Bailey v WIN Television NSW Pty Ltd

Court of Appeal (NSW)|2020-09-21|Before: Meagher JA, White JA, Fagan J

Background

The following facts are uncontroversial. For a period from September 2008 until 19 October 2016 the appellant was the General Manager of the Lithgow City Council ("the Council"). In 2016, he had the benefit of a five year contract, which was due to expire on 21 September 2017. On 19 October 2016, by a majority (6-3) vote of the Council, his employment was terminated.
The first respondent, which was based in Orange in the central west of NSW, held a commercial television broadcast licence the operation of which extended to the Lithgow area. The second respondent administered a Facebook page to which it downloaded items broadcast by the first respondent.

(i) the ground of appeal

The basis for the proposed appeal is limited. Although the primary judge rejected all four of the pleaded imputations as not conveyed, the appellant seeks to support only one, imputation (c), which, to repeat, was: "The plaintiff, as General Manager of Lithgow City Council, bullied and intimated Council staff."
A single ground of appeal is pleaded as follows: "The primary judge erred in concluding that none of the imputations sued upon by the plaintiff was conveyed by the matters complained of and holding that the plaintiff had not been defamed; the primary judge should have found that imputation (c) … would have been conveyed to the ordinary reasonable viewer or listener of the matters complained of."

(ii) a Notice of Contention

The respondents have filed a Notice of Contention. The respondents contend that, if imputation (c) was conveyed, the defence of qualified privilege should have been (and should, on appeal, be) upheld.

The primary judge's reasons for finding that imputation (c) was not conveyed.

The primary judge gave detailed reasons for concluding that none of the imputations pleaded had been conveyed. It is only necessary to consider his reasons in relation to imputation (c). His Honour held: "36. … The published matter did not specify any complainant who had alleged that the plaintiff had, on any nominated occasion, bullied or intimidated one or more members of the Council staff. The report was second-hand hearsay from the Council of an assertion that non-specific allegations had been made to it. Paragraph 4 conveyed that the mere fact of these allegations having been received by Council, alone, had 'contributed' to the decision of the majority to terminate the plaintiff's employment. 37. There is no suggestion in the published Matter that any of such allegations have been substantiated to anyone's satisfaction. The contrary was suggested by the words spoken by Mayor Lesslie at par 2, that the sacking 'was an excessive overreaction to reasonably minor internal Council problems' and Ms Statham's view that terminating the plaintiff's contract had 'been a very tough decision'. To the ordinary reasonable listener, the expression of these sentiments would signal that 'allegations of bullying and intimidation' had not been proved. The essence of the published Matter is that the decision of the majority of Council was a response to the workforce being 'unhappy', without any basis for their unhappiness having been specifically identified let alone proved. … 39. … the content of the Matter as a whole conveys that these allegations have not been particularised let alone substantiated, that they had 'contributed' to the majority decision merely as allegations and that there was a strongly held view of the Mayor that the allegations were not significant. … The gravamen, emphasis and impression of the Matter taken as a whole is that Council had acted, controversially and with dissent from one third of its members, on the basis of, amongst other things, non-specific allegations of misconduct by the plaintiff. The general tenor of the Matter is entirely against elevation of those 'allegations' to a proposition of fact in the terms of imputation (c). 40. The plaintiff submits that the commencement of par 4 with the words 'According to Council' would convey to the reasonable listener that these must be more than 'mere allegations' because they came from the elected body that had, by majority, acted upon them. For reasons given at [28] above I reject the proposition that Council's majority vote would convey to the ordinary reasonable listener that the allegations must have substance. There is no justification for assuming that the ordinary reasonable listener would be oblivious to the possibility of unfair and unjustified dismissal. Nor should he or she be taken to have such respect for the majority decision of a political forum such as the Council that a majority vote of its members would be treated as establishing the fact of misconduct by the plaintiff. 41. The plaintiff further submits that Ms Statham's quoted words that her vote in favour of dismissal was 'not taken lightly' would indicate to the ordinary reasonable viewer 'that the allegations were overwhelming'. Nothing of the kind would follow for an ordinary reasonable listener. Such a person would recognise the total absence of particulars of any allegations and would see that, if Council was aware of any substance to them, terminating the plaintiff's employment would not be 'a tough decision' at all. … The published Matter does not venture to suggest that there is any evidence, overwhelming or otherwise. It does no more than report that Council said such allegations had been made."
The reference in [40] to "par [28]" is a reference to an earlier finding by the primary judge in the context of considering whether imputation (b) was conveyed. His Honour said: "28. Again the plaintiff invokes the payout of $200,000 as a basis upon which the reasonable listener would infer this imputation. … This is not an implication that the reasonable listener would make. The proposition that the plaintiff must have performed poorly would be pure speculation from the published content, including from the fact of the payout. A moment's consideration by any reasonable listener would identify the possibility that Council may have acted precipitously and unwisely. The Matter does not purport to present concrete information to show the discontent of Council staff was well-founded and was the fault of the plaintiff. The Matter leaves open the possibility that the plaintiff may have been sacrificed by a Council trying to appease its workforce, perhaps in relation to unjustified or remediable grievances. The content of the news item may indicate nothing more than that Council had wasted public funds on compensation for terminating the plaintiff's employment without cause."

Was imputation (c) conveyed?

Whether a defamatory imputation is conveyed (as distinct from whether an allegedly defamatory publication is capable of conveying an asserted imputation) is a question of fact. Ordinarily, this Court will not interfere with findings of fact by trial judges unless they are shown to be wrong by "incontrovertible facts or uncontested testimony", are "glaringly improbable" or "contrary to compelling inferences". These tests were stated in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 as illustrative of the potential bases on which a trial judge's findings of fact might be disturbed: see [26], [28] - [29]. They solidified into requirements in Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 90 ALJR 679, where the High Court said that an appeal court should not interfere with the trial judge's findings of fact unless they are demonstrated to be wrong by one of those tests (at [43]).
Notwithstanding the unqualified reference in Robinson Helicopter to the circumstances in which this restrained approach is to apply, it is well established that this Court, in exercising its appellate jurisdiction, is obliged to conduct "a real review" of the decision under appeal (Fox, at [25]) and, if persuaded that error has been shown, must not shrink from discharging the functions imposed by s 75A(6) of the Supreme Court Act.
More recently, in Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited (2019) 266 CLR 129; [2019] HCA 28 the High Court confirmed that the restrained approach described in Fox and referred to in Robinson Helicopters is as to factual findings likely to have been affected by impressions formed by the trial judge about the credibility and reliability of witnesses as a result of seeing and hearing them give their evidence (at [55], per Bell, Gageler, Nettle and Edelman JJ, with whom Kiefel CJ agreed).
In this case determination of whether the imputations were (or any of them was) conveyed was wholly to be made by observation of the recordings of the news item and the Facebook posting. It did not in any sense depend on "impressions about the credibility [or] reliability of witnesses formed by the trial judge". This Court is in as good a position as the trial judge to make the assessment: Warren v Coombes (1979) 142 CLR 531 at 551; [1979] HCA 9.
Much judicial time, energy and effort has been expended in the analysis of the task of determining whether an asserted imputation is in fact conveyed by a publication of which complaint is made. In part this may be because very often the determination lies within the province of juries, who need to be carefully directed as the tests to be applied.
Whether a pleaded imputation has been conveyed by a publication is to be determined by reference to what "ordinary reasonable people" would understand the publication to mean: Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16 at [6]. "Ordinary reasonable people" are people "of ordinary intelligence, experience, and education", are not "avid for scandal" and are fair minded. They are expected to bring to the publication in question their general knowledge and experience of worldly affairs. They are capable of some loose thinking.
The test so stated derives from Capital and Counties Bank Ltd v Henty & Sons (1882) 7 App Cas. 741 at 745, cited in Lewis v Daily Telegraph Ltd [1964] AC 234 at 259, and repeatedly adopted in this State and in Australia. In Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 Wigney J, after a review of relevant decisions, extracted 14 "basic principles" to be applied in determining whether an imputation pleaded is conveyed. Relevantly for present purposes, they include: (iii) "the question is not a question of construction of the words used in the article in the legal sense"; (vi) "the ordinary reasonable reader is … said not to be a lawyer who examines the publication overzealously, but rather someone who views the publication casually and is prone to a degree of 'loose thinking'"; (viii) "each alleged defamatory imputation has to be considered in the context of the entire publication" although different weight might be attributed to different parts of the publication; (xi) "the determination of what an ordinary reasonable reader would read into or imply from the words complained of is often a matter of impression."
There was no suggestion of error in this collection of principles on appeal to the Full Court of the Federal Court: Nationwide News Pty Ltd v Rush [2020] FCAFC 115. They were adopted by the primary judge at [19].
As can be seen from those paragraphs of the primary judgment extracted above, the primary judge relied on a number of circumstances to support his conclusion that imputation (c) was not conveyed. They include:

