The general conduct issue
350 The day after Google filed its defence on 25 August 2021, Mark O'Brien Legal wrote to Ashurst questioning how Google:
could maintain its denial that the bruz video conveyed imputations 9(a), (b) and (c) despite express statements in it that made the denial untenable;
could plead qualified privilege at common law despite Lange 189 CLR 520 making such a plea untenable;
was seeking to establish the elements of a qualified privilege defence based on the implied freedom;
could rely on the 2020 amendments to the Defamation Act that had come into force on 1 July 2021, and in particular on the new defence under s 29A;
could rely on s 29A in any event when it required the publisher to have a reasonable belief at the time of publication of each matter complained of that its publication was in the public interest.
351 Ashurst responded on 30 August 2021 asserting that:
Google's denials that imputations 9(a), (b) and (c) had "been made after proper and careful consideration"
Google's reliance on the 2020 amendments related to Mr Barilaro's pleading that its publication of the matters complained of was ongoing before and after 1 July 2021 and the new provisions applied as defences only to the latter publications, despite the single publication rule in s 14C of the Limitation Act 1969 (NSW) that applied for the purpose of setting a limitation period for a cause of action.
352 Google's denial that the matters complained of conveyed the imputations which Mr Barilaro alleged was unjustifiable. Each imputation was as plain as day. Mr Shanks repeatedly called Mr Barilaro corrupt throughout the matters complained of. In the bruz video, he propounded that, for example, Mr Barilaro was a "conman to the core" (par 16), "just a fat, decadent conman that by the grace of the gods was put in his position to ransack the Empire for all its worth" (par 121), "seriously though, I think he's corrupt" (par 46) and "He wears his corruption as a badge of honour" (par 55). Mr Shanks repeatedly alludes to Mr Barilaro, his Italian heritage, the mafia, and such things as "dumb little annoying crimes perpetrated by dumb little annoying people, aka 'The Italian Stallion' or Shetland Pony, rather 'Giovanni Domenico Barilaro'" (par 9). Mr Shanks says "he perjured himself, nine times over. You usually go to jail for committing perjury once" (pars 77-78, in the context of pars 74-76). Mr Shanks told viewers, immediately after the accusation of perjury, that Mr Barilaro gave $3.3 million to a beef company in a dealing "that is blatant corruption and wouldn't you guess, Giovanni says what he says whenever someone makes a plausible accusation of corruption perpetrated by him: 'Fuck off'" (pars 80, 81) (see [47] above). Similarly, Mr Shanks tells viewers that Mr Barilaro promised a royal commission into water corruption, then voted against it (pars 42-44) immediately before saying that there was only one possible explanation for this conduct. At that point (par 45), he facetiously suggests and depicts on screen, that Mr Barilaro "switched heads with Jennifer Coolridge and no one noticed" (par 45), before adding the sting: "Seriously though, I think he's corrupt" (par 46) (see [37]-[43] above).
353 The whole tenor of the bruz video was to depict Mr Barilaro as a corrupt conman, as is evinced in pars 122-123, namely:
And yet he's offended by being portrayed as an Italian stereotype.
Well Giovanni, if you find that comparison deeply offensive, same offer as to all your other discrepancies, show me the evidence that you're not a stereotype. I'll stop. Show me how a man on a state minister's salary could afford an estate, as not even your first house, your second house; a second house that's so big it has a second and third house on it, like Mars' two moons just got attracted into its gravitational pull.
354 Google gave no explanation for its pleaded denial that imputations 9(a)-(e) were conveyed by the bruz video. I infer that the pleading was known by it to be untenable. It was doomed to fail and an abuse of the process of the Court: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ.
355 Likewise, Google's pleaded denial that imputations 15(a)-(c) were conveyed was equally hopeless as, I infer, it knew. Mr Shanks tells viewers "did you know blackmail's illegal? I wonder how illegal it is to use taxpayer money as blackmail to shut your critics up. If this is who I think it is, and I do think that, he's such a scab that he doesn't even use his own money to blackmail. Is it a wonder that John [Barilaro] was so happy to shut down any chances of the Narrandera to Tocumal rail line being built" (emphasis added) (pars 224-225, in the context of pars 220-223) (see [89] above).
