On 20 December 2017 Bennett + Co successfully concluded the longest running defamation action in the State of Western Australia, recording the second highest damages award for defamation in Australian legal history for its client Mr Lloyd Rayney.
Supreme Court Justice John Chaney on 20 December 2017 awarded Mr Rayney damages totalling just in excess of $2.62 million (comprising general damages, aggravated damages, economic loss and interest). Mr Rayney’s application for a special costs order in respect of the proceedings will be heard by the Supreme Court on 29 January 2018.
Martin Bennett, Principal and founding director of Bennett + Co, commenced acting for Mr Rayney in September 2007. Mr Bennett commenced proceedings on behalf of Mr Rayney in 2008. The progress of the proceedings in the Supreme Court was delayed when Mr Rayney was arrested in December 2010 and charged with the murder of his wife Corryn Rayney, a Supreme Court Registrar. Mr Rayney was acquitted of this charge. It was not until 2017 that the defamation claim came on for trial.
Rayney Legal Team of Eight
From 2008 onwards, Mr Rayney’s legal team was led by Martin Bennett assisted within Bennett + Co by Nikki Randall (Senior Associate) who had principal conduct of Mr Rayney’s matter until going on maternity leave in November 2016 and Ms Jonelle Di Lena (Senior Associate) who took over the conduct of the matter from Ms Randall until leaving the firm in February 2017. The trial team comprised Martin Bennett as lead counsel assisted by Jason MacLaurin (barrister from Francis Burt Chambers), Taleesha Elder (Senior Associate) as instructing solicitor and Grace Rompotes and Dominique Le Miere (who both started work during the trial as law graduates, Grace being admitted during the trial and Dominique being admitted on the day reasons for decision were delivered, 15 December 2017). In addition, Tanya Lavan (Senior Associate) assisted in the matter.
The staff of Bennett + Co fully supported the trial team throughout the trial.
The matter was conducted by Bennett + Co on a conditional fee basis – in essence a form of pro bono representation recognised by the Supreme Court of Western Australia where Bennett + Co’s representation was provided on the basis that Bennett + Co’s costs would be met only in the event of successful prosecution of the action from a costs award by the Supreme Court.
State Solicitors Office Legal Team of Thirty
The State of Western Australia was represented by the State Solicitor’s Office. Its trial counsel, Mr Terence Tobin QC (one of the editors of Defamation Law in Australia) is a senior member of the Sydney Bar, who was assisted by 2 junior counsel and 4 solicitors attending trial. The State Solicitor’s Office fully resourced the defence with up to 30 lawyers, clerks and other staff assisting in the preparation and conduct of the trial.
Longest Running Defamation Trial in Western Australia
The magnitude of the trial was immense. It was the longest running defamation trial in the State, spanning a total of 47 days from March to July 2017. The principal documentary evidence during the trial was taken from a 70 volume trial bundle. The plaintiff led evidence from 27 witnesses of whom 14 were cross-examined. Mr Rayney alone was cross-examined for 6 days. The defence led evidence from 60 witnesses of whom 47 were cross-examined. The defendant’s closing submissions were some 623 pages. Mr Rayney’s closing submissions were 471 pages.
The decision of Justice Chaney is in excess of 300 pages comprising 997 paragraphs.
Highest Ever General Damages Award in Western Australia
The award of damages to Mr Rayney is exceeded only by the award (under appeal) in favour of actress Rebel Wilson earlier in 2017 in the Supreme Court of Victoria. In Western Australia, the highest award for defamation until December 2016 was the decision in Coyne v Citizen Finance Ltd. This matter was a trial conducted by Martin Bennett on behalf of the plaintiff. The award of damages was ultimately upheld in the High Court in Coyne v Citizen Finance Ltd (1991) 172 CLR 2011. This was an award for $200,000.
In December 2016 in a decision by Justice Kenneth Martin in Douglas v McLernon (No 4)  WASC 320 (21 December 2016), the Supreme Court awarded damages in the sum of $250,000 to 2 of the plaintiffs and $200,000 to the third plaintiff. Significantly, the defendants in the matter, including McLernon, were self-represented (and impecunious).
The Court’s award of general damages alone in Mr Rayney’s case exceeds the highest award ever in the State of Western Australia.
In September 2008, Mr Rayney commenced defamation proceedings against the State of Western Australia in respect of statements made by (then) Detective Senior Sergeant Jack Lee to the media on 20 September 2007.
On 15 December 2017 his Honour Justice Chaney found that DSS Lee’s comments conveyed the imputation that Mr Rayney had murdered his wife. His Honour found in the circumstances of publication, the defence of qualified privilege (either under the Defamation Act or at common law) was not available to the defendant.
Although it was not necessary to decide the point, his Honour also considered the alternative imputations the subject of the proceedings (that Mr Rayney had so conducted himself as to give rise to a reasonable suspicion that he had murdered his wife, alternatively that the police suspected the plaintiff of having murdered or unlawfully killed his wife and had reasonable cause for so suspecting) and found the defence of justification (truth) was not available to the defendant.
In awarding damages for non-economic loss of $600,000 (substantially in excess of the statutory cap of $389,500) his Honour recognised the serious nature of the defamatory imputations and the devastating effect DSS Lee’s statements had on Mr Rayney’s reputation. The statutory cap was lifted by reason of the circumstances of aggravation accompanying the publication, including the fact that the publication was gratuitous, contained information beyond that which was necessary to update the public in relation to Operation Dargan, and it included false, prejudicial and inaccurate statements. His Honour also found that DSS Lee’s statements under cross-examination increased the distress and humiliation of the original defamation.
In addition to the significant damages award, his Honour Justice Chaney’s reasons for decision provide a compelling vindication of Mr Rayney’s reputation. His Honour methodically sets out the inaccuracy of various statements made by DSS Lee on 20 September 2007 as well as the biased approach of police in investigating the murder of Mrs Corryn Rayney.
His Honour does not mince words, noting at  of the judgment:
While it was obviously appropriate for police to thoroughly investigate whether Mr Rayney had any involvement in Mrs Rayney’s death, I am satisfied that by the end of August  the police involved in the investigation construed events and information that they learned with a suspicious bias rather than objectively. That conclusion most clearly emerged from the evidence of DSC Williams, DSS Lee, and DS Correia. Each of those witnesses was at pains to construe every snippet of information they had as pointing to Mr Rayney’s involvement with his wife’s murder.
His Honour said at :
[DSC Williams] started from the assumption that Mr Rayney was guilty, and interpreted information which he either obtained himself or learnt from others as pointing to guilt, rather than making any objective assessment of it.
At  his Honour found that DS Correia
… tended to place the most sinister inferences from sometimes quite neutral or equivocal facts, and … ignored what Brian Martin AJ [the trial judge in respect of the murder charge] described as “improbabilities and uncertainties” which rendered the hypothesis underlying the defendant’s case as “glaringly improbable”.