that no complainant who alleged bullying or intimidation against the appellant had been specified in the news item, and nor had any occasion of bullying or intimidation by him been nominated (at [36]);
that there was no suggestion that any such allegation had been substantiated to anyone's satisfaction and that the contrary was suggested by Mayor Lesslie in saying that he thought the termination was "an excessive overreaction to reasonably minor internal council problems", and by Ms Statham in stating that the decision had been "a very tough" one; (at [37]);
that paragraph 4 conveyed that the mere fact of the allegations "alone" had "contributed" to the decision to terminate the appellant's employment (at [36]);
that the "essence" of the publication was that the decision to terminate the appellant's employment was a response to the unhappiness of the work force, without any specification for the basis of their unhappiness (at [37]);
that, while there was no express reference to any refutation or disavowal of the conduct attributed to the appellant, the publication as a whole conveyed the absence of particularisation or substantiation (at [39]);
that recipients of the news item would not be oblivious to the possibility that the decision to terminate was "unfair and unjustified" (at [40]) and would "identify the possibility that Council may have acted precipitously and unwisely" (at [28]).

I am unable to accept this reasoning. In my opinion consumers of an evening news bulletin do not, ordinarily, approach the question of what is conveyed by interrogating the published matter for details of its content. They accept at face value the assertions made, unless there is, contained within the publication, an indication that the assertions are contradicted or questionable. A news item may be contrasted with an opinion piece (written or electronic) which may be expected to be the subject of more critical scrutiny.
In the case of this news item, in the absence of any suggestion of controversy over the assertions, viewers or listeners would have accepted that allegations of the kind reported had been made. I accept that that alone would not be sufficient to convey the imputation that the appellant had engaged in conduct of the relevant kind. But that was not all that was said.
Nor do I accept, as stated in the opening sentence of [37] of the primary judgment, that there was no suggestion in the broadcast that any such allegation had been substantiated to anyone's satisfaction. The ordinary reasonable viewer, in my opinion, would draw an inference of substantiation of the allegations from the stated fact that a majority of Council had voted to terminate the appellant's employment. No reason for termination other than the allegations of bullying and intimidation was given. I do not accept that the "essence" of the publication was that the decision was merely a response to the unhappiness of the workforce. That would suggest that the appellant was (unfairly) sacrificed to an unhappy workforce, whose unhappiness could not be laid at his door. The news item implied, clearly in my opinion, that the unhappiness of the work force arose because of the conduct the subject of the allegations. That the appellant was the perpetrator of that conduct followed from the fact of the decision to terminate his employment.
I do not accept that par 4 conveyed only that "the mere fact of the allegations having been received by Council alone" contributed to the majority decision to terminate. Paragraph 4 cannot be seen in isolation from the rest of the publication. When taken together with the preceding paragraph (Ms Statham saying that the "workers" had been very unhappy, and that that had been confirmed by a survey) a clear connection between the conduct of the appellant and the unhappiness of the workers was suggested. That was reinforced by Ms Statham's subsequent observation that the decision was "probably going to be inevitable unless things changed", and by the central fact of the broadcast, that the appellant's employment had been terminated.
Certainly, Mayor Lesslie's stated opinion, that the decision was "an excessive overreaction to reasonably minor internal Council problems", would not convey any suggestion of misconduct on the part of the appellant. But that comment, like par 4, cannot be taken in isolation. There was no reason for the ordinary reasonable viewer to give primacy to the stated opinion of Mayor Lesslie over that of Ms Statham (with whom five other councillors agreed), the report of allegations and, most importantly, the fact of termination of employment. In any event, Mayor Lesslie's comment is apposite to the remedy - termination - rather than the conduct alleged (as is Ms Statham's statement that the decision had been a "very tough" one).

that there were allegations of bullying and intimidation by ("from") the appellant;
that there was unhappiness amongst staff (substantiated by a survey);
that the appellant's employment was terminated. In combination, these three facts unmistakably convey the imputation that the appellant was guilty of the conduct the subject of the allegations.

That inference is not undercut by Mayor Lesslie's expression of disappointment and his view that the decision was "an excessive overreaction to reasonably minor internal Council problems". That was obviously a minority view point. And it suggests, not that the allegations of misconduct were unsubstantiated, but that Mayor Lesslie (and possibly two other councillors) considered that the remedy was more extreme than was called for by the circumstances.
I would uphold the sole ground of appeal. That conclusion makes it necessary to address the Notice of Contention.

The Notice of Contention

Like the Notice of Appeal, the Notice of Contention is limited to a single issue - whether the statutory defence of qualified privilege is made out.
By s 30 of the Defamation Act 2005, a defence of qualified privilege is made out where the defendant proves 1. that the recipient of defamatory matter has an interest or apparent interest in having information on some subject; 2. that the matter is published in the course of giving to the recipient information on that subject; and 3. that the conduct of the defendant in publishing the matter was reasonable in the circumstances.
The only contested issue in relation to that defence was and is whether the conduct of the respondents in broadcasting the news item was reasonable in the circumstances. The appellant argued, by reference to a 1991 decision of this Court (Morgan v John Fairfax Ltd [No 2] (1991) 23 NSWLR 374), that the respondents could not succeed in the defence unless they established that they (or Mr Wilson) believed that imputation (c) was true. This they could not do in the absence of evidence that Mr Wilson turned his mind to the possibility that an imputation in those terms might be conveyed by the news item. If the respondents could not establish that Mr Wilson believed that the appellant bullied and intimidated Council staff, they could not establish that their conduct was reasonable.
In Morgan [No 2], after referring to authority, Hunt AJA (with whose reasons Samuels JA agreed) said that the review of authority: "… demonstrates that, in determining whether the defendant's conduct was reasonable in the circumstances, the defendant must in most cases establish his honest belief in the truth of what he has written." (pp 385-6)
His Honour went on to state a number of propositions that he considered were supported by the authorities to which he had referred. Relevantly, these were stated as: "(1) … the more serious the imputation conveyed, the greater the obligation upon the defendant to ensure that his conduct in relation to it was reasonable … (2) If the defendant intended to convey any imputation in fact conveyed, he must (subject to [some presently immaterial potential exceptions]) have believed in the truth of that imputation. (3) If the defendant did not intend to convey any particular imputation in fact conveyed, he must establish: (a) that (subject to the same exceptions) he believed in the truth of each imputation which he did intend to convey; and (b) that his conduct was nevertheless reasonable in the circumstances in relation to each imputation which he did not intend to convey but which was in fact conveyed. If, for example, it were reasonably foreseeable that the matter complained of might convey the imputation which the jury finds was in fact conveyed, it will be relevant to the decision concerning s 22(1)(c) as to whether the defendant gave any consideration to the possibility that the matter complained of would be understood as conveying such an imputation, as will be his belief in the truth of that particular imputation and what steps he took to prevent the matter complained of being so understood … " (internal citations omitted)
The arguments made by the appellant make it necessary to explore some of the legislative history of the defence, and judicial consideration of it. Examination of that history has persuaded me that the propositions stated in Morgan [No 2] no longer have the determinative effect that they may once have had, and do not exclusively state the tests by which the reasonableness of a defendant's conduct is to be measured.

