Peter Dutton will be significantly out of pocket in relation to his ‘successful’ claim against refugee activist Shane Bazzi because it would have been more appropriate to pursue the case in the Magistrates Court. Attwood Marshall Lawyers Commercial Litigation Senior Associate, Jade Carlson, discusses defamation and the costs and damages for frivolous cases.
Peter Dutton “won” his defamation claim against the refugee activist Shane Bazzi over a tweet labelling him a “rape apologist”. The federal court ruled in favour of Mr Dutton over the tweet he said had “deeply offended” him because it went beyond the “rough and tumble” of politics.
Justice Richard White said he intended to order damages of $35,000 for Mr Dutton but would refuse his bid for an injunction to prevent Mr Bazzi tweeting about him. Although the decision vindicated Mr Dutton’s reputation, the payout is relatively small and allowed Mr Bazzi’s lawyers to argue for reduced costs.
At the hearing in October 2021, Judge White had warned both parties about the failure to settle what he said was not “one of the largest or larger defamation cases the federal court has had”.
The judge noted even if Mr Dutton won his claim, Mr Bazzi could seek reduced costs if Mr Dutton were awarded less than $100,000 in damages, or if the judge determines that the proceeding could more suitably have been brought in another tribunal or court.
The court would then consider submissions on the issue of costs at a hearing on 8 December before formally making orders.
Bid to reduce the costs
Judge Richard White agreed to a bid by Mr Bazzi’s lawyers to cut costs, ordering him to pay them as if the case had been heard in Queensland Magistrates Court, which would ultimately leave Mr Dutton being able to recover a fraction of his actual costs incurred.
Mr Bazzi’s lawyers asked for the cost bill to be reduced, citing an estimate to do so if the gain was worth less than $ 100,000, or the court ruled that the case could more appropriately have been brought before another court or tribunal.
Mr Dutton’s lawyers argued that his important national position as Secretary of Defence justified seeking justification of his reputation in federal court.
But the judge said it would not be appropriate to exercise discretion more favourably for Mr Dutton because of the position he holds.
“All people are equal before the law, no matter what position they hold,” he said.
Judge White also noted that “just because a case involves a national figure does not mean it is of national importance”.
Dutton’s only settlement offer came four business days before the trial, as almost all the costs had already been borne, he found.
Judge White said the timing of the offer “worried” him and that Dutton’s lawyers had given “no explanation” as to why it was not offered at an earlier opportunity.
Dutton’s arguments that Bazzi’s failure to accept the settlement offer was rejected by Judge White and he found that there were no “special circumstances” that justified Bazzi having to pay Dutton’s full legal bill.
The judge said the case was not unusually complex, comparing it to cases heard in a magistrate or district courts, and approved Bazzi’s application to reduce costs.
Based on our calculation of fixed costs according to the Magistrates Court scale of costs for claims up to $50,000, Mr Dutton will likely recover an approximate amount of $11,500 for his costs on assessment, which is a fraction of his actual costs incurred, leaving Mr Dutton significantly out of pocket for a case that was awarded in his favour. On any view this would be classed as a pyrrhic victory for the Minister.
Consequences and costs
In addition to being only able to recover a fraction of his costs incurred, Mr Dutton was also ordered to pay half of Mr Bazzi’s legal costs.
Given Mr Dutton has form on the board for ignoring legal advice when he was Home Affairs Minister, and on one occasion Mr Dutton was threatened with contempt by a Federal Court judge, there has to be a fair chance the poor legal decisions made were instigated by Mr Dutton in an attempt to run up Mr Bazzi’s legal costs.
With Mr Dutton having to pay most of his own costs and half of Mr Bazzi’s costs, for the hearing commencing on 8 December 2021, it means he won’t get much change out of the $35,825 settlement he received in damages. And then for Mr Bazzi only having to pay costs for the Federal Court of Australia hearing as if they were heard in the Queensland Magistrates Court, it will see Mr Dutton being out of pocket tens of thousands of dollars for his defamation case.
In determining damages, the judge noted that it was understandable Mr Dutton was hurt and offended by the decision, but that a sense of perspective was needed.
All this litigious action was a result of a single tweet, which was posted late at night, only receiving about 1,220 Twitter “impressions”. The tweet was not published in any mainstream media and was deleted shortly after Mr Bazzi heard from Mr Dutton’s lawyer.
What is defamation?
Defamation is the publication of material designed to convey a meaning that is likely to lead an ordinary reasonable person to think less of the person the content is about.
‘Publication’ takes a broad definition and can include something spoken, or words intended to be read either by sign or by touch, or other visible representations.
The Defamation Act 2005 (Qld) (Defamation Act) and common law (i.e. decisions of Courts) together govern the law of defamation in Queensland.
In recent years, this legislation has been criticized as being outdated and unable to handle online and digital publications appropriately, placing unreasonable limits on freedom of expression.
Accordingly, in 2021, the Queensland Parliament implemented several important reforms to the Act. The changes, which took effect as of 1 July 2021, seek to modernise the legislation and strike a better balance between the need for individuals to be able to protect their reputation against harm and freedom of expression. Similar reforms have been made into law in South Australia, Victoria, and New South Wales.
The key reforms include:
- a serious harm threshold
- a single publication rule
- changes to the pre-litigation process
- a new public interest defence and scientific or academic peer review defence
- a cap on damages for non-economic loss.