356 Similarly, as pars 271-277 (set out at [90] above) make plain, Mr Shanks tells viewers about missing millions of dollars in Narrandera and other regional councils' government grants:
People like John Barilaro might be worth hundreds of millions of dollars. All these people that you assume are getting $100,000, $200,000 a year for being a public servant, this is garner wage to them, they don't care about it. It's the same thing as what happens with Putin where he's just like, "l am just President, yes I get a little bit more than the American President." Yeah, on the books. Off the books he's richer than fucking Bill Gates.
We're quite certain that this is what's happening to these towns because you tell me where the money goes. Council has close to $50 million sitting around in its accounts. Where is it now? Where did that money go? Certainly not going here. [LAUGHS] Oh I don't know, yeah, that must have cost about 30 bucks.
357 The certainty that Mr Barilaro has taken millions of dollars of Narrandera Council's missing grant money, as Mr Shanks asserts, is driven home by his comparing his relatively meagre official salary to his potential worth of hundreds of millions of dollars, through conduct comparable to the corruption of President of the Russian Federation, Vladimir Putin.
358 In my opinion, there was no proper basis for Google to deny that the Secret Dictatorship video conveyed imputations 15(a)-(c).
359 Google's denial that the matters complained of conveyed each of the imputations was unsustainable. In particular, there was no prospect that it could ever make out that the bruz video did not convey imputations 9(a), (b) and (c). In my opinion, this conduct aggravated the damages to which Mr Barilaro is entitled.
360 Defamation proceedings, like all litigation in this Court, must be conducted in accordance with the statutory obligation that Pt VB of the Federal Court of Australia Act imposes on the Court, the parties and their legal representatives to act in a way that is consistent with the overarching purpose of the civil practice and procedure provisions, namely to facilitate the just realisation of the controversy according to law as quickly, inexpensively and efficiently as possible (ss 37M, 37N).
361 The raising and maintaining of an untenable defence is calculated to cause pointless delay to the resolution of the proceeding and expense to the parties. Even if to plead such a defence may not be inconsistent with the literal application of procedural rules, it may be manifestly unfair to another party to the litigation or "otherwise bring the administration of justice into disrepute among right-thinking people": Walton 177 CLR at 393. Defamation litigation of the present kind is likely to be expensive and, ordinarily, an applicant or plaintiff undertaking such an action is faced with a statutory cap on the amount of any damages (s 35 of the Defamation Act) and a shortfall in recoverable costs, if taxed on a party and party basis, should he or she succeed. Deep pocketed respondents or defendants cannot be permitted to use the procedural rules to conduct such litigation in a way that raises false or untenable issues contrary to the overarching purpose prescribed in Pt VB.
362 Of course, a claim in defamation will often raise a real and genuine dispute as to how an ordinary, reasonable person to whom a publication is made would understand it. But no one viewing the bruz video could reasonably have understood it in a way that did not convey, what Mr Shanks said repeatedly in terms, that Mr Barilaro was a corrupt conman, had committed perjury nine times and, because of doing so, should be in jail.
363 Likewise, as Google's belated abandonment of the denials revealed, the other five imputations were clearly conveyed by each of the bruz and Secret Dictatorship videos, as the editing that Mr Shanks performed under his settlement with Mr Barilaro reinforced.
364 Google's pleading of a defence of qualified privilege at common law was also unjustifiable. First, there could not have been any reciprocity of duty and interest between it, as publisher of content on the YouTube platform, and the mass audience to warrant its communication of the matters complained of: Lange 189 CLR at 572. As Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ held in Lange 189 CLR at 572, at common law, except in limited circumstances, a claim of qualified privilege will fail where a publication is made to a large audience because, ordinarily, the publisher will not be able to establish that it was using the occasion honestly and without malice for the purpose of publishing the defamatory matter to all of the recipients.
365 Here, YouTube operates indiscriminately in making uploaded videos available to all and sundry usually (but not in this matter on and after 22 December 2020) without even knowing what is in them, unless a complaint is made that, as here put it on notice of the potentially defamatory character of the publication.