Qualified privilege

The defence of qualified privilege has had a troubled history. It began life as a common law doctrine: Toogood v Spyring [1834] Eng R 363; (1834) 1 CM & R 181; 149 ER 1044; Adam v Ward [1917] AC 309; Braddock v Bevins [1948] 1 KB 580. The common law defence survives: Defamation Act s 6; Marshall v Megna [2013] NSWCA 30.
As the authorities cited above demonstrate, the defence at common law protects the communication of defamatory matter made on an occasion where the publisher has an interest or duty (legal, social or moral) to make the communication and the recipient has a corresponding interest or duty to receive it, and the defamatory content is relevant to the occasion. The defence is defeated by proof that the communication was actuated by malice: see, for a recent general encapsulation of the defence, Aktas v Westpac Banking Corporation (2010) 241 CLR 79; [2010] HCA 35 (for example, at [14], [56]). Because of the requirement of reciprocity the defence has rarely been available to mass media publications (Aktas, at [14]).
The common law defence has been joined by a statutory version, now embodied in s 30 of the Defamation Act. The statutory defence came into existence with the enactment of the Defamation Act 1974 (NSW) ("the 1974 Act") in s 22 thereof, which then provided: "22(1) Where, in respect of matter published to any person: (a) the recipient has an interest or apparent interest in having information on some subject, (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the publisher in publishing that matter is reasonable in the circumstances, there is a defence of qualified privilege for that publication. (2) For the purposes of subsection (1), a person has an apparent interest in having information on some subject if, but only if, at the time of the publication in question, the publisher believes on reasonable grounds that that person has that interest. (3) …"
Prior to 1974, there were precursors to the defence. The predecessor of the 1974 Act (the Defamation Act 1958 (NSW)), in s 17, provided defences where the publication was made in good faith: "(e) for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has, or is believed, on reasonable grounds, by the person making the publication to have, such an interest in knowing the truth as to make his conduct in making the publication reasonable under the circumstances; … (h) in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit and if, so far as the defamatory matter consists of comment, the comment is fair. For the purposes of this section, a publication is said to be made in good faith if the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; if the manner and extent of the publication do not exceed what is reasonably sufficient for the occasion; and if the person by whom it is made is not actuated by ill-will to the person defamed, or by any other improper motive, and does not believe the defamatory matter to be untrue." I mention these provisions for completeness. They may safely be put to one side as of historical relevance only.
Although s 22 "was clearly intended to widen the scope of the common law defence of qualified privilege": (Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 359E (Privy Council)), it provided no guidance as to how the reasonableness of the conduct of a publisher was to be determined. In Austin, with respect to a claim for defamation arising out of a newspaper article, the publisher pleaded, inter alia, defences of comment and qualified privilege under s 22. Mr Austin's legal representatives administered interrogatories. Specifically with respect to the defence of comment, they asked whether the journalist who wrote the article intended to convey either or both of the two imputations pleaded. The journalist replied that he did not (although he identified another defamatory imputation that he did intend to convey). That was held by the Privy Council to be prima facie evidence that could be used to show that the journalist did not hold the opinion represented, for the purposes of the defence of comment. The Privy Council added: "Although the answer to the interrogatory is evidence that can be used in an attempt to defeat a defence of comment it does not follow that it will necessarily defeat the defence of statutory qualified privilege. Words are often capable of more than one meaning, and because the jury may attach to them a defamatory meaning which the writer did not intend, it does not follow that the writer did not honestly believe in the truth of what he wrote and reasonably intended a different meaning to be given to his language." (p 362F)
However, with respect to what they described as "the crucial issue" in the appeal, which was the reasonableness of the conduct of the journalist, their Lordships said: "There will of course be cases in which despite all reasonable care the journalist gets the facts wrong, but a member of the public is at least entitled to expect that a journalist will take reasonable care to get his facts right before he launches an attack upon him in a daily newspaper. If on enquiry it is found that the facts are not true and that reasonable care has not been taken to establish them courts should be very slow to hold that the newspaper is protected by statutory qualified privilege. The public deserve to be protected against irresponsible journalism. The defence of comment provides such protection by insisting upon the newspaper establishing the substantial truth of the facts upon which it comments. It cannot surely have been the intention of the legislature that this protection should be substantially stripped away by the introduction of the statutory defence of qualified privilege. But this will be the result if a newspaper is able to hide behind the action of a careless or an irresponsible journalist or if the court takes too indulgent a view of the conduct of a journalist who failed to check his facts." (pp 364-5)
Three things emerge from these observations. First, a publisher was not necessarily to lose the protection of s 22 because the publication might be held to have conveyed a meaning that was unintended. Second, courts should not too readily use the provision to excuse careless or irresponsible journalism (or other publication). Third, the unavailability of the common law defence to mass media publications has not wholly carried over to the statutory defence (although history shows that mass media publishers have struggled to avail themselves of s 22).
The absence of any legislative guidance on what was to be taken to constitute reasonable conduct on the part of publishers of defamatory material inevitably led to judicial attempts at explanation.
In Barbaro v Amalgamated Television Services Pty Ltd (1990) 20 NSWLR 493 Samuels JA, with whom Hope AP and Priestley JA agreed, rejected (at 500F) an argument that s 22(1)(c) "demanded" proof of honest belief on the part of the publisher in the truth of what was published, adding that, while honest belief will often be a critical element in proof of reasonableness, it did not follow that reasonableness could not be established without proof of honest belief. Nevertheless, his Honour said, it was "no doubt true" of printed publications that defendants will generally fail to establish reasonableness without evidence of such belief (at 500G). (His Honour then drew a distinction between printed publications and electronic publications, with respect to the latter of which, he considered, the proposition was "less convincing". A printed publication, unlike an electronic publication, is necessarily dependent on "sources". In Barbaro the publication was a television broadcast which depicted an exchange between a reporter and the plaintiff. In those circumstances, Samuels JA said, "the publication is its own source".)
