Can you succeed in defamation if you have a bad reputation?

By Demi Swain Mark Donaldson

10 October 2024

In the last few years, most Australian jurisdictions have implemented the Model Defamation Amendment Provisions 2020. Western Australia and the Northern Territory are yet to follow suit. In those jurisdictions that have amended their defamation laws, courts have been grappling with a new ‘serious harm’ requirement; see, for example, section 10A of the Defamation Act 2005 (NSW). Plaintiffs are now required to prove that the published information has caused, or is likely to cause, serious harm to their reputation.

What if a defamation plaintiff had a bad reputation prior to being sued? In these circumstances, the new serious harm element may have a role to play.

In Selkirk v Wyatt (2024) 302 FCR 541 (Selkirk), the Full Court of the Federal Court of Australia dealt with whether Ms Selkirk had suffered serious harm and considered whether she already had a ‘bad reputation’.

The Full Court ruled that, in jurisdictions like New South Wales that have implemented the serious harm element, any common law presumption of good reputation no longer exists.

 

Background

Ms Selkirk was convicted of 16 counts of dishonestly obtaining a financial advantage by deception, 1 count of using a false document to obtain financial advantage and 7 counts of dealing with property which was the proceeds of crime, by attending a David Jones store to obtain refunds for ‘returned goods’ by using false online purchase emails as proof of purchase.

Importantly, in the course of the criminal proceedings, Ms Selkirk had admitted that on 17 occasions she had engaged in acts of deception. Notwithstanding this admission, the convictions were overturned on appeal because the Crown had not proved where Ms Selkirk had obtained the goods in the first place.

Ms Selkirk was the subject of an article concerning her criminal appeal. Ms Selkirk commenced defamation proceedings against the publishers of the article claiming that the article imputed, among other things, that she was a fraudster, a scammer, untrustworthy and had committed the crime of dishonestly obtaining financial advantage by deception.

At first instance, Justice O’Callaghan dismissed Ms Selkirk’s defamation proceedings on the basis that she had failed to establish she had suffered any serious harm as a result of the article.

Ms Selkirk appealed to the Full Court.

 

Full Court decision

What constitutes serious harm?

The Full Court referred to the decision of Rader v Haines [2022] NSWCA 198 (Rader), which considered the test of serious harm in the context of the UK Defamation Act 2013:¹

a. ‘“serious harm” involves harm that is more than merely substantial, though it need not be grave’;

b. serious harm is concerned with ‘the impact of the imputation, in all the circumstances, on the plaintiff’s reputation – arising from a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. It is not satisfied by the gravity of the imputation alone. Nor is it satisfied by injury to feelings, however great’;

c. relevant considerations for serious harm include:

i. the meaning of the words;
ii. the extent of the publications;
iii. the nature of the recipients and their relationship with the plaintiff; and
iv. whether the recipients believe the imputations; and

d. ‘a grave imputation may not result in serious harm’, such as when it is published to a small number of people that know the plaintiff and are not likely to believe the imputation.

Is there a presumption of a ‘good’ reputation?

In her appeal, Ms Selkirk argued that there was a presumption of a good reputation.²

The Full Court held that there was no such presumption and relied on Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 483,³ where Hunt J said:

All that this means, as I understand it, is that a plaintiff need not lead evidence of injury to his reputation to establish his cause of action because some such injury is presumed. It does not mean that the plaintiff’s reputation is necessarily presumed to be good, only that, whatever his reputation is, it has suffered some injury.

In any event, the Full Court went further to hold that the introduction of the serious harm test has removed the presumption that defamatory imputations have caused damage.⁴

The Full Court explained a plaintiff could, however, adduce evidence of good character.⁵

Did Ms Selkirk have a ‘bad’ reputation?

A plaintiff’s bad reputation has always been relevant to mitigate damages. The Full Court quoted the decision of Wigney J in Faruqi v Latham [2018] FCA 1328:⁶

1. ‘evidence of a person’s bad reputation is, subject to certain conditions and exceptions, generally admissible in a defamation proceeding as going to the mitigation of damages’;
2. the evidence ‘must relate to the “sector” of the plaintiff’s life relevant to the defamation’;
3. the evidence ‘must demonstrate a settled view of the community and must be a permanent, not transitory view’;
4. evidence of previous acts of misconduct by the plaintiff must provide ‘directly relevant background context to the defamatory conduct’ to be admissible; and
5. the rationale for these rules is to ‘prevent [defamation] trials from becoming roving inquiries into the plaintiff’s reputation, character or disposition’.

