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This issue of The Law Society of South Australia: Bulletin is cited as (2020) 44 (11) LSB(SA). ISSN 1038-6777

CONTENTS

DEFAMATION FEATURES & NEWS

8

Protecting your business online: Lessons learnt from the recent High Court cases of Voller & Defteros

By Caitlin Walkington & Richard Bradshaw

12 Google is not a publisher for the purposes of defamation law – or is it?

By Ted Guthrie

20 Defamation reforms enhance press protections in matters of public interest – By Bec Sandford

24 How s10A of the Defamation Act 2005 (SA) has been applied by the Courts, and what it means for defamation going forward

By Paul Gordon & Tasman Wylie

26 A Snapshot of recent defamation cases in Australia – By Alexandra Douvartzidis & Caitlin Surman

Executive Members

President: J Stewart-Rattray President-Elect: J Marsh Vice President: A Lazarevich Vice President: M Tilmouth Treasurer: F Bell Immediate Past President: R Sandford

Council Member: M Mackie Council Member: E Shaw

Metropolitan Council Members

T Dibden M Tilmouth

A Lazarevich M Mackie

E Shaw J Marsh C Charles R Piccolo

M Jones G Biddle

D Colovic E Fah N Harb L MacNichol

L Polson M Young

Country Members

S Minney (Northern and Western Region)

P Ryan (Central Region)

J Kyrimis (Southern Region)

Junior Members

A Douvartzidis

A Kenny

Ex Officio Members

The Hon K Maher, Prof V Waye, Prof T Leiman Prof J McNamara

REGULAR COLUMNS

15 Women encouraged to apply for Step Up to the Bar program 22 Professor Cornish remembered for outstanding contribution to IP and academia 4 From the Editor 5 President’s Message 6 Dialogue By Rosemary Pridmore 16 From the Conduct Commissioner By Anthony Keane 18 Risk Watch: Dealing with witnesses with interests different from your client’s case – By Grant Feary

KEY LAW SOCIETY CONTACTS

Acting Chief Executive Rosemary Pridmore rosemary.pridmore@lawsocietysa.asn.au

Chief Operations Officer Dale Weetman dale.weetman@lawsocietysa.asn.au

Member Services Manager Michelle King michelle.king@lawsocietysa.asn.au

Director (Ethics and Practice) Rosalind Burke rosalind.burke@lawsocietysa.asn.au

Director (Law Claims) Kiley Rogers krogers@lawguard.com.au

Manager (LAF) Annie MacRae annie.macrae@lawsocietysa.asn.au

THE BULLETIN Editor

Michael Esposito bulletin@lawsocietysa.asn.au

Editorial Committee

A Bradshaw P Wilkinson

S Errington D Sheldon

A Douvartzidis C Borrelli B Armstrong D Misell M Ford

30 Tax Files: Payroll tax, grouping and joint and several liability

By Bernie Walrut

33 Wellbeing & Resilience: The Great Debate: “The Grass is Greener at the Bar” – By Rosa Torrefranca

34 Family Law Case Notes

By Chris Nichol & Keleigh Robinson 36 Bookshelf 38 Young Lawyers: The Golden Gavel returns – By Daisy McLeod

38 Gazing in the Gazette Compiled by Master Elizabeth Olsson

The Law Society Bulletin is published monthly (except January) by: The Law Society of South Australia, Level 10-11, 178 North Tce, Adelaide Ph: (08) 8229 0200 Fax: (08) 8231 1929 Email: bulletin@lawsocietysa.asn.au

All contributions letters and enquiries should be directed to

The Editor, The Law Society Bulletin, GPO Box 2066, Adelaide 5001.

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Exciting new chapter for The Bulletin

MICHAEL ESPOSITO, EDITOR

This edition of the Bulletin marks the end of an era and the start of a new chapter for the Law Society’s flagship publication.

Early next year, the Bulletin website will be launched, replacing the current format of the Bulletin.

As readers would be aware, the Society suspended printing hard copies of the Bulletin soon after the pandemic hit in 2020, due to a significant drop in advertising revenue which simply made it unviable to produce hard copies.

We have also noted that a majority of the profession has opted to receive the Bulletin by electronic means only, due to factors such as convenience and environmental concerns.

However, we appreciate that some members still prefer reading a physical version of the Bulletin, and for the digital afficionados, the current pdf and flipbook formats encourage a “front to back” reading of the Bulletin.

We have been working hard to create a Bulletin website that members will thoroughly enjoy reading.

Many things will stay the same, such as the quality of the content, the regular

columns, and the monthly themes. Each month, the homepage will be updated with a new set of articles.

I am excited about some of the features that will be available on the website. For example, it will be easy to search for past articles. For those interested in a particular area of law, or are after a summary of a certain case, they should be able to find the article with a simple search and click.

Members will also receive a monthly email summarising the content of the latest edition of the Bulletin.

I acknowledge that the new format may not be everyone’s preferred method of reading the Bulletin, but we hope we can deliver an enhanced reader experience for members.

Lastly, I would like to thank the Bulletin Committee, led by Chair Alison Bradshaw, for their efforts throughout the year in devising themed editions, suggesting and writing articles, proofreading, and providing guidance on the sensitive, thought-provoking, and passionate articles that from time to time come across our desks!

Merry Christmas and happy New Year to all. B

DEFAMATION DEFENCE

DEFAMATION REFORM

NEW CONDUCT COMMISSIONER Anthony Keane on his role as the new legal watchdog

Is it in the public interest?

The "serious harm" test in defamation law

Thanks for your support, it’s been a privilege to serve you

JUSTIN STEWART-RATTRAY, PRESIDENT

It’s hard to believe my year as President of the Law Society has almost come to an end. This really hit home at the President’s Cocktail Reception on 1 December, where I had the opportunity to thank everyone who supported me during my presidential year, from Law Society staff, the Executive and Council of the Law Society, special interest committees, colleagues and peers from the profession, my staff, and of course, my wonderful family.

I am looking forward to being able to spend more time with my wife and children next year, and I hope that feeling is reciprocated!

During my speech at the cocktail event, I briefly reflected on the year that was. With the Labor Party winning the election in March, it was always going to be a busy year as they got to work implementing their legislative agenda.

There were several occasions where we received little to no warning of the introduction of Bills, so had to act quickly to examine and make submission on significant pieces of legislation. With the generous support of committee members, we were able to influence legislation and hold our law-makers to account.

Advocating for transparency and accountability was a recurrent theme this year. One example of this was our call for a review of ICAC to ensure it was sufficiently equipped to hold public officers accountable, while also ensuring procedural fairness was afforded all parties. Earlier, we wrote to the Attorney

General explaining the cost provisions relating to persons investigated by ICAC who are subsequently charged with criminal offences. Last year’s rushed ICAC reforms had created confusion among members of Parliament about the cost provisions applied, and again it was thanks to committee members donating their time and expertise which helped the Society provide valuable advice to Parliament.

We have also tried to keep the media accountable. It is important to have a strong relationship with the media, and I have enjoyed engaging with the media to explain various legal issues. I have also at times been compelled to make some strong statements defending the role of lawyers, judicial decision-making, and the basic principle of innocent before proven guilty.

I cannot think of an issue that has ignited the ire of so many practitioners as the order of signing as advance care directives. I was pleased that so many of them felt strongly about the issue and signed a petition featuring 878 signatures which we submitted to the Health Minister. The Minister has so far been resistant to our repeated appeals to revoke the prescribed order of signing of ACDs, but I know the Society will continue to zealously advocate on this issue.

I was delighted to present the President’s Medal to Paul Black. Paul is the Co-Chair of the Society’s Accident Compensation Committee, and was instrumental in the Society’s advocacy this year in relation to significant workers’

compensation reforms introduced by the Government. Paul worked tirelessly in heading a subcommittee of the Accident Compensation Committee composed of worker and employer representatives to inform the Society’s submissions on the reforms at very short notice, under intense time pressure. Had the initial reforms not been proactively and consistently challenged by the Society and other stakeholders, access to compensation for injured workers in South Australia would likely have been significantly reduced, and we would have had a piece of legislation vulnerable to legal challenges on a number of fronts. Paul has since assisted with a submission relating to the review of section 18 of the Return to Work Act and most recently played a major role in developing a comprehensive submission to the Attorney-General’s Department in response to a review of the South Australian Employment Tribunal.

I also take this opportunity to thank Bec Sandford for her committed, diligent and hugely valuable contribution to the Society. Her term as Immediate Past President comes to a close on 31 December, and her expertise and guidance will be missed.

Lastly, it gives me great pleasure to pass the baton to James Marsh as of 1 January. James is a barrister at Mitchell Chambers who is very thoughtful and articulate and has a great sense of humour. I wish James all the best for his presidency in 2023 and I wish everyone a safe and happy Christmas and New Year. B

A roundup of recent Society meetings & conferences

ROSEMARY PRIDMORE, ACTING CHIEF EXECUTIVE

JOINT RULES ADVISORY COMMITTEE

MEETINGS – 11 AUGUST, 6 SEPTEMBER, 1 NOVEMBER, 2022

The President, Justin Stewart-Rattray, Chair of the Civil Litigation Committee, Alexander Lazarevich and Philip Adams, have attended meetings of the JRAC as the Society’s representatives. Matters discussed included:

• amendments to the Uniform Civil Rules and Uniform Special Statutory Rules as proposed by the Society in relation to forfeiture and freezing of monies held in legal practitioners’ trust accounts

• a proposal by the Society’s Civil Litigation Committee (endorsed by the Council) for a Commercial List and expedited Commercial List, which has been reviewed and developed and remains under consideration

• a draft protocol for online proceedings, which was developed and proposed by the Civil Litigation Committee

• a submission by the Society for a review of the Higher Courts Costs Scale.

MEETING WITH AMA(SA) –26 SEPTEMBER, 2022

Justin Stewart-Rattray and the former Chief Executive, Stephen Hodder met informally with the President, Dr Michelle Atchison and CEO, Dr Samantha Mead, of the Australian Medical Association (SA) to discuss matters of mutual interest.

MAGISTRATES ASSOCIATION OF SOUTH AUSTRALIA – 26 SEPTEMBER, 2022

At the invitation of the Chair of the Magistrates Association of South

Australia, Magistrate Jay Pandya, Justin Stewart-Rattray met with Magistrate Pandya to learn of the work and priorities of the MASA.

QUARTERLY MEETINGS OF LAW COUNCIL (LCA) DIRECTORS, CONFERENCE OF LAW SOCIETIES, CEOS OF LAW SOCIETIES; AND JOINT CEOS – 24 AND 25 JUNE (DARWIN), 16 AND 17 SEPTEMBER (VIDEOCONFERENCE)

Justin Stewart-Rattray (as President and also as Society appointed Director of the LCA) and Stephen Hodder variously participated in the above quarterly meetings. Key topics of discussion included bystander, unconscious bias and trauma informed practice training for the legal profession; anti-money laundering and the adequacy of the existing legal profession regulatory framework regarding money laundering; the age of criminal responsibility; and the establishment of a federal anti-corruption commission.

SMALL BUSINESS ROUNDTABLE –12 SEPTEMBER, 2022

The President, Director of Ethics and Practice and four Members in medium firms attended a breakfast consultation with members of the professional services industry by Hon Andrea Michaels MP, Minister for Small and Family Business, regarding a Small Business Strategy for South Australia.

MEETING WITH LEGAL PROFESSION CONDUCT COMMISSIONER –1 SEPTEMBER, 2022

Justin Stewart-Rattray, the Treasurer, Fraser Bell and Stephen Hodder met with the new Legal Profession Conduct Commissioner, Mr Anthony Keane.

PRESIDENT AND CEO OF THE LAW COUNCIL OF AUSTRALIA –18 AUGUST, 2022

Justin Stewart-Rattray and Stephen Hodder met (in Adelaide) with the President, Mr Tass Liveris and new CEO, Dr James Popple of the Law Council of Australia.

LANDS PARLIAMENTARY STANDING COMMITTEE – 17 JUNE, 2022

Richard Bradshaw, Co Deputy Chair of the Aboriginal Issues Committee and Justin Stewart-Rattray appeared for the Society before the above Parliamentary Committee to speak to the Society’s written submission, which was informed by the Aboriginal Issues Committee.

MEETING WITH LEADER OF THE OPPOSITION AND SHADOW TREASURER –14 JUNE, 2022

At the invitation of the Leader of the Liberals, David Spiers and the Shadow Treasurer, Matt Cowdrey, Justin StewartRattray, the Co-Chair of the Society’s Accident Compensation Committee, Paul Black and the Society’s Policy Coordinator, Nathan Ramos, met with Mr Speirs and Mr Cowdrey to discuss the Society’s submission in relation to the Return to Work (Permanent Impairment Assessment) Bill 2022. B

Protecting your business online: Lessons learnt from the recent High Court cases of Voller and Defteros

CAITLIN WALKINGTON, SENIOR LAWYER, AND RICHARD BRADSHAW, SPECIAL COUNSEL, JOHNSTON WITHERS

‘Intuition suggests that the remarkable features of the internet (which is still changing and expanding) makes it more than simply another medium of human communication. It is indeed a revolutionary leap in the distribution of information, including about the reputation of individuals. It is a medium that overwhelmingly benefits humanity, advancing as it does the human right of access to information and to free expression. But the human right to protection by law for the reputation and honour of individuals must also be defended to the extent that the law provides.1

Facebook pages were responsible for defamatory third party comments, posted by third party users, on those pages.

Rothman J at first instance dealt with the preliminary question of “Whether the plaintiff has established the publication element of the cause of action of defamation against the defendant in respect of each of the Facebook comments by third-party users that are alleged to be defamatory?”3

• Facebook could rank particular comments that are liked, shared or further commented on and give priority to that comment.

• Evidence was given that the Administrator of Fairfax’s Facebook page posted approximately 50 comments a day and each post could receive anywhere from 100 to thousands of comments.4

These

were the remarks of Justice Kirby in the High Court decision of Dow Jones & Company Inc v Gutnick and are as true today as they were in 2002.

These comments were made before the introduction of the (Uniform) Defamation Act 2005 and three years before Facebook, Twitter or Instagram even existed.

Since then, social media and the use of the internet have evolved in a manner that neither the legislators nor Kirby J could have foreseen, allowing defamatory material to be published and accessed in unprecedented ways.

It was therefore unsurprising, and long overdue, when the first amendments to the Defamation Act came into effect on 1 July, 2021.2 Subsequently, and unrelated to those amendments, the High Court has delivered two decisions relating to the issue of liability of publishers – in both instances involving online publications.

This article will address these Judgments and provide a timely reminder to business owners of their responsibility for protecting the reputation of others and their right to protect their own reputation online.

FAIRFAX MEDIA PUBLICATIONS PTY LTD V VOLLER

[2021] HCA 27

Voller concerned the Plaintiff, Dylan Voller. He argued that a number of media outlets (including Fairfax) who host

Indispensable in determining this issue was the Court’s understanding as to the involvement of the various players (third party users, hosts and Facebook) in the comments on these platforms. The Court found:

• Each media host published a link on its public Facebook page on which a story was introduced with an image, a headline and a comment. The link allowed people to access the full story.

• The host measured the number of visitors to its Facebook page and their website for the purpose of negotiating rates with advertisers.