In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 the High Court had under consideration a then novel non-statutory defence which may be termed constitutional freedom of communication relating to government and political affairs, which requires that the conduct of the publisher be reasonable in the circumstances (Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [5]). The Court held: "In all but exceptional cases, the proof of reasonableness will fail as a matter of fact unless the publisher establishes that it was unaware of the falsity of the matter and did not act recklessly in making the publication." (at 573)
The Court continued: "Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant's conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant's conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond." (at p 574, internal citations omitted)
It may be noted that the Court did not adopt, and made no reference to, the propositions stated by Hunt AJA in Morgan [No 2], and neither do those propositions appear in any form in the passage extracted. Unawareness of falsity of what was published and the absence of recklessness are not the same as actual belief in the truth of the content of the publication. It may also be observed that the Court appears to have endorsed the view of the Privy Council, stated in Austin, that s 22 was intended to "widen the scope of the common law defence". That appears from the conclusion (stated at p 569) that, without the statutory defence, the law of defamation [including the common law defence] would impose an undue burden on freedom of communication under the Constitution. That is because, the Court said: "… apart from the statutory defence, the law as so understood arguably provides no appropriate defence for a person who mistakenly but honestly publishes government or political matter to a large audience."
I infer from this that the Court considered that mistaken but honest publication of defamatory material may have been protected by s 22, provided that the three conditions imposed by s 22, that is (i) that the recipient has an interest or apparent interest in having information on a subject; (ii) that the matter is published in the course of giving information on that subject to the recipient; and (iii) that the conduct of the publisher is reasonable in the circumstances, are satisfied. That inference is not confined to publications on government or political matters.
Some clarity was introduced in 2002, when the 1974 Act was amended by the addition of subs (2A) into s 22: Defamation Amendment Act 2002 (NSW). Subsection (2A) stated eight specific circumstances and matters the court "may take into account" in the determination of whether the conduct of a publisher is reasonable: in the chapeau it expressly allowed, as well, for "such other matters as the court considers relevant" to be taken into account.
Introducing the Defamation Amendment Bill into the Legislative Council the Parliamentary Secretary, Mr MacDonald, said: "The current section 22 of the Defamation Act provides a defendant with a defence of qualified privilege when certain conditions are met, including when the conduct of the publisher was reasonable in the circumstances. There are currently no criteria set out in the act to provide guidance on what is reasonable and I appreciate that publishers need a practical means of interpreting what is, and is not, reasonable. Accordingly, the bill adds section 22(2A) to the Act which sets out the factors that a court may take into account when determining whether a publisher has acted reasonably. …" (New South Wales, Parliamentary Debates, Legislative Council, 5 December 2002, p 7774)
Not included in the list of relevant circumstances were the propositions stated by Hunt AJA in Morgan [No 2], nor anything like them. But neither were those circumstances excluded as irrelevant.
In 2005, the 1974 Act was repealed and replaced with the current Act - the Defamation Act 2005 (NSW). Section 30 of the 2005 Act provides: "30 Defence of qualified privilege for provision of certain information (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that - (a) the recipient has an interest or apparent interest in having information on some subject, and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances. (2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest. (3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account - (a) the extent to which the matter published is of public interest, and (b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and (c) the seriousness of any defamatory imputation carried by the matter published, and (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and (e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and (f) the nature of the business environment in which the defendant operates, and (g) the sources of the information in the matter published and the integrity of those sources, and (h) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and (i) any other steps taken to verify the information in the matter published, and (j) any other circumstances that the court considers relevant. (4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice. (5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward."
The list of circumstances deemed by Parliament to be relevant and stated in subs (3) is largely the same as that in s 22(2A) of the 1974 Act, with the addition of par (f), an equivalent of which did not appear in the 1974 Act, and par (j) (the effect of which was included in the chapeau to s 22(2A)). Again, the propositions stated by Hunt AJA in Morgan [No 2] were not adopted, but nor were they excluded.
Those propositions are at odds with the reasoning of the High Court in Roberts v Bass. The decision in that case arose out of proceedings in which defences of qualified privilege at common law and the extended defence as explained in Lange were in issue. By the time the matter reached the High Court, however, the surviving issue was whether malice had been proved. The trial judge had found that each publication in question was published under qualified privilege at common law, but that that defence was defeated by the malice of the publishers. The decision is not, therefore, direct authority for what constitutes - or does not constitute - reasonable conduct for the purposes of s 30(1)(c). Nevertheless, there are some observations which are of relevance. In the joint judgment of Gaudron, McHugh and Gummow JJ the passage from Austin, set out above, was quoted. Their Honours went on to say: "82. These remarks of Lord Griffiths apply where the issue is the malice of the defendant. The defence of qualified privilege would be dramatically curtailed if defendants had to intend and believe in the truth of every meaning that a judge or jury later gave to the publication. The privilege is not curtailed if lack of belief in a particular meaning is merely some evidence from which it may be inferred in some circumstances that the defendant was actuated by an improper motive. … 83. In our opinion, neither lack of honest belief nor knowledge of falsity ipso facto destroys a defence of qualified privilege. But knowledge of falsity is 'almost conclusive evidence' of improper motive, except where the defendant is under a legal duty to publish the defamation."
These remarks, made in relation to proof of malice, have equal force with respect to the assessment of the reasonableness of a publisher's conduct.
In light of these principles, it remains to be considered whether the conduct of the respondents in the publication of imputation (c) was reasonable in the circumstances that existed.

