Mitigation in defamation: New South Wales Court of Appeal overturns Rochfort v Fairfax

A defendant in a defamation action may lead evidence of the plaintiff's bad reputation to reduce or mitigate damages. Until now, despite some criticisms of the principle, the courts have followed the rule in Rochfort v John Fairfax & Sons Limited [1972] 1 NSWLR 16 ('Rochfort') that evidence of bad character subsequent to the defamatory publication is not admissible in mitigation of damages.

In Channel Seven Sydney Pty Limited v Mahommed [2010] NSWCA 335, a specially constituted bench of the New South Wales Court of Appeal accepted the submission that Rochfort was wrongly decided and overruled the case.

The Rule in Rochfort

The rule in Rochfort is found in Sugarman ACJ's judgment in that case and is based on the proposition that defamation law is concerned with a person's "actual" or "current" reputation which means his or her reputation as at the date of defamatory publication. Referring to the authority of Goody v OdhamsPress Limited [1967] 1 QB 333. Sugarman ACJ held in Rochfort that

"The...