The Full Court’s decision has affirmed that evidence of bad character can also form part of the test as to whether a plaintiff has suffered serious harm:⁷

… a prior bad reputation is relevant to the decision whether the publication has caused, or is likely to cause, serious harm to the claimant. It may mean that the difference between the prior bad reputation and the harm caused by the publication is not serious harm. Furthermore, they are authority for the proposition that if the defendant seeks to rely on prior bad reputation in the context of the issue of serious harm, then the onus is on the defendant to prove that matter.

In this regard, the Full Court relied on several English authorities for the following propositions:

1. A plaintiff is only entitled to recover compensation for injury to the reputation he actually has. By the same token, proof of an existing bad reputation in the relevant sector must be relevant to the question of whether the publication of a statement caused serious harm to the claimant’s reputation.⁸
2. A defendant can establish that there is no cause of action because the plaintiff’s reputation is so bad that the offending publication did not cause serious harm.⁹

Ultimate findings

The Full Court did not agree with the trial Judge’s ruling that Ms Selkirk had a ‘general bad reputation’ for deceptive conduct simply because she admitted, during her criminal proceedings, she committed acts of deception.¹⁰ Nor did the Full Court consider that the admission was evidence that it ‘was known to a sufficient number of persons’ that Ms Selkirk had a ‘general bad reputation’.¹¹

The Full Court ultimately dismissed Ms Selkirk’s appeal on the basis that she had failed to adduce evidence to establish that the article had damaged her reputation and caused her serious harm.¹²

Takeaways

Selkirk confirmed that:

1. There is no presumption that a plaintiff’s reputation is ‘good’. In order to show the extent of harm, and whether that harm is ‘serious’, a plaintiff should adduce evidence of their pre-existing reputation. This ought to be pleaded, with particulars, together with the nature of the harm that was caused.
2. The ‘serious harm’ must have a casual connection to the defamatory publication.
3. The defendant bears the onus of establishing general bad character. However, regard ought to be had to whether the plaintiff’s reputation was already damaged. It may mean that the difference between the prior bad reputation and the harm caused by the publication is not serious harm.

Selkirk was applied by Justice Applegarth in the masterful decision, Peros v Nationwide News Pty Ltd (No 3) [2024] QSC 192. That decision built upon the Australian serious harm jurisprudence developed by Selkirk. For example, Applegarth J held that ‘[s]trictures about the means of proving a bad reputation should not necessarily apply to an assessment of the harm that has been caused, or is likely to be caused, to the reputation of a person’.¹³

As courts continue to grapple with the dimensions of the new serious harm element of the cause of action for defamation, Selkirk is likely to be cited regularly as an intermediate appellate court authority on the meaning of ‘serious harm’ in the Australian legal context.

 

What does this mean for Western Australian defamation actions?

Whilst the Defamation Amendment Provisions 2020 are yet to be introduced in Western Australia, it does not mean a plaintiff suing in Western Australia should simply ignore this decision, for the following reasons.

First, although Western Australia has yet to implement the defamation law reforms to which it agreed in 2020, that position may soon change. Attorney-General John Quigley is on the cusp of retirement. After the 2025 WA State Election, a new Attorney (who pundits suggest may be Dr Toni Buti) may take a different attitude to defamation law reform, and to whether the serious harm element ought to be a part of WA law.

Secondly, the Western Australian Supreme Court has jurisdiction to dismiss defamation proceedings where there is a lack of proportionality between the costs and resources involved and the significance of the subject matter (such as if no serious harm has been sustained).¹⁴

Thirdly, and importantly, in cases where the plaintiff has a reputation in more than one part of Australia, it may be argued that the law that applies in the matter is the law of a jurisdiction that has implemented the serious harm element of the cause of action, even if the matter is going to be heard in a WA court.

 

1. Selkirk, [51].
2. Selkirk, [34].
3. Selkirk, [92].
4. Selkirk, [94].
5. Selkirk, [93].
6. Selkirk, [88].
7. Selkirk, [98].
8. Banks v Cadwalladr [2023] EWCA Civ 219; [2023] 3 WLR 167, [58].
9. Price v MGN Ltd [2018] EWHC 3014, [46].
10. Selkirk, [103].
11. Selkirk.
12. Selkirk, [104]–[107].
13. Peros v Nationwide News Pty Ltd (No 3) [2024] QSC 192, [245].
14. Armstrong v McIntosh [No 2] [2019] WASC 379, [83].

Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.