These reforms are likely to have significant implications for anyone who is concerned that they may have been the subject of a defamatory publication. The implications will also be felt by publishers.
Anyone who believes they have been defamed will need to act as soon as they become aware of a potentially defamatory publication, to ensure they do not fall short of the one-year limitation period.
It will also be important for claimants and publishers to ensure they comply with the specific requirements of the legislation when preparing a concern notice or offer to make amends. This may have significant ramifications for the outcome of a defamation dispute.
When is it appropriate to sue for defamation?
The Defamation Act lists the elements required to sue for defamation. These elements are publication, identification, and defamatory matter.
Publication implies that the defamatory content is made known to another person other than the one being defamed. Publication may be in writing, in pictures, or oral and arises everywhere the material is heard, seen, or rather each time the defamatory statements are repeated to other people.
When suing for slander, one must be able to prove that the defamatory matter was about that person. When determining whether defamatory information is about the plaintiff, the court will consider whether a reasonable person would interpret the material as inferring to the plaintiff. Identification is easily satisfied in cases when a publication directly names the plaintiff as the subject matter of the defamatory statement. However, when no names are given, identification can still be satisfied if the publication is given to people who are aware of other facts that would reasonably lead them to identify the plaintiff as the one being discussed.
When determining whether a statement is defamatory, your defamation lawyer will want to determine whether the publication would have conveyed defamatory meaning to another person and whether an ordinary person would interpret the publication the same way the plaintiff alleges it to mean.
The three main ways a publication may be deemed to have defamatory meaning are by looking at the literal meaning of a statement, the secondary meaning of a statement (also known as a false innuendo), and by looking at other facts that are not featured in a publication.
When a statement makes sense when interpreted alongside other facts not mentioned in a publication, it is known as a true innuendo.
Section 9 of the Defamation Act excludes a corporation from bringing an action under the Defamation Act if it has 10 employees or more
Steps to take in a Defamation Claim
The first step you need to take if someone has published a defamatory statement about you is to ask them to apologize, remove or retract the statement, and refrain from making further statements of this nature. If they fail to do so and you feel that someone’s statement has hurt your reputation, it is important to seek advice from an experienced defamation lawyer who can advise you of your prospects of success in making a claim and obtain an understanding of the process to file a defamation claim in court.
For your claim to succeed, you will need to prove the three elements of defamation namely publication, identification, and defamatory matter. It is important to note that when suing for defamation, you should file your claim within 12 months from the time the statement was published.
Apart from satisfying the elements of a defamation claim and statutory limitations, you may need to show that the defamatory statement caused you some level of harm to your reputation. For example, you may need to prove that the defamatory publication cost you your job or business clients, led you to be evicted from your apartment, or directly ruined your reputation.
Damages for Defamation of Character
If your defamation lawyer succeeds in proving defamation, the court may award damages. There are several types of damages that may be awarded, including:
- General Damages: This form of compensation awards a plaintiff for the harm suffered due to the defamatory publication. For this award, it is not necessary for the plaintiff to prove that he/she was harmed. The court will ensure there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. The maximum amount of damages for non-economic loss that may be awarded is presently $250,000.
- Special Damages: Special damages are awarded to a plaintiff for the loss of income arising from the defamation, or loss incurred directly by the defamatory publication.
- Aggravated Damages: A plaintiff will be able to seek additional compensation as aggravated damages if the court determines that an act of defamation was malicious, deliberate, and intentional.
If you proceed with a defamation claim and are unsuccessful, or if you are found to have defamed a person, in most cases the court will require you to pay the legal costs of the other party on the standard basis, which provided the amount awarded is over $50,000 will likely return between 40% and 60% of your actual costs incurred (on assessment).
If the court award costs on an indemnity basis, and you are required to pay costs on this basis, you will likely be required to pay between 60% and 80% of the successful party’s costs (on assessment). When determining a costs award, the court will consider the way in which the parties conducted their case and any other matter relevant (section 40 of the Defamation Act).
Defences against defamation allegations
Even if content is considered defamatory, the person who published the defamatory material may have a defence and be protected from claims of defamation. For example, if the content is true (or substantially true).
If you have been accused of publishing or saying something defamatory, there may be several defences available to you. In the reverse, prior to making a defamation claim, you should think about the defences that may be available to the publisher to ensure that your claim can proceed and that you do not go down a very costly road without a reasonable prospect of success.
If a defence is successful, the publisher will not be required to apologise, pay damages or remove the material.
Defences outlined in the Defamation Act 2005 (Qld) and common law include justification, contextual truth, absolute and qualified privilege, public documents, fair report of proceedings of public concern, honest opinion and innocent dissemination. These defences are designed to ensure that defamation suits do not put unreasonable limits on free speech and to ensure that the business of the courts and governments can proceed without the risk of defamation claims being made.
Attwood Marshall Lawyers – helping you resolve disputes in the most efficient and cost-effective way
If you feel you have been defamed by another person and are considering suing for defamation, or allegations of defamation have been made against you, you should first seek legal advice from a defamation lawyer on the best ways forward. The best course of action will depend on your individual circumstances, the seriousness of the defamatory material and the potential for ongoing harm if the defamatory material is not corrected or removed.
Our experienced defamation lawyers can assist in all defamation matters to help you protect your personal and professional reputation. If something has been written, said, or published about you which you believe has damaged your reputation, contact our team to find out where you stand.
We can be contacted on our 24/7 phone line on 1800 621 071, or by contacting Commercial Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245 or email email@example.com
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