In one of his final judgments on the bench, Peros v Nationwide News Pty Ltd (No 3) [2024] QSC 192 (‘Peros’), Applegarth J of the Supreme Court of Queensland has had to grapple with the intricacies of the new serious harm element of the cause of action in defamation. Serious harm to reputation introduces difficult issues of causation into defamation in an unprecedented way. It also challenges seemingly well-settled principles of defamation law, such as the rule in Dingle v Associated Newspapers Ltd [1964] AC 371 (‘Dingle’)concerning the permissibility of relying upon other publications in mitigation of damages.
The facts of the case
John Peros commenced defamation proceedings against the publisher of The Australian, Nationwide News, investigative journalist Hedley Thomas and interview subject, Shannah Blackburn, in the Supreme Court of Western Australia. The proceedings arose out of Shandee’s Story, a podcast by Thomas. The podcast concerned the murder of a young woman, Shandee Blackburn, in Mackay, Queensland. Peros, who was Blackburn’s ex-boyfriend, was charged with her murder but was acquitted at trial in 2017. However, in 2019, a coroner found that Blackburn had died as a result of injuries sustained during a violent incident with Peros, in which he used a bladed instrument. The podcast began to be released from 2021 onwards. In the 13th episode, Blackburn’s sister was interviewed by Thomas.
For the purposes of the choice of law provision in the Defamation Act 2005 (WA) s 11(2), the parties agreed that the substantive law with the closest connection to the proceedings, and thus the applicable law, was the law of Queensland. The parties consented to the transfer of the proceedings to the Supreme Court of Queensland.
Under Queensland law, a plaintiff had to establish serious harm to reputation as an element of the cause of action in defamation. This was introduced in 2021 as part of Stage 1 of the reforms to the national, uniform defamation laws and applies across Australia, except in Western Australia and the Northern Territory. It was modelled on the Defamation Act 2013 (UK) s 1. The Australian statutory provision prescribes that the issue of serious harm is to be determined as soon as practicable unless there are special circumstances warranting its deferral. Applegarth J found that there were no such circumstances and proceeded to deal with the early determination of the serious harm element. In his judgment, handed down at the end of August 2024, Applegarth J found that Peros had not proved that the podcast had caused, or was likely to cause, serious harm to his reputation. Consequently, Peros’ defamation proceedings were dismissed.
Serious harm: differences between Australia and the United Kingdom
There are important similarities between the English and Australian serious harm provisions. As Applegarth J noted, they both abrogate the presumption of damage to reputation. A plaintiff is now required to point to actual evidence of damage to reputation in order to satisfy the serious harm element.
However, there are equally important differences between the provisions. For instance, a consequence of Australia’s Model Defamation Provisions prescribing that the issue of serious harm be determined as soon as practicable is that it is determined without the issue of defamatory meaning being decided. By contrast, under the Defamation Act 2013 (UK) s 1, the issue of serious harm is bound up with the issue of defamatory meaning.
Serious harm and causation
The introduction of the statutory serious harm element means that questions of causation now arise in relation to liability for defamation in a way that they did not when the elements of the cause of action were purely common law. Whether the matter was defamatory, whether it identified the plaintiff and whether it had been publishers were matters of strict liability, such that questions of causation did not tend to intrude. Now, as Applegarth J points out in Peros, the plaintiff has to try to isolate the damage done to their reputation by the particular publication sued upon and prove that such damage constituted serious harm to reputation.
Serious harm and triviality
In interpreting and applying the serious harm element, Applegarth J accepted that it was appropriate to have regard to the serious consequence which flowed from finding that the plaintiff had not proved serious harm to reputation, namely, that the plaintiff’s cause of action in defamation would be dismissed. However, his Honour noted that this was what the legislature intended by enacting this reform. (This was particularly so, given that the legislature had abolished the statutory defence of triviality, intending that the serious harm threshold would be the means by which trivial or marginal defamation claims would be dealt with at the outset of proceedings.) Therefore, Applegarth J held that the serious harm provision should be given its ordinary meaning. Specifically, his Honour held that the serious harm provision should not be interpreted beneficially towards the plaintiff merely to avoid the adverse consequence of the dismissal of the proceedings.