• Facebook alerted the host each time a third party user commented or liked one of their publications.

• The Administrator of the host’s Facebook page had the ability to hide or delete comments. If a comment was hidden, it was only seen by the person who had written it, that person’s “friends” and the Administrator. It would then appear in grey so the person who wrote it was aware that it has been moderated. The Administrator could choose at a later time to make it visible. If it was deleted, then no one could see it.

• The host was able to interact with comments by liking, reacting, mentioning or sharing the third party user’s publication.

• The host could ban or block specific usernames, profanities or offensive words.

Rothman J found the media outlets to be primary publishers of the defamatory comments posted by the third party users. That decision was appealed to the Full Court where it was affirmed that the media outlets were publishers of the material.

The Full Court however, and importantly, did not make any finding as to whether the media outlets were primary or secondary publishers of the material and whether the defence of innocent dissemination was available to them, as the Full Court did not consider that issue formed part of the question posed of them.5 That point of law remains undetermined.

The Full Court’s decision was appealed to the High Court. Kiefel CJ, Keane and Gleeson JJ formed the plurality in affirming the media outlets' liability as publishers, and made the following comments (emphasis added):

‘The Court of Appeal was correct to hold that the acts of the appellants in facilitating, encouraging and thereby assisting the posting of comments by the thirdparty Facebook users rendered them publishers of those comments.6

The primary judge found that over 15 million Australians are Facebook users. The appellants chose to operate public Facebook pages in order to engage commercially with that significant segment of the population7 ... Having regard to those findings, the appellants’ attempt to portray themselves as passive and unwitting victims of Facebook’s functionality

has an air of unreality. Having taken action to secure the commercial benefit of the Facebook functionality, the appellants bear the legal consequences 8

In sum, each appellant intentionally took a platform provided by another entity, Facebook, created and administered a public Facebook page, and posted content on that page. The creation of the public Facebook page, and the posting of content on that page, encouraged and facilitated publication of comments from third parties. The appellants were thereby publishers of the third-party comments.’9

GOOGLE LLC V DEFTEROS [2022] HCA 27

The plaintiff was a Melbourne solicitor who specialised in criminal law. In June, 2004, he and a Melbourne gangland figure were charged with conspiracy to murder and incitement to murder of Carl Williams, his father and body guard. In August, 2005, the charges were withdrawn against the plaintiff, and his co-accused was murdered the day before his trial. This was highly publicised.

In early 2016, he became aware that an internet search of his name produced search results including the below snippet of an article published by The Age on 18 June, 2004:

“Underworld loses valued friend at court -SpecialsGanglandKillings … www.theage.com.au > Features > Crime & Corruption ▼

June 18 2004 - Pub bouncer-turnedcriminal lawyer George Defteros always prided himself on being able to avoid a king hit – The Age Online”

He issued proceedings against Google for defamation in which Google denied being the publisher as well as a number of other defences.

The Victorian Supreme Court was

asked to determine whether Google was the publisher in terms of the search results and the hyperlinked material (comprising the 2004 article).

The question of whether Google was liable for a defamatory search result and hyperlinked material had been answered in the affirmative in the SA Full Court in Google Inc v Duffy [2017] SASCFC 130. However, the Victorian Court considered a different issue:

“does Google publish defamatory material on a third-party webpage that is reached by a user who clicks on a hyperlink within an apparently neutral search result?10

Which was, at the time, still undetermined (as Duffy had dealt with a defamatory hyperlink reached from clicking on a defamatory snippet).

The High Court by majority comprising Kiefel CJ, Gleeson, Gageler, Edelman and Steward JJ; overturned the Full Court of Victoria’s decision and found that Google was not a publisher of hyperlinked material.

Kiefel CJ and Gleeson J stated (emphasis added);

‘It cannot be said that the appellant was involved in the communication of the defamatory material by reference to the circumstances in Webb v Bloch and Voller. It did not approve the writing of defamatory matter for the purpose of publication. It did not contribute to any extent to the publication of the Underworld article on The Age’s webpage.

It did not provide a forum or place where it could be communicated, nor did it encourage the writing of comment in response to the article which was likely to contain defamatory matter. Contrary to the finding of the trial judge, the appellant was not instrumental in communicating the Underworld article. It assisted persons searching the Web to find certain information and to access it.11

...there is a difference between drawing a person’s attention to the existence of an article and communicating its content. And whilst it may be said that the use of a hyperlink may mean The Age gains a reader, that does not make the appellant something other than a reference provider.’12

To reach this finding the Court had to critically review Google’s function, and the following findings were made with respect of this issue:

The critical feature is that the search result is no more than a designedly helpful answer to a user-initiated inquiry as to the existence and location of information on the Internet.13

By entering a search term into the Google search engine, the searcher looks for matter on a topic of interest to the searcher. By providing a search result, Google indicates where on the Internet that matter may be found. The hyperlink in the search result identifies the webpage on which matter on that topic is located. The hyperlink in the search result – no differently from any other hyperlink – also provides a shortcut which facilitates immediate access to the webpage should the searcher choose to take the further step of clicking on it. Having obtained the search result, including the hyperlink and the snippet, it is then up to the searcher to decide whether or not to take that further step of clicking on the hyperlink so as to access the webpage. Google does not, merely by providing the search result in a form which includes the hyperlink, direct, entice or encourage the searcher to click on the hyperlink.’14

The High Court found however that there could be situations in which Google would be a publisher of hyperlinked material. These included as a result of;

• The promotional system employed by Google in a particular circumstance;

• Enticement; and

• Incorporation.15

Examples provided by the Court included circumstances where Google was promoting the material (such as ranking it higher in the search results) or had included a defamatory snippet linking to the hyperlinked material (as in Duffy).

FUTURE CHANGES TO WHO IS A PUBLISHER IN THE ONLINE WORLD

Following the judgment of Voller media outlets expressed concerns that the floodgates would open, and they would face a greater risk of future liability. The judgment of Defteros may have alleviated some of these concerns, and has ultimately ensured that Australia’s position on the liability of publishers has greater consistency with other common law jurisdictions.

We suspect that lobbying will continue by media outlets for further legislative change.

Currently under review is a ‘stage 2’ reform to the Defamation Act, which will address, amongst other things, the question of internet intermediary liability for publication of third party content through the introduction of a new defence, with a new section 9A proposed.

The proposed defence, whilst perhaps not quite as broad as the defences available in the US and UK,16 would limit the liability of search engines such as Google as a secondary publisher of defamatory material. For example, the proposed defence would appear to be applicable in the situation seen in Duffy where the search result itself is defamatory - unless the search engine had prioritised or promoted the result (because of payment or other benefit it had received). The proposed defence may not however assist media outlets in cases like Voller.

TAKE AWAY MESSAGE FOR YOUR BUSINESS

Businesses should remain vigilant and exercise caution in respect to their online presence, e.g. in both:

• protecting their reputation against third party posts; and

• reducing their liability as a potential publisher of others' defamatory material.

In light of the recent case law, it would therefore appear that businesses need to:

• Exercise caution when publishing material from other websites via a hyperlink.

If it directs, entices or encourages someone to click on the link, then they will be liable for any defamatory hyperlinked material on the underlying material.

• Care should be given when publishing material on a business social media page especially when the intention is to encourage participation and discussion. If defamatory comments are left by a third party then, the business may be liable for these comments.

Note that it is presently unsettled law as to whether a business would be liable as a primary publisher or as a secondary publisher (who may have the defence of innocent dissemination available to them).

• Further, businesses should have a carefully considered online management plan of how to deal with third party comments of a defamatory nature, whether defamatory of their business or others.

It may be that the online management plan is to restrict third party users from commenting on their Facebook post (a functionality that Facebook allows) or that detailed and regular audits and censoring of comments are undertaken to ensure that defamatory material is not available.

• If you or your business has been defamed online, it is important that you take immediate action and pay attention to who is publishing the material and in what situation. There may be other parties who are liable for defamation, in addition to the person who posted the material. This is especially important if the identity of that person cannot be determined or they have insufficient means to appropriately compensate for any harm caused.

Keep in mind that not all businesses have a right to sue in defamation. If

a business operates as a corporation then it must have fewer than 10 employees (with part-time employees being calculated based on the appropriate fraction of the full-time equivalency) or its objectives must not include obtaining financial gain for its members or corporators.17

After several years without legislative developments, governments now appear eager to update the Defamation Act into the online digital age. With further changes foreshadowed, it will be prudent to watch this space for changes to publishers’ liability online. B

Endnotes

1 Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575, [164]

2 These amendments have not yet been legislated in WA or NT

3 Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766, [5]

4 A full list of the factual conclusions regarding the operation of the Facebook pages is at para [90] of the judgment.

5 Secondary publishers of defamatory material may rely on the common law or statutory defence of innocent dissemination where they prove they “neither knew, nor ought reasonably to have known, that the matter was defamatory”. The onus is on the secondary publisher to prove the defence and, where (and for as long as) the defence would otherwise apply (e.g. in the case of a search engine in respect of defamatory search results algorithmically generated) the secondary publisher will not be liable for any publication of such defamatory material until put on specific notice of it by the defamed person and given reasonable time to consider and remove it.

6 Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27, para [55]

7 ibid, [100]

8 ibid, [102]

9 ibid, [105]

10 Defteros v Google [2020] VSC 201 para [48]

11 Google LLC v Defteros [2022] HCA 27, para [49]

12 ibid, para [50]

13 ibid, para [73]

14 ibid, para [74]

15 ibid, para [217]

16 Under s230 of the Communications Decency Act 1996 (US) states that no provider or user of an interactive computer service shall be treated as a publisher and s5 of the Defamation Act 2003 (UK) states that operators of websites are not liable for defamation except in very specific circumstances eg where it is not possible to identify the publisher who posted the defamatory material..

17 Corporations may have the right to sue in injurious falsehood if defamation is not available.

GOOGLE IS NOT A PUBLISHER FOR THE PURPOSES OF DEFAMATION LAW – OR IS IT?

TED GUTHRIE, NEXUS CHAMBERS

Recently, the High Court delivered its reasons in the decision of Google LLC v Defteros1 concerning the issue of the liability of a search engine for defamation. In particular, the issue that arose was whether Google was liable as a publisher by facilitating access to an historic news article concerning Mr Defteros published by The Age in 2004, referred to as ‘the Underworld article’, by the provision of a hyperlink to that article in a search result.

Up until that point, the authorities in Australia – at trial and on appeal - had decided the issue against search engine operators (and in particular Google), finding that they are publishers of material on third-party websites hyperlinked by their search results.2

However, in Google LLC v Defteros, the majority (5-2) took a different view, ultimately holding that Google had not published the Underworld article. This was because Google had not ‘lent assistance’3 to The Age in communicating any defamatory matter contained in the Underworld article to third party users –the provision of a hyperlink in the search result, considered to be akin to a ‘contentneutral’ reference, merely facilitated access to the article, not amounting to publication.

Although providing some protection to search engine operators, the decision appears to leave open the question of whether or not such an operator might still be liable for defamation in circumstances that a search result is itself defamatory (as opposed to ‘content-neural’), thereby drawing the defamatory content of a thirdparty webpage to the attention of the user and acting as an enticement to click on the search result for more information.

THE CASE AND PROCEEDINGS

Mr Defteros is a solicitor who has practised in criminal law for many years. In the course of that practice, he acted for persons who became well-known during Melbourne’s ‘gangland wars’, including Mick Gatto and Mario Condello.

In 2004, Mr Defteros and Mr Condello were charged with conspiracy to murder and incitement to murder Carl Williams and others, and were committed to stand trial. In 2005, the Director of Public Prosecutions withdrew the charges against Mr Defteros and Mr Condello.

However, during the intervening period, the prosecution of Mr Defteros and Mr Condello was widely reported, including in The Age newspaper and articles that were placed on that newspaper’s website.

One of the articles published by The Age was the Underworld article, titled ‘Underworld loses valued friend at court’, first published on 18 June 2004, being the day after Mr Defteros was charged.

Many years later in early 2016, Mr Defteros became aware that an internet search of his name using the Google search engine produced a search result relating to the Underworld article, and which contained a hyperlink to the article on The Age website. The search result was as follows:

“Underworld loses valued friend at court -SpecialsGanglandKillings … www.theage.com.au > Features > Crime & Corruption ▼ June 18 2004 - Pub bouncer-turnedcriminal lawyer George Defteros always prided himself on being able to avoid a king hit – The Age Online”

Mr Defteros therefore issued proceedings against Google claiming that the search result and the Underworld article, referred to in the proceedings as the ‘Web Matter’, defamed him by imputing that he had crossed the line from professional lawyer for, to confidant and friend of, criminal elements (that imputation arising from the text in the Underworld article).

The trial judge, Richards J, concluded that Google “publishes a webpage that is reached by clicking on a hyperlink within the search result, because its provision of a hyperlinked search is instrumental to the communication of the content of the webpage to the user. The Google search engine lends assistance to the publication of the content of a webpage on the user’s device, by enabling the user to enter a search query and, a few clicks later, to view content that is relevant to the user’s search.”4 Her Honour reached this conclusion on applying the established principles in Webb v Bloch, 5 such that it followed that Google had published the Web Matter by providing a hyperlink in the search result to the Underworld article.6

Richards J proceeded to award Mr Defteros general damages of $40,000.

On appeal, the Victorian Court of Appeal held there to be no error in the trial Judge’s conclusion.7 Their Honours considered8 that the search result was an “enticement” to the reader to click on the hyperlink to obtain more information about Mr Defteros. In doing so, their Honours expressly approved the approach of Hinton J in Google Inc v Duffy 9 Their Honours also agreed with the approach of Kourakis CJ in Google Inc v Duffy and considered that the search result, containing the hyperlink

to the Underworld article, “incorporated” the content of the Underworld article even though it did not repeat any of the text in the article said to be defamatory of the respondent.10 The Court of Appeal considered that both the concepts of “enticement” and “incorporation” were said to reflect the broader test in Webb v Bloch because they fasten on steps that lend assistance to the publication. Their Honours considered that the combination of the search terms, the text of the search result and the insertion of the hyperlink both directed and encouraged the reader to click on the link for further information.11

REASONING OF THE MAJORITY IN THE HIGH COURT

Kiefel CJ and Gleeson J wrote a majority joint judgment, in which their Honours reiterated the broad rule as to publication in Webb v Bloch, 12 recently affirmed by the High Court in Fairfax Media Publications Pty Ltd v Voller,13 stating as follows:14

Publication was explained as the actionable wrong in the tort of defamation by which harm is occasioned to a person’s reputation. Publication was described as a technical term, which is to be understood as a bilateral act by which the publisher makes the defamatory material available and a third party has it available for their comprehension. It may be understood as the process by which a defamatory statement or imputation is conveyed. Adopting Webb v Bloch, any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher, regardless of their knowledge or intent. So understood, a person who has been

instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher. (citation omitted)

However, despite the breadth of the traditional rule as to publication, Kiefel CJ and Gleeson J noted that there are limits as to what actions are captured by the rule,15 referring extensively to the decision of the Canadian Supreme Court in Crookes v Newton.16

In that case, Mr Newton operated a website which contained commentary on issues such as free speech. One of the articles he posted on the website contained hyperlinks to other websites which contained information about Mr Crookes that were said to include matters defamatory of him. In his action brought against Mr Newton, Mr Crookes alleged that by providing the hyperlinks Mr Newton was publishing the defamatory matter.

