The rebel Wilson case, known to nerdy lawyer types as Wilson v Bauer Media, is the gift that keeps on giving in providing rulings related to the running of defamation trials. It was a hard fought, taken many points type of case.  That meant lots of arguments on points of law. In Wilson v Bauer Media (Ruling No 6) [2017] VSC 356 the court considered and ruled on the defence of triviality and partial justification.

DECISION

Triviliaty

The Plaintiff sought to have the defence of triviality not go to the jury.  The defendants pleaded a defence of triviality in respect of each of the eight publications complained of [4].

The defence of triviality at s 33 of the Defamation Act 2005 states:

It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.

The term ‘harm’ is not defined in the Act.

The defendants proposed to put the triviality defences to the jury on the following basis, [6]:

(a) The subject matter of the articles concerned the cultivation by the plaintiff of a particular public persona;

(b) Readers of the articles were likely to be cognisant of the fact that actors routinely understate or embellish matters such as their age and background, and also routinely adopt stage names or pseudonyms, in order to cultivate a particular public profile, and more generally to effectively market themselves;

(c) Readers of the articles were likely to be cognisant of the fact that female actors in Hollywood are routinely subjected to ageism in casting and, accordingly, commonly understate their age in order to enhance their prospects;

(d) Accordingly, readers of the articles were likely to view any lies told by the plaintiff about her age and background as merely ‘white lies’ which are an accepted and uncontroversial aspect of the entertainment industry; and

(e) Having regard to all of the above, readers of the articles were inherently unlikely to view the articles as carrying a serious defamatory sting.

The court noted at the outset, at [7], that :

Whether the articles are defamatory and, if so, in what meaning, was a quintessential jury question.

and then stated

• that the triviality defence was inextricably intertwined with the question of meaning and readers of the articles were unlikely to understand the articles as conveying a serious sting.
• the defendants relied on the tone and substance of each of the articles with a number of the articles used deliberately light language.

The defendants submitted that:

• whether the circumstances of publication were such that the plaintiff was unlikely to suffer any harm plainly called for a value judgment by the application of community standards.
• the jury might find that these were a series of inconsequential lies, in circumstances where there was nothing in the plaintiff’s pleaded imputations that said that the plaintiff is a dishonest person or something of that nature. ‘Serial lies’ need not equate to ‘serious lies’.
• it would be incoherent to have  the question of meaning decided by the jury, but the defence of triviality withdrawn from their consideration [8].
• there was evidence on which the jury could reasonably find the triviality defences made out based on interviews with the plaintiff [9]
• the plaintiff received advice from her US agent that Hollywood is very ageist and she had been encouraged to not to disclose her age because it could become an issue for women, if an actor’s age was publicly known it could make it difficult to be cast in certain roles and, certainly for women, the older an actress gets the harder it is to get jobs [10].
• because there was evidence on which the jury could reasonably find for the defendants about the seriousness of the imputations which was not negligible the triviality defence should not be withdrawn from the jury.
• the court must attribute to the jury prima facie reasonableness in finding facts and drawing inferences from those facts, and that the jury brings to that deliberation their experience and ordinary sense and fairness [12]

The court noted that:

•   it did not matter that a triviality defence had not previously succeeded in cases involving mass media publications [13].
• the extent of publication was simply a factor that the jury could take into account. The defence is available whatever be the size and circulation of the publication [13].
• the bias of the common law strongly favours receiving the verdict of the jury. Only in a clear case should the judge assume the responsibility of depriving all parties of the jury’s verdict and directing or entering judgment in favour of one party [14]

The plaintiff submitted that:

• a jury finding of triviality in respect of any of the articles complained would be perverse as the defence will only apply in unusual circumstances where the defendant must show that the plaintiff was unlikely to sustain any harm [15].
• while  the triviality defence was linked with the question of meaning, fundamentally a question for the jury, the meaning that was unlikely to occasion any harm must be that pleaded by the plaintiff or a permissible variant thereof. The defendants’ contention that a series of mere white lies that might be an accepted and uncontroversial part of the film industry were trivial and no harm would be sustained was not a permissible variant of the plaintiff’s imputation (that she is a ‘serial liar’) [16].
• the availability of the triviality defence in the present circumstances was at odds with the case law regarding the severity of the imputation, the extent of the publication and the relationship between the plaintiff and the recipients of the publication [17].

Severity of publication.

The Plaintiff:

• relied on two  Victorian cases, Szanto v Melville and Cunliffe v Woods,  in support of the proposition that serious imputations even where the extent of publication was minimal precludes the defendant from establishing the defence [18].
• submitted that the imputations about related directly to her reputation for honesty but the gravity of the imputations in issue were even more serious, because if the jury were to find the imputations to have been conveyed, it would have been satisfied that they impute multiple incidents of dishonesty [19].
• stated that the publications were not to tiny audiences, [20], but rather involving mass media and internet publications with the print edition of Woman’s Day having an estimated readership of 1,514,000. As such some harm could not be excluded when defamatory imputations, even if trivial, were conveyed to a readership of that magnitude [21].
• submitted that print magazines, such as Woman’s Day, are permanent records[22]

The Plaintiff’s submission did not find favour with his Honour noting:

• at the time of publication, it was to be expected that the articles would remain online, available to be accessed indefinitely. If defamatory, they were a permanent record that had the capacity to continue to cause reputational damage over an indefinite period and to an infinite audience [23].
• this case was in stark contrast with Szanto v Melville, Cunliffe v Woods, Barrow v Bolt and Smith v Lucht, cases where the plaintiff had a prior relationship of some form with each of the small number of recipients of the publication complained of.  In those cases the recipients either already had, or were likely to have, formed views about the plaintiff’s reputation and such publications were unlikely to impact on those views. In this case none of the recipients of the publications would have any prior relationship with the plaintiff [24].