Was the conduct of the respondents reasonable?

It was common ground at trial that s 30(1)(a) and (b) were satisfied. The appellant did not contend, as contemplated by subs (4), that the publications were actuated by malice. The sole issue (the onus lying on the respondents) was whether the conduct of the respondents in publishing the news item was reasonable in the circumstances.
The list of circumstances stated in s 30(3) as relevant to the determination of the reasonableness of the conduct of a publisher is neither mandatory ("a court may take into account") nor exhaustive (see par (j)). No single consideration is determinative. A significant additional consideration (not expressly mentioned in s 30(3)) is the information available to the publisher prior to publication (including any information that may be provided by individuals the subject of the publication: John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227).
The reasonableness of the respondents' conduct has to be measured by reference to the conduct of Mr Wilson, and, to a lesser extent, Ms Fotheringham, as the persons through whom the respondents relevantly acted. It was, primarily, through those two witnesses that the relevant evidence was given.
In the consideration of the reasonableness of the respondents' conduct, it is necessary to have regard to the factual findings of the primary judge, particularly where those findings were arrived at on the basis of his assessment of the witnesses as they gave their evidence: Lee at [55]. Of the considerations listed in s 30(3), only (g) (the sources of information and their integrity), (i) (any other steps taken to verify information), and part of (h) (attempts made by the publisher to obtain and publish a response from the person about whom the imputations were published) potentially depend on the assessment of witnesses and their credibility. Otherwise the considerations are of objective fact and evaluation based on the publication itself. In fact, there were few credibility issues: the primary judge found Mr Wilson, in particular, to have been an impressive and credible witness, and that assessment has not been challenged.
Relevantly to s 30(1)(c) the primary judge found: (i) that the subject matter of the publication was a matter of public interest (s 30(3)(a)) (at [126]); (ii) that the publication was related to the performance of public functions or activities of the appellant (s 30(3)(b)) (at [127]); (iii) that the broadcast distinctly stated that the allegations of bullying and intimidation were allegations and did not purport to state that they were matters of proven fact (s 30(3)(d)) (at [129]); (iv) that it was in the public interest for the news item to be published expeditiously (s 30(3)(e)) (at [130]); (v) that the first respondent was operating a commercial television station; in order to "maintain relevance and a wide audience" it was "imperative to report a news item of significance to the Lithgow community and to do so promptly" (s 30(3)(f)) (at [131]); (vi) that Mr Wilson's sources of information (Ms Statham and Mr Lesslie) were sound, and had been used by him on prior occasions, when he had found Ms Statham to be "highly reliable" and "extremely credible"; and that he had no reason to doubt the veracity of what Mr Lesslie told him; and that prior to October 2017 Mr Wilson had gained an understanding of the affairs of Lithgow Council, and was diligent in collecting information on that subject (s 30(3)(g) and (i)) (at [133]-[134]); and (viii) that Mr Wilson had made a reasonable attempt to obtain the appellant's side of the story (s 30(3)(h)) (at [136]).
The primary judge declined to make any assessment of the seriousness of the imputations (s 30(3)(c)) because of his conclusion that the imputations were not conveyed (at [128]). He held that the considerations arising under s 30(3)(g) and (i) "strongly support the reasonableness of the publication" (at [135]).
In the context of considering pars (g) and (i) of s 30(3), the primary judge said: "133 In addition to these sources Mr Wilson had gained an understanding that there was discontent and lack of morale amongst Council staff from discussions earlier in the year with Ms Statham, with other councillors and with Council employees. Ms Statham had informed him that there had been a staff survey and that it had revealed 'discontent, lack of morale, allegations of … micromanaging'. Prior to 19 October 2016 Mr Wilson had read Facebook pages and emails of the Lithgow Ratepayers Association and had read the Lithgow Mercury online, all of which had referred to the survey and to discontent and lack of morale that 'was really impacting council staff'. Some of these publications had referred to Ms Roebuck's allegations concerning the state of staff relations within Council, as submitted by her to Council at the meeting of 10 October 2016. 134 Mr Wilson was diligent in collecting information on the state of affairs within the council workforce over some months prior to 19 October 2016. During that period he actively sought, from a wide range of sources, confirmation of such allegations and rumours as came to his notice. He expressly and deliberately refrained from submitting to the first defendant any news item about discontent within the council workforce or allegations concerning the plaintiff until a reportable event had occurred. When Council resolved to terminate the plaintiff's employment Mr Wilson's prior diligence and alertness enabled him to assess the information given by Ms Statham and Mr Lesslie in their interviews and to form a judgment, upon a sound basis, that it was credible and could be safely broadcast. The narrative portions of the impugned Matter, spoken by Mr Wilson himself, were founded upon intelligence gathered by him over the preceding months from people who were in a position to know the state of affairs amongst Council staff." The evidentiary basis for these conclusions is outlined below.
The primary judge then went on to consider an argument that the respondents' conduct could only be found to have been reasonable if it were first established that Mr Wilson believed in the truth of the imputation. This proposition derives from Morgan [No 2]. He concluded that Mr Wilson did not intend to convey imputation (c). He stated as his reason: "141 … I find the alleged imputations so far removed from any meaning that could reasonably be attributed to the news item that I can be comfortably satisfied that Mr Wilson would not have intended to communicate any such meaning. … I consider it inconceivable that a person of [Mr Wilson's] qualities would have understood that the balanced, objective news item that he prepared would have conveyed to any ordinary reasonable listener the imputations pleaded by the plaintiff."
Just what should be drawn from these findings was the subject of controversy. The respondents contended, and the appellant disputed, that the primary judge had found that "s 30 was satisfied". The basis on which the appellant disputes the contention is obscure. He argued that the factual findings were informed by the primary judge's decision that the imputations pleaded were not conveyed and that each of the factual findings was "premised upon the conclusion that imputation (c) was not conveyed". So far as I can see, this argument depended upon the opinion stated in [141] of the primary judgment, set out above, that the pleaded imputations were so far removed from any reasonable interpretation of the news item that it was inconceivable that Mr Wilson intended to convey them.
The appellant's contention is contradicted by [17] in which his Honour said: "As I have concluded that the imputations are not carried by the Matter, the defendants' affirmative defences could only be determined on the hypothetical basis of a contrary conclusion. I will endeavour to make factual findings with respect to those affirmative defences to the extent that this is possible and useful …"
Although he did not expressly say so, the obvious inference to draw from the primary judge's detailed findings set out above is that, had he found any imputation to have been conveyed, he would also have upheld the s 30 defence. That is confirmed by the latter part of [17], in which his Honour said: "…and if my findings on the defence under s 30 should also be reversed, there would have to follow an assessment of what damage may be attributed to such imputations as may be upheld." That is a clear indication that he considered that the s 30 defence was made out. I would reject the proposition that the factual findings were premised on the conclusion that the imputations were not conveyed. The conclusion stated in [141] stands separately and independently from the findings referable to the s 30(3) considerations. It was a conclusion drawn in relation to what was said, in Morgan [No 2], to have been required under the 1974 Act.
In any event, any conclusion drawn is not binding on this Court, which, as stated above, must conduct "a real review" and draw its own conclusions. The drawing of a conclusion from facts found to have been established does not fall into the category of fact finding that is protected by Fox, Robinson Helicopter and Lee. This Court is in as good a position as the primary judge to decide what conclusions are to be drawn from the facts his Honour found established. Conclusions drawn from established facts do not depend on the assessment of the credibility or reliability of witnesses.
On behalf of the appellant it was submitted that, notwithstanding the findings of fact set out above (only the last of which was contested), the defence of qualified privilege should not be upheld. Three principal reasons were advanced in support of that contention. First, it was said that there was no evidence that the respondents had in their possession information that directly supported the fact that the appellant had been dismissed either because of allegations that he engaged in bullying or intimidation, or because he had in fact engaged in such conduct. If the respondents did not have in their possession such information it could not have been reasonable to publish imputation (c). Second, it was said that there was no evidence that Mr Wilson had considered the possibility that imputation (c) might be conveyed, or that he took care to avoid conveying that imputation; nor was there evidence that he believed the imputation to be true. In the absence of such evidence it could not have been reasonable to publish imputation (c). The third reason was what was said to be "insufficiency of the attempts made by the respondents to obtain the appellant's side of the story, and to determine, one way or the other, whether the appellant was alleged to be the perpetrator of the bullying and intimidation. Failure to make sufficient attempts to give the appellant an opportunity to respond to the allegation meant that the conduct of the respondents in publishing imputation (c) was not reasonable.
I shall address each of these in the sequence in which they were argued. Before that is done, it is convenient to set out some additional background circumstances relevant to the reasonableness of Mr Wilson's conduct.
In early 2016, in the context of a then government policy of amalgamation of local Councils, a survey of Council staff was undertaken. The results of the survey were compiled in a report to the appellant. They were not favourable to Council management. Complaints were made of failure of "senior management to communicate with and listen to employees"; of "micro- management"; and of "bullying" or similar objectionable conduct by senior management towards employees. Some examples of specific answers are:

"Management are bullies and they get away with treating their staff poorly";
"Stop bullying staff - senior management treat staff equally … senior management are bullys [sic] and [HR] manager looks the other way when GM bullys [sic] staff";
"Management at all levels could treat people with respect and as adults instead of using isolating tactics and demeaning language to bully staff. … This behaviour is evident from the most senior management down to middle management, in some cases";
"Replace the General Manager. Eliminate harassment by the General Manager of staff";
"change the culture of the organisation (where bullying is tolerated and delivered via senior management and others across the organisation)." A number of responses to the survey made specific adverse reference to the appellant.