Abella J (with whom Binnie, LeBel, Charron, Rothstein and Cromwell JJ concurred and McLachlin CJ and Fish J substantially agreed) noted that hyperlinks “are, in essence, references”17 to another source, which does not itself constitute publication of it.18 Abella J noted that a hyperlink simply communicates that something else exists – but the hyperlink itself does not communicate the content. It requires the act of a third party, clicking on the hyperlink, before access is gained to the content. And the fact that accessing content is made far easier with a hyperlink does not alter the fact that, by itself, a hyperlink is “content-neutral”.19

In drawing on the reasoning in Crookes v Newton and the notion of a ‘contentneutral’ reference, Kiefel CJ and Gleeson J concluded that Google was not a publisher, as follows:20

The question of whether the appellant could be said to participate comes down to the assistance provided by the hyperlink to move to another webpage. This is not a strong basis for liability and it finds no support in existing authority in Australia or recent cases elsewhere. As observed in Crookes v Newton, a hyperlink is content-neutral. A search result is fundamentally a reference to something, somewhere else. Facilitating a person’s access to the contents of another’s webpage is not participating in the bilateral process of communicating its contents to that person. To hold that the provision of a hyperlink made the appellant a participant in the communication of the Underworld article would expand the principles relating to publication.

Gageler J agreed with the conclusion reached by Kiefel CJ and Gleeson J, and their Honours’ reasons for reaching their conclusion.21 However, his Honour added his own observations.

Gageler J noted that the conclusion in Crookes v Newton, that a mere hyperlink is to be characterised as neutral referencing, and therefore does not amount to participation in the process of publication of the matter to a third party who clicks on the hyperlink, is by no means “incontestable”.22 And his Honour considered that the provision of a hyperlink might combine with other factors to amount to participation in the process of publication of matter on another webpage.23

Gageler J went on to refer24 to the decision of the South Australia Full Court in Google Inc v Duffy, in which his

Honour observed that the content of the search result was said to “entice” a third party to click on the hyperlink to obtain more information,25 because the search result “naturally invite[d] the reader to click on the hyperlink for explanation and elaboration”.26 Ultimately, Gageler J distinguished the circumstances in Duffy stating as follows:27

Unlike the position in Duffy, no feature of the content of the particular organic search result in the present case has been found to have operated as an enticement or encouragement to click on the hyperlink.

Edelman and Steward JJ also wrote a joint majority judgment, concluding that Google did not publish the Underworld article. Similar to Gageler J, their Honours distinguished the decision in Google Inc v Duffy in arriving at their conclusion (insofar as it was relied on by Mr Defteros in the appeal).

Their Honours observed that in Google Inc v Duffy, the Full Court decided that Google was the publisher of hyperlinks and snippets (ie the text in a search result) that were themselves defamatory and more directly drew the defamatory content of the third-party webpage to the attention of the searcher.28 Edelman and Steward JJ then distinguished the search result in the case before them, saying:29

The appellant’s search engine then produced a series of search results, one of which included a hyperlink to, and snippet of, the Underworld article. This search result, including the snippet, did not contain any defamatory material. This case is unlike Duffy

DISSENTING JUDGMENTS30

Gordon J wrote a detailed dissenting judgment, in which her Honour

concluded, based on an application of orthodox principles as to publication:31

Google published the Underworld Article. To conclude otherwise is contrary to the strict publication rule, recently restated by this Court in Fairfax Media Publications Pty Ltd v Voller. Google intended to publish the Underworld Article in the sense that its conduct was active and voluntary. Google intentionally participated in, lent its assistance to, was instrumental in and contributed to the communication of the Underworld Article by identifying, indexing, ranking and hyperlinking it within the search result. ... The Underworld Article was accessed in a comprehensible form by third parties who clicked on the hyperlink that the Google search engine system provided in the search result. The fact that the third parties had to click on the hyperlink does not alter the conclusion that Google published the Underworld Article. For a third party to access defamatory material in a comprehensible form often, if not always, involves an act by that third party – the turning of the head; the selection, buying and then opening of a newspaper and turning the pages of the newspaper; or, here, entering search terms and clicking on a hyperlink. (citations omitted).

Keane J agreed with Gordon J,32 writing a separate dissenting judgment.33

SUMMARY

After a decade of being found by Australian courts liable as a publisher for the purpose of defamation law, it is expected that the result in Google LLC v Defteros would have been very welcomed by Google, and search engine operators generally. However, as can be seen from the reasons of Gageler J and Edelman and

Steward JJ (albeit obiter), it is uncertain as to whether the decision ‘shuts the door’ entirely on claims against search engine operators in circumstances that a search result is defamatory, thereby drawing attention to a third-party webpage. That will be a matter likely to be decided in the near future. B

Endnotes

1 [2022] HCA 27.

2 Trkulja v Google Inc [2012] VSC 533; Duffy v Google Inc (2015) 125 SASR 437; Google Inc v Duffy (2017) SASR 304; Defteros v Google LLC [2020] VSC 219; Defteros v Google LLC [2021] VSCA 167.

3 In the sense described in the decision of the High Court in Webb v Bloch (1928) 41 CLR 331.

4 Defteros v Google LLC [2020] VSC 219 at [54].

5 (1928) 41 CLR 331.

6 Defteros v Google LLC [2020] VSC 219 at [61].

7 Defteros v Google LLC [2021] VSCA 167 at [92].

8 Defteros v Google LLC [2021] VSCA 167 at [85].

9 (2017) SASR 304 at 467 [599].

10 Defteros v Google LLC [2021] VSCA 167 at [86], citing Google Inc v Duffy (2017) 129 SASR 304 at 356 [173].

11 Defteros v Google LLC [2021] VSCA 167 at [87].

12 (1928) 41 CLR 331 at 363-364 .

13 (2021) 95 ALJR 767; 392 ALR 540.

14 Google LLC v Defteros [2022] HCA 27 at [21].

15 Google LLC v Defteros [2022] HCA 27 at [21].

16 [2011] 3 SCR 269.

17 Crookes v Newton [2011] 3 SCR 269 at 285 [27].

18 Crookes v Newton [2011] 3 SCR 269 at 284 [22]-[25].

19 Crookes v Newton [2011] 3 SCR 269 at 286 [30].

20 Google LLC v Defteros [2022] HCA 27 at [53].

21 Google LLC v Defteros [2022] HCA 27 at [59].

22 Google LLC v Defteros [2022] HCA 27 at [63].

23 Google LLC v Defteros [2022] HCA 27 at [66].

24 Google LLC v Defteros [2022] HCA 27 at [67].

25 (2017) 129 SASR 304 at 467 [599].

26 Referring to the first instance decision of Blue J in Duffy v Google Inc (2015) 125 SASR 437 at 500 [227]-[229].

27 Google LLC v Defteros [2022] HCA 27 at [71].

28 Google LLC v Defteros [2022] HCA 27 at [197].

29 Google LLC v Defteros [2022] HCA 27 at [217].

30 It is noted that in their dissenting judgments, Keane and Gordon JJ also addressed, and rejected, the defences of innocent dissemination and qualified privilege.

31 Google LLC v Defteros [2022] HCA 27 at [109].

32 Google LLC v Defteros [2022] HCA 27 at [76].

33 Google LLC v Defteros [2022] HCA 27 at [77].

Women encouraged to apply for Step Up to the Bar program

Females make up over 50 per cent of legal practitioners in South Australia however very few pursue a career as a barrister. The Step Up to the Bar program is an equal opportunity initiative of the Chief Justice of South Australia and the South Australian Bar Association aimed at bridging the gender divide at the Independent Bar and judiciary.

The program is a 12-month full time opportunity for female legal practitioners to gain experience within the higher court jurisdictions prior to pursuing admission to the Independent Bar of South Australia.

The participant will be appointed within Chambers of the Supreme Court

of South Australia. They will gain experience and exposure to complex legal cases and will work closely with the judiciary and an appointed Judicial Mentor. Recruitment and Selection

To be eligible for the Step Up to the Bar Program, the applicant must:

• be a female legal practitioner with an interest to pursue a career with the Independent Bar of South Australia;

• have demonstrated legal competence and expertise;

• have approximately five years postadmission experience;

• be admitted to the Supreme Court of South Australia;

• have a current and unrestricted practising certificate;

• have a National Police Check.

Applicants are required to submit the following:

1. Cover letter

2. Up-to-date curriculum vitae

3. Copy of current and unrestricted practising certificate.

Applications should be sent to dianne.mifsud@courts.sa.gov.au by 31 March 2023.

For more information, please contact: Dianne Mifsud, Executive Officer to the Chief Justice dianne.mifsud@courts.sa.gov.au B

LeMessurier Harrington Consulting has decades of experience helping legal practices to become more efficient, effective and profitable. As we have focused on risk and practice management with lawyers, we’ve seen the crucial role that administrative staff have in ensuring the legal team produces quality and error free work.

Engage us to upskill your administrative staff so they can be motivated and constructive team members. We present two in-house, 1 ½ hour workshop style modules.

For more information or to book a session contact us at lh@lhconsult.com.au, or ring

Sue 0409 007 501 or Jane 0404 888 450. www.lhconsult.com.au

Sue Harrington and Jane LeMessurier

The new Legal Profession Conduct

Commissioner: 3 months on

ANTHONY KEANE, LEGAL PROFESSION CONDUCT COMMISSIONER

On 1 August, 2022, I was appointed South Australia’s second Legal Profession Conduct Commissioner. I spent one week employed by my predecessor, Commissioner May, getting a feel for the Office. I know that Commissioner May would have preferred a longer handover period. A week was not a lot of time to gain much more than an impression of all that the role of Commissioner entails. I thank Commissioner May for his assistance and support in the transition and for his work undertaken over the last eight and half years to develop the role of Commissioner as a modern regulatory officer.

I have now had three months in the role and, I hope, I have a better grasp of my role in maintaining and, perhaps even, developing the profession’s standing in the community and my Office’s standing in the profession.

Touching first on the standing of my Office in the profession: I am concerned that there might be a segment, albeit a small segment, of the legal profession in South Australia which does not understand the role of the Legal Profession Conduct Commissioner. I say this because there are practitioners who, notified that a complaint has been made against them and that I am required to undertake an investigation, fail to cooperate with my investigators.

In case the failure to cooperate arises from a misunderstanding as to my regulatory role, I provide the following summary of the complaint and investigation process.

• The majority of investigations arise from complaints by members of the public, generally clients or other parties in disputes. To a lesser extent, complaints are received from other practitioners.

• If a complaint meets the statutory threshold (s 77B(2)(b) and (3a)), and unless one of the available exceptions applies (s 77C), an investigation is mandatory. In essence, the bar for commencing an investigation is

quite low and is not indicative of an acceptance of the merits of a complaint nor of prejudgment.

• Once an investigation has been commenced, the complaint will usually be “published”. That is, the Practitioner will be provided with a copy of the complaint or a summary of the complaint as best it is understood. The Practitioner will be asked to respond to the complaint. I emphasise, the request for a response comes without prejudgment and in many cases without any “filter” being applied. Practitioners are often asked to respond to the words used by the complainant to avoid the investigator “colouring” the complaint.

• It is worth noting that, although the bar for commencing an investigation is low, I receive many complaints which do not reach that bar. In most of those cases, I will dispose of the complaint under s 77C and the Practitioner will not be aware a complaint was made.

• Invariably, should you receive a published complaint, the appropriate course is to respond in a timely way. Certainly, take advice or obtain assistance. If you require additional time: please ask (and explain the reason why additional time is required). Reasonable requests will be accommodated. Please, do not “ghost” me or my staff. Noncooperation will not benefit you irrespective of whether you have behaved in the manner complained about or not.

• One of the investigatory powers at my disposal is the power to require a practitioner to provide written information within a specified period (Schedule 4, clause 4). There are penalties for non-compliance with a requirement imposed upon you, non-compliance may constitute unsatisfactory professional conduct or professional misconduct (and result in further investigation) and the requirement to comply is continuing. I can assure you that my staff and I take no pleasure in issuing Schedule 4

Notices, nor in laying charges before the Legal Practitioners Disciplinary Tribunal for non-compliance with such Notices.

• When the investigation is complete, I will make a determination.

• The determination process currently involves me forming a “preliminary view” as to whether there is a basis for taking disciplinary action and seeking a response from practitioner and complainant. If I form and maintain a preliminary view that there is a basis for disciplinary action, I form a “preliminary view” as to the appropriate sanction and seek responses. It is only after the practitioner and complainant have been provided the opportunity to be heard on both of these preliminary steps that a determination will be made.

I recognise that receiving a published complaint may well cause anxiety and will inevitably require a practitioner to invest time in responding to the complaint. Practitioners may feel incensed at having to take time away from a busy practice and (billable) client files to respond to what they may see as misconceived and, in some cases, vexatious complaints about them. Nevertheless, the most efficient and effective way of dealing with such complaints will always be, I suggest, in addressing them in a timely way.

Of course, some failures to cooperate might not stem from a misunderstanding regarding the role of Commissioner as this does not appear to be a new practice. In reading some old Bulletin articles I came across a 2003 article by Sue Raymond, then Director of the Legal Practitioners Conduct Board (Board). In her article, Ms Raymond emphasised the need for honesty and frankness in dealings with the Board and highlighted circumstances in which the lack of honesty and frankness compounded the misconduct of the practitioner. Ms Raymond’s advice remains compelling.

So, if you receive correspondence from my Office publishing a complaint, I implore you to place it on the top of your “to do” pile. B

Annual Cyber Threat Report

Dealing with witnesses with interests different from your client’s case:

what do you do? Critical guidance for litigation lawyers

GRANT FEARY, LEGAL RISK COUNSEL, LAW CLAIMS

The Victorian Court of Appeal has recently delivered a decision which contains important guidance on a difficult situation often faced by litigation lawyers i.e. dealing with witnesses in civil cases where there is a risk that the witness’ evidence might give rise to a subsequent criminal prosecution.

THE FACTS

The case is State of Victoria v Villan [2022] VSCA 106 which held, in effect, that in certain circumstances practitioners are under a duty to notify witnesses in civil cases that allegations made against the witness may result in criminal charges and that giving evidence in the civil case may have consequences if any criminal prosecution is launched.

Mr Villan, a former pupil of a state school, sued the State of Victoria for compensation arising from a sexual assault allegedly committed by the principal of the school (Mr G). On the second day of the trial, in the course of giving evidence, Mr Villan said that he had decided that he would be making a complaint to the police about Mr G’s alleged conduct. Mr G was a key witness for the State. Upon being informed of Mr Villan’s intention to report the matter to the police (which had not been done earlier), Mr G sought independent legal advice and the civil proceedings were adjourned. The matter had been proceeding before judge and jury, in accordance with the law in Victoria. After receiving independent legal advice, the principal declined to give evidence in the civil trial. The jury was discharged and the civil trial was then stayed until the question of the criminal investigation/any prosecution was dealt with.

The Trial Judge then ordered that the State should pay Mr Villan’s costs thrown away by reason of the adjournment of the trial. This was because the Trial Judge was of the view that the State’s lawyers had not adequately informed Mr G before the trial as to the risk he faced of criminal investigation

and prosecution arising from the allegations made against him, or that giving evidence in the civil proceedings might have an impact on any criminal investigation or prosecution. The State sought leave to appeal from the Trial Judges’ cost ruling.

