Federal Court of Australia Chau v The Australian Broadcasting Corporation (No 2) [2020] FCA 1884 File number(s): NSD 1088 of 2017 Judgment of: RARES J Date of judgment: 7 October 2020 Catchwords: EVIDENCE – whether media publications reporting on verdict for the applicant in earlier proceeding admissible pursuant to s 38(1)(c) and (d) Defamation Act 2005 (NSW) as evidence of mitigation of damages – whether mere tender of media publications capable of constituting evidence of, or affecting, reputation of applicant – Held: tender rejected Legislation: Defamation Act 2005 (NSW) s 38(1)(c)–(d) Cases cited: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 Hayson v The Age Company Pty Ltd [2019] FCA 1538 Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 12 Date of hearing: 6–9 October 2020 Counsel for the Applicant: Mr B McClintock SC with Mr M Richardson Solicitor for the Applicant: Mark O'Brien Legal Counsel for the Respondents: Dr Matt Collins AM QC with Mr MJ Lewis Solicitor for the First Respondent: Australian Broadcasting Corporation Legal Services Solicitor for the Second and Third Respondents: MinterEllison ORDERS NSD 1088 of 2017 BETWEEN: CHAU CHAK WING Applicant AND: THE AUSTRALIAN BROADCASTING CORPORATION First Respondent FAIRFAX MEDIA PUBLICATIONS PTY LIMITED ACN 003357720 Second Respondent NICK MCKENZIE Third Respondent order made by: RARES J DATE OF ORDER: 7 OCTOBER 2020 THE COURT RULES THAT: 1. The respondents' proposed tender of the article under the headline "Chau Chak Wing wins defamation case against The Sydney Morning Herald" published in The Sydney Morning Herald on 22 February 2019 be rejected. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) RARES J: 1 The respondent publishers seek to tender, as examples of a wider tender, publications in The Sydney Morning Herald on 22 February 2019 and other contemporaneous media of articles reporting on the judgment of Wigney J in an earlier proceeding that the applicant, Dr Chau Chak Wing, brought against Fairfax Media Publications Pty Ltd, the second respondent, or an associated company, in respect of an article published on an online website in 2015. 2 The publishers wish to use those publications as evidence in support of their plea of mitigation. They rely on the common law and s 38(1)(c) and (d) of the Defamation Act 2005 (NSW), which provide: (1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that— ... (c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter, or (d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter, or … 3 The publishers contend that Dr Chau's evidence, in cross-examination, that he was pleased to know that his victory before Wigney J had been reported in the media because this assisted in clearing his name, including his evidence, "[y]es, with this part I felt satisfied," made those other publications admissible. He was not taken to any such publication specifically. Consideration 4 It is not open to a defendant in defamation proceedings to lead evidence of publicity given to prior verdicts as evidence in mitigation of the damage done to a plaintiff's reputation in the way that the publishers seek to do here. A publication concerning a judgment delivered in a different proceeding does not fall within the words of s 38(1)(c) or (d). This is because the evidence relevant to those defences is simply that the plaintiff has recovered damages for defamation in relation to other publications of matter having the same meaning or effect as the defamatory matter complained of in the subsequent proceeding. There is no issue here about the content of the matter complained of in the proceeding before Wigney J, his reasons for judgment, or that the fact that Dr Chau had brought the proceeding to recover damages for defamation. 5 Evidence merely of the publication of other newspaper articles reporting on a court's verdict, self-evidently, does not say anything about the impact of those articles on the reputation of the plaintiff. That is because the mere tender of those articles would not enable the tribunal of fact to ascertain what, if any, effect those articles had on the claimant's reputation. The use that the publishers seek to make of those articles is analogous to, and equally inadmissible as, a claimant attempting to prove his or her good reputation by adducing evidence of specific instances of good conduct, or a defendant attempting to prove the claimant's bad reputation by the tender of newspaper articles or evidence of specific instances of bad conduct, as Bromwich J most recently identified in Hayson v The Age Company Pty Ltd [2019] FCA 1538. 