Burston v Hanson [2022] FCA 1235

FEDERAL COURT OF AUSTRALIA

Burston v Hanson [2022] FCA 1235 File number: NSD 652 of 2020

Judgment of: BROMWICH J

Date of judgment: 19 October 2022

Catchwords: DEFAMATION – where there are three distinct publications – where the respondent denies that any of the pleaded imputations were conveyed – whether the defamatory imputations alleged were conveyed – where the applicant is not named in the first matter complained of – whether the applicant is identified as the subject of the first matter complained of – Held: identification of the applicant as the subject of the Facebook Post was not made out – the 4th, 5th, 6th and 7th imputations were conveyed DEFAMATION – defences advanced under the Defamation Act 2005 (NSW) and at common law of justification (substantial truth, s 25); qualified privilege under statute (s 30); qualified privilege at common law under two bases, as a reply to attack and due to the respondent's relationship to the applicant's wife; and unlikelihood of harm (s 33) – Held: the 5th imputation that the applicant "harassed a female staffer in his parliamentary office" and the 7th imputation that the applicant "sexually harassed numerous female staff" proven to be substantially true – no basis found for substantial truth for the 4th imputation that the applicant "sexually abused a female staffer in his parliamentary office" and 6th imputation that the applicant "physically assaulted James Ashby in the Great Hall of Parliament House without provocation" – no basis for the defences of qualified privilege at statute and common law and unlikelihood of harm DAMAGES – where the applicant sought an award of general damages, including aggravated damages – damages awarded in the sum of $250,000 plus interest

Legislation: Evidence Act 1995 (Cth) s 140(2) Members of Parliament (Staff) Act 1984 (Cth) ss 23, 23(1)(b) Defamation Act 2005 (NSW) ss 25, 30, 30(1), 30(1)(a), 33