366 In its answers to interrogatories, Google averred that it did not intend to convey any of the imputations carried by each matter complained of and had no belief, before or after December 2020, in their truth. Thus, a defence of qualified privilege at common law in respect of a publication of defamatory matter to tens of thousands of recipients could not have succeeded. That is because it cannot be for the common convenience and welfare of society to damage the reputation of the person defamed to such a large audience: Lange 189 CLR at 572. That limitation of the common law defence was the reason why the High Court held in Lange 189 CLR 520 there that there had to be a new defence of qualified privilege based on the implied constitutional freedom of communication on government and political matter.
367 However, the defences of qualified privilege based on the implied freedom or s 30 of the Defamation Act require the publisher to prove that its conduct in publishing was reasonable in the circumstances: Lange 189 CLR at 573-574; s 30(1)(c).
368 Here, Google's conduct was unreasonable. It did not intend to convey, and had no belief in the truth of any of the imputations. Had it done a Google search, or paused the bruz video so as to enable one to read the screen shots of the news articles from which Mr Shanks purported to quote, it would have seen that Mr Shanks had failed to contextualise his statements relating to his allegations of corruption. More importantly, Google made no attempt to seek, let alone put, Mr Barilaro's side of the various subjects on which he was attacked and there was no conceivable reason to suggest doing so was not practicable or unnecessary (see [43]-[50] above). As the Court said in Lange 189 CLR at 574:
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
(footnote omitted, emphasis added)
369 Moreover, Mr Shanks' claims in the bruz video that Mr Barilaro must have acquired Dungowan Estate through corruption on no other basis than Mr Shanks' assertion that he could not have afforded it on his publicly funded salary was obviously unreasonable. A moment's thought would reveal multiple other possibilities such as that Mr Barilaro had an independent source of funds either from investments, assets acquired before he entered political life, assistance from his wife or family or an inheritance, not to mention a commercial loan. Google's publication of Mr Shanks' unsubstantiated allegation that corruption was the only explanation for the acquisition was reckless and unreasonable.
370 More significantly, Google's decision to publish Mr Shanks' assertions that Mr Barilaro committed perjury nine times and, also because of that, he ought to have been in jail, required someone in Google to investigate if the claims had a basis and what, if any, response, Mr Barilaro had. As I explained (at [49] above), the ABC post, a screenshot of which Mr Shanks displayed when making these allegations, stated that Mr Barilaro had explained that he had no role in the Jobs for NSW Board making independent recommendations to him for final approval. Google gave no explanation as to why it pleaded and belatedly abandoned its hopeless defence of qualified privilege in respect of the bruz video. Again, I infer that it knew that the defence had no proper basis.
371 Google pleaded its defence of honest opinion in respect of the bruz video two weeks after my ruling in Barilaro (No 2) 393 ALR 417 that Mr Shanks could not plead that defence to imputation 9(c), namely that Mr Barilaro had so conducted himself in committing perjury nine times that he should be gaoled. Google was aware of that ruling and, although not strictly bound by it, because it had not yet appeared when the argument took place, must have been aware that any attempt to prove the material for comment, namely the truth of the assertion that Mr Barilaro had committed perjury in giving evidence in proceedings in Parliament, necessarily would breach Parliamentary privilege and so was not justiciable.
372 Nor could Google have established that there was proper material for defending the bruz video as Mr Shanks' honest opinion in respect of other aspects. For example, in particular 14 of the proper material on which it relied in its defence, Google stated:
The Applicant and ROC decided to invest $3.3 million into Australia's Oyster Coast (paragraphs 70 to 71, including the image and text which appears on screen at approximately 8:33, 8:45 and 9:42);
…
The material is proper material by reason that it is substantially true. The Second Respondent relies upon the following facts and matters in support of the substantial truth of the material:
(a) On 5 April 2018 the Applicant signed and executed an approval for an equity investment of $3.3 million in Australia's Oyster Coast.
(b) On 25 May 2018 the Applicant, together with Minister for Transport and Infrastructure and Member for Bega Andrew Constance announced that the NSW Government, through the Fund, had invested $3.3 million in Australia's Oyster Coast and would take an equity stake in the company.
(emphasis added)
373 Yet, as the copy of the approval document reproduced at [46] above shows, the recommendation for the approval was made to Mr Barilaro by the Jobs for NSW Board, a Government body, not by ROC Partners.
