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When harm is a trivial matter

When harm is a trivial matter

By Sally Whiteman

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The defence of triviality can succeed in defamation cases, but there is still argument over the meaning of “harm”.

Snapshot

  • To what extent are a defamation plaintiff’s hurt feelings relevant to the defence of triviality?
  • The issue is ripe for revisiting after the recent definitive decision of the Queensland Court of Appeal in Smith v Lucht [2016] QCA 267.
  • Dixon J of the Supreme Court of Victoria recently applied the majority decision of Smith v Lucht in Wilson v Bauer Media (No 6) [2017] VSC 356.

A defendant found to have published matter defamatory of the plaintiff will nonetheless escape liability if they successfully invoke one of the many statutory defences, such as the defence of triviality.

The defence of triviality is found in s33 of the uniform Defamation Act 2005 (Vic) (the Act) and provides that:

“It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.”1

As “harm” is not defined in the Act, a question arises as to what precisely “harm” means in this context. On one view, the defendant merely needs to prove that the plaintiff was unlikely to sustain reputational harm. Taking another view, the defendant must undertake the much more onerous task of proving that the plaintiff was unlikely to suffer a broader range of harm, including hurt feelings.

The application of the defence of triviality has garnered judicial attention in various Australian jurisdictions, including the attention of Kaye JA in Szanto v Melville (Szanto) and Barrow v Bolt (Barrow).2

On 20 October 2016, the Queensland Court of Appeal handed down the only appellate court decision on the meaning of the provision under the uniform law, in the decision of Smith v Lucht.3 The answer? “Harm”, for the purposes of the triviality defence, means reputational harm only. The plaintiff’s hurt feelings were not considered relevant to the defence.

Smith v Lucht will be of interest to all Australian legal practitioners practising in defamation law for several reasons. First, and most colourfully, it concerns a solicitor’s defamation claim for being likened to Dennis Denuto, the fictional solicitor in the Australian classic film The Castle (of “it’s the vibe” notoriety). Second, the decision will be of persuasive weight in the Victorian Court of Appeal and will effectively bind single judges of the Supreme Court, unless of course the trial judge is convinced that the interpretation is plainly wrong.4 In this regard, practitioners should be guided by the recent Victorian decision of Dixon J in Wilson v Bauer Media (No 6) (Bauer No 6), in which his Honour applied the majority decision of Smith v Lucht, stating: “It cannot be said that the majority’s interpretation of s33 in Smith v Lucht is plainly wrong. For my part, I am inclined to agree with the reasoning of the majority”.5

In light of the Bauer No 6 decision and the uniform defamation legislation throughout Australia, Smith v Lucht will likely be followed throughout the country. Such an approach was endorsed by Kaye JA’s observations in Szanto:

“The Defamation Act is now part of uniform legislation throughout the states and territories. It is highly desirable that, so far as possible, there be a material consistency in the construction of its provisions”.6

Accordingly, Victorian practitioners should familiarise themselves with Smith v Lucht and revisit the leading judgments on the defence of triviality, including Barrow.

Smith v Lucht

The facts

The dispute arose in the context of Mr Smith, a solicitor, assisting his daughter-in-law to facilitate access arrangements in respect of her children with former partner, Mr Lucht. On a number of occasions, Mr Lucht, by email and in conversation, referred to Mr Smith as “Dennis Denuto”. Presumably the comparison was not intended to compliment Mr Smith’s oratory skills or ability to fix a photocopier. The audience to the comments was small – Mr Smith, his son and his daughter-in-law. Both the latter were unlikely to think less of their father and father-in-law in the circumstances. Accordingly, the question of whether any “harm” was likely to be suffered due to the remarks was crucial.

The decision at first instance

At first instance, Mr Smith argued that being referred to as “Dennis Denuto” carried the imputation that Mr Smith was incompetent and unprofessional. The trial judge agreed.

Mr Smith’s prima facie success was overborne by Mr Lucht’s defence of triviality, that is, that the circumstances of publication were such that Mr Smith was unlikely to sustain any harm. The trial judge held that if he were wrong, he would assess damages at $10,000, including interest.

Mr Smith’s primary contention was that the trial judge erred in applying the triviality defence. In upholding the trial judge’s decision, the Court of Appeal gave considerable attention to the meaning of “harm” for the purposes of the triviality defence.

Construction of the triviality defence: A comparison of Smith v Lucht, Barrow and Szanto.

In Smith v Lucht, two of the three members of the Queensland Court of Appeal preferred a narrow construction of “harm”, such that the defence would be enlivened if the plaintiff was unlikely to suffer reputational harm. Of the three members of the Court of Appeal, Flanagan J undertook the most comprehensive analysis of the construction of the triviality defence.

It is useful to compare Flanagan J’s judgment in Smith v Lucht with the judgments of Kaye JA in Barrow and Szanto.7 A comparison of these leading judgments reveals the likely battleground for when the construction of the triviality defence falls for decision in Victoria. The judges in the respective cases made reference to the matters below.

The use of the term ‘harm’ in sections of the Act other than s33 (the triviality defence)

In Smith v Lucht, Flanagan J found the use of the term “harm” throughout the Act did not greatly assist in construing “harm” for the purposes of the triviality defence.

In Barrow and Szanto, Kaye JA observed that the use of “harm” throughout the Act could point in favour of a narrow or broad construction of “harm” for the purposes of the triviality defence, depending on which section was compared.

