Hay v Cresswell

Factual and Procedural Background

Plaintiff brought a libel claim against Defendant concerning publications made in June and July 2020 alleging that Plaintiff sexually assaulted Defendant on the night of 27-28 May 2010 after meeting in a nightclub in The City. Defendant’s publications alleged a violent sexual assault, which was accepted to be defamatory and to have caused Plaintiff serious harm. Defendant relied on defences of truth, public interest, and qualified privilege. Plaintiff sought general damages and injunctive relief but did not pursue aggravated damages or financial loss claims.

The publications included a blog on telegra.ph, messages and emails to Plaintiff’s business partner (Ms Sweeney), Facebook and Instagram posts. Plaintiff did not pursue a claim regarding a Twitter post that did not identify him. Defendant asserted her publications aimed to warn women about potential sexual assault in the tattoo industry, specifically by Plaintiff. Defendant’s defences included that the publications were substantially true and/or in the public interest, and that some communications were protected by qualified privilege due to the relationship with Ms Sweeney.

Plaintiff denied the assault and the truth of Defendant’s allegations, asserting that if an assault occurred, he was not the perpetrator. Plaintiff also denied the qualified privilege defence, alleging malice and falsity. The court was tasked with determining the defamatory meaning, truth of the allegations, public interest in publication, qualified privilege, and appropriate remedies if liability was found.

The trial involved extensive witness evidence from Plaintiff, Defendant, and various associates and friends. The court structured its judgment to address legal framework, publications, pleadings, trial, meanings, facts, defences, and overall conclusions.

Legal Issues Presented

1. What is the natural and ordinary meaning of the words used in the publications?
2. Whether the defamatory sting of the publications was substantially true?
3. Whether the publications were statements on a matter of public interest or formed part of such statements?
4. If so, whether Defendant believed publishing them was in the public interest?
5. If so, whether that belief was reasonable?
6. Whether the communications to Ms Sweeney were protected by qualified privilege?
7. If qualified privilege applies, whether the publications were made maliciously?
8. If liability is established, what compensation should be awarded?
9. Whether an injunction should be granted to prevent repetition or require removal of defamatory material?

Arguments of the Parties

Appellant's Arguments (Plaintiff)

• Defendant’s allegations are false and a deliberate fabrication.
• Defendant’s truth and public interest defences must fail.
• The qualified privilege defence does not apply as there was no duty or interest between Defendant and Ms Sweeney, and Defendant acted maliciously.
• Defendant’s accounts were inconsistent and unsupported by contemporaneous evidence, including police records.
• Defendant’s failure to disclose medical records and non-cooperation of certain witnesses undermine her credibility.
• The tone and content of Defendant’s publications were unreasonable and lacked balance.

Appellee's Arguments (Defendant)

• Defendant genuinely believed Plaintiff sexually assaulted her in May 2010.
• Defendant’s publications were substantially true in their essential elements.
• Defendant’s publications were on matters of public interest, including sexual abuse in the tattoo industry and protection of women.
• Defendant reasonably believed publication was in the public interest after failed police investigation and ongoing concerns.
• Defendant had a duty to communicate with Ms Sweeney due to Plaintiff’s role and contact with female clients, supporting qualified privilege for communications to Ms Sweeney.
• Defendant’s conduct was not malicious; publications were made in good faith to protect others.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first determined the natural and ordinary meaning of Defendant’s publications as conveying that Plaintiff violently sexually assaulted Defendant. This meaning was accepted to be defamatory and causing serious harm.

The court then assessed the truth defence, applying the balance of probabilities standard and considering the essential sting of the libel. Despite some inconsistencies and limitations in contemporaneous police documentation, the court found that Defendant had proven on the balance of probabilities that she was sexually assaulted as described and that Plaintiff was the perpetrator. The court gave limited weight to minor inconsistencies in Defendant’s accounts, recognizing the trauma and intoxication at the time of the event, and found Plaintiff’s evidence less credible due to inconsistencies and evasions.

The court considered the police incident log and investigation, concluding it was superficial and inadequately conducted, and did not significantly undermine the conclusion that the assault occurred. The court also rejected adverse inferences suggested by Plaintiff regarding non-disclosure of medical records and absence of certain witnesses.

In relation to the public interest defence under section 4 of the Defamation Act 2013, the court found that the publications were on matters of public interest, including sexual abuse in the tattoo industry, protection of women, and failures to prosecute such abuse. The court accepted Defendant’s subjective belief that publishing was in the public interest and found this belief was reasonable given the circumstances, including the deficient police response and the prominence of the Tattoo MeToo movement.

The court noted that Defendant’s role as a first-hand witness and victim justified her approach and that she was not required to seek Plaintiff’s comment or include counterbalancing material. The tone and content of the publications were understandable in context and did not undermine the reasonableness of Defendant’s belief.

Having found the truth and public interest defences established, the court found it unnecessary to determine the qualified privilege defence or consider remedies.

Holding and Implications

The court DISMISSED Plaintiff’s libel claim.

The court held that the defamatory imputation that Plaintiff violently sexually assaulted Defendant was substantially true, establishing the statutory defence of truth under section 2(1) of the Defamation Act 2013. Additionally, the court found that Defendant’s publications were on matters of public interest, that she believed publication was in the public interest, and that this belief was reasonable, thereby establishing the section 4 public interest defence.

Consequently, the claim failed and no further defences or remedies needed to be addressed. The decision directly resolves the dispute between the parties without setting new legal precedent. The parties were granted the opportunity to make submissions on consequential matters.