374 Similarly, pars 24-27 of Google's particulars of proper material concerned the subject matter of imputation (d), namely that Mr Barilaro corruptly gave $3.3 million to a beef company. Those particulars asserted that ROC Partners had "advised the Government to give $3.3 million to a beef company" 10 months after ROC Partners had bought a majority stake in it and Mr Barilaro subsequently refused to refer the decision to the Independent Pricing and Regulatory Authority Tribunal. As I noted in [46]-[49] above, Mr Shanks asserted in the bruz video that this was "blatant corruption", without referring to Mr Barilaro's contemporaneous reported statement to the budget estimates committee that ROC Partners had disclosed its interest in the beef company to the Jobs for NSW Board when it considered whether to grant the approval.
375 Unsurprisingly, Google also abandoned the defence of honest opinion. I infer that the defence could not have succeeded because of the many misstatements and distortions of the facts in the bruz video, such as those above, that made the task of establishing that Mr Shanks based his "honest" opinion on proper material within the meaning of s 31(5) and (6) hopeless.
376 Google's pleading of the new defence under s 29A of the Defamation Act, introduced on 1 July 2021, was equally hopeless. Mr Barilaro alleged that Google published each matter complained of from 22 December 2020. Schedule 1 of the Amendment Act provided that an amendment made by that Act applied only to the publication of defamatory matter after its commencement (which is now incorporated as item 7 in Pt 3 of Sch 4 of the Defamation Act).
377 As Sch 2 of the Amendment Act made clear, in amending the Limitation Act by inserting ss 14B(2)-(4) and 14C, the date of publication (or first publication) of matter in electronic form for limitation purposes is "the day on which the matter was first uploaded for access or sent electronically to a recipient".
378 The Amendment Act also introduced the requirement for a person aggrieved by the publication of allegedly defamatory matter to give a concerns notice in writing to the publisher stating the defamatory imputations that he or she considers are, or may be, conveyed by it and why those are of concern, as a precondition of being able to commence defamation proceedings (ss 12A, 12B). Since Mr Barilaro had commenced this proceeding before 1 July 2021, he did not need to give a concerns notice about either of the bruz or Secret Dictatorship videos.
379 It would be anomalous if, for limitation purposes, a plaintiff's or applicant's cause of action accrued on the date on which publication occurred by the first uploading of the defamatory matter in electronic form, yet a defendant or respondent could defeat that cause of action where the publication remained online after 1 July 2021 by pleading a defence under the new s 29A to a different cause of action, that could not have accrued until sometime after the first uploading had occurred. In other words, Parliament must have intended that the new defence in s 29A would apply only to a cause of action that accrued after s 29A commenced.
380 Even though the amendments to the Limitation Act made in the Amendment Act did not apply expressly to the Defamation Act, Parliament will be presumed to seek to achieve harmonious goals in a cognate amending Act such as the Amendment Act. There is no evident legislative purpose that would be achieved by a construction of the Defamation Act and Limitation Act as each amended by the Amendment Act from 1 July 2021 that deemed a cause of action to have accrued on a date in 2020, when the bruz and Secret Dictatorship videos were first uploaded (or 22 December 2020, when Mr Barilaro asserted Google became liable) yet contemplated that s 29A would apply as if each uploading by a viewer, on or after 1 July 2021, created a new cause of action to which it would provide a publisher with a defence.
381 Although it is not necessary for my decision, I am of opinion that s 29A provides a defence only to the publication of defamatory matter in electronic form that is first uploaded on or after 1 July 2021. The reason why it is not necessary for me to decide whether s 29A could have applied to give Google a defence is that Mr Barilaro particularised his claim as relying on publications after 22 December 2020 of the matters complained of as going only to damages. On 31 August 2021, his senior counsel made this clear when questioning why Google had pleaded on the defence under s 29A. Mr Barilaro never wavered from that position, yet Google maintained the s 29A defence until the first day of the trial when, as I noted at [252], it abandoned the defence.
382 Even if s 29A could apply to this proceeding, Google would have had to establish that it reasonably believed that the publication of the bruz video was in the public interest under s 29A(1)(b). That criterion, of the reasonableness of Google's belief, could not have been satisfied in respect of the bruz video. Google did not particularise any enquiry or research that it had made about the content of the bruz video.