Serious harm and the rule in Dingle
A significant difficulty has arisen in defamation cases since the introduction of the serious harm threshold. This is how to deal with the rule in Dingle. As described by Applegarth J, the rule in Dingle:
‘precludes a defendant relying in mitigation of damages on other publications that are alleged to have harmed the claimant’s reputation as proof of a bad reputation. The general rule is that a bad reputation must be proven by reputation witnesses.’ (at [112])
His Honour observed, though, that the rule in Dingle is difficult to classify. Applegarth J concluded that the best characterisation of the rule in Dingle was ‘simply as a rule of evidence that precludes a defendant from relying on earlier publications as proof of bad reputation in mitigation of damages.’ (at [114]) In his Honour’s view, the rule in Dingle was in addition to the threshold requirement that a plaintiff prove serious harm to reputation as an element of the cause of action in defamation and did not detract from the requirement that, in proving serious harm, the plaintiff prove the serious harm done to their reputation by the publication for which the defendant was being sued.
Having conducted an extensive review of the English authorities on the issue of serious harm, causation and the rule in Dingle, Applegarth J 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. The authorities show that other 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.’ (at [230])
His Honour reasoned that whether a publication has caused, or is likely to cause, serious harm to the plaintiff’s reputation needs to be considered in light of the state of the plaintiff’s reputation prior to publication. Evidence of earlier publications are not admitted to prove that the plaintiff had a bad reputation. Rather, Applegarth J held that those earlier publications are evidence relevant to the issue of whether the publication sued upon caused, or was likely to cause, serious harm to reputation.
His Honour drew a distinction between a damaged reputation and a bad reputation. Applegarth J held that it was open to a defendant, seeking to resist a finding that the plaintiff had established serious harm to reputation, to set out prove, at the time of the publication, that the plaintiff already had a damaged reputation. This may make it more difficult for the plaintiff to establish that the defendant’s publication caused, or was likely to cause, serious harm to reputation. Proving that the plaintiff had a settled bad reputation for the purposes of mitigating damages, though, remained subject to the rule in Dingle. His Honour accepted that this was a fine distinction but that it was nevertheless an important, principled one.
Applegarth J concluded that:
‘Strictures about the means of proving a bad reputation should not necessarily apply to an assessment of the harm that has been caused, or is likely to be caused, to the reputation of a person.’ (at [245])
Thus, in his Honour’s view, other publications about the plaintiff were admissible as relevant to the issue of causation in proving serious harm and the rule in Dingle about mitigation of damages did not require a different conclusion.
Conclusion
The introduction of serious harm to reputation as an element of the cause of action across most of Australia raises a range of difficult doctrinal issues about defamation. It compels defamation practitioners to rethink fundamental aspects of the cause of action in defamation. Defamation has gone from a cause of action where damage to reputation is presumed to one in which the plaintiff has to prove at the outset that some form of actual, serious damage to reputation has occurred. Given that the settled principles of defamation law have been constituted around the presumption of damage for such a long time, the novelty of serious harm will necessitate an agitation, if not a revolution, about how defamation practitioners have to think about the cause of action. Working through the consequences of introducing serious harm to reputation as an element of the cause of action will take some time. Applegarth J’s judgment in Peros v Nationwide News Pty Ltd (No 3) [2024] QSC 192 is a detailed, scholarly first step in what will no doubt be a complex and protracted process of understanding the full implications of serious harm in defamation.
Editor’s note:
As Professor Rolph points out, the ‘serious harm’ provisions are not in the Defamation Act (WA) and so not part of the substantive law of Western Australia. Nor for that matter are several other provisions that are present in most other jurisdictions’ Defamation Acts, such as the ‘single publication rule’ and strict requirements as to concerns notices and the commencement of proceedings.
Professor Rolph’s article is nevertheless of great interest to local practitioners, not only because it deals with elements of damages in defamation generally and deals with an element that might become the law in WA, but also because local practitioners must be aware that the substantive law applicable is that of the jurisdictional area where the ‘harm occasioned by a publication of matter has its closest connection’ (in the case the subject of Professor Rolph’s article that of Queensland) regardless of where the proceedings are commenced.