THE APPEAL DECISION

The Court of Appeal found there were exceptional circumstances and granted leave to appeal but dismissed the appeal. On the question of leave to appeal the Court of Appeal said that the application

“raise[d] questions concerning the scope of a solicitor’s legal and ethical obligations to a witness in a context such as the present. Those are important questions of principle, quite distinct from the question of costs.” [para 42]

Further, the Court of Appeal said

“…while the issue has arisen in a particular factual context, it is not a rare factual context. There will be many cases in which a defendant to a civil proceeding wishes to call a witness whose interests do not entirely align with the defendant’s interests, and who might be at risk of criminal prosecution.” [para 44]

It was found that, in dealing with Mr G, the lawyer for the State had, on several occasions, informed Mr G

1. that he was not acting for Mr G but acting for the State;

2. that he could not advise Mr G;

3. that he (Mr G) should seek independent legal advice; and

4. that such advice could be obtained via the Law Institute of Victoria’s lawyer referral service.

Notwithstanding these facts, both the Trial Judge and the Court of Appeal found that

• the State’s lawyer did not go far enough in the lawyer’s communications with Mr G in that Mr G was not advised of the risk of exposure to criminal prosecution on the basis of the allegations made, or the impact that giving evidence in

the civil proceedings might have on any criminal prosecution; and

• it was inevitable that before he gave evidence Mr G was going to require independent legal advice as to these matters.

The Court of Appeal did say, however, that there was no dispute that the State and its lawyers were not required to provide Mr G with the relevant legal advice, and that they could not do so: it was said that that was obvious. The problem was that the information that was given to Mr G should have given him some greater indication of why he needed independent legal advice, without descending into actually providing that advice. The Court of Appeal said:

“In this respect, the State, through its solicitors, could have simply added two matters to its correspondence or conversation with [Mr G]:

• first, it could have stated that the matters alleged against [Mr G] could result in criminal charges being laid against him; and

• second, it could have included a short sentence to the effect that, if [Mr G] were to give evidence in the civil proceedings, that could have consequence for him if criminal charges were laid in the future.” [para 62]

Further, in respect of sub-paragraph (b) above, the Court of Appeal said:

“In our opinion, a statement of that kind does not involve the provision of legal advice; nor does it appear to us that it would place the solicitors for the State in a position of conflict. It is a relatively simple factual statement that would have provided [Mr G] with a greater understanding of why he ought to obtain independent legal advice, and this might have prompted him to do so.” [para 64]

It was, however, said that it was not necessary for the State’s lawyers to draw Mr G’s attention to his right to silence or to include any statement to the effect that

“giving evidence in this means that you are not maintaining your right to silence and you may be exposed.” [para 65]

To descend into detail of that kind, according to the Court of Appeal, might properly be described as the giving of legal advice:

“[t]hus, merely informing [Mr G] that there could be consequences does not mean that he should be advised as to what these consequences might be.” [para 65]

Lawyers therefore need to identify the issue and say that there might be consequences, but not go so far as to actually say what those consequences might be as that would be giving legal advice. This might well be a very narrow tightrope upon which to walk.

It was noted that the State’s lawyer had complied with the Law Institute of Victoria’s (LIV) Interviewing and conferring with witnesses guidelines. It was noted that it was “unfortunate” that the LIV Guidelines were silent in relation to the manner in which a solicitor should deal with a witness in a civil proceeding who might be subjected to future criminal proceedings in relation to the conduct in issue. The Court of Appeal suggested that those Guidelines be updated, which as of 12 October 2022 the LIV has done.

There are (currently) no SA guidelines equivalent to the LIV guidelines mentioned above. In this regard, the rules

contained in the South Australian Legal Practitioners Conduct Rules [see Rules 22.4 and 23-26] are applicable, however these too are silent as to the issue that came before the Court in Villan. It is suggested that the reasoning in that case is likely to be applicable in situations other than civil sexual assault cases, such as in civil cases where there is the potential for criminal prosecutions or regulatory proceedings in, for example, the areas of work health and safety issues or financial market issues. All litigation lawyers would do well to familiarise themselves with the principles set out in Villan’s case.

DEFAMATION REFORMS ENHANCE PRESS PROTECTIONS IN MATTERS OF PUBLIC INTEREST

BEC SANDFORD, SPECIAL COUNSEL & SIMONE BASSO, LAW GRADUATE, HWL EBSWORTH LAWYERS

Defamation law in Australia has undergone significant change over the last couple of years, in particular since June, 2018, when the Council of Attorneys General convened the Defamation Working Party (DWP) to undertake a national review of the model defamation provisions across Australia.1

Two years later, the Council of Attorneys General agreed that the defamation laws across Australia would be amended in an effort to address a number of the key issues identified as part of its review. This led to the introduction of the Model Defamation Amendment Provisions 2020 (Stage 1 Reforms), which commenced in a number of jurisdictions including South Australia on 1 July, 2021.2

In South Australia, the Defamation (Miscellaneous) Amendment Bill 2020 (SA) made substantial amendments to the Defamation Act 2005 (SA) and some related amendments to the Limitation of Actions Act 1936 (SA).3 The Bill takes into consideration the purpose of the provisions within the Defamation Act 2005 (SA) (the Act), which were introduced on the basis that they would “ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance”.4

A number of important changes were made by way of the Stage 1 Reforms, including the introduction of a new “public interest defence”.

THE PUBLIC INTEREST DEFENCE

The public interest defence was introduced to South Australia by the

insertion of section 27A to the Defamation Act 2005 (SA).5 Largely based on a similar defence in the UK’s Defamation Act, 6 section 27A provides that it is a defence to a publication of defamatory matter if a respondent proves that:

• the matter concerns an issue of public interest; and

• the respondent reasonably believed that the publication of the matter was in the public interest.7

In determining whether the defence is established, the Court must take into account all of the circumstances of the case,8 and may take into account a number of additional factors. Those include (but are not limited to) the seriousness of any defamatory imputation carried by the matter published; the extent to which the matter published distinguishes between suspicions, allegations and proven facts, or relates to the performance of the public functions; whether it was in the public interest for the matter to be published expeditiously; and the integrity of the information source.9

WHY MAKE THE CHANGE?

Prior to the Stage 1 Reforms, the defence of qualified privilege under section 2810 of the Act was intended to cover public interest matters. However, defendants (in particular media entities) historically found it challenging to establish the defence,11 and submissions to the DWP indicated that the courts’ highly restrictive approach to the reasonableness test under that section gave it such a high threshold that the qualified privilege defence was rendered of little to no use in practice.12

In her second reading speech for the Stage 1 Reform, the Honourable Vickie Chapman, made clear the difficulties with the qualified privilege defence as it stood, and the barrier that it presented:

Firstly, the defence requires each person who received the material to have ‘an interest or apparent interest in receiving the material’. This is harder to prove than a publication that is made to the general public.

Secondly, the list of factors to be considered when deciding if the conduct was reasonable is often applied as a checklist of steps the media should have taken, rather than simply guidance as to relevant consideration. Courts apply the standard of reasonableness in a very stringent way and often apply the benefit of hindsight.

Thirdly, journalists often rely on confidential sources and so in litigation they will refuse to reveal the identity of their informant, consistent with their ethical and professional obligations. A use of confidential sources is sometimes used as an argument that a publisher has failed to meet the standard of reasonableness.13

As a result of the Stage 1 Reforms, the qualified privilege defence was amended to narrow the list of factors assessing reasonableness, such that it is no longer necessary to provide that the matter published concerned an issue of public interest. Instead, the new public interest test was inserted in the Act in an effort to provide additional protection for journalists and media organisations, particularly those publishers whose content may be considered controversial from a governmental or authoritative perspective.

The amendments are also intended to encourage freedom of expression and discussion of public interest matters. In many respects, this is nothing new - keeping in mind that defamation law in general is designed to find a balance between freedom of expression and protecting an individuals’ right from personal attack on their reputation. That said, whilst this amendment is expected to afford some further protection for journalists, it does not provide for unrestricted freedom. To successfully defend a claim, publishers will still need to prove they had a reasonable belief that the publication was in the public interest.14

WHAT DOES THE PUBLIC INTEREST DEFENCE LOOK LIKE IN PRACTICE?

No South Australian court has yet considered the application of the new public interest defence. A case currently before the Federal Court of Australia may be the first to consider it in Australia.

In mid-2021, Lachlan Murdoch, the Fox Corporation CEO, filed a defamation action against Private Media, claiming that one of its subsidiaries, Crikey, had published a defamatory article in respect of Mr Murdoch, titled ‘Trump is a confirmed unhinged traitor. And Murdoch is his unindicted co-conspirator’. Mr Murdoch claims that the article contains defamatory statements which name his family as the “unindicted co-conspirators” of the insurrection at Capitol Hill.15

Crikey has reportedly relied upon the new public interest defence in its pleadings.16 Will Hayward, CEO of

Private Media, has stated that “Crikey did not believe it should be prevented by law from stating honestly held opinions, as an act of free speech, on a matter of obvious and high public interest”.17

The matter is still before the Court and has not yet been set down for trial.18

WHAT’S NEXT?

Following on from the Stage 1 Reforms, the Standing Council of Attorneys-General (formerly the Meeting of Attorneys-General) is now progressing with the Stage 2 Reforms,19 which will focus on two key issues:

• the liability of internet intermediaries for defamatory material published online by third-party users; and

• whether absolute privilege should be extended to reports of illegal and unlawful conduct made to police and statutory investigative bodies, employers, and disciplinary bodies.20

Submissions for the Stage 2 Review closed on 9 September, 2022, and the review of those submissions is currently underway - so watch this space.21 B

Endnotes

1 South Australia, Parliamentary Debates, House of Assembly, 14 October 2020 (the Hon V.A. Chapman).

2 Ibid.

3 Ibid.

4 South Australia, Parliamentary Debates, House of Assembly, 2 March 2005, 1835.

5 Model Defamation Amendment Provisions 2020 (SA).

6 Defamation Act 2013 (UK) s 4.

7 Defamation Act 2005 (SA) s 27A(1).

8 Defamation Act 2005 (SA) s 27A(2).

9 Defamation Act 2005 (SA) s 27A(3).

10 This defence provided that, in determining whether a publisher’s conduct was reasonable in the circumstances, regard was to be had to a number of factors which reflect a similar list to those mentioned above in respect of the new public interest defence.

11 Department of Communities and Justice (NSW), ‘Council of Attorneys-General: Review of Model Defamation Provisions’ (Discussion paper, February 2019) 27.; See also Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211, [263]-[264] (McHugh J).

12 Department of Communities and Justice (NSW), ‘Council of Attorneys-General: Review of Model Defamation Provisions’ (Discussion paper, February 2019) 27.

13 South Australia, Parliamentary Debates, House of Assembly, 14 October 2020 (the Hon V.A. Chapman).

14 Defamation Act 2005 (SA) s 27A.

15 Isobel Roe, ‘Lachlan Murdoch’s bid to strike out parts of Crikey defamation defence fails’, ABC News (Web Page, 21 October 2022) <https:// www.abc.net.au/news/2022-10-21/lachlanmurdoch-crikey-defamation-defence-strikeout/101562412>.

16 Kalila Welch, ‘Crikey to uphold new public interest defence in Murdoch defamation trial’, Mumbrella (Web Page, 23 September 2022) <https://mumbrella.com.au/crikey-to-upholdnew-public-interest-defence-in-murdochdefamation-trial-757492>.

17 Ibid.

18 Roe (n 13).

19 See Department of Communities and Justice (NSW), ‘Stage 2 Review of the Model Defamation Provisions, Part A: liability of internet intermediaries for third party content’ (Background Paper, August 2022).

20 Department of Communities and Justice (NSW), ‘Attorneys-General Review of Model Defamation Provisions – Stage 2’ (Discussion Paper) 6.

21 ‘Standing Council of Attorney’s General’, AttorneyGeneral’s Department (Web Page) <https://www. ag.gov.au/about-us/who-we-are/committees-andcouncils/standing-council-attorneys-general>.

Professor Cornish remembered for outstanding contribution to IP and academia

Professor William (Bill) Cornish, who graduated in law from the University of Adelaide in 1960, became a world authority on the law of intellectual property in the UK while simultaneously making a major contribution to modern English legal history and to assistance to Central and Eastern European universities following the end of Communist rule.

Many members of South Australia’s legal fraternity who knew Bill or who are aware of his significant influence on these aspects of the law will be interested to know that since his death on 8 January 2022 he remains very much in his colleagues’ minds.

There was a weekend conference in his memory on 2-3 September at Warsaw University. Speakers included current and former Advocates General at the Court of Justice of the EU and academics/ practitioners from renowned Universities from around the world.

The theme of the conference was how IP law continues to present both opportunities and challenges.

The London School of Economics held a two-hour colloquium to commemorate Bill on 29 September. It is understood that this will be part a suite of several colloquia in his honour.

At Cambridge University, where he held the Herchel Smith Professorship of Intellectual Property Law, and was President of Magdalene College from 1998 to 2001, a memorial occasion is currently being planned. The links below lead to the many personal tributes recorded by Cambridge colleagues and friends.

https://www.squire.law.cam.ac.uk/ eminent-scholars-archiveprofessor-williamrodolph-cornish/memory-professorwilliam-rodolph-cornish

https://www.cipil.law.cam.ac.uk/ peoplemembers/memoriam-bill-cornish Obituaries and tributes to Bill on the internet are numerous. The London School of Economics writes:

“He was a huge figure in the field of Legal History and Intellectual Property, playing a major role in the formation of IP law as an academic discipline at the LSE and in the UK.”

The obituary from Sir Christopher Greenwood, Master of Magdalene College, Cambridge says:

“A distinguished legal scholar, he made an enormous contribution to the development of the law on intellectual property and played a leading role in aid to East European universities.”

The obituary from the Max Planck

Institute for Innovation and Competition honours Bill by saying:

“Bill Cornish was a world leader in the field of Intellectual Property Law to whom our Institute owes an extraordinary debt of gratitude.”

Readers of this article who care to follow the links provided, or to search the internet themselves, will discover the vast list of his publications which have become essential texts in the teaching of law. They will also learn of the honours bestowed on Bill by universities in different countries, including an honorary doctorate from the University of Adelaide in 2018. They will also be left with an impression of a kindly person who inspired many others into new ways of thinking about the law. B

Emeritus Professor William Rodolph Cornish.

Photo: Eminent Scholars Archive, University of Cambridge

Bill Cornish with his mum Betty in Adelaide in 1940. Photo: Eminent Scholars Archive, University of Cambridge

A Ministry of Mercy Education Ltd 53 Wakefield St, Adelaide

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Inspiring Passion & Purpose

Learn more at sac.sa.edu.au

Testing the hurdles: How s10A of the Defamation Act 2005 (SA) has been applied by the Courts, and what it means for Defamation matters moving forward

PAUL GORDON, PARTNER AND TASMAN WYLIE, SENIOR ASSOCIATE, WALLMANS LAWYERS

Defamation

actions, once the province of the rich and famous, has in recent years become the battleground of the masses thanks to the rise of social media. With only 1 in 5 defamation plaintiffs public figures,1 and some damages awards in social media defamation cases being out of proportion to the legal costs,2 parliaments around the country took steps to reform the uniform Defamation Act. Now that the Courts were being tasked with not only the question of whether a film star was defamed by a tabloid,3 but whether a Google Review had damaged a business,4 or a zipper faced emoji could harm someone’s reputation.5

Against this background, on 1 July, 2021 s10A of the Defamation Act 2005 (SA) (the Act)6 introduced a requirement that any cause of action brought in Defamation be subject to a test of whether the defamatory publication has or is likely to cause serious harm to the plaintiff’s reputation.

