Posts Tagged ‘defamation’

One law for the rich

February 13, 2015

Gina Rinehart has obtained an order for preliminary discovery, entitling her lawyers to preview the upcoming episode of the TV series concerning her (which is presumably coming up to the bit where she hounded Rose Porteus through the courts in a second inquest into the death of Lang Hancock – an episode rightly described by then WA Attorney-General, Jim McGinty, as “a savage waste of public resources”) in order to decide whether to seek an injunction against its publication.

Back in 2010, Wendy Hatfield, about to be defamed in an instalment of the ‘Underbelly’ franchise, did not fare so well. She was refused orders for preliminary discovery concerning that series. The judge held (and the Court of Appeal upheld) that she had to wait and see and get damages afterwards if she was defamed (which she was).

Perhaps Rinehart’s lawyers learnt from where Hatfield’s lawyers failed, but it is difficult to escape the conclusion that there is one law for the very rich and another for the rest of us.

Which is probably a truism, if you think about it even a little bit. Even if I am affronted, I shouldn’t be surprised.

Update

Justice Garling’s reasons finally (24/3) published.  On a cursory reading, it looks like Channel 9 was hoist by its own publicity, which suggested, amongst other things, that while everyone else should stay in on Sunday night to watch the program, Mrs Rinehart might like to go out for dinner.  I don’t find his Honour’s distinguishing of the Wendy Hatfield decision quite so convincing.

Free kick

March 7, 2014

Mrs Mickle was a music teacher at Orange High School.

Apparently she was much-loved by her students, or at least some of them.  In 2012, when the then principal of the school, Mrs Angus, was retiring, some of them proposed that on the occasion of the principal’s retirement function the school’s music centre be named the “Mrs Mickle Music Centre.”

Just pausing there: that is in my opinion an entirely ridiculous suggestion.  Not because Mrs Mickle was or was not an excellent teacher, but because she was still teaching at the school and had some years of teaching left. It’s not clear why the retirement (actually only retirement as principal after 7 years at Orange High) of Mrs Angus should be the occasion of this announcement. What was the perceived link?

Andrew Farley, who had left the school a year before, seems to have disagreed with the idea.  There may have been some history here, because his father had previously been teacher in charge of music and arts at the school and had left the school in 2008, at which time Mrs Mickle had taken over his position on an acting basis.

Andrew vented his feelings on twitter and facebook.  Mrs Angus, who apparently spent time on a regular basis dealing with issues arising from social media coverage of her school, saw what he had written. She drew it to the attention of Mrs Mickle.

Mrs Mickle engaged lawyers.  They wrote a letter to Mr Farley late in November.  At first he did not respond, but after a second letter sent on 12 December, he replied on 20 December 2012:

“All comments referred to by you have been removed from my social media pages.”

which appears to have been the case, and

“I apologise unreservedly to Mrs Mickle for any hurt or upset caused to her by statements made on my social media page.”

You might think that would have been an end to it, apart from the question of paying Mrs Mickle’s lawyers.

But it was too late. Mrs Mickle was on the law-path. She sued Mr Farley for defamation in the District Court.

Unfortunately for Mr Farley, that led to a bit of a change of heart. He filed a defence of justification – that is that what he said, or some of it. was true. That is a rash thing to do: if you do that you undo all the reduction of damages which might have followed from an apology, and also risk having aggravated damages found against you.

That’s the thing about an apology. It’s only of use if you give up defending anything you said. You might say that the test of the sincerity of the apology is just that, but like a plea of guilty, then you just have to wait for the plaintiff to do what he or she wants to get vindication and even, quite possibly, just a little bit of retribution. And in defamation there will be the defamed person’s lawyers, often with contingency fee agreements, riding shotgun on the bandwagon.

You can choose not to defend what you said, but defend your right to say it in the circumstances. This is a defence of privilege – either absolute as in the well-known parliamentary privilege, for example (or when giving evidence in court or reporting court proceedings) or qualified privilege. The difference, put simply, is when the privilege is qualified it must not be abused – you have to act reasonably and not maliciously. So, for example, you can report reasonable suspicions to the police, but not maliciously make something outrageous up because you want to get someone in trouble.

There is a procedure where a person who has defamed someone may make an “offer to make amends” which could be a total defence. But it was too late for that. That must be done within 4 weeks of a complaint being made. People who have said something rash or angry in a social context frequently do not realise how seriously the law is going to take what they have done and are rarely sufficiently legally advised at the outset to take advantage of that.

Mr Farley withdrew his defence of justification, and replaced it with a defence of qualified privilege. We don’t know exactly what the basis for it was, but it was struck out by Judge Olsson in October 2013 and the matter set down for trial on assessment of damages in November, which is when it came before Judge Elkaim.

By this time, Mr Farley had had enough. Who knows, he probably had run out of money for legal representation. It probably didn’t seem worth spending another $20,000 or more to be on a hiding to nothing. He did not turn up to the hearing.

Maybe that was a calculated gamble. But it gave Mrs Mickle and her lawyers a free kick against him.

Mrs Mickle gave evidence. One thing that particularly upset her was the suggestion that she may have had something to do with Mr Farley’s father’s departure from the school.

Mrs Angus also gave evidence. She is one person who may well have had something to do with the circumstances of Mr Farley’s father’s departure. She attested to Mrs Mickle’s excellence as a teacher, amongst other things.

Judge Elkaim awarded Mrs Mickle $85,000 ordinary damages and $20,000 aggravated damages. There will also be an order for costs and presumably costs orders had already been made as a result of the striking out of the defence. That was in November.

This month, after a story appeared in the press about the decision, his judgment was published on the internet.

It’s an unusual judgment, because unlike most defamation judgments the matter complained about was not included in the judgment. So we really have absolutely no means of seeing for ourselves on what basis the figure of $85,000 was plucked from the air. And a few other free kicks also went through to the keeper (OK: that metaphor is mixed and in fact positively wrong.)

That included a kick against Mr Farley’s father, described by the judge as having “left the school in 2008 in order to attend to personal issues.” The judge said there was “absolutely no evidence” to support Mr Farley’s apparent belief as to something different and in particular any involvement by Mrs Mickle in this. Of course there wasn’t.

His Honour said:

The plaintiff has said, and I accept, that all of the imputations that are set out in the Statement of Claim are untrue.

How could he have found otherwise? Defamatory imputations unless defended are presumed to be untrue.

Judge Elkaim also remarked that Mr Farley had never been taught by Mrs Mickle. I suppose the point of that was to explain why whatever bad thing Mr Farley said about Mrs Mickle cannot have had any proper foundation or motivation which would amount to a qualified privilege. Judge Olsson had already decided that, so Judge Elkaim’s observation was otiose.

In a country high school I doubt you need to be in a teacher’s class to have some knowledge and idea of the teacher and a music teacher is likely to have a more public profile than merely to her direct students. But there was nobody there to suggest otherwise.

Exemplary justice has been done. Mr Farley may well elect to go bankrupt (update: he has done so). If he is still a student, he could serve out his bankruptcy without making much of a contribution towards his debts. He would afterwards have a bad credit rating which he will need to explain every time he tries to get a loan. If so, Mrs Mickle may get something, but mostly only vindication. Who knows on what basis her lawyers are to be paid, if at all.