Tasmania to restore defamation “forum shopping”

Under the division of powers, defamation is a matter for the States, and historically, the law was different in each jurisdiction. With the rise of national (and international) media and communications, this led to “forum shopping” in which plaintiffs could choose to sue in the State with the most plaintiff-friendly law. In order to achieve nationally consistent laws, the States agreed to implement uniform legislation, with an identical Defamation Act 2005 passed in each State. Now, Tasmania is threatening to abandon the national scheme by allowing big corporations to sue individuals. Critics say this will make Hobart the “defamation capital of Australia” by again allowing forum-shopping. The proposed change is part of a broader suite of Tasmanian reforms designed to crack down on anti-forestry protesters, but which may have much broader impacts.

Book to be pulped after mistaken identity defamation

A book on a corruption scandal in New South Wales has been withdrawn from bookshelves, and is likely to be pulped—because it accused the wrong “Chris Brown” of corruption. The Chris Brown who was mistakenly identified is suing for defamation. Crikey reported that one Melbourne bookshop had removed the book from shelves, but when their journalist enquired about it, “the extremely helpful staff thought the store must be in the process of re-stocking and fetched the book out of a box behind the counter and handed it straight to [me].” Under the Defamation Act 2005 (Vic), bookshops are protected by the defence of innocent dissemination if they inadvertently distribute defamatory material; however, that only applies if they “neither knew, nor ought reasonably to have known, that the matter was defamatory”. Continuing to sell the book after it has been recalled could expose the bookshop to liability.

Victoria’s biggest civil trial settles for $500m

The Supreme Court has announced that “[a]fter more than 200 court sitting days, testimony from 100 expert and lay witnesses and in excess of 10,000 case documents admitted to evidence, Victoria’s biggest civil trial—the Kilmore East-Kinglake Black Saturday bushfire class action—has reached a settlement.” The settlement of $500 million will need to be approved by the court to ensure a fair process for dividing up the funds between more than 10,000 members of the class action group. The plaintiffs argued that the negligence of power companies and the State government exacerbated the impact of the bushfire. Despite the settlement, the defendants deny responsibility.

Treasurer to test “politics” defence to defamation

Commonwealth Treasurer Joe Hockey is suing the Fairfax media company for defamation over articles published in its newspapers under the headline, “Treasurer for sale: Joe Hockey offers privileged access”. The articles described expensive fundraising dinners that allowed people to secretly contribute up to $22,000 to the Liberal Party, bypassing donation disclosure laws. Hockey claims the articles suggested he was corrupt, and that he has been “greatly injured, shunned and avoided” as a result. If the matter goes to trial (which is by no means certain), it will require the court to apply the precedent set by Lange v ABC: publication of defamatory matter is protected if it relates to political issues, is reasonable, and is not motivated by malice.

UN demands Vic Gov take responsibility for rogue police

The United Nations Human Rights Committee says Victorian law should hold the government responsible for all actions by on-duty police officers, and the victim of a savage beating should receive compensation. In 1996, police broke in to Corinna Horvath’s home, bashed her, fabricated evidence, and later lied in court. She initially won compensation, but that was overturned when the Court of Appeal ruled the government was not vicariously liable under section 123 of the Police Regulation Act 1958 (Vic) because the indidual police involved had not acted “in good faith in the course of his or her duty”. The UN ruled this was a breach of the International Covenant on Civil and Political Rights: “It is the State’s responsibility to ensure that its police do not violate human rights and to remedy violations of human rights by its police”. It concluded that “the State of Victoria is obliged to change its domestic laws” to address the problem. The Victoria Police Act 2014, which commences in December, changes the State’s liability for torts committed by police, but Horvath’s lawyers say the new law will be “an expensive and lengthy two-step process” and does not go far enough.

Trial proceeds as 1 of 50 plaintiffs refuses settlement

A class action involving fifty plaintiffs will go ahead, after one plaintiff refused to accept a settlement offer. The case is against a drug-addicted anaesthetist and the organisations involved in his employment and registration, after he infected the women with hepatitis C through shared needles. The settlement offer was made “contingent on the woman not trying to go it alone” because the “defendants did not want to pay out all the women in the class action and then have to take part in a trial involving one victim.” Justice Beech said he could not force the woman to accept the settlement, but he ordered that she “be prevented from benefiting from the legal work done on behalf of the other victims” when the trial begins on Monday. The class action process is designed to save costs by allowing one trial to determine the outcome of a group of similar claims.

Should negligent police compensate crime victims?

“If a woman is assaulted or killed and police don’t do all they can to protect her from attack, should the police be held liable in negligence?” In Australia, the law is unclear. The NT police reached a confidential out-of-court settlement with Tiffany Paterson, whose complaints were ignored by police before she was beaten and slashed in the face by her former partner. In WA, the family of Andrea Pickett are suing the police for their failure to prevent her being brutally murdered in front of her daughter. Australian lawyers are attempting to develop this area of the common law because in the UK, the High Court awarded damages to two victims of a serial rapist. It held that “a series of systemic failings” breached “a duty imposed upon the police to conduct investigations into particularly severe violent acts perpetrated by private parties in a timely and efficient manner”. However, the UK claim was brought under the Human Rights Act 1998 (UK), and no equivalent legislation exists in Australia.

ABC “dogf—er” defamation case to proceed

The NSW Supreme Court will allow a jury to decide whether the ABC’s “Chaser Boys” defamed political commentator Chris Kenny by displaying a photoshopped image of him having sex with a dog. The comedians claim the segment was satire, and was a legitimate response to Kenny’s frequent criticism of the ABC. Justice Beech-Jones did not accept that anyone would believe that Kenny had actually engaged in the act, but he did accept that “the image was such a massively disproportionate response … that it is capable of conveying that Mr Kenny is, in a general sense, a contemptible and disgusting person.” It will now be for a jury to decide whether that was actually conveyed. The Prime Minister has suggested the ABC should apologise and settle the case, but human rights professor Sarah Joseph believes it is an important test case to determine the legal boundaries of satire.

Cardinal says Church should be suable

The former archbishop of Melbourne and Sydney, Cardinal George Pell, has told the Royal Commission into Institutional Responses to Child Sexual Abuse he no longer supports the Catholic Church’s position that it could not be sued: “Whatever position was taken by the lawyers during the litigation, or by lawyers or individuals within the Archdiocese following the litigation, my own view is that the Church in Australia should be able to be sued in cases of this kind.” Cardinal Pell was in charge of the Archdiocese of Sydney when it ran what is now known as “the Ellis defence”. In Trustees of the Roman Catholic Church v Ellis [2007] NSWCA 117, the NSW Court of Appeal held that because priests were not employees, the Church was not vicariously liable for their actions. This effectively means that individual priests can be sued, but the Church can not—which diminishes the ability of victims of child sexual abuse to obtain compensation.

Evil lies in the grapevine effect

In what is believed to be the first Twitter defamation trial in Australia, “[a] NSW school teacher has made legal history after a former student was ordered to pay $105,000 for defaming her on Twitter and Facebook.” In determining the appropriate damages, Judge Elkaim SC of the NSW District Court (the equivalent of Victoria’s County Court) took into account that “when defamatory publications are made on social media it is common knowledge that they spread. … Their evil lies in the grapevine effect that stems from the use of this type of communication.”