WHO’S TO JUDGE?

In Part 2 of this essay on issues surrounding defamation law (see Part 1: ‘Ghosts Can’t Sue’), Jonathan Holmes looks at the Federal Court, which has become the forum of choice for defamation plaintiffs, including Ben Roberts-Smith and Christian Porter.  Why?  Largely because trial by jury is not available in the Federal Court.  Almost two years ago, the Council of Attorneys-General agreed that this should change.  So far, it has not.

By Jonathan Holmes / 28 May 2021, updated 1 June 2021

What do Chau Chak Wing, Geoffrey Rush, and Joe Hockey have in common? 

Answer, of course: they have all recently won defamation actions that have left them hundreds of thousands, and in one case, millions of dollars better off.  (Dr Chau, who is already worth billions, won twice – once against Fairfax Media and John Garnaut, and a second time, on very similar allegations, against Four Corners and Nick McKenzie.  He won getting on for three quarters of a million dollars in damages from the two cases, which he has, he says, donated to suitable Australian charities.)

What else do these cases have in common? Answer: they were all tried, not in state courts, which is where defamation actions have traditionally been litigated, but in the Federal Court.

A JUDICIAL POWER-GRAB

In a landmark case in 2012, the Full Court of the Federal Court found that it had jurisdiction over any defamation action that concerned material published in the ACT or the Northern Territory – no matter where else it may have been published.  Since then, the Court has become the forum of choice for high-profile defamation plaintiffs.  Ben Roberts-Smith, VC, is suing Nine newspapers, Nick McKenzie and Chris Masters in the Federal Court; Christian Porter has just discontinued his Federal Court suit against the ABC and Louise Milligan.  You can be sure there will be plenty more.

Quite a lot of lawyers regard this as an unjustifiable judicial power-grab by the Federal Court – though they wouldn’t use so indecorous a term.  After all, there are now Uniform Defamation Acts that apply in every state and territory, with essentially identical provisions (though only three states have so far enacted the new amendments, which I discussed in Part 1).  But there is no federal defamation act.

As leading law firm Corrs Chambers Westgarth argued recently:

… despite the Federal Court’s position that it has jurisdiction to hear ‘pure’ defamation matters, it is clear that the Uniform Acts have been drafted with the State and Territory Courts in mind as the ordinary forum for such disputes.

The Federal Court has blithely ignored such complaints.  And the big cases keep rolling up at its door.

A JUDGE WITHOUT A JURY’

There are a few good reasons for the Court’s popularity with plaintiffs (or ‘applicants’, as the Federal Court likes to call them, just to be different): for one thing, they can usually get judgment more quickly than in the over-laden state courts – and quicker, in the eye-wateringly expensive business of litigation, is cheaper.

Second, the Court has already acquired the reputation for awarding big-time damages: aggravated damages well in excess of the theoretical cap for non-economic loss, and huge amounts to compensate for economic loss. Geoffrey Rush won nearly $2.9 million altogether.

There’s a third compelling reason. In state courts, with the exception of the ACT, NT and South Australia, either party in a defamation action can elect for a trial by jury.  Only in exceptional circumstances will that choice be refused by the court.

But Section 39 of the Federal Court of Australia Act 1976 baldly states:

In every suit in the Court, unless the Court or a Judge otherwise orders, the trial shall be by a Judge without a jury.

Section 40 goes on to say that a federal judge can order trial by jury whenever he or she thinks that ‘the ends of justice render it expedient’ to do so.  However, only once since the Federal Court was set up in the mid-1970s has a judge – Justice Steven Rares – actually done so.  And in 2017 the Full Court specifically found that federal judges need give no weight at all to the fact that most state parliaments allow either party in defamation cases to opt for a jury trial.

A RARES AND LONELY VOICE

Justice Steven Rares (Source: SoundCloud.com)

Ironically, Justice Rares was a member of the panel of judges that made that decision – and in a mildly dissenting judgment (par 55), he wrote:

I remain of opinion that juries are well suited, and often better suited than a judge, to use and evaluate community standards and the sense in which ordinary reasonable people understand a publication.

He reasoned that the parliament had provided, in s.40, for judges to order a trial by jury, and that it should not be so exceptional for them to do so.  The fact that he was the only federal judge to have opted for a jury trial in forty years ‘suggests that the application of the discretion, and litigants’ perception of its application, has not been what the Parliament intended.’ (par 59)

Rares is a lonely voice in favour of juries in Federal Court defamation trials.  As he argued as long ago as 2010 (par 65):

Life experience, commonsense, and demeanour are often tools which they [a judge or jury] must, or do use, consciously or unconsciously, in selecting the version of the facts that they prefer.  It is here that a jury has a distinct advantage over a judge.  They are collectively able to assess the human side of the differing witnesses and their evidence.

