 691
Heskell v Continental Express Ltd (1950) 1 All ER 1033
1 citation
Jump To
Cite 1 - (1950) 1 All ER 1033
Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96
2 citations
Jump To
Cite 1 - (2014) 86 NSWLR 96
Cite 2 - (2014) 86 NSWLR 96
Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504
4 citations
Jump To
Cite 1 - (1985) 3 NSWLR 504
Cite 2 - (1985) 3 NSWLR 504
Cite 3 - (1985) 3 NSWLR 504
Cite 4 - (1985) 3 NSWLR 504
Jameel v Dow Jones & Co Inc [2005] QB 946
2 citations
Jump To
Cite 1 - [2005] QB 946
Cite 2 - [2005] QB 946
Jones v Sutton (2004) 61 NSWLR 614
2 citations
Jump To
Cite 1 - (2004) 61 NSWLR 614
Cite 2 - (2004) 61 NSWLR 614
Karpov v Browder [2014] EMLR 8
1 citation
Jump To
Cite 1 - [2014] EMLR 8
Lachaux v Independent Print Limited [2020] AC 612
8 citations
Jump To
Cite 1 - [2020] AC 612
Cite 2 - [2020] AC 612
Cite 3 - [2020] AC 612
Cite 4 - [2020] AC 612
Cite 5 - [2020] AC 612
Cite 6 - [2020] AC 612
Cite 7 - [2020] AC 612
Cite 8 - [2020] AC 612
Lachaux v Independent Print Ltd (Media Lawyers Association intervening) [2016] QB 402
10 citations
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Cite 1 - [2016] QB 402
Cite 2 - [2016] QB 402
Cite 3 - [2016] QB 402
Cite 4 - [2016] QB 402
Cite 5 - [2016] QB 402
Cite 6 - [2016] QB 402
Cite 7 - [2016] QB 402
Cite 8 - [2016] QB 402
Cite 9 - [2016] QB 402
Cite 10 - [2016] QB 402
Ley v Hamilton (1935) 153 LT 384
2 citations
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Cite 1 - (1935) 153 LT 384
Cite 2 - (1935) 153 LT 384
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
2 citations
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Cite 1 - (1991) 171 CLR 506
Cite 2 - (1991) 171 CLR 506
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749
3 citations
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Cite 1 - [1977] 2 NSWLR 749
Cite 2 - [1977] 2 NSWLR 749
Cite 3 - [1977] 2 NSWLR 749
National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569
2 citations
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Cite 1 - (1961) 105 CLR 569
Cite 2 - (1961) 105 CLR 569
Nine Network Australia Pty Ltd v Wagner(2020) 6 QR 64; [2020] QCA 221
3 citations
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Cite 1 - [2020] QCA 221
Cite 2 - (2020) 6 QR 64
Cite 3 - (2020) 6 QR 64
O'Hagan v Nationwde News Pty Ltd (2001) 53 NSWLR 89
4 citations
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Cite 1 - (2001) 53 NSWLR 89
Cite 2 - (2001) 53 NSWLR 89
Cite 3 - (2001) 53 NSWLR 89
Cite 4 - (2001) 53 NSWLR 89
Pamplin v Express Newspapers [1988] 1 WLR 116
2 citations
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Cite 1 - [1988] 1 WLR 116
Cite 2 - [1988] 1 WLR 116
Peros v Blackburn [2024] FCA 177
2 citations
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Cite 1 - [2024] FCA 177
Cite 2 - [2024] FCA 177
Peros v Nationwide News Pty Ltd [2024] QSC 80
2 citations
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Cite 1 - [2024] QSC 80
Cite 2 - [2024] QSC 80
Peros v Nationwide News Pty Ltd [No 2] [2024] QSC 83
3 citations
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Cite 1 - [2024] QSC 83
Cite 2 - [2024] QSC 83
Cite 3 - [2024] QSC 83
Pickens v State (1884) 61 Miss 563
1 citation
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Cite 1 - (1884) 61 Miss 563
Plato Films Ltd & Ors v Speidel [1961] AC 1090
5 citations
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Cite 1 - [1961] AC 1090
Cite 2 - [1961] AC 1090
Cite 3 - [1961] AC 1090
Cite 4 - [1961] AC 1090
Cite 5 - [1961] AC 1090
Price v MGN Ltd [2018] 4 WLR 150
3 citations
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Cite 1 - [2018] 4 WLR 150
Cite 2 - [2018] 4 WLR 150
Cite 3 - [2018] 4 WLR 150
R v Carroll (2002) 213 CLR 635
2 citations