The report of the survey had not been publicly released and, although Mr Wilson had heard rumours about its content, as at the date of the broadcast of the news item, he had not seen it.
Problems in the Council workforce became known publicly. On 15 October 2016 the local newspaper ("the Lithgow Mercury") reported that a Lithgow resident, Ms Lorraine Roebuck, had: "…accused management at [the Council] of cultivating a culture of bullying, intimidating and micromanaging staff." Ms Roebuck was reported as saying: "Allegations of bullying, unhappy staff, lack of support for staff, micro managing and general poor management are issues that much of the town is talking about." A local Ratepayers' Association circulated copies of that and other articles to Council members and others, including Ms Fotheringham.
I return now to the three matters advanced by the appellant as reasons that the s 30 defence should fail.

(i) information in possession of the respondents

The focus of the argument in this respect was on that part of the broadcast that was transcribed as par 4, which, it will be remembered, was a statement made by Mr Wilson that: "According to Council there have been a number of allegations of bullying and intimidation from Mr Bailey which contributed to the group's decision." Put shortly, the appellant's contention was that there was no evidence that Mr Wilson had information to the effect that the appellant was the, or a, perpetrator of the bullying and intimidation that caused the unhappiness of the workforce.
Paragraph 4 was key to imputation (c). True it is that, alone, par 4 could not have conveyed an imputation that the appellant bullied and intimidated Council staff; it did no more than report allegations of that conduct, unattributed. It is equally true that, absent par 4, the news item could not have conveyed imputation (c). For that reason, what was asserted in par 4 was of central importance. It follows that support for par 4 was also central to the assessment of the reasonableness of the conduct of the respondents in publishing the imputation.
Although no statement identifying any findings of fact to be challenged (as required by Uniform Civil Procedure Rules 2005 (NSW) r 51.36(2)) was provided, the appellant took issue with the findings in [133] and [134] (set out above). He contended that the information given to Mr Wilson by Ms Statham and Mayor Lesslie was an inadequate basis for a publication that alleged that the appellant's employment had been terminated because he (personally) had engaged in bullying and intimidation.
The respondents referred to evidence given by Mr Wilson which, they asserted, was to the following effect: (i) that he "had heard from multiple sources over multiple months of discontent among the Council workforce stemming from the appellant and spreading through the Council" …; (ii) that he had heard about the staff survey, including the contents and results [although he had not seen the survey or the report]; (iii) that he had been told by Ms Statham that the Council survey and allegations of bullying and intimidation from the appellant were the reasons for the decision to terminate the appellant's employment; (iv) that he had been told by Mayor Lesslie that allegations of bullying and harassment were the reasons for the vote to terminate the appellant's employment; (v) that he had received emails from the Lithgow Ratepayers' Association and had read items in the Lithgow Mercury; (vi) that he was aware of a local resident (Ms Roebuck) who had spoken at Council a number of times about issues concerning the appellant; and (vii) that, on the morning of 20 October 2016, he heard an ABC broadcast that reported on the Council meeting, in terms similar to those he subsequently reported in the news item.
The appellant disputed that this was an accurate reflection of the evidence. The point sought to be made in oral argument appears to have been that, although Mr Wilson had available to him information of an unhappy and discontented workforce, and that generalised allegations of bullying and intimidation had been made, the evidence was insufficient to identify the appellant as the perpetrator of that conduct (as I have found was conveyed in imputation (c)). The appellant, through his counsel, accepted that Mr Wilson might have come to a conclusion that: "… [the appellant] was the most senior officer of a dysfunctional organisation and as the boss had to go." That is not the same as concluding that the appellant was the perpetrator of the conduct in question.
Both Ms Fotheringham, and, more particularly, Mr Wilson, gave detailed evidence in relation to the information in their possession. Mr Wilson was extensively cross-examined. His evidence in chief included: "I heard from multiple sources over multiple months of discontent in - amongst Council stemming from [the appellant], the General Manager, and kind of spreading throughout council. I have spoken to a number of councillors, I believe I spoke to a number of council staff, and just generally around town too. I was in Lithgow once a week or a few times a fortnight, and you'd go and get a coffee and you'd talk to people or you'd - yes, it was my job to know what was happening in Lithgow at the time."
He said that he had heard about the staff survey and its results - "what they were kind of pointing towards and what the sentiments echoed in that survey were". He believed that the issues included discontent, lack of morale, allegations of micromanaging "and things like that".
He said that emails from the Ratepayers' Association "came flooding into [the first respondents] inbox", from which he understood: "… that there was some discontent within council. I know that there was definitely issues bubbling under the surface and that they were stemming from [the appellant] and they were stemming from the top of council, which would have been [the appellant] at the time. As I mentioned before, you know, through his role there was discontent and lack of morale and it was really impacting council staff."
Mr Wilson was asked if he had heard anything else about the appellant in the weeks or months prior to his termination, to which he replied (somewhat unresponsively): "Not particularly about him personally as a person. I didn't know [the appellant] personally. I never really had much contact with him, prior to today, to be honest. This is the first time I have ever seen him in real life. So, what I was hearing and where I was getting my information from, was purely based on, I guess, what was happening at the time and sources and contacts that were close to him and himself. I obviously watched council - read council's papers and things like that, but I didn't have a personal opinion of him, if you know what I mean. Like my opinion was very objective, based on my work and my professionalism at work."
He said that he had not presented a story about "these rumblings" before the termination: "Because we don't report on gossip. We don't report on things that may or may not have been said. We wait until there's concrete evidence and we wait until the story, or there's something to report on. We are not - I guess, a gossip publication. We wait until the facts are there and we wait until, what I believe was the truth, and - and which had been corroborated by a number of credible sources to report on the issue. Now, this basically meant that I waited until a decision was made on [the appellant], before I went and reported on any issue."
Mr Wilson was alerted to the termination of the appellant's employment by an ABC news broadcast on the morning of 20 October, which prompted his call to Ms Statham, who he had previously found to have been a reliable source of information, and Mayor Lesslie. The ABC broadcast had "similar content" to the news item he later broadcast. It contained mention of the Council's survey and also (he believed) mentions of allegations that arose from that survey.
When asked about his conversation with Mayor Lesslie prior to recording the interview, Mr Wilson said: "I think he acknowledged that - he acknowledge[d] the contents of the survey. He said he was pretty disheartened and I think the - … He had acknowledged the reason behind the vote, which were the allegations of bullying and harassment and also off the back of - ". "…he certainly acknowledged that the survey existed and that that was the reason for the vote."
In oral argument, counsel for the appellant contended that these last answers should not be interpreted as Mr Wilson saying that Mayor Lesslie had told him that the allegations of bullying and harassment were the reasons behind the vote; rather, the words "which were the allegations of bullying and harassment" were interpolations by Mr Wilson. I do not accept that interpretation. Even if the first answer extracted above is open to that interpretation, the second is not. It is quite clear that Mr Wilson was saying that Mayor Lesslie acknowledged that allegations of bullying and harassment were the reasons that the majority of councillors voted as they did.
That, however, is insufficient to lay the conduct the subject of the allegations at the appellant's door. There is nothing in that evidence that communicated to Mr Wilson the survey responses that made allegations against the appellant.
I accept, as was submitted on behalf of the appellant, that there was no clear direct evidence that Mr Wilson had information that implicated the appellant as the perpetrator of the conduct the subject of the allegations. There was, however, much from which an inference to that effect could legitimately be drawn. Of particular importance was Mr Wilson's evidence of recurrent emails from the Ratepayers' Association (the precise content of which was not explored in any depth), Facebook postings, Mr Wilson's awareness of the staff survey, (all of which significantly predated the Council meeting) and the ABC news bulletin, with "similar content" to that which Mr Wilson broadcast. Mr Wilson gave evidence that what was said in par 4 derived from what Ms Statham had told him (without specifying what that was). And, of course, there was the fact of the termination of the appellant's employment.
The test for reasonableness of a publisher's conduct is less rigorous than the test for proving the truth of a defamatory imputation. As the primary judge pointed out in [133]-[134] of the primary judgment, by the time of publication Mr Wilson had accumulated a considerable store of information, from a variety of sources. At least one of those sources (Ms Statham) he considered to be "extremely credible". Ms Statham's express view "that change was absolutely essential" and that the termination was "going to be inevitable unless things changed", Mr Wilson's understanding of the content of the staff survey (incomplete though it was), the fact itself that Council had voted to terminate the appellant's employment, and the content of the ABC news bulletin, put together, I conclude, provided sufficient information to Mr Wilson to justify the broadcast of the news item that went to air, including those aspects of it that conveyed imputation (c).
The evidence as a whole satisfies me that Mr Wilson did have sufficient information to justify the publication, including the publication of imputation (c).