Well, whatever, the fact is that at present it is very hard indeed to get a jury in a defamation action before the Federal Court.  So if you’re a plaintiff, and you think you’d be better off with a jury, you sue in the State courts.  If you’d rather avoid a jury, go to the Federal Court.  It’s your choice, and there’s nothing the media defendant can do about it.

And the feeling among most defamation lawyers is that it’s the media defendants, not the plaintiff, who are disadvantaged.  Corrs Chambers Westgarth again: 

… depriving defendants of the chance to have their matter decided by members of the public is arguably not in keeping with the ethos of the Uniform Acts, and presents a potential unfair advantage to plaintiffs.

RUSH TO JUDGMENT

It’s perilous to quote examples, because to even hint that a victorious defamation plaintiff should not have won might be, in itself, defamatory.  So let’s take a case in which the plaintiff was never going to lose: Geoffrey Rush v Nationwide News.

When the Daily Telegraph splashed a picture of Rush, dressed and made up as King Lear, across its front page, plastered with the headline KING LEER, it had not even spoken to the actor whose informal complaint against Rush formed the basis of its story. 

Rush claimed that the Telegraph’s articles portrayed him as a sexual predator, and a pervert, who had engaged in sexually inappropriate behaviour during the rehearsals and performances of King Lear at the Sydney Theatre Company – and quite a lot more besides.  The judge, Justice Michael Wigney, a middle-aged, white, male former barrister, agreed.  The Telegraph’s only hope of proving that these imputations were substantially true lay with the complainant they had not even spoken to before going to press, actor Eryn Jean Norvill.

Actors Geoffry Rush and Eryn Jean Norvill in rehearsal for the STC’s King Lear (Source: The Guardian)

Norvill had not wanted to be named, or involved.  She was, as the judge put it, ‘essentially dragged into the spotlight’ by the Tele’s decision to publish a story about a complaint she had never intended to be public.

The excruciating experience of having to give evidence against Australia’s most accomplished and influential actor must have been made worse still for Norvill when she found her account challenged, not just by Rush himself, but (among others) by our most famous theatre director, Neil Armfield, and one of our most respected female actors, Robyn Nevin.

In the circumstances, it’s not surprising that Justice Wigney’s judgment, all 925 numbered paragraphs of it, found comprehensively for Rush.  It’s highly improbable that a jury would have come to a different conclusion.

And yet reading his judgment, it’s hard not to feel that his Honour suffered from a certain naivety.  He was puzzled, for example, by the fact that during the rehearsals at which, she alleged, she was covertly and even openly harassed by Rush, Norvill went out to dinner and a play with him and others; she answered, and even initiated, playful text exchanges – ‘Dearest Daddy DeGush’; she invited him to a Christmas party at her parents’ house. (337)

‘Her explanations,’ complained the judge, ‘were not particularly persuasive.’ (338)

Perhaps he should have watched Yael Stone’s remarkable interview on 7.30, where she describes very persuasively (to my mind) the excruciatingly delicate position she found herself in when as a young actor she too was playing opposite a roguish Geoffrey Rush.

‘I didn’t have the skills that I have now to say that this is where I’m comfortable, this is now uncomfortable for me,’ Stone told Leigh Sales. ‘I was always treading that line of trying to protect myself, not quite knowing how, and never, ever wanting to offend him. That was at the top of the list.  “Don’t offend Geoffrey, because it will affect the next performance, and ultimately, it will affect your career.”’

[In a statement to 7:30, Geoffrey Rush denied that he had behaved inappropriately towards Stone, but expressed deep regret if he had caused her distress.  He attributed his behaviour to ‘the spirited enthusiasm that I generally bring to my work’.]

Very belatedly, News Corp tried to lever Ms Stone into the defamation trial as a witness; Justice Wigney declined to allow it.

But even without Stone’s evidence, a jury with a few women – especially if they were professional women who had had to navigate the male world of work – might well have understood the dynamics of the Rush-Norvill situation better than, or at least differently from, a male judge. As Justice Rares put it in his 2010 paper:

… most members of the legal profession have a relatively narrow experience of life, or one that has been less informative than those of 4 or 12 ordinary citizens, each of whom can bring to bear a different reality check on what his and her peers are saying in the jury room.