383 As Lord Griffiths said in Austin [1986] AC at 317 in relation to the issue of reasonableness for a defence of statutory qualified privilege:
When a journalist wishes to make such a trenchant and potentially damaging attack it is in the interests of society that he should be expected to take all reasonable steps to ensure that he has got his facts right. The media has enormous power both for good and ill and it would be a sorry day if newspapers were encouraged to believe that under the shield of qualified privilege the reputations of individuals could be attacked by slip-shod journalism that would provide no defence of comment because the facts on which the attack was based were not true. Where the defence of comment has failed because the jury has found the facts to be untrue, a judge should examine the circumstances leading up to the publication of those false facts very closely before concluding that it was reasonable to publish them.
(emphasis added)
384 Of course, s 29A creates a defence with different criteria to qualified privilege under s 30 of the Defamation Act or in exercise of the implied freedom, and s 29A(3) specifies a non-exclusive set of circumstances that a court may take into account. Those circumstances include the seriousness of the defamatory imputations conveyed, the extent to which the matter complained of distinguishes between suspicions, allegations, and proven facts and whether it contained the substance of the side of the story of the person defamed (s 29A(3)(a), (b), (g)).
385 The bruz video made no attempt to set out Mr Barilaro's side of the story. It mixed suspicions and allegations together with an occasional proven fact in a way that did not enable a viewer to separate which was which, while conveying very serious false imputations about Mr Barilaro.
386 It is important to appreciate that the defence under s 29A can apply where a publisher cannot establish other defences under the Act or at common law. The bruz video conveyed serious false imputations that Google could not defend as being published under qualified privilege or as honest opinion for the reasons above. That raises the question as to how Google reasonably could have believed it was in the public interest to publish it after Mr Barilaro's staff and solicitors had raised their concerns about it with Google.
387 It was common ground that s 29A is based on s 4 of the Defamation Act 2013 (UK). In Serafin v Malkiewicz [2020] 1 WLR 2455 at 2476 [74], Lord Wilson, with whom Lord Reed PSC, Lord Briggs, Lady Arden and Lord Kitchin JJSC agreed, discussed s 4 of the United Kingdom Act. It is differently worded from s 29A of the Defamation Act. His Lordship's analysis identified three elements to the defence which are helpful here. Allowing for the differences in statutory language, it seems that s 29A(1) requires that:
(1) the matter concerns an issue of public interest;
(2) the publisher must believe that the publication of the matter was "in the public interest"; and
(3) the publisher's belief must be reasonable.
388 Lord Wilson emphasised that the circumstances in the analogue to s 29A(3) are not "requirements" that must always be met, but are matters that the Court can consider (at 2475 [69]). He suggested that a failure to invite comment from the claimant, or I would add, as s 29A(3)(g) provides, put the substance of his or her side of the story, will usually be considered and "may contribute to, perhaps even form the basis of, a conclusion that the [publisher] has not established that element [viz. the analogue of s 29A(1)(b)] of the defence" (at 2477 [76]).
389 I reject Mr Barilaro's submission that the Supreme Court in Serafin [2020] 1 WLR at 2473-2477 [67]-[78] endorsed the decisions of Warby J and the Court of Appeal in Economou v de Freitas [2017] EMLR 4 and [2019] EMLR 7 respectively. Lord Wilson criticised both judgments. He said (at 2476 [73]): "The concept of qualified privilege is laden with baggage which, on any view, does not burden the statutory defence".
390 Nonetheless, here it is impossible to discern how, as at 22 December 2020, Google could have believed that (continued) publication of the bruz video was reasonably in the public interest. Google did not intend to convey, and had no belief in the truth of, the very serious and false imputations (see [359]). It either made no examination of its contents, including doing a Google search of the excerpted documents, such as news articles, that Mr Shanks put on screen as his source for his assertions, to ascertain what were allegations, suspicions or proven facts or, if it did, it could not reasonably have concluded that the gross distortions in which Mr Shanks engaged in misrepresenting the facts were in the public interest. And, it is as plain as day that the bruz video made no attempt to put Mr Barilaro's side of the story or its substance.