(ii) Mr Wilson's belief (or otherwise) in the truth of imputation (c)

The second reason advanced by the appellant in support of his argument that the conduct of the respondents was not shown to have been reasonable was that there was no evidence that the respondents (through Mr Wilson) had given any consideration to the possibility that imputation (c) might be conveyed, nor any evidence that Mr Wilson believed the imputation to be true. As indicated above, this contention depended substantially on the statement by Hunt AJA in Morgan [No 2], that, in most cases, in order to establish reasonableness, it will be necessary for a defendant to establish an "honest belief in the truth of what he has written". If Mr Wilson did not turn his mind to the possibility that imputation (c) might be conveyed (I take the argument to be) then, ipso facto, he could not have had an honest belief in its truth.
Particular emphasis was placed on the propositions in which Hunt AJA considered what a defendant must do to establish reasonableness of conduct in two different scenarios:

where the defendant intended to convey the defamatory imputation found to have been conveyed; and
where the defendant did not intend to convey that imputation.

In the first circumstance, Hunt AJA said the defendant must establish that he or she believed in the truth of the imputation. In the second, the defendant must establish that he or she believed in the truth of any imputation that was conveyed intentionally, and that the conduct in publishing the unintended defamatory imputation was nevertheless reasonable.
These propositions give primacy to the state of mind of the publisher to the exclusion of other considerations relevant to reasonableness. Whether Mr Wilson intended to convey the imputations pleaded (including imputation (c)) was not explored either in his evidence in chief or in cross-examination. Nor was any question directed to him as to his belief (or otherwise) in the truth of any of the imputations.
The Morgan [No 2] propositions remain relevant considerations. In Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45, following Cummings v Fairfax Digital Australia & New Zealand Pty Ltd (2018) 99 NSWLR 173; [2018] NSWCA 325, this Court held that the jurisprudence developed in the context of s 22(1) of the 1974 Act has continued relevance. In Stoltenberg, Gleeson JA (with whom Macfarlan and Brereton JJA agreed) quoted the whole of the passages in Morgan [No 2] extracted above. Those propositions are not inconsistent with what the High Court said in Lange. But the enactment of s 22A, in 2002 and post-dating both of those decisions, broadened the scope of relevant considerations beyond what was in the publisher's mind, both as to what was intended to be conveyed, and the publisher's belief in the truth of any imputation that was conveyed. Far from being the exclusive determinant or even the prime considerations, the Morgan [No 2] propositions must take their place alongside the nine considerations enumerated in s 30(3), as "any other circumstance that the court considers relevant".
Of some interest is Hunt AJA's initial proposition in Morgan [No 2], which is directed to the publisher's honest belief in the truth of "what he has written" as distinct from "the imputation(s) conveyed". What a publisher intends to convey is not necessarily co-extensive with what a recipient may draw from that which is published - see Austin, at p 362, cited with approval in Roberts v Bass. In circumstances such as the present, when neither party asked Mr Wilson whether he intended to convey imputation (c), the enquiry is more aptly focused on whether he believed in the truth of what he broadcasted. Although that question also was not asked directly there was no suggestion that he did not, and all of his evidence points to a conclusion that he did.
Although Mr Wilson did not explicitly give evidence either that he considered the possibility that what he published might convey an imputation that the appellant bullied and intimidated staff members and did not say (and was not asked) whether he believed that to be true, the primary judge nevertheless drew an inference that he did not intend to convey anything to that effect. That was because the primary judge considered that the imputation was "so far removed from any meaning that could reasonably be attributed to the news item" that Mr Wilson, who he considered to be intelligent and diligent, would not have intended to convey such an imputation. If it were correct that Mr Wilson did not intend to convey the imputation, the third of the Morgan [No 2] propositions would come into play, and the respondents would have to establish that Mr Wilson believed that any imputations he did intend to convey were true, and that, in relation to any that he did not intend to convey (and that were in fact conveyed - notably, imputation (c)) - his conduct was nevertheless reasonable.
Given my disagreement, expressed above, with the primary foundation for the inference that the primary judge drew, it is plain that I cannot agree with that reasoning. The present question is whether, in order to establish that the conduct of the respondents was reasonable, it was necessary that they prove that Mr Wilson, if he intended to convey the imputation, believed it to be true.
In my opinion the likelihood is that Mr Wilson did not expressly turn his mind to whether viewers of the news item would infer that the appellant was the perpetrator of the conduct described in the broadcast. That does not mean that he did not believe that the appellant was the perpetrator of the conduct. Nor does it mean that he intended to convey imputation (c). What is important is that there is no basis for concluding that Mr Wilson believed imputation (c) to be untrue.
In fact, Mr Wilson had good reason to believe in the truth of imputation (c). That emerges from the reasons given in relation to the appellant's first asserted basis for disputing the reasonableness of the respondent's conduct in publishing the imputation.

(iii) section 30(3)(h): efforts made by Mr Wilson to present the appellant's side of the story.

The third reason given by the appellant concerns s 30(3)(h), which requires consideration of whether the publication contained the appellant's "side of the story", and, if not, whether a reasonable attempt was made by Mr Wilson to obtain and publish a response from him. The primary judge was satisfied that Mr Wilson made reasonable attempts to give the appellant an opportunity to "put [his] side of the story".
I have set out above the primary evidence on this issue. Mr Wilson attempted to obtain a telephone number to contact the appellant and was unable to do so. At his request a message was conveyed to the appellant, who declined to engage with him. After a brief discussion with Ms Fotheringham, Mr Wilson waited in his car, for about 45 minutes, for a response. The response was (explicitly) negative.
The appellant argued that these attempts were "grossly inadequate" and that Mr Wilson ought to have given a clear indication to the appellant that what he proposed to publish included allegations of bullying and intimidation. That, it was argued, could have been done by asking others (such as Mayor Lesslie) for the appellant's contact details, or even by a Facebook communication.
The termination of the employment of the General Manager of a city council is obviously newsworthy and something of which the population deserves to be informed. Time for Mr Wilson to obtain the appellant's "side of the story" was limited if the news item were to go to air that night. A somewhat half hearted submission was made that the item could have been held over until the following evening's news bulletin but that was obviously impractical. ABC Radio had already broadcast the news. It was part of the first respondent's function to inform ratepayers and residents of a development of such significance and it had to do so within the time available.
Given the appellant's refusal to engage with Mr Wilson there was little more that the first respondent could have done. It was not suggested that the second respondent was in any materially different position.
It is also not to be overlooked that the views of the minority of Council members were put through Mayor Lesslie. That was the best that Mr Wilson could do in the circumstances.
All three reasons advanced on behalf of the appellant as a basis for rejecting the defence of qualified privilege under s 30 should be rejected. In my opinion the conduct of the respondents was reasonable in the circumstance. The defence should be upheld.
The appeal should therefore be dismissed. In those circumstances it is unnecessary to decide if leave to appeal is required. The result is the same. It is therefore unnecessary to deal with the respondents' notice of motion. The outcome would be the same, and the appellant will be liable for their costs, whether or not the appeal was incompetent.
The orders I propose are:
To the extent necessary, leave to appeal is granted;
The appeal is dismissed;
The appellant is to pay the respondents' costs of the appeal.