The change was made to prevent defamation cases being used as a forum for resolving interpersonal disputes, preserving the Courts for the protection of public reputation from serious harm only.7

To resolve this issue8 parliament intends to ‘filter out minor cases that are more in the nature of interpersonal rather than legal disputes’ by raising the bar and making it more challenging for those matters to get to trial.

S10A OVERVIEW

Section 10A provides that the plaintiff must prove that serious harm has been, or is likely to be, caused to their public reputation.9 In the case of corporate plaintiffs, serious harm will only be found if they have suffered, or are likely to suffer, serious financial loss.10

The determination of whether serious harm has occurred may, in absence of special circumstances, be heard prior to trial on the application of a party, or at a Court’s own volition. If it is not established, the case may be dismissed.11

It is also worth noting that s12A of the Act has also been amended such that the requirements of a concerns notice necessitate the particularisation of what harm the applicant claims to be serious is caused by the publication.12

All of this leads us to the inevitable question: What is ‘Serious Harm’?

WHAT CONSTITUTES SERIOUS HARM?

At the time of writing, there have been no published decisions before the South Australia Courts considering the serious harm test. The Supreme Court of New South Wales has, however, provided a useful analyse of the provision. 13

In absence of legislative definitions, the NSW Supreme Court took guidance from the UK position14, where a similar requirement of Serious Harm has been in place for some time, and provided a useful summary of the test to be applied: 15

1. the plaintiff must satisfy the threshold that the publication has or is likely to cause serious harm;

2. ‘Serious Harm’ involves harm that is more than merely substantial, though it need not be grave;

3. no matter how distraught a plaintiff may be, the requirement for serious harm to reputation arises from the inherent tendency of the words and their actual impact on those to whom they were communicated, the gravity of an imputation won’t satisfy the matter on its own;

4. matters relevant to the assessment are the meaning of the words, extent of publication, nature of the relationship between the recipient and the applicant and if the publication was believed; and

5. ‘[a] grave imputation may not result in serious harm, typically where the publication is to a small number of persons well acquainted with the plaintiff who are not disposed to believe it, and any impact of the imputation on the plaintiff’s reputation is transitory or ephemeral.16’

Key to the above is that each case will turn on its particular facts. We have seen imputations that a plaintiff stole his ex-partner’s car, stalked his ex-partner and inflicted violence and mental abuse on her (as well as violence against another man)’ not to be ‘Serious Harm’ due to the publication being limited to the plaintiff’s parents;17 a plaintiff whose new employer was informed of accusations that she had stolen $1,000 worth of scissors and had left employment for mental health reasons after being caught was not ‘Seriously Harmed’ because the publication had no impact on their employer’s views of the plaintiff, and whilst justifiably distressed and angry, the plaintiff could not identify any adverse outcome to her employment;18 whilst a person accused of being racist and a paedophile was held to have suffered serious harm where the imputations were published on Instagram to an account with more than 24,500 followers.19

Both the concerns notice and the statement of claim should now include particularisation of the serious harm suffered or likely to be suffered.20 The particularisation in both the concerns notice and statement of claim should not merely rely upon a conclusion that serious harm is self-evident from the gravity of the imputations pleaded, but rather directly address the facts of the case and the damage actually (or likely) to have occurred.

STOP TRYING TO MAKE MINI-TRIALS HAPPEN.

Equally important to the question of whether Serious Harm has been established is the procedure for its establishment.

As noted above, rather than happening during a trial, s10A assessments can (on the request of a party, or the order of the Court) be determined prior to trial. The idea behind this is to filter out cases before prior to the parties engaging in the expense of full litigation of a matter.

The difficulty created by this approach is that the Court will need to take a position on several questions that are normally key to a trial on defamation (what was published, to whom it was published, and what imputations arose from the relevant publications) in order to make a s10A assessment. The legislation does not allow for this to be determined solely on the pleadings in every case, as the actual impact of the imputations, rather than just the ordinary meaning of the imputations themselves, must be assessed in cases that are not trivial or frivolous.

There does not appear to be a universal approach to whether separate s10A hearings will be heard pre-trial in every case. Examples can be found of matters being determined on the pleadings,21 at a pre-trial hearing,22 and during the trial itself.23

Whilst this may assist in limiting costs for a matter that does not make out the Serious Harm element, it does raise the question of whether the imposition of this kind of dis-joinder of issues will in fact increase the cost, complexity and time taken to litigate defamation actions. 24

The Courts could, of course, determine that the expense of such matters in a particular case constitute ‘special circumstances’ not to have the matter heard pre-trial. The most detailed consideration of this term to date arises from the judgment of Clayton J in Wilks v Qu [2022] VCC 620, where the Court allowed a pre-trial s10A hearing, having concluded that the likely outcome of a s10A hearing would either involve:

a. no serious harm being found, resulting in a significant saving of pre-trial costs;

b. serious harm being found to be made out in some, but not all, publications, leading to a reduction in the scope of the trial and thus a cost saving for the parties; or

c. serious harm being made out on all publications, leading to a marginal costs difference from having two hearings.

WON’T SOMEBODY THINK ABOUT THE MASSES?

Whilst the full impact of this amendment upon the volume and seriousness of defamation cases brought will not be known for some time, it is clear that any person considering an action in defamation would be remiss not to give proper consideration to the serious harm requirement at an early stage.

The second reading speech for the insertion of s10A acknowledged that ‘many legal actions result in small awards but are of course, worthwhile’.25 Having considered whether court action was appropriate for these cases, Parliament decided it was not. There has not, however, been an answer provided as to what remedy should be available for parties who do have a legitimate cause of action, but who cannot satisfy the now higher bar of s10A. Whilst defamation claims can continue to be brought in the minor civil jurisdiction of the Magistrates Court, the serious harm bar will still apply, making it less likely to provide quick, efficient and cost effective resolution.

Whilst some new remedies, such as those provided by the Online Safety Act 2021 in the case of electronic publications could act as a partial solution. The Online Safety Act has created a world first adult cyber abuse scheme which may assist those targeted, at least online, with abusive or harmful remarks of an interpersonal nature but potentially non-commercial (although that is not to say that in certain situations an individual might not avail themselves of both regimes). This action, however, can only be taken by the e-Safety Commissioner, and not by a party personally, meaning that it may still remain out of reach.

Alternative remedies that have been canvassed in the past include rights of reply, apologies, court-ordered corrections, or the introduction of a defamation commissioner26 however none have been seriously considered by Parliament. Until there is a low cost, or no cost jurisdiction

to handle these minor claims, sadly the trolls of the internet may be able to sleep easily (provided they only cause a nuisance rather than serious harm!). B

Endnotes

1 South Australia, Parliamentary Debates, The Hon. R.I Lucas 15 October 2020, second reading speech, https://hansardsearch.parliament.sa.gov.au/daily/ uh/2020-10-15/44 , second reading speech

2 See eg. McEwan v McDaniel [2020] QDC 321

3 Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154

4 Cheng v Lok [2020] SASC 14

5 Burrows v Houda [2020] NSWDC 485

6 These provisions were also adopted in Vic, NSW, QLD, TAS and ACT

7 South Australia, Parliamentary Debates, The Hon. R.I Lucas 15 October 2020, second reading speech, https://hansardsearch.parliament.sa.gov.au/daily/ uh/2020-10-15/44 , second reading speech

8 Ibid

9 Defamation Act 2005 (SA) s10A(1)

10 A corporation with fewer than 10 employees or not formed for obtaining financial gain for members (s9)

11 The issues may also be determined on the pleadings s10A(7)

12 Defamation Act 2005 (SA) s12A(a)(iv)

13 Newman v Whittington [2022] NSWSC 249

14 Ibid at 40 and 43.

15 [2022] NSWCA 198 at [28]-[29]

16 Ibid at [28.4.]

17 Rader v Haines [2021] NSWDC 610.

18 Zimmerman v Perkiss [2022] NSWDC 448

19 Martin v Najem [2022] NSWDC 479.

20 Defamation Act 2005 (SA) s12A, Zimmerman v Perkiss [2022] NSWDC 448 [at 13-14] and Randell v McLachlain [2022] NSWDC 506 [at 75]

21 Newman v Whittington [2021] NSWDC 610

22 Wilks v Qu [2002] VCC 620

23 Rader v Haines [2021] NSWDC 610.

24 As observed by the Court in Wilks v Qu [2002] VCC 620, the Defamation Act 2013 (UK) which has formed the basis of significant comparative analysis by Australian Courts does not contain an analogue to s10A(5), though it was noted in Rader v Haines [2021] NSWDC 610 at [2.3] that ‘imputation rulings and serious harm defences are often determined prior to a hearing in the United Kingdom’

25 https://hansardsearch.parliament.sa.gov.au/daily/ uh/2020-10-15/44 , second reading speech

26 Rolph, D ‘A Critique of the National, Uniform Defamation Laws’ 12 (2008) 16 Torts Law Journal 207; Douglas, M ‘Suing Google, Facebook or Twitter for Defamation’ (2021) 40(2) Communications Law Bulletin 53

Is it worth it? A Snapshot of recent defamation cases in Australia

ALEXANDRA DOUVARTZIDIS, ASSOCIATE, HWL EBSWORTH LAWYERS, AND CAITLIN SURMAN, SENIOR ASSOCIATE, HWL EBSWORTH LAWYERS

Over the last 18 months, there have been significant developments in Australian defamation law. In 2021, as part of the Stage 1 Defamation Reforms, a series of amendments were made to the Uniform Defamation Laws in several jurisdictions (including South Australia) with the aim of improving the balance between protecting individual reputations and freedom of expression, particularly in matters of public interest. A year on, the interpretation of provisions introduced as part of those reforms (particularly the interpretation of the new “serious harm” threshold) is now under consideration. Other case law developments are also unfolding with an increase in the number of defamation matters passing through Australian courts as a result of the increased use of social media, while high profile defamation cases commenced by the likes of Craig McLachlan, Clive Palmer and Mark McGowan (to name a few), have brought defamation law into the public spotlight and given the Courts an opportunity to examine some important legal issues. In this article, we examine several important case studies.

Craig McLachlan case

In May 2018, Craig McLachlan commenced defamation proceedings against actress Christie Whelan Browne, and Fairfax and the ABC over a joint ABC-Fairfax investigation carried out in January 2018 which claimed (at a high level) that McLachlan had engaged in sexual misconduct and sexual harassment during the 2014 production of The Rocky Horror Show. The defendants relied on the defences of justification and contextual truth. Whilst McLachlan ultimately abandoned the proceedings midway through the trial in May 2022, earlier interlocutory rulings made by the Court in respect of the operation of the

principles of the defence of contextual truth provided a useful reminder of the potential strategic importance of that defence to a defendant.

The contextual truth defence is, in effect, a defence to an action in defamation where the defendant asserts that the defamatory matter for which he or she would otherwise be liable did not further harm a plaintiff’s reputation because of the existence of a more injurious and truthful imputation published at the same time.

During the course of the proceedings, the plaintiff made an application to have the defence of contextual truth struck out on the basis that the contextual imputations pleaded by the defendants were imprecise.

In this respect, the Court noted that the imputations pleaded by McLachlan all specifically related to events that allegedly occurred during the 2014 production of the Rocky Horror Show, whereas the contextual imputations pleaded by the defendants were not confined to those specific allegations but instead pleaded attributions of bad character in general terms. For example, the first imputation in the proceedings against Fairfax (Fairfax proceedings) included that “McLachlan is calculated, manipulative and a sexual predator”.1

In an earlier hearing, the Court ruled that these imputations were imprecise and the defendants subsequently sought leave to re-plead the contextual imputations in response to the ruling. For example, in the Fairfax proceedings, the first contextual imputation was reformulated as follows: “that the plaintiff is a sexual predator in that he has indecently assaulted, exposed himself to and sexually harassed multiple women”.2

The defendants argued that the reformulated contextual imputations were permissible on the basis that there is a distinction between imprecision and

generality,3 and the fact that, whilst a contextual imputation in general terms might permit evidence extraneous to the matter complained of to be adduced at the trial, it does not follow that the imputation is imprecise (and therefore liable to be struck out).4

In doing so, the defendants relied on Fairfax v Zeccola5 where the NSW Court of Appeal held that the purpose of the contextual truth defence is that a plaintiff should not be permitted to avoid serious stings in defamatory matter by a selective pleading. The defendants further submitted that selective pleading includes pleading a specific imputation and not the general.6

The Court accepted a submission by the plaintiff that a contextual imputation has to be formulated so that the facts, matters and circumstances that can be relied on to establish its truth bear a reasonable relationship to both published material and the contextual imputation.7

The defendants argued that the subject matter of the relevant articles about McLachlan was not confined to the 2014 production of the Rocky Horror Show, but also concerned “conduct on the part of Mr McLachlan that reveals … a persistent characteristic” 8 Ultimately, the Court was satisfied that the alleged discreditable conduct contained in the relevant articles was in the nature of a persistent characteristic, such that the introduction of allegations which tended to prove that “persistent characteristic”, but which were unrelated to the 2014 production of the Rocky Horror Show, would not contravene the principles referred to above (as submitted by the plaintiff).9

Notably, however, the Court ruled that the defendants should only have leave to plead a contextual imputation that confines the imputation to conduct directed at female colleagues in the workplace.10

The outcome ultimately allowed the media defendants to argue a contextual truth defence based on an imputation directed at McLachlan’s conduct towards his female colleagues in the workplace generally. The defendants were therefore permitted to introduce evidence from several of McLachlan’s female colleagues on the ABC drama, “The Doctor Blake Mysteries”.11 As a result, by the time the matter reached trial, the defendants had planned to lead evidence from eleven women who were to claim they had been harassed by McLachlan while working with him in television and the theatresignificantly more than if the defendants had been confined to evidence in relation to McLachlan’s behaviour on the Rocky Horror Show.

Collective Mind - Commercial Considerations

After its grand final loss to Richmond in 2017, the Adelaide Crows engaged the high-performance consultancy firm “Collective Mind” to oversee a camp during the pre-season in early 2018. Following the camp, rumours began circulating that the camp had distressed some of the Adelaide Crows players.12 Those rumours persisted and, on 4 July 2020, The Age (based in Melbourne) published a detailed expose by journalist Sam McClure regarding allegations surrounding the pre-season camp, which McClure said was based on interviews with six anonymous players.13 McClure and commentator Caroline Wilson also made comments about the allegations on Channel 9.

In around late 2020, Collective Mind, and its directors Amon Woulfe and Derek Leddie (who were named in the reporting), commenced defamation proceedings against Nine Entertainment, the publishers of The Age, in respect of its reporting of the camp. Mr Woulfe and Mr Leddie

denied the claims made by McClure and Wilson and alleged that they had suffered damage as a result (including lost clients).