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Cite 1 - (2002) 213 CLR 635
Cite 2 - (2002) 213 CLR 635
R v GJL(2021) 8 QR 479; [2021] QCA 175
2 citations
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Cite 1 - [2021] QCA 175
Cite 2 - [2021] QCA 175
R v Storey (1978) 140 CLR 364
2 citations
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Cite 1 - (1978) 140 CLR 364
Cite 2 - (1978) 140 CLR 364
Radar v Haines [2022] NSWCA 198
4 citations
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Cite 1 - [2022] NSWCA 198
Cite 2 - [2022] NSWCA 198
Cite 3 - [2022] NSWCA 198
Cite 4 - [2022] NSWCA 198
Rahman v Arearose Ltd [2001] QB 351
3 citations
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Cite 1 - [2001] QB 351
Cite 2 - [2001] QB 351
Cite 3 - [2001] QB 351
Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500
2 citations
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Cite 1 - (1982) 150 CLR 500
Cite 2 - (1982) 150 CLR 500
Rolfe v Northern Territory Coroner [2023] NTCA 8
2 citations
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Cite 1 - [2023] NTCA 8
Cite 2 - [2023] NTCA 8
Rush v Nationwide News (No 2) [2018] FCA 550
4 citations
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Cite 1 - [2018] FCA 550
Cite 2 - [2018] FCA 550
Cite 3 - [2018] FCA 550
Cite 4 - [2018] FCA 550
Schiff v Nine Network Australia Pty Ltd (No 4) [2023] FCA 688
3 citations
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Cite 1 - [2023] FCA 688
Cite 2 - [2023] FCA 688
Cite 3 - [2023] FCA 688
Scott v Sampson (1882) 8 QBD 491
7 citations
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Cite 1 - (1882) 8 QBD 491
Cite 2 - (1882) 8 QBD 491
Cite 3 - (1882) 8 QBD 491
Cite 4 - (1882) 8 QBD 491
Cite 5 - (1882) 8 QBD 491
Cite 6 - (1882) 8 QBD 491
Cite 7 - (1882) 8 QBD 491
Selkirk v Wyatt [2024] FCAFC 48
5 citations
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Cite 1 - [2024] FCAFC 48
Cite 2 - [2024] FCAFC 48
Cite 3 - [2024] FCAFC 48
Cite 4 - [2024] FCAFC 48
Cite 5 - [2024] FCAFC 48
Shakil-Ur-Rahman v ARY Network Ltd [2017] 4 WLR 22
2 citations
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Cite 1 - [2017] 4 WLR 22
Cite 2 - [2017] 4 WLR 22
Sim v Stretch [1936] 2 All ER 1237
2 citations
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Cite 1 - [1936] 2 All ER 1237
Cite 2 - [1936] 2 All ER 1237
Slipper v British Broadcasting Corporation (1991) 1 QB 283
2 citations
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Cite 1 - (1991) 1 QB 283
Cite 2 - (1991) 1 QB 283
Sobrinho v Impresa Publishing SA [2016] EWHC 66
4 citations
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Cite 1 - [2016] EWHC 66
Cite 2 - [2016] EWHC 66
Cite 3 - [2016] EWHC 66
Cite 4 - [2016] EWHC 66
Turner v News Group Newspapers Ltd [2006] 1 WLR 3469
4 citations
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Cite 1 - [2006] 1 WLR 3469
Cite 2 - [2006] 1 WLR 3469
Cite 3 - [2006] 1 WLR 3469
Cite 4 - [2006] 1 WLR 3469
Turner v News Group Newspapers Ltd [2006] EWCA Civ 540
1 citation
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Cite 1 - [2006] EWCA Civ 540
Westpac Banking Corporation v Jamieson[2016] 1 Qd R 495; [2015] QCA 50
2 citations
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Cite 1 - [2016] 1 Qd R 495
Cite 2 - [2016] 1 Qd R 495
Whittington v Newman [2024] NSWCA 27
2 citations
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Cite 1 - [2024] NSWCA 27
Cite 2 - [2024] NSWCA 27
Wisher v Mirror Newspapers Ltd (1963) SR NSW 745
2 citations
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Cite 1 - (1963) SR NSW 745
Cite 2 - (1963) SR NSW 745

Cases Citing

Case NameFull CitationFrequency
MG v PJ [2025] QCA 99 13 citations
Mitchell v Jobst [2025] QDC 412 citations
1

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