In considering the defence of triviality under s 33 the Court cited the reasons of Kaye JA in the Victorian Court of Appeal decision in  Barrow v Bolt, the principles being:

First, the inquiry, whether the publication was likely to cause harm to the applicant, is directed to the time of publication. The issue, at that time, concerns “… the quality of the publication in respect of its proneness to cause harm”.

Secondly, the focus of the inquiry is on the “circumstances of the publication”. The critical test is whether those circumstances were such, at the time of publication, that it was unlikely that the applicant would suffer harm. The circumstances include (inter alia) the content of the publication, the extent of the publication, the nature of the recipients and their relationship with the applicant. However, the phrase “circumstances of the publication” is not sufficiently wide to encompass the previous bad reputation of a plaintiff.

Thirdly, the phrase “unlikely to sustain any harm” does not mean that it is sufficient for the defendant to establish that it is “more probable than not” that the plaintiff will not suffer harm. Rather, the defendant must demonstrate that there is “the absence of a real chance”, or the “absence of a real possibility”, of harm.

Fourthly, the defendant is required to establish that, at the time of publication, the circumstances were such that the plaintiff was unlikely to suffer “any” harm. Accordingly, the onus, on the defendant, to prove that matter, is high.

Fifthly, the defence, provided by s 33, applies to the publication of “defamatory matter”. Thus, s 33 provides a defence where matter, that has been published, is defamatory of the plaintiff. In order to be defamatory, the matter must tend to lower the reputation of the plaintiff in the eyes of ordinary reasonable members of the community. Thus, s 33 contemplates a case in which, notwithstanding that a publication about a plaintiff is defamatory in that sense, nevertheless the “circumstances of publication” were such that the plaintiff was unlikely to sustain any harm as a result.

At [26] & [27] the Court made clear the high bar a party has to clear to withdraw an issue from the jury noting:

• it must be exercised with considerable caution;
• its exercise demands a full realisation of the difference between a judge’s opinion on the merits and the determination of what finding is reasonably open to a jury
• the question is not whether the quality of the evidence is such that a verdict for the defendant would be unreasonable or perverse but rather whether the defendant has adduced evidence that, if uncontradicted and accepted, would justify a verdict for the defendant on that issue.
• the question for the judge is whether, directly or inferentially, the evidence might reasonably satisfy a jury that, on the balance of probabilities, the defence is made out
• the judge must bear in mind that a conclusion may be reasonable although other reasonable persons may draw an opposite or inconsistent conclusion from the same body of evidence.
• tThe judge’s role is not that of balancing the weight which he or she would personally attribute to the respective cases of the plaintiff and defendant.

The court found there was of merit in the:

• plaintiff’s submissions about the substance of the defence, noting there are clear flaws in the process of reasoning asked of the jury to consider the defence of triviality when they will have already found that the publications were defamatory in the plaintiff’s meanings [28].
•  general propositions identified by the defendants regarding the sanctity of taking the jury’s verdict [29]

The court permitted the defence of triviality to go to the jury for verdict, but reserved for the plaintiff leave to apply for judgment non obstante veredicto in the event that the jury found the triviality defence [30].

“Harm” in section 33

His Honour stated, at [31], that the meaning of  ‘harm’ in  s 33 is uncertain. It could mean either:

• including hurt feelings arising out of the publication of defamatory matter; or
• it is limited to the sense of damage to reputation.

Not surprisingly his Honour instructed the jury on the basis of the latter because:

• he followed the ratio in the Queensland Court of Appeal in Smith v Lucht where two of the three members of the court concluded that the term ‘any harm’ in the Queensland equivalent of s 33 was limited to reputational harm [32].   In addition to it being authority his Honour said he was “..inclined to agree with the reasoning of the majority [36]
• ‘harm’ was considered by the Victorian Court of Appeal in Barrow v Bolt where Kaye JA, with whom Ashley and McLeish JJA agreed, while observing that the question was not without its difficulties appeared to favour the view that ‘harm’ meant either hurt feelings or damage to reputation [33].
• The NSW Court of Appeal  in Enders v Erbas & Associates Pty Ltd referred to authority which held that hurt feelings were not relevant to the question because that was a matter for damages so that the word ‘harm’ was confined to injury to reputation [34]

Partial Justification

The defendants pleaded a defence of partial justification in respect of three of the articles on which the plaintiff sued. The plaintiff’s pleaded imputation constituted a single meaning, that the plaintiff was a serial liar, with multiple constituent sub-parts (the different lies that she had told about herself). The defendants pleaded both justification or partial justification, that the defendants could justify some, but not all, of the sub-parts to the plaintiff’s imputations [37].