SCHEDULE A TO STATEMENT OF CLAIM TRANSCRIPT OF THE FIRST MATTERS COMPLAINED OF Key of Names Reporter: James Wilson, WIN News Statham: Cr Maree Statham

Reporter: Thank you for agreeing to see me, could you please confirm for me what happened at the council meeting last night
Statham: Well as you already know, the GM was dismissed by a majority decision
Reporter: What was the sentiment of councillors to the sacking?
Statham: There are a lot of things I could say but it is a very touchy subject so I will only say that there was disharmony and a lot of concerns. I voted the way I did because I believed change was absolutely essential. The decision was 5/3.
Reporter: Could I get you on camera answering some questions?
Statham: Yes but I do not want to say anything other than what honestly happened.
[Camera starts recording]
Reporter: Could you please tell me what happened at last night's council meeting?
Statham: The council voted 5/3 to terminate the employment of the general manager.
Reporter: How did you vote?
Statham: I voted with the majority.
Reporter: Why did you vote that way?
Statham: After speaking to many, many people that the workers have been very unhappy, not every worker, but certainly the majority of workers and I think that was proven through the Council survey recently with the staff. Look I think it was, ah, something that was probably going to be inevitable unless things changed. I think it's been a very tough decision, one which I've certainly not taken lightly.
Reporter: What will happen now?
Statham: Well I just want to get on with the job of council.

Amendments 01 February 2021 - [54] change "no such" to "any such" [76] "exceptional circumstances" to "exceptional cases" [85] change "onto" to "on to" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 February 2021

Defamation Act 1958(NSW)

Defamation Act 1974(NSW)

Defamation Amendment Act 2002(NSW)

(the Defamation Act 1958(NSW)

Solicitors: Mills Oakley (Appellant) Banki Haddock Fiora (Respondents) File Number(s): 2020/113927 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Civil Citation: Bailey v WIN Television NSW Pty Ltd [2020] NSWSC 232 Date of Decision: 24 March 2020 Before: Fagan J File Number(s): 2017/315166

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant was the General Manager of Lithgow City Council ("the Council"). On 19 October 2016, his employment was terminated by majority vote of the Council. The following evening, the first respondent televised a news item concerning the appellant's termination. That report was also posted on the second respondent's Facebook page. It stated, inter alia, that "discontent and lack of morale amongst staff have been blamed for the sacking of [the appellant]" and that "according to Council, there have been a number of allegations of bullying and intimidation from [the appellant] which contributed to the group's decision". The primary judge relevantly found that the news report did not convey the imputation that the appellant bullied and intimidated Council staff. Although the primary judge did not make an express finding as to whether the statutory defence of qualified privilege under Defamation Act 2005 (NSW), s 30 would otherwise have been made out, his Honour made factual findings relevant to that question. The issues in the appeal were: (i) Whether the news report conveyed the imputation that the appellant bullied and intimidated staff. (ii) Whether the statutory defence of qualified privilege was made out, the sole issue on appeal being whether the respondents' conduct in publishing the news item was reasonable in the circumstances. Held, dismissing the appeal (per Simpson AJA, Meagher JA agreeing, White JA agreeing in part): As to issue (i)

Per Simpson AJA, Meagher JA agreeing: Whether the alleged imputation was conveyed was to be wholly determined by observing the video of the news report. It did not depend on impressions of the credibility or reliability of witnesses. Accordingly this Court was in as good a position as the primary judge to make the assessment: at [1], [43]-[46]. Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 98 ALJR 679 considered. Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; and Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 applied.
Per Simpson AJA, Meagher JA agreeing: Viewed as a whole, the news report conveyed the imputation that the appellant bullied and intimidated staff. The ordinary reasonable viewer would infer that the allegations of bullying and intimidation by the appellant were substantiated because a majority of Councillors had voted to terminate his employment: at [1]-[3], [53]-[60].
Per White JA, contra: It is important that the news report used the word "allegations". That word does not always imply guilt, or that the substance of the allegations is true. There was nothing in the broadcast that otherwise suggested misconduct on the part of the appellant. Accordingly the imputation relied on in the appeal was not conveyed: at [9]-[14]. As to issue (ii)

Judgment

MEAGHER JA: I have had the benefit of reading Simpson AJA's judgment in draft. I agree with the orders proposed and with her Honour's reasons for concluding that imputation (c) was conveyed and that the respondents' defence of qualified privilege is made out.
As her Honour notes the first of these questions is one of fact, directing attention to what the ordinary reasonable viewer, having watched the third or fourth of the matters complained of, would have considered was conveyed or communicated. I have not found this question an easy one to answer. However in the end, I consider such a viewer would have been left with the impression that Mr Bailey had engaged in bullying and intimidation of Council staff, with the result that he was sacked.
Addressing the transcript of the telecast extracted by Simpson AJA at [30], it is likely that such a viewer would progressively have noted and reasoned as follows: Mr Bailey, the general manager of the Council, has been "sacked" due to problems with staff morale; the decision of the Council to do so was not unanimous; allegations against him of staff bullying and intimidation contributed to that decision; the mayor and two others voted against doing so; however the workers were unhappy; for the majority of the Councillors to make the decision to sack him, the general manager must have engaged in some bullying and intimidation.
I also agree with her Honour's conclusion that the propositions stated by Hunt AJA in Morgan v John Fairfax Ltd [No 2] (1991) 23 NSWLR 374 are not determinative of whether a defendant's conduct is reasonable for the purpose of the statutory defence of qualified privilege under Defamation Act 2005 (NSW), s 30.
WHITE JA: The facts giving rise to this appeal are set out in the reasons for judgment of Simpson AJA which I have had the advantage of reading in draft.
There were essentially two issues on appeal. First, whether the primary judge erred in concluding that the publications complained of did not convey the imputation that the appellant, as General Manager of Lithgow City Council, bullied and intimidated Council staff.
Secondly, if that imputation were conveyed, whether the defence of statutory qualified privilege was established.
I agree with Simpson AJA that if the imputation were conveyed, the defence of statutory qualified privilege was established.
In my view, the primary judge did not err in finding that the only imputation now relied upon did not arise. I agree with the reasons of the primary judge for that conclusion.
For imputation (c) to be conveyed the viewer would need to understand the broadcast as conveying the meaning that Mr Bailey did actually bully and intimidate Council staff. It would be insufficient for that viewer to understand the broadcast as conveying that there may be reasonable basis for such an allegation. That is not to say the latter meaning could not be defamatory, merely that that is not the case Mr Bailey sought to prove.

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Judgment (13 paragraphs)

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Legislation Cited (7)

Cases Cited (30)

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