As it was, Eryn Jean Norvill – surely the most spectacular loser from the whole sorry saga – found her credibility questioned in the most public of forums. Geoffrey Rush, the judge thought, was ‘a credible witness who gave honest and reliable evidence about the critical events in question’ (319); Eryn Jean Norvill, by contrast, was ‘a witness who was, at times, prone to embellishment or exaggeration.’ (330)

STEVE CANNANE: THE COST OF VICTORY

Not that defamation cases always go the applicant’s way in the Federal Court.  Just recently, that same Justice Wigney gave judgment on the defamation suit brought by Peter V’landys against the ABC and Caro Meldrum-Hanna, following her special 7.30 report on the mistreatment of former racehorses in abattoirs and knackeries.  Putting himself in the shoes of ‘the ordinary, reasonable viewer’, his Honour found that the report conveyed none of the imputations that Mr V’landys claimed it did.  So the suit failed completely.  

And last November, as I mentioned briefly in Part 1, Steve Cannane and his publisher, Harper Collins, won a resounding victory in the Federal Court over two doctors who claimed to have been defamed in his book about Scientology.

It’s worth looking a bit more closely at that case because, as I said in Part 1, it’s the only time since 2006 that a publisher or media organisation has successfully used the statutory defence of qualified privilege in a defamation suit, in any court in Australia.  

Cannane’s book, Fair Game, was uncomplimentary about Scientology, a famously litigious mob.  But it wasn’t the scientologists who sued him.  It was a pair of doctors who had been involved in the notorious ‘deep sleep’ treatment of mental patients at Chelmsford Hospital in Sydney in the 70s and 80s.

Cannane was writing about deep sleep because, he revealed, an undercover ‘agent’ planted by the scientologists had been instrumental in exposing the scandal at Chelmsford.  Much of the relevant chapter relied on the two-year investigation into Chelmsford conducted by the Slattery royal commission (1988-1990), and on the commissioner’s conclusions.

At the start of the case, in 2018, Harper Collins applied to have the case thrown out, on the grounds that Cannane had done no more than rely on the royal commission, and that having to prove the truth of its findings all over again, all these years later, would be an unjustifiable burden on free speech.

Justice Jagot disagreed, and declared the imputations that the doctors claimed the book conveyed were ‘triable’.  More than two years, and hundreds of thousands of dollars later, she found comprehensively in favour of Cannane, largely, at least on my reading of her judgment, because she found he was entitled to rely on the royal commission’s findings – as indeed did she, in finding that such of the alleged imputations as were actually conveyed in the book about the Chelmsford doctors were all substantially true.

Justice Jayne Jagot (Source: Tristan Jepson Memorial Foundation)

Not only that, but she found that the book was covered by qualified privilege, because it was ‘reasonable in all the circumstances’ to publish it, even though Cannane had not approached either of the doctors for their side of the story.

Normally, that would be fatal for a qualified privilege defence (as indeed it may prove to be in the Porter case).  But Cannane argued that the royal commissioner had found both doctors to be unreliable witnesses, so anything they told Cannane would be unlikely to be true.  Justice Jagot found that was ‘reasonable’.

After the judgment, Cannane complained that the case had cost millions of dollars that would have been better spent on the victims of Chelmsford and their families.  The amended Defamation Act that comes into force in New South Wales, Victoria and South Australia on 1 July will require plaintiffs to show that their reputations have suffered ‘serious harm’ before they can bring a suit.  Perhaps that provision would have stopped the Chelmsford doctors’ suit, on the grounds that their reputations had been so damaged by the royal commission’s findings that they could not be damaged further by a passing reference in a book about Scientology.  Or perhaps not.

CHRISTIAN PORTER AND THE LANGE DEFENCE*

What we do know for sure is that her findings in relation to Steve Cannane’s book provide no clue whatsoever as to how Justice Jagot might have found in the much higher-profile defamation suit she was due to try this year: Porter v Australian Broadcasting Corporation.

Christian Porter, Minister for Industry, Innovation and Science and former Federal Attorney-General (Source: ABC online)

Louise Milligan and the ABC don’t have a two-year investigation by a royal commission to rely on: they have a letter written to the Prime Minister and others by the friends of a woman who committed suicide, who had made a complaint to police and then withdrawn it, who had a history of mental illness, and whose allegations were more than thirty years old.

The ABC has conceded, in the Editor’s Note that’s now attached to Milligan’s original story, that there will never be sufficient evidence to prove that Christian Porter  committed the alleged rape of a 16-year-old girl in 1988 – not even to the civil standard, let alone ‘beyond reasonable doubt’.  But it was going to attempt to prove the substantial truth of a different set of imputations: that Porter could ‘reasonably be suspected’ of committing those crimes.