6 The publishers' attempt to rely on a collection of newspaper articles reporting on Wigney J's reasons is analogous to the attempt by the media respondent in Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 to tender a collection of newspaper articles containing adverse publicity about the plaintiff, the former Australian Test Cricket captain, Ian Chappell, as evidence of his bad reputation. The Court of Appeal of the Supreme Court of New South Wales held that such prior publications of unfavourable or defamatory articles could not be tendered as evidence of bad reputation. That was in accordance with principle. For, as McHugh J pointed out in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 99, in a passage cited by Bromwich J in Hayson [2019] FCA 1538 at [15], a defendant can prove bad reputation by calling witnesses to speak of what the plaintiff's reputation actually was at the time of the relevant publication, but cannot prove that reputation by tendering other publications for that purpose. 7 That is because, self-evidently, the prior publication may or may not have damaged the plaintiff's reputation and, in any event, only reflected the specific instances of what the publisher thought of the plaintiff, as opposed to how he or she was thought of by others. 8 For instance, in the present case, there is no evidence of how the ordinary reasonable reader would have understood the article under the headline "Chau Chak Wing wins defamation case against The Sydney Morning Herald" on which the publishers seek to rely. That article, clearly enough, reports Dr Chau's victory before Wigney J, and some of his Honour's comments. But, in an antidote to that bane, it contained 6 paragraphs that stated, fairly forcefully, that the respondents would appeal and were disappointed that his Honour had not upheld their public interest defence. It reported that his Honour found that the journalist, Mr Garnaut, had used a sneering and deprecating tone in the matter complained of and was not persuaded that he was being entirely honest about his reliance on a confidential source for his story. However, the article also asserted, in numerous paragraphs, that Mr Garnaut was a reliable journalist. In addition, the article reported that a member of the Parliament, Andrew Hastie MP, chair of the Parliamentary Joint Committee on Intelligence and Security, had commented that Wigney J's judgment would be "carefully analysed", and added that Mr Hastie had expressed concerns about the impact of defamation laws in Australia on responsible journalism about national security issues. 9 All of those matters of commentary on, or additional to, the reporting of the findings by Wigney J interpolated the newspaper's own commentary on the judgment, which was not allowed to speak for itself. Thus, the ordinary reasonable reader was confronted with a number of different potential understandings of how he or she might regard the reliability of his Honour's decision, including whether the reader ought to agree with it or not. Critically, the ordinary reasonable reader was not allowed to form a view of what his Honour had found for himself or herself, based on a fair and accurate report only of the decision. 10 Of course, any publisher has a right to choose to report on matters as it wishes. It is entitled to comment itself and report comments of others, which may bear on whether the ordinary reasonable reader agrees or not with decisions of a court. That is a hallmark of our democratic system of government. But, it is impossible for a tribunal of fact in my position to know, merely from the proposed tender of such an article, how the ordinary reasonable reader would have assessed the impact, if any, on Dr Chau's reputation, by learning of Wigney J's decision from reading the article. The ordinary reasonable reader must read a publication complained of fairly and as a whole, even if it has mixed messages about the court's decision. 11 This discussion illustrates why the articles which the respondents seek to tender under s 38(1)(c) and (d) do not self-evidently prove the asserted fact that their publication had a tendency or ability to mitigate any damage to Dr Chau's reputation by the publications of the broadcast and online availability of the matters complained of. Moreover, the Act provides a defendant with the ability to prove the fact that the plaintiff has brought the earlier proceeding and recovered a verdict as being mitigatory conduct. However, nothing in s 38(1) of the Act enables a defendant to adduce evidence, in mitigation of damages, of the way in which particular persons may have published matters about the claimant or an earlier court decision in his or her favour. Conclusion 12 I am not persuaded that the articles which the publishers wish to tender are relevant to any fact in issue or are admissible on general principle. For these reasons, I reject the tender. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 11 January 2021