Whilst Sam McClure stood by his reporting of the pre-season camp, The Age chose not to defend the proceedings in Court and reached a quick settlement. As part of that settlement, The Age agreed to retract the relevant publications, to pay both sides’ costs, and to publish the following comprehensive apology:14:

“On 4 July 2020, an article was published in The Sunday Age and on The Age website reporting on the Adelaide Crows camp in 2018. The article made a number of statements about Amon Woulfe, Derek Leddie and Collective Mind. The Age acknowledges that Workplace SA made no findings of wrongdoing against Collective Mind. The Age acknowledges that the camp was run in good faith and with the players’ interests front of mind. If the article was read to suggest otherwise, The Age withdraws that suggestion.

“The Age apologises and expresses regret if the article caused hurt and offence to Mr Woulfe, Mr Leddie and Collective Mind. The Age has withdrawn these publications.”

Notably, this apology did not include any statement or admission to the effect that the reporting by The Age was inaccurate. In August 2022, following the publication of this apology, the same allegations as reported (and withdrawn) by The Age were then made by Eddie Betts in his memoir, and by other former players.15

This highlights the dilemmas that media organisations have traditionally faced in defending their publications. In theory, if the The Age had been prepared to defend its reporting, it might have sought to rely on the defences of justification or qualified privilege. However, both present difficulties. For example, if The Age had pursued the defence of justification, it

may have been required to call evidence from confidential sources who were likely promised anonymity such that the journalist would not be a position to reveal their identify without breaching their ethical and professional obligations.16 Further, the qualified privilege defence has been historically problematic for media defendants to rely on because their publications are made to a wider and untargeted audience (in circumstances where qualified privilege requires a defendant to establish that they have a legal, moral or social duty to communicate information to a recipient who has a corresponding interest in receiving it).17

The new public interest defence introduced as part of Stage 1 Defamation Reforms 18 may go some way to alleviating the difficulties/hurdles traditionally experienced by media defendants who wish to defend proceedings. However, in the meantime, media defendants must continue to set their risk appetite and consider the point at which commercial considerations will outweigh any desire to stand by the accuracy of a story.

Judicial consideration of the “Serious harm” element

The serious harm element was introduced as part of the Stage 1 Defamation Reforms . Under the new section 10A, it is an element of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.19

This new element was introduced to combat concerns that defamation claims are increasingly being commenced by individuals for trivial, spurious and vexatious reasons.20 Ultimately, its purpose is to discourage the bringing of cases likely to result in modest damages awards, where the costs were disproportionate to the damages.21

Zimmermann v Perkiss - First preliminary determination of the serious harm element

In Zimmermann v Perkiss22, the NSW District Court delivered one of the first substantive judicial decisions on serious harm in Australia in making a preliminary determination about serious harm prior to the continuation of proceedings. The publications concerned a series of Facebook messages sent by the Respondent, Ms Perkiss (who worked at ‘Perky Pooches’), to the owner of another animal groomers, Ms McPherson. The messages concerned Ms Zimmerman, who had left Perky Pooches to work at Ms McPherson’s business. The imputations related to the theft of items from Perky Pooches.

An application was brought by the Respondent which sought a determination as to whether the “serious harm” element had been established. The Respondent argued that any adverse effect was short lived, insignificant and did not cause serious harm. Key to the determination of the application was the evidence of Ms McPherson, and the impact that the Facebook messages had on Ms McPherson’s opinion of the plaintiff.

Her Honour, adopted the principles for determining “serious harm” at as set out in Rader v Haynes. 23

Her Honour found Ms McPherson was concerned by the Facebook messages, but demonstrated a “high regard for the plaintiff” and a suspicion that the Respondent was “lashing out because the plaintiff had gone to work for her instead”.24 Her Honour ultimately held that the applicant had “not suffered any harm in Ms McPherson’s eyes at all” and dismissed the proceedings.25

Interestingly, Her Honour also commented on the adequacy of Concerns Notices, and the need for Concerns Notices to clearly provide particulars of serious harm - or risk the Concerns Notice being deemed defective. The judgment also highlighted the importance of properly particularising serious harm in a claim, noting that if a claimant fails to properly particularise an adequate claim for serious harm, this is a threshold issue and the particulars of claim are liable to be struck out.

The decision in Zimmermann v Perkiss demonstrates the need for an applicant to

prove that there is sufficient harm to an individuals reputation in connection with the alleged publication. It is not enough to commence proceedings relying on the mere fact that a defamatory statement may have been published. It also highlights that section 10A can be used as a mechanism by the respondent to dispose of proceedings at an early stage which would have otherwise resulted in low damages (and likely disproportionate costs).

Martin v Najem 26 - serious harm element satisfied

In Martin v Najem, the Court held that the new serious harm element had been satisfied, thus finding that the matters complained of were, individually and jointly, capable of causing serious harm to the plaintiff.27 The matters complained of related to videos posted on Instagram which gave rise to the following imputations:

• the Plaintiff was a paedophile;

• the Plaintiff was a racist in that he mocks and verbally attacks Muslims;

• the Plaintiff was a racist in that he attacks Muslims; and

• the Plaintiff was the most hated person in the social media marketing industry.28

The Court was satisfied that all the imputations were conveyed and defamatory.29

In assessing the serious harm element, the Court held that: “Serious harm requires fact-rich proof of harm which is actually or likely to be serious, rather than inferences of serious harm and a tendency to cause harm being drawn from the number of persons who were in the audience or other generalised statements. There must be causation between the publication and the serious harm”.30

When determining whether serious harm had arisen in relation to the publications, the Court considered that the publications were unique in that Martin was threatened with serious physical and professional harm. Further, the extreme nature of the allegations was another important factor.31 Other factors included:

• the fact that the respondent was making a call to arms to his supporters, threatened to harm Martin and called on his supporters to help;

• there was strong evidence of an extensive “grapevine effect”;

• the damage done to the plaintiff, in

terms of the impact the publications had on his health and concerns about his security, was compounded and ongoing by reason of evidence of the allegations “sticking” due to repetition by the defendant as recently as a few days before the hearing. The impact on his health was serious and capable by itself of constituting serious harm; • the potential for physical harm to the plaintiff, the plaintiff’s injured feelings and the gravity of the imputations.

While these factors alone are not enough to establish serious harm (noting the requirement for serious harm to reputation is concerned with actual or likely reputational damage), these factors did lead to a finding about the impact of the imputation, in all the circumstances, on the plaintiff’s reputation.32

Ultimately, the Court found that the plaintiff established that the publication of each of the matters complained of caused serious harm.33

The true costs of litigation - even when you’re ‘right’

In late 2020, Clive Palmer commenced defamation proceedings against the Western Australian Premier, Mark McGowan. Mr McGowan then countersued alleging that Palmer defamed him in the media. The primary judgment found both parties had defamed each other.34

Ultimately, Clive Palmer received damages of $5,000 while Mark McGowan received $20,000 because Justice Michael Lee accepted his evidence about his hurt feelings.35

Although both parties were successful in their respective claims, the nominal damages awarded did not outweigh the significant costs incurred by both parties. Justice Lee made the following remarks which, in effect, highlighted that not all litigation is worth pursuing:

“These proceedings have not only involved considerable expenditure by Mr Palmer and the taxpayers of Western Australia, but have also consumed considerable resources of the Commonwealth and, importantly, diverted Court time from resolving controversies of real importance to persons who have a pressing need to litigate.”36

Whilst both Mr Palmer and Mr McGowan were found to have defamed

each other, the Court ordered that Clive Palmer was to pay part of Mr McGowan’s legal costs while Mr McGowan was not required to pay anything in return.

In this respect, the Court held there was an “asymmetry of responsibility” for the “long and costly” hearing of the case, because Mr Palmer launched the proceedings in the first instance but only McGowan “was willing to draw back” by offering to resolve the proceedings in December 2021.37

It held that Palmer’s “failure to engage with the offer did not serve to best facilitate the optimal use of the resources of the court and the parties”.38

The judgment made it clear that the Courts will put weight on the conduct of the parties when considering costs, noting that: “Mr Palmer may not be unduly troubled about spending his money on litigation, but he had an obligation to facilitate the just resolution of the dispute according to law, and as quickly, inexpensively and efficiently as possible.”39

The Court also decided against awarding indemnity costs, irrespective of the offer made by Mr McGowan, on the basis that there had been a mixed result, while Mr McGowan increased the costs of the action by running a number of relatively unmeritorious arguments, including a common law and statutory qualified privilege defence that could not succeed.40

Elegant, Exclusive, and Exquisitely Dapper

The costs judgment highlights some important factors:

• the need for parties to demonstrate to the court that they have taken appropriate steps to resolve the matters in dispute prior to trial;

• the effect offers can have on the outcome of proceedings;

• the consequences of spending money on litigation versus actual payout of damages; and

• the overarching obligations of parties to resolve matters efficiently.

The case studies referred to above offer a snapshot of the developments in defamation law over the last few years.

The law will continue to develop with Part A of the Stage 2 Review of the Model Defamation Provisions having now commenced. B

Endnotes

1 McLachlan v Browne (No 7) [2018] NSWSC 1914 (McLachlan No 7), [7]

2 McLachlan No 7, [25]

3 McLachlan No 7, [28]

4 McLachlan No 7, [26]

5 [2015] NSWCA 329,[70]

6 McLachlan No 7, [29]

7 McLachlan No 7, [31] - [32]

8 McLachlan No 7, [29]

9 McLachlan No 7, [35]

10 McLachlan No 7, [36]

11 Stephen Murray, The Gazette of Law and Journalism, “Dr Blake Mystery”, 16 December 2018.

12 Joseph Friedman, The Gazette of Law and

Journalism, “Something to Crow about”, 17 August 2022.

13 Jai Bendall, Action launched against The Age, Channel 9 over Adelaide Crows camp stories, 12 September 2020, news.com.au https://www. news.com.au/sport/afl/action-launched-againstthe-age-channel-9-over-adelaide-crows-campstories/news-story/018b75a0848512fdb58c23ab cffa4c3e

14 Above n 12.

15 Above n 12

16 Above n 12

17 Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at [263]-[264] (McHugh J).

18 See, eg, Defamation Act 2005 (SA),s 27A.

19 Defamation Act (SA) 2005, s 10A.

20 New South Wales, Parliamentary Debates, Legislative Assembly, 29 July 2020 (the Honourable M Speakman SC, Attorney General.

21 Newman v Whittington [2022] NSWSC 249 at [30] –[46]; Wilks v Qu (Ruling) [2022] VCC 620.

22 [2022] NSWDC 448.

23 RADER (PSEUDONYM) v HAINES (PSEUDONYM) [2022] NSWCA 198

24 [2022] NSWDC 448, [110].

25 ibid, [152].

26 [2022] NSWDC 479.

27 Ibid.

28 ibid, [44] and [52].

29 ibid, [51] and [57].

30 ibid, [70].

31 ibid, [71].

32 ibid, [71].

33 ibid, [77].

34 Palmer v McGowan (No 5) [2022] FCA 893.

35 Ibid.

36 Ibid, [523].

37 Ibid, [19] - [20].

38 Ibid, [33].

39 Ibid, [31].

40 Ibid, [35].

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Payroll tax, grouping and joint and several liability

BERNIE WALRUT, MURRAY CHAMBERS

INTRODUCTION

The Payroll Tax Act 2009 (SA) (PTA) provides in Part 5 for the grouping of certain commonly controlled entities.1

The grouping concept was first introduced in South Australia in 19762 to prevent splitting the employees amongst different entities within a business group to achieve multiple payroll tax thresholds. It also grouped entities where employees of one entity are used in the business of another entity. Those provisions also provide that all members of the group were jointly and severally liable for the payroll tax assessed in respect of the group.3

In 2008 as part of harmonisation of payroll tax between some states a new broader set of grouping provisions was adopted by amendments to the Payrolltax Act 1971 (SA).4 Those provisions were generally carried forward into the PTA. One of the changes made in these provisions was to remove the requirement in some situations that a group entity must be carrying on a business.

One of the practical consequences of that change is that in some situations a passive asset holding entity may be grouped by operation of the PTA with an active business entity and the passive entity rendered jointly and severally liable for the payroll tax liability of the business. A simple example is the family discretionary trust owning the premises from which a business is conducted. The business is conducted by a proprietary company. An object of the discretionary trust owns shares with more than 50% of the voting rights in the company. In those circumstances the company and the trust are grouped for PTA purposes and the trust is jointly and severally liable for the payroll tax of the company.

As the foregoing and the decision described below highlights, those establishing family discretionary trusts should give careful consideration to the class of objects where there is the

potential to group a passive asset holding discretionary trust with a business entity that has a payroll that exceeds or is likely to exceed the PTA threshold.

A FEW ASPECTS OF THE GROUPING PROVISIONS Business

In the context of this article, the change that occurred in 2008, that is noteworthy is the change to the definition of a business.5 In those amendments and the ones carried forward into the PTA, the definition of a business includes:6

(d) the carrying on of a trust (including a dormant trust); and

(e) the activity of holding any money or property used for or in connection with another business,

Whilst one may debate what “carrying on of a trust” may mean the broad effect, on its face, is to deem the very existence of the trust to be a business. In effect every trust is for these purposes a business and so satisfies one of the elements for an entity to be grouped.

The provisions of paragraph (e) appear to be even less appreciated. In effect, the passive holding of property by an entity that permits another entity to use that property in its business is itself a business for these purposes and so satisfying one of the elements for an entity to be grouped.

A Few Grouping Provisions for Commonly Controlled Businesses

The grouping provisions apply if a person or set of persons has a controlling interest in each of two businesses, the persons who carry on those businesses then constitute a group.

The provisions provide for a person or persons to have a controlling interest in a business if:

• in the case of persons, a person or persons together are the owners

(whether or not as trustee) of the business;

• in the case of a business carried on by a corporation, a director or a set of directors of the corporation are entitled to exercise more than 50% of the voting power at directors meetings;

• in the case of a business carried on by a corporation, a director or a set of directors of the corporation are entitled to exercise more than 50% of the voting power at directors meetings are under an obligation, whether formal or informal, to act in accordance with the direction, instructions or wishes of a person or persons;

• in the case of a business carried on by a body corporate or unincorporate, a person or persons constitute more than 50% of the board of management (by whatever name called) of the body or control the composition of that board;

• in the case of a business carried on by a corporation that has a share capital, a person or set of persons can, directly or indirectly, exercise, control the exercise of, or substantially influence the exercise of, more than 50% of the voting power attached to the voting shares or class of voting shares;

• in the case of a business carried on by a partnership, a person or persons (whether beneficially or not) own more than 50% of the capital of the partnership or are entitled to more than 50% of the profits of the partnership; or

• in the case of a business carried on under a trust, the person or persons (whether or not as a trustee of, or beneficiary under, another trust) is the beneficiary in respect of more than 50% of the value of the interests in the first-mentioned trust.

Grouping of Corporations

Where there are related corporations under the Corporations Act 2001 (Cth) and one of those corporations has a

controlling interest in a business the other corporation also has a controlling interest in that business. There are then extensive provisions as to tracing interests direct and indirect in corporations and the aggregation of interests in corporations.

