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

This is an important decision regarding the determination of serious harm test pursuant to s 10A Defamation Act 2005 as a separate matter prior to the trial of other issues in the proceeding. The plaintiff sued in defamation over a podcast which he said imputed that he murdered his ex-partner. The plaintiff was acquitted of murdering his ex-partner but a subsequent coronial inquest found that he had killed her. The podcast episode that the plaintiff sued over was one in a series investigating the circumstances of the plaintiff’s ex-partner’s death, and the series reported on the coroner’s findings and examined evidence not led at the plaintiff’s trial as well as deficient evidence presented in the trial. Those matters, including the coroner’s findings, were otherwise very widely reported in earlier publications, including earlier episodes of the podcast series. Justice Applegarth concluded that those earlier publications were relevant and admissible to determining the issue of whether the relevant episode caused the plaintiff serious harm. His Honour held that the other prior publications had already damaged the plaintiff’s reputation to a significant extent such that even if the relevant podcast episode caused some harm to his reputation, it did not amount to “serious harm” within the meaning of s 10A. Accordingly, the proceeding was dismissed with costs.

Applegarth J

27 August 2024

Background

The plaintiff, John Peros, was charged with the murder of his ex-partner in 2014. He was found not guilty of that charge after trial in 2017. Subsequently in 2019, a coroner conducted an investigation into the death of his ex-partner which included evidence that was not presented in the trial. The coroner published findings in August 2020, including the finding that Peros’ ex-partner “died due to injuries sustained in an incident involving violence with Mr John Peros who used a bladed instrument.” [2]–[4].

The coroner’s findings were widely reported. In October 2021, the first and second defendants began publishing an investigative podcast which examined the death of Peros’ ex-partner. The podcast series examined the nature and quality of the evidence in Peros’ trial and at the coronial inquest, including deficiencies in particular evidence presented at the trial. Peros sued in respect of the publication of Episode 13 of the podcast, alleging that the episode imputed that he murdered his ex-partner. Episode 13 focussed on the flaws in the evidence at Peros’ trial as well as evidence not led at the trial, and the episode’s overall effect was to encourage listeners to reach the view that the coroner correctly found that Peros killed his ex-partner. [1], [6]–[8], [393]–[397].

The defendants contended that before Episode 13 was published, Peros’ reputation had effectively been “decimated” due to the widespread reporting of the coroner’s findings and the fact that Peros was widely known to have been the person who was found by a coroner to have violently killed his ex-partner. Accordingly, the defendants argued that the state of Peros’ reputation before the publication of Episode 13 meant that the publication did not cause and was not likely to cause “serious harm” to Peros’ reputation pursuant to s 10A Defamation Act 2005. [11]–[14].

Section 10A created a new element of the cause of action for defamation, that “the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person”.

Causation

The rule in Associated Newspapers Ltd v Dingle [1964] AC 371 (“Dingle”) precludes a defendant from relying on other publications that are alleged to have harmed the claimant’s reputation as proof of a bad reputation in the mitigation of damages. [112]. Peros argued that it is possible to isolate the harm that the publication of Episode 13 caused to his reputation and that Episode 13 caused his reputation serious harm or is likely to cause him serious harm even though other publications came before it with the same or similar effect. [129], [131], [133].

Justice Applegarth considered that the rule in Dingle requires the Court to isolate, if it can, the damage caused by the publication sued over from any harm that may have been caused by any other publication(s): Sicri v Associated Newspapers Ltd [2021] 4 WLR 9, 41–42 [178]. A claimant seeking to isolate and attribute certain consequences to a particular publication is required to prove that those consequences were caused by that publication, and in such a case, a defendant can permissibly contest that it was not its publication, but a different publication, which caused the harm to reputation in question. [229].

Therefore, his Honour concluded that 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. His Honour stated:

“… other [previous] 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”. [230].

Earlier publications can therefore be relevant to the issue of causation because a consideration of the harm that a publication has caused to a claimant’s reputation must commence with the state of the claimant’s reputation prior to the publication of what is being sued over. However, the rule in Dingle precludes those prior publications from being relied on as proof of the existence of a bad reputation – that must be proved independently by the defendant. [230]–[236], [239]–[240].

Accordingly, his Honour considered that the rule in Dingle does not render inadmissible other publications that are relevant to the issue of causation under s 10A Defamation Act 2005. [248].

Was serious harm caused or likely to be caused to Peros’ reputation?

With that conclusion in mind, his Honour found that numerous other publications made before Episode 13 was published, including the first 12 episodes of the podcast, had seriously injured Peros’ reputation. Those pre-Episode 13 publications conveyed that the coroner concluded that Peros violently killed his ex-partner and that this conclusion was based on evidence not before Peros’ criminal trial. The overall thrust of these pre-Episode 13 publications would have caused listeners of the podcast to reach the view that Peros killed his ex-partner despite his acquittal before they listened to Episode 13. [389]–[392], [437]–[439].

The first 12 episodes of the podcast and the other publications which reported on the coroner’s findings therefore seriously injured Peros’ reputation and it was those earlier episodes and other pre-Episode 13 publications, rather than Episode 13, which led listeners to believe that Peros was the killer. Some posts about the podcast made on a Reddit forum also supported the view that Episode 13 reinforced or confirmed views about Peros which were already held by persons who had listened to the first 12 episodes of the podcast such that it could not be said that Episode 13 changed those commentators’ or other listeners’ views about Peros. Rather, the evidence supported the view that by the time Episode 13 was published, Peros already had a damaged reputation because listeners of the podcast would have formed the view, based on the evidence and the arguments placed before them in the podcast series, that the coroner’s findings were correct. [444]–[447].

On that basis, Applegarth J concluded that Episode 13 did not cause a significant change in the strength of listeners’ beliefs about Peros’ responsibility for his ex-partner’s death. His Honour held that even if Episode 13 caused some harm to Peros’ reputation in fortifying or reinforcing views already held about his role in killing his ex-partner, the extent of this harm did not amount to “serious harm” for the purpose of s 10A. Accordingly, his Honour held that the plaintiff had not discharged his burden of proof that Episode 13 had caused serious harm to reputation or was likely to cause serious harm. [448]–[452].

Conclusion

The proceedings were dismissed with costs. [455]–[456].

A Lukacs