A sad coda to the High Court’s decision in DPP (Cth) v Poniatowska emerged recently. Malgorzata Poniatowska has had two major litigation successes, but each has been followed by setbacks. Her first success, obtaining a historic payout for sexual harassment from her former employers in a building consultancy, was followed by her prosecution for fraud charges for allegedly failing to inform Centrelink of the commissions she earned from that consultancy. Her second success, obtaining a landmark ruling from the High Court quashing her conviction (together with many other social security prosecutions), was soon followed by a negative story on Channel 7’s Today Tonight:

Matt White: First, this evening, a legal landmark in the High Court has forced Centrelink to close a loophole that will allow people to claim welfare they shouldn’t get. An Adelaide woman has shot down Centrelink, avoiding prosecution for claiming $20,000 in single parent benefits she wasn’t entitled to. As David Richardson reports, it’s a case that has shifted the goal post, and sent the government back to the drawing board.
Reporter: Every year, Centrelink goes hunting for cheats – 4 million entitlements reviewed, 640,000 payments reduced, 3400 cases convicted. They don’t miss much – until today.
Warren Moore: Instead of the average person being the winner, you’ve got one woman taking money from the average taxpayer.
Reporter: Meet the cheat who got away: she confessed to defrauding them, then she beat them.

She responded by suing Channel 7 for defamation and, recently, lost, badly.

Late August’s lengthy ruling followed a seventeen day trial in the Supreme Court of South Australia. Channel 7 accepted that its reports carried imputations that Poniatowska was dishonest, a cheat and a fraud, and relied on a variety of defences. One, the defence of justification (or ‘substantial truth’), required the court to resolve the basic factual questions underlying Centrelink’s dispute with Poniatoska for the first time (as the facts weren’t disputed at her earlier criminal trial.) The result was a very bad one for her. Justice Greg Parker largely rejected her testimony about notices and advice she had (or hadn’t) received from Centrelink (as well as alleged pressure from her criminal lawyers that she said explained her initial guilty plea) that she said meant that she was no fraud. Instead, he found Channel 7’s defence established to the high level of proof the High Court requires when allegations of fraud are made in civil cases:

In light of my finding that Ms Poniatowska did receive notices from Centrelink requiring to declare her income, I consider that she could have been found guilty of many, if not all, of the charges brought against her under s 135.2 of the Criminal Code. She might also have been convicted of offences under the Administration Act. On that basis I consider that she did act fraudulently.

As well, Channel 7 succeeded in a number of other defences, including fair comment, qualified privilege and the constitutional defence set out by the High Court in Lange.

Justice Parker’s further findings about Poniatowska’s claim for over one million dollars in damages (in case she successfully appeals his other holdings) reveal the personal setbacks surrounding her litigation successes. Although sexual harassment claim left her with mental health issues, she nevertheless obtained a law degree in the years leading up to her High Court success, but has never found employment as a lawyer. Justice Parker found that those employment troubles were largely due to her lack of experience, poor academic transcript, a depressed legal job market in Adelaide and her ‘negative internet footprint’ due to media reports (other than Today Tonight’s) about both her legal victories. Relevantly, he also found that Today Tonight’s reporting of the High Court’s decision, such as the following:

Reporter: Convicted of receiving sole parenting benefits while working for a building company, the High Court ruled Poniatowska had no legal obligation to tell them she was employed and earning income.
Jana Gumbat:She did not have a legal duty to inform Centrelink of her change in circumstances.
Reporter: Between August 2005 and May 2007, she received $21,000 in Centrelink payments. In that time she also received $71,000 in sales commissions while working for a building company.
Warren Moore: It’s a bit like The Castle in reverse.

‘explain[ed] in a simplified but readily comprehensible fashion the nature of the legal proceedings that were ultimately decided by the High Court’, establishing yet another defence to a defamation action: fair reporting. While any sympathies must be qualified by the facts found by Parker J, it strikes me as sad that, also in contrast to The Castle, the legal landmark that is DPP (Cth) v Poniatowska was a largely pyrrhic victory for Poniatowska herself, who presumably will now face considerable financial consequences for her failed civil action.