During the trial, the plaintiff applied to have the partial justification defences taken away from the jury on the basis that:

• it was an untenable defence,
• at its highest raised issues of fact and law relevant only to the determination of damages [40]
• her meaning was an imputation with a single sting – she was a serial liar. As such where there was a single, indivisible imputation, the defendant must justify the plaintiff’s imputation, plead and justify a Hore-Lacy imputation, or plead a defence of contextual truth under s 26 of the Defamation Act. Partial justification is not a defence.

The Court, at [42] & [43], set out principles applying to a defence of justification by reference to the Victorian Court of Appeal decision in Herald & Weekly Times Ltd v Popovic, and Besser v Kermode being :

• the whole libel that is all the defamatory imputations must be proved as true; it is no defence to prove that part of the defamatory libel is true. The publisher must prove the truth of the defamatory sting which is proving every injurious imputation which the jury may find in the words complained of.
• the defence is that the words complained of were true in substance and in fact.
• the publisher need not prove an irrelevant comment or any slight inaccuracy in the article is true.
• a publisher may justify part only of the words complained of provided the part sought to be justified contains a distinct and separate imputation. That the particular defamatory imputation must be severable from the other defamatory imputation and convey a distinct and separate imputation.
• the plaintiff must not be left in any doubt as to what the defendant seeks to justify.
• partial justification while not a defence to the cause of actionis relevant to the question of damages, and if proven, results in a reduction in damages.

The plaintiff submitted that:

• the defendants did not plead, as partial justification defences, imputations that were separate and distinct from the plaintiff’s imputation. As such the defendants were not permitted to justify part only of the words published in that circumstance [44]
•  there was ample evidence on which the defendants could rely in mitigation of damages assuming failure of their substantial truth defences. It would be open to the defendants to submit in mitigation that they had proved one or another aspect of the imputation pleaded by the plaintiff.

The defendants’ position was summarised by the court, at [51], as:

“..the jury must first resolve the question of whether or not those parts of a publication to which they plead partial justification were true or not, before the judge would come to consider the remaining unresolved issues of fact and law (relating to quantum and mitigation). It would be for the jury to determine, solely as a matter of fact, the meaning of the articles and what parts of the meanings they find to have been justified. Armed with the jury’s findings in that respect the court could then determine the question of damages. Further, the defendants submitted that the partial justification was directed towards the plaintiff’s pleaded imputation. It was not, in that sense, an alternative. The jury questions ought be tailored to properly reflect that.”

In support of that position the Defendants submitted that :

• Popovic & Kermode did not consider whether partial justification was a matter relating only to the question of damages and the judgment ought be read as stating the proposition that partial justification is not a complete defence, but a defence nonetheless
• they were seeking by the partial justification defence to justify the imputation that the jury might find of the defamatory matter conveyed only as a lesser meaning inherent in the plaintiff’s more serious imputation [48]
• justification of part of the defamatory matter may prove the sting conveyed by the publication to be true, which is a matter of defence.
• even where it fell short of meeting the whole of the sting, whether there is any justification is a matter relevant to liability, to a defence, and as such, it was properly a task for the jury
• the process should be:

a. A defendant seeking to justify defamatory matter had to prove all stings of the defamatory matter relied upon by the plaintiff were substantially true;

b. A defendant seeking to justify defamatory matter could not do so by seeking to plead and justify an imputation with a substantially different sting from that or those pleaded by the plaintiff; a defendant could only plead nuance imputations; and

c. If a defendant could only establish that one or two of more stings relied upon by the plaintiff were substantially true, the defence of justification failed, but the evidence led to establish that defence could be relied upon in mitigation of damages.

• the defendants also relied on  Denning LJ in Plato Films v Speidel who found that concluded that questions of partial justification must be, at least to an extent, liability questions.

The Court found little to commend the Defendants’ submissions finding that :

•  at [53], that Section 25 of the Act sets out the statutory defence of justification, providing that it is a defence to the publication of defamatory material if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. The common law does not assist as it is that the whole libel which must be proved as true.
• the defendants’ submissions mischaracterised partial justification in the circumstances [54] and because the defendants do not seek to justify the whole of the plaintiff’s separate and distinct imputation, the plea of partial justification is a plea in mitigation of damage, and an issue reserved to the judge.
• the issues raised by the plea of partial justification are properly viewed as questions of fact, or of fact and law, relevant to the assessment of damages, particularly mitigation[56]

The court ruled that the question of partial justification, as it was exposed in this proceeding, was an issue of damages and not a matter for the jury.

ISSUE

The decision highlights the difficulty of keeping a defence, including triviality, from a jury.   The court made clear in its review of the law that a triviality defence is a high bar to jump, particularly where the publication has a reasonably wide distribution on line.

The decision also highlights the difficulty of a partial justification argument.  It is clearly a matter of mitigation of damages.