Peros v Nationwide News Pty Ltd & Ors (No 2)

Here, Applegarth J examined the adequacy of the plaintiff’s pleading and ordered that he provide proper particulars of the nature and extent of his reputation prior to the publication of a podcast episode over which he sued, together with the harm to his reputation caused by its publication. In the course of the judgment, his Honour clarified that as the presumption at common law that a person has a good reputation has not survived the introduction of s 10A Defamation Act 2005 the plaintiff’s reputation is a material fact which must be pleaded with sufficient particulars.

Applegarth J

13 May 2024

A primary issue in the proceeding was the nature and extent of the plaintiff’s reputation prior to the publication of the episode of the podcast about which he complained. At a pre-trial hearing on 29 April 2024 of the defendants’ application for the serious harm element to be determined promptly, his Honour raised the lack of particularity in the plaintiff’s pleading about his reputation prior to the publication. At that juncture he directed the plaintiff to provide proper particulars of the nature and extent of his reputation, as well as both parties to draft a form of order. [1]. The parties were unable to agree on the appropriate form of order, [2], and as such his Honour undertook that exercise.

Pleading of reputation

Prior to the introduction of s 10A Defamation Act 2005, it was not essential that a plaintiff plead the nature and extent of his or her reputation. Indeed, the law of defamation is sometimes said to presuppose that a person has a good reputation: see Selkirk v Wyatt [2024] FCAFC 48, [92]. [5]. The enactment of s 10A is at odds with the presumption of a good reputation. To that end, the Full Court of the Federal Court has ruled that any common law presumption of good reputation no longer applies: see Selkirk v Wyatt [2024] FCAFC 48, [94].

Regardless, the “serious harm” element of the cause of action makes it fundamental that a plaintiff plead and prove that the publication of the defamatory matter concerning them “has caused, or is likely to cause, serious harm to [their] reputation”. It follows that the plaintiff’s reputation is a material fact that must be pleaded with adequate particulars, as is the alleged resultant serious harm. [7].

His Honour observed that a nonspecific reference to “the reputation of the plaintiff” is of no assistance in a case in which the serious harm element is challenged due to the plaintiff’s alleged poor reputation prior to and at the time of the relevant publication, since such a reference does not assist in informing the defendants of the case they have to meet at trial. Rather, its lack of particularity is liable to prejudice or delay the fair hearing and determination of the serious harm issue. [10]. As a matter of best practice complete particulars of the nature and extent of the plaintiff’s reputation and the respects in which, and among whom, that reputation was harmed (or is likely to be harmed) are required in such a case. [11].

Importantly, his Honour stressed that in the current matter, it was essential that the plaintiff supply proper particulars of reputation which concerned “the sector of his life relevant to the defamation”. In that regard he cited the remarks of Besanko J (with whom Anderson and O’Sullivan JJ agreed) in Selkirk v Wyatt [2024] FCAFC 48, [95], where it was observed that demonstrating the extent of harm and whether it is properly characterised as “serious harm” necessarily involves the plaintiff adducing evidence of his or her pre-existing reputation”. [23].

Observations about the pleading in the current matter

His Honour noted that as matters presently stood, both the Court and the defendants were unaware as to anything about the plaintiff’s case concerning his reputation prior to the publication of the podcast episode with which he took issue. [14]. He also described the plaintiff’s current pleading of his pre-publication reputation as “opaque”. [19].

To progress the matter, his Honour took the view that it was necessary that the plaintiff disclose the nature and extent of his reputation prior to the publication of the matter complained of, together with further particulars of among whom he alleged his reputation was seriously harmed, and the nature of the harm that was caused. His Honour explained that receipt of those particulars, being matters that should be pleaded and particularised in accordance with the pleading rules, would suffice to inform the defendants of the case that they are required to meet and to avoid surprise at the hearing of the serious harm issue: “[t]heir proper pleading will facilitate the resolution of the serious harm issue”. [24].

Disposition

The Court ordered that the plaintiff provide specific particulars of the nature and extent of his reputation prior to the publication of the episode of the podcast complained of, and the harm to his reputation caused by its publication.

A Jarro