We may never know what the basis for the ABC’s ‘truth’ defence was. 27 pages of ‘particulars’ in the Court documents are blacked out.  A two-day hearing to determine whether they should be struck out altogether, as ‘vexatious’ and an ‘abuse of process’, or publicly released, was about to start when Christian Porter discontinued his case. 

After that, Louise Milligan tweeted:

We are still absolutely committed to the 27 redacted pages being in the public domain.  I am sure our colleagues in the media are too.

Well it’s true that Nine newspapers and News Corp are both applying to the Federal Court to have the ABC’s defence made public.  No wonder: it is no doubt explosive stuff.  But I rather doubt if the board and senior management of the ABC are so keen.  Prolonging a public battle with the Morrison government over allegations that can never be proved may not seem to them to be the wisest course.

But what many defamation lawyers will miss is the prospect of a battle between two titans of the defamation bar, Bret Walker (for Porter) and former solicitor-general Justin Gleeson (for the ABC), over the ever-contentious issue of qualified privilege.

If you can’t prove truth – and as the ABC admitted, it couldn’t prove the truth of the imputation that the 17-year-old Porter did commit rape back then – then you fall back on the qualified privilege defence.

We know from the court documents that the ABC would have been relying on the High Court’s finding back in 1997,in ABC v Lange, that there is an implied right to freedom of speech on political and governmental matters contained in the Australian Constitution.  The laws of defamation, the ABC would have argued, should not and cannot extinguish its right to inform the general public about matters that bear directly on the fitness of a person to serve as a minister of the Crown, and on how the prime minister chooses to assess that fitness when it is challenged.

It’s an interesting argument. But in general, the so-called Lange defence, which seemed to offer so much hope to journalists in 1997, has proved a bitter disappointment.  Media defendants still have to prove that publishing was ‘reasonable’, and that has so far proved as difficult a hurdle to leap in cases concerning politics and government as in all the others.

We will never know how the ABC would have gone in Porter v ABC.  But we do know that next time the media resorts to the qualified privilege defence – or to the new ‘public interest’ defence that I discussed in Part 1 – it will matter more than ever whether the case is tried in a State court or the Federal Court.

According to the amended Uniform Defamation Acts that will come into force in three states on 1 July, the jury, and not the judge, must decide whether the defence of qualified privilege, or the new public interest defence, have been established.  The jury, not the judge, will decide whether the defendant has acted ‘reasonably in the circumstances’, or has ‘reasonably believed’ that publication is in the public interest.

This is new.  The law has been ambiguous, and the subject of much legal hair-splitting, but in practice, even in trials with a jury, it has normally been the judge who decides whether a qualified privilege defence has succeeded – and, in all but that one case, found that it has not.

But that part of the new law will apply, for now at least, only in those jurisdictions where the parties can choose to have a jury in the first place:  and that does not include South Australia, the ACT, the Northern Territory, or the Federal Court.  Even if the new law had been in force, Justice Jagot, and not a jury, would have decided whether the ABC had acted ‘reasonably’ in the Porter case.   

THE JURY’S STILL OUT

But it is worth noting this.  In December 2019, the Council of Attorneys-General (CAG) issued a background paper about its proposed amendments to defamation law.  In Section 8, it considered the fact that the Federal Court doesn’t use juries in defamation trials, whereas most State courts do.  The Council of Attorneys-General doesn’t like that situation.  The aim is for uniformity, to stop ‘forum-shopping’ in defamation cases.  It concluded with a firm recommendation:

The Commonwealth Government should consider legislative amendments relating to jury trials in the Federal Court, to improve national uniformity and consistency in defamation proceedings.

The Federal Attorney-General is a member of the CAG, so it’s perhaps not surprising that he endorsed the Council’s recommendation.  ‘The [Commonwealth] government supports recommendation 8 of the review and believes that defamation proceedings and outcomes should not depend on where a case is filed,’ he told the Sydney Morning Herald in 2019.

According to the timetable agreed by the CAG, those legislative amendments should have been passed in 2020.  They were not; and the man who was Federal Attorney-General then no longer holds the post.

He’s now the Minister for Industry, Science and Technology.  His name, of course, is Christian Porter.

NOTE: This article was revised after Christian Porter discontinued his defamation suit against the ABC and Louise Milligan on 31 May 2021.


Jonathan Holmes worked for the ABC off and on between 1982 and 2013.  He was at various times executive producer of, and a reporter with, Four Corners, Foreign Correspondent and 7.30, and presented Media Watch between 2008 and 2013. He is now a director of and press freedom spokesperson for ABC Alumni.

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