Grouping Through Trusts

A person who may benefit from a discretionary trust as a result of the trustee or another person, or the trustee and another person, exercising or failing to exercise a power or discretion, is taken, for those purposes to be a beneficiary in respect of more than 50% of the value of the interests in the trust.

Where a person or persons are the beneficiaries of a trust in respect of more than 50% of the value of the interests in the trust and the trustee of the trust (whether alone or together with another trustee or trustees) has a controlling interest in the business of another trust, the beneficiary or beneficiaries has a controlling interest in the business.

If a person or set of persons has a

controlling interest in the business of a trust and the trustee of the trust (whether alone or together with another trustee or trustees) has a controlling interest in the business of a corporation or a partnership then the person is taken to have a controlling interest in the business of the corporation or partnership.

Subsuming

There are then two provisions that provide for smaller groups to be subsumed into larger groups. So, if a person is a member of two or more groups, the members of all the groups together constitute a group. Further, if two or more members of a group have together a controlling interest in a business, all the members of the group and the person or persons who carry on the business together constitute a group.

Degrouping

The Commissioner does have the power to exclude an entity from a group (in this article described as degrouping or to degroup) where, having regard to the nature and degree of ownership and

control of the businesses, the nature of the businesses and any other matters the Commissioner considers relevant, that a business carried on by the person, is carried on independently of, and is not connected with the carrying on of, a business carried on by any other member of that group.7 The degrouping can be retrospective.

The Commissioner has no power under this section to degroup a body corporate that, by reason of section 50 of the Corporations Act 2001 (Cth), is related to another body corporate that is a member of the same group.8

AN EXAMPLE

In Chief Commissioner of State Revenue v Smeaton Grange Holdings Pty Ltd9 the Chief Commissioner had grouped certain companies under the Payroll Tax Act 2007 (NSW) (PTA(NSW)).10

As described, one basis of grouping occurs where a person (or a set of persons) is a beneficiary in respect of

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more than 50% of the value of the interests in a trust that conducts a business.11 As also described, where a person can benefit from a discretionary trust the person is taken for the purpose of the grouping provisions to control the business conducted by the trust.12

Smeaton Grange Holdings Pty Ltd (Smeaton) was trustee of a discretionary trust.13 One of the objects of the discretionary trust (Michael Gerace) controlled another business owned by a company in liquidation that had a significant payroll tax liability arsing from a payroll tax audit. Consequently, the two businesses were grouped.

In June, 2014 Michael Gerace executed disclaimers of his interest in the trust of which Smeaton was the trustee.14 Smeaton contended that the effect of the disclaimers was that they operated retrospectively and that consequently Michael Gerace was never an object of the discretion of the trust for which Smeaton was the trustee. In effect the grouping nexus was broken and the disclaimer operated from the time the trust was constituted.15 At first instance this was held to be the case as it was said that revenue statutes were to be construed having regard to the principles of the general law and therefore there was no reason why the retrospective effect of a disclaimer should not apply.16

On appeal the Court of Appeal held17 that the construction of the language of section 72 strongly implies that the existence and composition of a group must be determined according to the circumstances as they existed during the relevant tax period or periods.18 Further, the PTA (NSW) only allowed for one situation where a group liability could be retrospectively altered, namely on the Chief Commissioner determining to exclude a member of the group from the group pursuant to section 79.19 Subject to that exception, “the legislative scheme can only be given effect if the existence and composition of any group of which the employer forms part can be determined at the same time as the employer becomes liable to pay payroll tax to the Chief Commissioner.”20

Whilst it was recognised that as between Smeaton and Michael Gerace the

disclaimer may have altered their respective rights,21 “…the consequence was not that Smeaton’s liability to pay payroll tax was retrospectively expunged. On the proper construction of the legislation, Smeaton became liable by force of statute at the expiration of a specified time after the end of each financial year (if not earlier). Smeaton’s liability under the legislation was to be determined once and for all by reference to the legal relationships then in existence (subject to section 79). A subsequent alteration of those relationships by the unilateral act of an individual could not change the operation of the legislation.”22

As that decision highlights, firstly, broadly drawn classes of objects of a family discretionary trust may allow the Commissioner to group family discretionary trusts holding passive assets, and even family trusts of other family members who may have no connection with the business that is being conducted or in liquidation. Secondly, attempts to disclaim by the beneficiary or object after such a grouping will be ineffective. Where grouped, the only way to sever the grouping is for the family discretionary trust to apply to be degrouped under section 79. As also earlier highlighted this type of problem is not limited to family discretionary trusts. If an entity has more than a 50% interest in any form of trust (i.e. fixed inter vivos trusts, superannuation funds and deceased estates (including testamentary trusts))23 there is a real possibility of such a trust being grouped and liable for another entity’s payroll tax.

SUMMARY

In summary, in a payroll tax context it is necessary to consider:

• in drawing the class of objects of a discretionary trust, if there is any potential for a payroll tax exposure, the width of the class of the objects, because each object may be deemed to control the trust and a business;

• the potential exposure of a beneficiary of a fixed trust, including a superannuation fund, if the beneficiary has more than a 50% interest in the trust by value, because any such beneficiary may be deemed to control the trust and a business;

• the effectiveness of any arrangements where an entity holds any money or property used for or in connection with another business needs to be carefully considered; and

• generally, the effectiveness of any asset protection approach, where there is a possibility of a future payroll tax exposure through a potential grouping of the entities under the PTA.

Tax Files is contributed on behalf of the South Australian based members of the Taxation Committee of the Business Law Section of the Law Council of Australia. B

Endnotes

1 Section 72 PTA. The word entities in this article is used in the broad sense, similar to that adopted in section 960-100 of the Income Tax Assessment Act 1997 (Cth) for convenience. It includes, individuals, partnerships, companies, other bodies corporate and trusts (i.e. trustees from time to time).

2 The grouping provisions were introduced as Part IVA of the Pay-roll Tax Act 1971 (SA) by the Payroll Tax Act Amendment Act 1975 (SA) and those grouping provisions took effect from 1 January 1976.

3 Section 18l(6) where the designated group employer failed to pay any amount required to be paid under section 18l(5).

4 See Pay-roll Tax (Harmonisation Project) Amendment Act 2008

5 Now in Part 5 of the PTA.

6 See section 67 PTA.

7 Section 79.

8 Section 79(3).

9 [2017] NSWCA 184.

10 Under the harmonisation approach there are core common provisions in the PTA and PTA(NSW), though can be the occasional difference.

11 Section 72(2)(g) PTA (NSW).

12 Section 72(6) PTA (NSW).

13 There was no definition of a discretionary trust in the PTA (NSW), see [2017] NSWCA 184 [110]-[113].

14 See earlier article in this column relating to disclaimers in the August 2022 edition that also discusses this decision in this context.

15 [2017] NSWCA 184 [78]-[80].

16 Ibid [82].

17 The primary judgment was given by Sackville AJA with whom Gleeson and Leeming JJA agreed.

Leeming JA also discusses a number of the general principles relating to the operation of disclaimers described earlier.

18 [2017] NSWCA 184 [138].

19 Ibid [142].

20 Ibid [143].

21 [Ibid 145].

22 Ibid [146].

23 After most likely the initial administration of the estate. In this respect it will be necessary to consider any impact of CSD (Qld) v Livingston [1965] AC 694.

The Great Debate: “The Grass is Greener at the Bar”

ROSA TORREFRANCA, WORK VISA LAWYERS

The wit, humour and debating skills were out bright and early for the 2022 Great Debate.

For the Mental Health Month, the Law Society’s Wellbeing & Resilience Committee once again organised the popular Great Debate on 27 October, 2022. The Debate is intended to be a light-hearted way to encourage discussion about mental health and wellbeing issues faced by legal practitioners.

This year’s topic was “The Grass is Greener at the Bar”. The debaters were practitioners from diverse legal backgrounds, in different stages of their careers. The affirmative side were composed of Marie Shaw KC, Ben Doyle KC and William Mellor, KC…Donovan fan (according to him). Justice Sam Doyle, Rachael Shaw and Alexandra Douvartzidis

represented for the negative. As can be seen from the surnames, the Great Debate was also a Mini Family Feud!

The debaters went head-to-head, pointing out the various pros and cons of being at the bar. These included how barristers are portrayed in the newspapers versus how the judge is presented, the fact that barristers are not made to retire when they reach 70 years old, the ability of the barristers to be missing in action (or inaction), that is, not be in chambers because they are in conference, or in court or out in the kitchen making their pancetta toastie.

The debaters also touched on some of their advice for looking after your mental health, such as not “outsourcing your life” and having some self-compassion or selflove, even if it means you refer to yourself

in the third person. The importance of talking about and taking the stigma out of mental health issues was also raised.

The debaters argued so well that Adjudicator Judge Jo-Anne Deuter was unable to pick a winner and declared a draw. Special mention though was given to the younger speakers. And as Judge Deuter said, it is always good to start your day with a good laugh.

Our special thanks to our great debaters and to our adjudicator for agreeing to participate in the Great Debate and for making the event a success with only the promise of a free healthy breakfast.

We look forward to welcoming you the 2023 Great Debate. If you would like to suggest a topic or even throw your debating skills into the ring for next year, please contact the Committee via the Law Society.

Family Law Case Notes

CHRIS NICHOL & KELEIGH ROBINSON

PROPERTY – HIGH COURT OVERTURNS DECLARATION OF A RESULTING TRUST – PRESUMPTION OF ADVANCEMENT

BETWEEN HUSBAND AND WIFE UPHELD

In Bosanac v Commissioner of Taxation [2022] HCA 34 (12 October, 2022) the High Court of Australia (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ) heard a wife’s appeal against a decision which held that she owned 50 per cent of a property on trust for her husband.

The Commissioner of Taxation was a creditor of the husband and sought a declaration of resulting trust over half of the wife’s property (“the Dalkeith property”). The wife argued that there was no basis to infer that the husband intended to have a beneficial interest in the property.

Kiefel CJ and Gleeson J said (from [35]):

“There was a history of Ms and Mr Bosanac holding their substantial real and other property in their own names. Consistently … it was evidently the desire of Ms Bosanac to purchase the Dalkeith property and have it registered in her name alone. … These facts alone are sufficient to rebut any presumption that her interest in the property was attributable to the relationship of husband and wife … ( … )

[39] There was a history of the use of the properties held by each of Ms and Mr Bosanac in their own names as security for joint loans. … There was no evidence of the use of joint loans to acquire property which was then jointly held. … ( … )

[41] … The history of the spouses’ dealings … might suggest a use of property to secure joint loans which might benefit either or both of them, but it does not support an inference that either intended that property be held jointly. ...

[42] The finding … that Mr Bosanac was a sophisticated businessman … [who] appreciated the significance of property being held in Ms Bosanac’s name is not unimportant. His Honour was correct to conclude that that understanding did not support an inference that Mr Bosanac

intended to have a beneficial interest in the Dalkeith property”

Gordon and Edelman JJ provided a separate judgement as did Gageler J, all agreeing with the orders proposed by Kiefel CJ and Gleeson J. The High Court granted the appeal and set aside the declaration of a trust.

PROPERTY – ERROR IN TREATING NONCOMMUTABLE MILITARY PENSION AS CAPITALISED ASSET RATHER THAN AN INCOME STREAM – DOUBLE COUNTING OF PENSION AS ASSET AND FUTURE INCOME

In Preston [2022] FedCFamC1A 157 (5 October, 2022) the Full Court (Alstergren CJ, McClelland DCJ & Austin J) heard a husband’s appeal from final property orders made by a judge of Division 2 of the Federal Circuit and Family Court of Australia.

The trial judge ordered a 58.5:41.5 division in favour of the husband, treating the husband’s military pension as a capitalised asset.

The Full Court said (from [11]):

“It was impossible to commute the military pension … and neither party ultimately sought a superannuationsplitting order in respect of it … so the expert opinion evidence of it having a capitalised value of $638,109 … lost its utility.

[12] … [T]he primary judge counted it as an asset at the capitalised value … even though she acknowledged neither party sought superannuation-splitting orders. ...

( … )

[14] … [H]er Honour concluded the husband had a significantly higher incomeearning capacity than the wife … which in part stemmed from his indefinite receipt of the military pension …

[15] There was no need to ascribe a capitalised value to the military pension when no splitting order was sought in respect of it …

( … )

[17] Having been notionally counted as an asset in the balance sheet … the primary judge’s findings necessarily meant

that the husband’s 58.5 per cent share of the assets and superannuation incorporates the military pension at its capitalised value of $638,109, even though he does not and never will have that capitalised sum available for his use.

( … ) [20] The primary judge’s methodology caused the military pension to be impermissibly counted twice – first as an asset and then as a source of constant income. …”

The appeal was allowed; the final order set aside, the court re-exercising its discretion ordering a 50:50 division of the asset pool; and costs certificates ordered for both parties.

MAINTENANCE – URGENT SPOUSAL MAINTENANCE ORDER DISCHARGED WHERE CONSIDERABLE UNCERTAINTY AS TO HUSBAND’S CAPACITY TO PAY MAINTENANCE

In Holman & Bates [2022] FedCFamC1A 141 (8 September, 2022) Tree J heard a wife’s application for leave to appeal the discharge of an earlier, urgent spousal maintenance order.

The wife was diagnosed with a terminal illness in November 2021 and had been undergoing palliative care at the time of the hearing.

On 27 January 2022 the magistrate made an order for urgent spousal maintenance of $800 per week pending the interim hearing. At the interim hearing, the magistrate dismissed the urgent spousal maintenance order and transferred the proceedings to the Family Court of Western Australia.

Tree J said (from [14]):

“Although the … magistrate did not make a stand alone order dismissing the wife’s interim application for periodic spousal maintenance … it is evident his Honour intended to determine the wife’s application ( … )

( … )

[24] It seems clear that the … magistrate was not persuaded that the husband had capacity to pay spousal

maintenance, but nonetheless went on to say that s 75(2) considerations would persuade him not to have made an order for spousal maintenance in any event. So construed, there was no conflation of ss 72, 74 and 75(2)(o) of the Act.

( … )

[39] … [T]here was considerable uncertainty as to the husband’s capacity to meet an order for spousal maintenance, particularly given that both his income and expenses were expressly said to be estimates …

[40] It was for the wife to satisfy the primary magistrate of the husband’s capacity to pay, and the state of the evidence was sufficiently unclear that it was certainly open to the primary magistrate to conclude as he did, namely that he could not ‘make definitive findings as to what surplus, if any, the husband has over income and expenditure’ …”

The wife’s application for leave to appeal was refused; her Notice of Appeal dismissed; and she was ordered to pay the husband’s costs fixed at $5,000.

PROCEDURE – HUSBAND’S FAILURE TO ADDUCE EVIDENCE-IN-CHIEF SHOULD NOT HAVE PRECLUDED HIM FROM CROSS-

EXAMINING WIFE AND WAS A DENIAL OF NATURAL JUSTICE

In Morgan & Valverde [2022] FedCFamC1A 133 (31 August, 2022)

Austin J heard a de facto husband’s appeal from property orders after a childless de facto relationship of 9 years.

The appellant failed to file and serve any evidence before the trial and the only evidence at trial was that of the respondent. Orders were made for a division 57.5:42.5 in favour of the appellant.

On appeal, the de facto husband argued that he was denied natural justice and procedural fairness.