Importantly, the judges’ reasoning differed in important respects in regard to ss34 and 36 of the Act. Sections 34 and 36 deal with damages for defamation. It is uncontroversial that ss34 and 36 are construed broadly. It is also uncontroversial that a plaintiff’s hurt feelings are relevant at the time of calculating damages. This being the case, Kaye JA observed in Barrow and Szanto that ss34 and 36 militate in favour of a view that “harm” for the purposes of the triviality defence should also be construed broadly.8 Flanagan J took a different view: 9

“There is an important distinction to be drawn, however, between the use of the word ‘harm’ in s33 and its use in s34 and s36. As I have already observed, s33 falls within Division 2 of Part 4 dealing with defences, whereas s34 and s36 fall within Division 3 of Part 4 dealing with remedies. Section 33 provides a defence to the publication of defamatory matter. The section therefore addresses a different subject matter to that addressed by s34 and s36.”

The objective of defamation law and the basis for a damages claim in defamation

In Smith v Lucht, Flanagan J observed that “[t]he law of defamation has traditionally sought to protect personal reputation”, 10 and accepted Mr Lucht’s submission that “if a person’s reputation is not harmed (or not likely to be harmed) no remedy should be available”.11

Interestingly, Kaye J’s judgment in Barrow appears to temper the reputation-objective of defamation law with the reality that damages are awarded for hurt feelings as well as reputation. He stated (at [52]):12

“Ultimately, the determination of the question [of the construction of s33] will involve some consideration of the fundamental basis of a claim for damages for defamation. A cause of action in defamation is based on the publication of matter about a person that would injure the reputation of that person in the eyes of ordinary members of the community. However, the harm, that is recompensed by an award of damages, extends beyond compensation for the damaged reputation.”

His Honour continued at [56]:13

“[It] is now an entrenched part of defamation law that the harm, for which damages are awarded, include hurt and distress suffered by a plaintiff arising from the publication of the defamatory matter about him or her.”

Practicalities: The subjective quagmire of hurt feelings

In Smith v Lucht and Barrow, Flanagan J and Kaye JA respectively acknowledged the practical difficulties inherent in requiring a defendant to prove that the circumstances were such that the plaintiff was unlikely to suffer hurt feelings.

In Smith v Lucht, Flanagan J accepted Mr Lucht’s submission on this point:14

“[If] ‘harm’ … extends to hurt feelings a court could never exclude the prospect of hurt feelings as that inquiry is entirely subjective being dependent on the subjective response of the plaintiff and a matter for evidence”.

In Szanto, Kaye J expressed similar views:15

“[If] ‘harm’ included injury to feelings, it would make s33 virtually unworkable. For it would be very difficult to realistically assess, at the time of publication, whether the circumstances of the publication were such that a plaintiff was unlikely to sustain any harm”.

Interpretation and authoritative weight of Jones v Sutton16

In Jones v Sutton,17 Beazley JA (with whom Santow JA and Stein AJA agreed) stated that “[w]hether or not a person’s feelings were hurt (and her Honour found the appellant’s were not), is not relevant to s13. That is a matter for damages”. Note that s13 was the predecessor of the current triviality defence found at s33 of the Act.

Referring to Beazley JA’s judgment, Kaye JA in Barrow observed that: “properly understood … it is not clear that her Honour did hold that ‘harm’, in s13, was confined to injury to reputation, and did not include injury to feelings”.18

Flanagan J arrived at a different view:19

“While the observations of Beazley JA at [38] in Jones v Sutton are obiter, her Honour’s application of the s13 defence is consistent with a construction limiting ‘any harm’ in s33 to reputational harm.”

The authoritative weight of Morosi v Mirror Newspapers Ltd (Morosi)20 & Chappell v Mirror Newspapers Ltd (Chappell)21

Flanagan J and Kaye JA both accept that Morosi contemplates that “harm” for the purposes of the triviality defence encompasses harm to feelings.

Flanagan J, however, dismisses this case as well as Chappell as obiter dicter.

Kaye JA, in Barrow, appeared more supportive of Morosi. In relation to this case, Kaye JA stated: “The court clearly considered that ‘harm’ in s13 included potential harm to the plaintiff’s feelings resulting from the publication of the defamatory matter”.22

Conclusion

The majority of the Queensland Court of Appeal in Smith v Lucht construed “harm” narrowly for the purposes of the triviality defence. This case has recently been applied in Victoria and will continue to influence the construction of the defence when the issue arises for consideration in Victoria. The extent and reality of this influence remains to be seen. Smith v Lucht provides at least one certainty – one calls a lawyer Dennis Denuto at their peril.

 

Sally Whiteman is a barrister at the Victorian Bar.

1. Note the state and territory equivalents: s33 of the relevant state Defamation Act 2005 for Qld, Vic, NSW, WA; s31 in SA; s33 of Defamation Act 2006 (NT); s139D of Civil Law (Wrongs) Act 2002 (ACT).

2. [2011] VSC 574, [2015] VSCA 107.

3. [2016] QCA 267.

4. See Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89.

5. Wilson v Bauer Media (No 6) [2017] VSC 356, at [36].

6. [2011] VSC 574, at [163].

7. [2011] VSC 574.

8. [2015] VSCA 107, at [51]; [2011] VSC 574, at [161].

9. Note 3 above, at [77].

10. Note 3 above, at [58].

11. Note 3 above, at [61].

12. [2015] VSCA 107, at [52].

13. Note 12 above, at [56].

14. Note 3 above, at [99].

15. Note 7 above, at [162].

16. (2004) 61 NSWLR 614.

17. (2004) 61 NSWLR 614, 623, at [38].

18. Note 12 above, at [49].

19. Note 3 above, at [116].

20. [1977] 2 NSWLR 749.

21. (1984) Aust Torts Reports 80-691.

22. Note 12 above, at [47].

 


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