In the case of Fairfax Media Publications Pty Ltd v Pedavoli ( NSWCA 237) the NSW Court of Appeal has unanimously dismissed an appeal by Fairfax Media over the $350,000 damages awarded to a female schoolteacher it falsely accused of sexually preying on male students.
The court agreed that aggravated damages were justified, with Justices Ruth McColl and Carolyn Simpson finding the cross-examination of the plaintiff a factor.
“That cross-examination was clearly capable of increasing the hurt to the respondent’s feelings by accusing her of a different sort of misconduct to that the appellants had already falsely accused her of in the matter complained of.”
Melinda Pedavoli (pic) a teacher at St Aloysius College, began defamation proceedings against Fairfax Media and journalist Anne Davies after The Sydney Morning Heraldwrongly identified her as the female teacher who had resigned after allegations of sexual misconduct.
The article headed “Female teacher quits top Catholic school after claim of sex with boys” stated the teacher concerned was in her late 20s and taught English and drama.
Pedavoli was not the teacher, but she was her late 20s and was the only teacher at the school who taught both English and drama.
The article was published online on the evening of January 30, 2014 and in the newspaper on January 31.
At 8.42am on January 31, Fairfax removed references in the online version to the teacher’s age and the subjects she taught.
After receiving a letter from Pedavoli’s lawyers, Fairfax made an offer of amends of $50,000 on February 5.
On February 13, the online article was removed entirely and an apology published.
Pedavoli rejected the offer of amends and the matter went to trial in October 2014 with four pleaded imputations.
(a) She is a sexual predator who used boys at the school at which she taught, for her sexual gratification.
(b) She is a paedophile.
(c) (i) She committed a criminal offence by having sex with at least two boys at the school at which she taught.
(c) (ii) She breached child protection laws by having sex with at least two boys at the school at which she taught.
(d) She so seriously misconducted herself as a teacher as to deserve to have her employment terminated by the schools at which she taught.
Fairfax’s only defence was offer of amends, although it argued the allegations that Pedavoli was a sexual predator and a paedophile didn’t arise.
In December, NSW Supreme Court Justice Lucy McCallum found the plaintiff had been seriously and “grossly” defamed by imputations (a), (c) and (d).
She awarded Pedavoli damages of $350,000 on the basis that Fairfax’s apology and offer of $50,000 was not reasonable in the circumstances and because the publisher had failed to tweet a correction to the “1,155 Twitter followers who in fact downloaded the matter complained of via Twitter”.
On appeal, Fairfax submitted the amount awarded was “manifestly excessive” because Justice McCallum (pic) erred in finding that:
(1) The publication conveyed the imputation that the respondent was a sexual predator.
(2) The publication implicitly invited readers to ascertain the identity of the teacher concerned from the school’s website.
(3) The cross-examination of the respondent exacerbated the hurt occasioned by the defamatory publication.
(4) Aggravated damages should be awarded.
The court rejected all grounds of appeal, in separate judgments.
Justice McColl noted that before the appeal hearing Fairfax abandoned its challenge to Justice McCallum’s finding that Pedavoli’s rejection of the offer of amends was unreasonable.
She found Fairfax’s challenge to the sexual predator imputation “devoid of merit”, the effect on the plaintiff of the article “devastating”, the journalist’s conduct “irresponsible journalism” and counsel for Fairfax, Tom Blackburn SC’s cross examination, in which he questioned Pedavoli’s honesty, “unjustifiable”.
Justice Simpson also found Blackburn’s cross-examination a ground for awarding aggravated damages.
“The question challenging the veracity of the respondent’s evidence of her fear, was no more than, in the vernacular, a cheap shot. It should not have been asked.”
Her Honour took some time reviewing the law in respect of evidence at the trial that there was a surge in people accessing the college’s website after publication, in order to ascertain the identity of the (unnamed) teacher in the article.
She concluded identification can occur after the time of publication, in this case via electronic media, and “such an invitation is, in any event, implicit in almost any defamatory publication that does not name its subject”.
Acting Justice Ron Sackville noted that while Justice McCallum concluded the offer of amends failed to satisfy the statutory criteria, she also found the offer of $50,000 compensation to be inadequate, given the seriousness of the defamation and hurt to feelings.
He agreed with Justice McCallum that the “sexual predator” imputation was conveyed:
“The fact that the articles were not overtly sensational in character does not detract from the impression that would be taken away by a reasonable reader, namely that the teacher concerned had exploited and seriously abused her position of trust and responsibility to gratify her sexual desires.”
Acting Justice Sackville also agreed with Justice McCallum’s reliance on a Google Analytics document which showed here had been a “dramatic spike” in interest in the St Aloysius website immediately after the articles appeared – 2921 people on January 31, with 1289 of these visiting the senior school staff list.
He found there were good reasons for the primary judge’s finding that the articles implicitly invited readers to go to the school’s website to identify the teacher.
And that Justice McCallum correctly inferred that “many readers who knew the respondent or knew of her would have laboured under the misapprehension that she was the teacher concerned”.
Justice Sackville disagreed with his fellow judges in regard to Blackburn’s cross-examination lacking bona fides.
“The questioning addressed only one relatively minor aspect of the respondent’s case and did not travel beyond a vigorous presentation of a legitimate defence on that issue.”
However, he concluded this did not affect the award of aggravated damages because of the “failure of the publisher to take steps to prevent readers falling into the same trap as Ms Davies”.
Davies admitted in interrogatories that she hung up before she was connected to Pedavoli, which would have determined she was not the teacher concerned – whom Davies knew had left the school in December 2014.
He described this as “an abject failure of journalism” and concluded the aggravated damages and the quantum determined by Justice McCallum should stand.
He added this about the comments Pedavoli was subjected to via social media.
“Commentary on social media was frequently aimed at the teacher concerned, but assumed that the respondent was that teacher.
Some of the comments were vile and inevitably caused great distress to the respondent.”
For the appellants: Tom Blackburn SC and Rico Jedrzejczyk instructed by Leanne Norman of Banki Haddock Fiora.
For the respondents: Bruce McClintock SC and Matthew Richardson instructed by Mark O’Brien, Paul Svilans and Andrea Rejante of Johnson Winter & Slattery.
This post originally appeared in the Gazette of Law and Journalism, Australia’s leading online media law publication.