Austin J said (from [18]):

“… [T]he appellant [has no] … reasonable complaint about the trial progressing without his evidence, given his protracted failure to file and serve [his evidence] … He was not merely late filing evidence. He did not file any evidence at all …

[19] … [D]uring the discussion which ensued about the need for the trial to proceed without further delay, the primary judge told the appellant he would not be able to cross-examine the respondent. Ostensibly, that was only because he failed … to file and serve his evidence-in-chief. …

( … )

[35] The appellant had no absolute right to cross-examine the respondent – only an absolute right to a fair trial. However … it would be a rare case in which the refusal of a party’s request to cross-examine a material witness at final trial would not manifest the deprivation of procedural fairness (Naparus & Frankham [2020] FamCAFC 32 …).

( … )

[37] Although the appellant did not specifically ask to cross-examine the respondent, he had already been told he would not be allowed to do so and, absent legal representation, he meekly did not contest the ruling. Denying the appellant the chance to cross-examine the respondent, at least without any adequate explanation for why and without giving him the chance to be heard about the ruling, denied him natural justice and was an error of law.

( … )

[40] Had the appellant cross-examined the respondent, it might have made no difference at all, but that is not the test. … It follows that the error was material and there is no option but to remit the proceedings for re-hearing.” B

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SEDDON ON DEEDS

Abstract

from Federation Press

This book is the definitive Australian text on the law applicable to the use of deeds by practitioners. It is about the technicalities of putting a deed together, determined by the ancient common law as modified by Australian legislation. Deeds are used by practitioners for a variety of purposes. This book focuses on the mechanics and not on the underlying law

LEARNING TO LITIGATE

Abstract from Federation Press

It is sometimes said that great advocates are born, not made. The central tenet of this book is that such assertions are dangerous nonsense.

Modern litigation is a sophisticated business, requiring a wide range of organisational, procedural, presentational and

that is engaged by using a deed. It is easy to get the mechanics wrong; there is advice to practitioners not to use deeds if a contract will suffice. If a deed must be used, this book can steer the practitioner to a successful outcome, despite the difficulties generated by nine different statutory provisions, some of which are badly drafted and uncertain in application.

COVELL & LUPTON PRINCIPLES OF REMEDIES

Abstract from LexisNexis

This concise and practical book is an essential reference for students and the busy lawyer. It takes the reader quickly to the heart of every key legal remedy, through clear, precise and accessible explanations and discussion. Common law, equitable, restitution and statutory relief

technical legal skills. Whether it be a plea of guilty before a magistrate or a multi-party commercial dispute involving billions of dollars and dozens of lawyers for each party, each stage in the preparation and presentation of a case requires skills that must be learned, then honed.

CIVIL PROCEDURE: COMMENTARY AND MATERIALS

Abstract from LexisNexis

Civil Procedure: Commentary and Materials provides students and practitioners with a comprehensive analysis of the practical and theoretical issues encountered in Australian civil procedure, including alternative dispute resolution. This text combines a wealth of primary and secondary materials from all

are set out in elementary principles that come to life through illustrative case law. This eighth edition has been extensively revised and updated, including coverage of the evolution of online remedies and search orders as well as intriguing High Court judgments on remedies law, jurisprudence and the Constitutional injunction.

jurisdictions. The common law is clearly set out, together with extensive practical commentary. Each chapter features in-depth questions and notes together with further readings, to aid and extend understanding of the issues. It also examines and discusses each substantive and procedural step in the trial and appeal process.

Family Law Pathways Network helps people connect to the right services

MICHELLE FORD, CEO & MANAGING LAWYER AT WESTSIDE COMMUNITY LAWYERS, FORMER SOUTH AUSTRALIAN FAMILY LAW PATHWAYS NETWORK SENIOR COORDINATOR

Welcome to the Law in the Community column where we showcase the incredible pro bono work conducted by community organisations, private legal practices and the Law Society.

Community legal work is essential to ensure the availability of access to justice for all members of the community, including those that are vulnerable and financially disadvantaged. It is also extremely rewarding work.

In this edition we are showcasing the South Australian Family Law Pathways Network –part of a national Federal Government project that brings together professionals from a range of occupations, who all work in the family law space. It includes amongst its members lawyers, judges, social workers, mediators, counsellors, law enforcement officers, and so on – for the purpose of learning to work together to provide a more holistic approach in helping members of the community resolve family law disputes and difficulties.

The Family Law Pathways Network is funded by the Australian Government. Consisting of 36 Family Law Pathways Networks nationally, covering most urban and rural areas, the Network aims to improve collaboration and coordination between organisations and professionals operating within the broader family law system.1

The South Australian Family Law Pathways Network (SAFLPN) is managed and coordinated by Senior Coordinator Jacinta Richards who is responsible for delivering information to the network through regular communication and events. The SAFLPN also provides cross sectoral training on a regular basis and hosts events, forums, workshops, and seminars to assist in information sharing and networking opportunities for the legal and non-legal sectors.

ABORIGINAL AND TORRES STRAIT ISLANDER ROADSHOW

The SAFLPN has a very active Aboriginal and Torres Strait Islander Sub-Committee who have recently developed and delivered a very informative

and engaging Roadshow to members of the community.

The purpose of the Roadshow is to raise awareness with both Aboriginal and Torres Strait Islander community members and the professionals who work with them that family members can make an application through the Federal Circuit and Family Court’s Aboriginal and Torres Strait Islander List to have children live with them when there are worries about the safety of the children.

The number of Aboriginal and Torres Strait Islander children who have been removed from their families in South Australia is deeply worrying. We all want children to be safe, but it can be distressing and harmful to remove children from their community and culture.

Judge Charlotte Kelly presides over the Aboriginal and Torres Strait Islander List in Adelaide, and she attends each Roadshow event to share important information about the specialised list, and to have a yarn with members of the community and answer any questions.

On 26 September SAFLPN took the Roadshow to Kura Yerlo in Port Adelaide, and on 27 September they travelled to the Taikurrendi Children and Family Centre at Christies Beach. Next on the agenda is Brahma Lodge Football Club on 1 December, followed by a regional tour in 2023.

The writer attended the event at Kura Yerlo as a guest and noted that there was much confusion in the community about the seemingly parallel jurisdictions – child protection and family law. Judge Kelly did an excellent job explaining the differences, and how the two interact. She explained that in her Court, the emphasis is on trying to find a safe way to keep children within their family and community, building a scaffold of support around the family.

There is an excellent video that accompanies the Roadshow which can be found on the Court’s website.2

Members of the community seemed to be unaware of the full range of free

legal help that is available to vulnerable and financially disadvantaged people. They had very little knowledge about the various Community Legal Centres offering advice and representation,3 and only limited knowledge of services provided by Legal Services Commission4 (who operate Legal Aid), and Women’s Legal Service.5

Most people were aware of the Aboriginal Legal Rights Movement6 but some reported that it could be difficult to access that service because the other party had already engaged them.

Lawyers from various legal services were on hand to explain what services are available, and how each service has different eligibility criteria and possibly different geographical boundaries.

Attendees also received an information pack with lots of information about legal and support services in South Australia.

More information about SAFLPN can be found on their website.7

To find out more about Family Law Pathways, or the upcoming Roadshows, send an email to Jacinta Richards at Pathways@rasa.org.au

If members of the profession wish to showcase the pro bono legal work of an organisation, they can submit an article that highights how members of the community and your team were able to benefit from your event. For calendar events, please provide a description of the event, date/time, location, provider details and how to book/obtain more information.

The deadline for submissions is the second Wednesday of each month, for inclusion in the following month’s Bulletin. Please send all articles, event details and questions to Michelle Ford, CEO & Managing Lawyer, WestSide Community Lawyers – michelle.ford@westsidelawyers.net B

Endnotes

1 https://familylawpathways.com.au/ 2 https://www.fcfcoa.gov.au/kids-video 3 https://www.clcsa.org.au/ 4 https://lsc.sa.gov.au/ 5 https://www.wlssa.org.au/ 6 https://www.alrm.org.au/ 7 https://pathwaysnetworksa.com.au/

Battle of the wits: the Golden Gavel returns

MACLEOD, COWELL CLARKE COMMERCIAL LAWYERS

On 8 September, a gaggle of Young Lawyers gathered at the Rhino Room on Pirie Street to witness the 2022 South Australian Golden Gavel competition. Gracing us with their presence this year, the judging panel comprised of The Honourable Judge Katrina Bochner, Paul Burgess of Burgess Paluch Legal Recruitment, Magistrate Anna Jackson and President of the Law Society, Justin Stewart-Rattray. A big thank you to all four judges, who each brought their own contrasting approach to what it means to critique.

To kick off the evening, competitor No. 1, aka Foxy Boy aka Daniel Fox from Kelly Kelly Legal in Jamestown, delivered a satirical monologue on the topic “The Betoota Advocate: the answer to News Corp Australia”.

The ultimate runner-up of this year’s competition, Stephanie Moore from the DPP humbled the audience on the topic of “Scotty from Marketing 2.0: the secret responsibilities of young lawyers”. Moore was convincing in her execution and proved herself to be a bold contender.

We next welcomed Alexandra Douvartzidis, HWL Ebsworth Lawyers, veteran to the GG enterprise having won the competition in 2019. Douvo took to the stage starting off with an uncensored bang and continued to drop relatable truth bombs about her topic, “Office small talk: how to be friends with lawyers”. A self-proclaimed socialite herself, Douvo delivered a series of convincing tips on what to do (and not what to do) when it comes to office relationships. A memorable performance that saw her ultimately take home the 2022 Golden Gavel SA title.

Backing Douvo up with a strong performance was Meredith Hennessy, Crown Solicitor’s Office on the topical matter of “Quiet Quitting: what happens to lawyers if they embrace it”.

Next up was the fourth and final competitor, Edward Satchell, who was quite literally late to the party. Affectionately referred to as the “Bagman” by his fans, Satchell is a veteran to the Rhino stage and presented on the topic “Social Media Scrubbing: a young lawyer’s guide on how to stand out on LinkedIn”.

3 OCT 2022 – 2 NOV 2022

ACTS PROCLAIMED

Shop Trading Hours (Extension of Hours)

Amendment Act 2022 (No 17 of 2022)

Commencement: 1 November 2022

Gazetted: 27 October 2022, Gazette No. 74 of 2022

ACTS ASSENTED TO

Criminal Law Consolidation (Human Remains)

Amendment Bill 2022, No. 13 of 2022

Gazetted: 6 October 2022, Gazette No. 70 of 2022

Appropriation Bill 2022, No. 14 of 2022

Gazetted: 27 October 2022, Gazette No. 74 of 2022

Superannuation Funds Management Corporation of South Australia (Investment in Russian

All in all, another successful night of laughs and good banter. Congratulations to each competitor for providing an entertaining evening and to Pat Kerin, MC, for getting in his fair share of LPMs (laughs per minute). This year’s winner, Douvo, will proudly represent SA at the National Golden Gavel and Australian Young Lawyers Awards in Canberra on Friday, 18 November 2022. We wish her all the best!

Finally, thank you to our major sponsor Burgess Paluch Legal Recruitment and Mr Paul Burgess for their continued and generous support of the Young Lawyers.

A MONTHLY REVIEW OF ACTS, APPOINTMENTS, REGULATIONS AND RULES COMPILED

Assets) Amendment Bill 2022, No. 15 of 2022

Gazetted: 27 October 2022, Gazette No. 74 of 2022

National Electricity (South Australia) (Consumer Data Right) Amendment Bill 2022, No. 16 of 2022

Gazetted: 27 October 2022, Gazette No. 74 of 2022

Shop Trading Hours (Extension of Hours)

Amendment Bill 2022, No. 17 of 2022

Gazetted: 27 October 2022, Gazette No. 74 of 2022

APPOINTMENTS

Nil

RULES

Nil

REGULATIONS PROMULGATED (3 OCTOBER 2022 – 2 NOVEMBER 2022)

REGULATION NAME

REG NO. DATE GAZETTED

Passenger Transport (Metropolitan Taxi Fares) Amendment Regulations 2022 89 of 2022 6 October 2022 Gazette No. 70 of 2022

Police (Police Security Officers) Amendment Regulations 2022 90 of 2022 6 October 2022 Gazette No. 70 of 2022 Maritime Services (Access) Regulations 2022 91 of 2022 20 October 2022 Gazette No. 73 of 2022 Radiation Protection and Control Regulations 2022 92 of 2022 27 October 2022 Gazette No. 74 of 2022

BY MASTER ELIZABETH OLSSON OF THE DISTRICT COURT OF SOUTH AUSTRALIA

DAISY

Golden Gavel contestants (from left) Daniel Fox, Edward Satchell, Alexandra Douvartzidis, Stephanie Moore and Meredith Hennessy

Family Law - Melbourne

Marita Bajinskis

Marita is an Accredited Family Law Specialist and can assist with all family law matters including:

• matrimonial and de facto

• property settlements

• superannuation

• children’s issues

3/224 Queen Street

Melbourne VIC 3000

T: 03 8672 5222

Marita.Bajinskis@ blackwoodfamilylawyers.com.au www.blackwoodfamilylawyers.com.au

LawCare

The LawCare Counselling Service is for members of the profession or members of their immediate family whose lives may be adversely affected by personal or professional problems.

If you have a problem, speak to the LawCare counsellor Dr Jill before it overwhelms you. Dr Jill is a medical practitioner highly qualified to treat social and psychological problems, including alcoholism and drug abuse.

The Law Society is pleased to be able to cover the gap payments for two consultations with Dr Jill per patient per financial year.

All information divulged to the LawCare counsellor is totally confidential.

To contact Dr Jill 08 8110 5279 7 days a week LawCare is a member service made possible by the generous support of Arthur J. Gallagher

The Litigation Assistance Fund (LAF) is a non-profit charitable trust for which the Law Society acts as trustee. Since 1992 it has provided funding assistance to approximately 1,500 civil claimants.

LAF receives applications for funding assistance from solicitors on behalf of civil claimants seeking compensation/ damages who are unable to meet the fees and/or disbursements of prosecuting their claim. The applications are subjected to a means test and a merits test. Two different forms of funding exist –Disbursements Only Funding (DOF) and Full Funding.

LAF funds itself by receiving a relatively small portion of the monetary proceeds (usually damages) achieved by the claimants whom it assists. Claimants who received DOF funding repay the amount received, plus an uplift of 100% on that amount. Claimants who received Full Funding repay the amount received, plus 15% of their damages. This ensures LAF’s ability to continue to provide assistance to claimants.

LAF recommends considering whether applying to LAF is the best course in the circumstances of the claim. There may be better methods of obtaining funding/ representation. For example, all Funding Agreements with LAF give LAF certain rights including that funding can be withdrawn and/or varied.

For further information, please visit the Law Society’s website or contact Annie MacRae on 8229 0263.

Consulting Engineers

Australian Technolog y Pty Ltd for expert opinion on:

• Vehicle failure and accidents

• Vehicle design

• Industrial accidents

• Slips and falls

• Occupational health and safety Statistical analysis W Douglass R Potts MAOQ, FRAI, FSAE-A, FIEAust, CPEng, CEng, FIMechE 8271 4573 0412 217 360 wdrpotts@gmail.com

formerly of Howe Martin & Associates is a Principal at Blackwood Family Lawyers in Melbourne