Bastiaan v Nine Entertainment Co Holdings Limited

Introduction 1 The applicant, Marcus Bastiaan, commenced this proceeding on 18 August 2021 claiming damages for defamation and permanent injunctions in respect of the publication on and after 23 August 2020, by the respondents, eleven members of the Nine Entertainment Co Holdings Ltd group, and their journalist Nick McKenzie, of a broadcast on the Nine Network's television program 60 Minutes and associated newspaper and online articles in The Age, which were republished in The Sydney Morning Herald (The Age article). The broadcast ran for about 23 minutes and Mr McKenzie presented it. At the time of the first publication, Mr Bastiaan was a member of the Liberal Party of Australia. 2 In his statement of claim, Mr Bastiaan contended that the broadcast conveyed that: (1) he is a corrupt branch-stacking coordinator; (2) he is the architect of a corrupt branch-stacking scheme in which he installed electorate staff funded by taxpayers and then diverted them from their employed duties in pursuit of his scheme; (3) he has blatantly abused the rules of office; (4) his corrupt conduct in the first and or second imputations above is brazen and confirmed in a damning memorandum which he wrote himself; and (5) he has committed criminal offences in his corrupt activities as set out in the first and or second imputations. 3 He also contended that The Age article conveyed imputation (2) above and an imputation that he runs a corrupt branch-stacking scheme. He contended that the broadcast and The Age article conveyed the following innuendo imputations: (6) Mr Bastiaan's corruption as a branch-stacking coordinator is to a serious level and or involves him engaging in criminal conduct; and (7) Mr Bastiaan's conduct in installing electorate staff funded by taxpayers and then diverting them from their employed duties in pursuit of his corrupt branch-stacking scheme involves serious corruption and or him engaging in criminal conduct. 4 On Friday, 5 November 2021, the respondents filed their defence four weeks later than the date that the Court had ordered, namely 7 October 2021. They pleaded, among other defences, justification and contextual truth. 5 A blaze of publicity followed hard on the heels of the filing of the defence, principally about matters that the respondents relied on in support of their pleas of justification and contextual truth. This commenced with a story broadcast on 60 Minutes on 7 November 2021 (the 2021 broadcast) and multiple articles in The Age, The Sydney Morning Herald and The Australian Financial Review online on 7 November 2021, and both in print and online on 8 and 9 November 2021 (the 2021 publicity). 6 The 2021 broadcast did not refer to this proceeding or the respondents' defence, and nor did very substantial articles written by Mr McKenzie and Joel Tozer that appeared online in The Age and The Sydney Morning Herald. But articles that appeared online in The Australian Financial Review on 7 November 2021, headlined "Michael Sukkar Engulfed in Branch-Stacking Scandal: Court Documents", and The Age on 8 November 2021 do refer to the defence. The Hon Michael Sukkar MP was the Assistant Treasurer in the federal Government and a member of the Liberal Party.

Mr Bastiaan's claim for interlocutory relief 7 Mr Bastiaan seeks an interlocutory injunction restraining the respondents, their officers and agents, but not their lawyers, from: (1) communicating directly with 23 persons, whom they had identified as potential witnesses, for the purpose of obtaining comment for publication in the media with respect to evidence about the issues in this proceeding; (2) publishing, or causing publication, in the media, of statements with respect to any of the potential witnesses about evidence he or she might give in Court about those issues or otherwise intentionally engaging in conduct calculated to interfere with any potential witness, including to deter him or her from, or influence him or her in, giving evidence; and (3) intentionally engaging in conduct calculated to intimidate or otherwise bring improper pressure to bear on Mr Bastiaan in respect of the conduct of the proceeding. 8 In essence, Mr Bastiaan contends that the respondents delayed in filing their defence while they gathered evidence to support it. In particular, he relies on two interactions that Mr McKenzie had with two of the potential witnesses, Michael Sukkar and Thilaga 'Jessy' Jayakumaran.

The respondents' justification defence 9 The very detailed particulars of justification and contextual truth appear over in an annexure to the defence consisting of 61 pages. The solicitor for the respondents, Justin Quill, described the defence as one of the most complex with which he had ever been involved as a lawyer. That appears to reflect the work put into the formulation of the particulars. 10 Importantly, the particulars assign pronounced roles to both Michael Sukkar and Ms Jayakumaran in the branch-stacking allegations. Mr McKenzie approached each of them without any prior notice for an interview and used footage of those contacts in the 2021 broadcast. The particulars assert that at all relevant times between 2016 and 2018, Mr Bastiaan, in conjunction with other members of the Victorian division of the Liberal Party's right faction, including Michael Sukkar, and the Hon Kevin Andrews MP, another member of the Liberal Party, devised, coordinated and implemented a scheme actively to recruit new members to of the Liberal Party in large volumes over a comparatively short period. Michael Sukkar and Mr Bastiaan are alleged to be the persons who oversaw the scheme. The particulars asserted (par 35): The Scheme was implemented by a secretariat of Liberal Party members (Secretariat), all or most of whom were members of the right faction, and which included: the applicant, Stephanie Bastiaan (the applicant's wife), Josh Bonney, Thilaga 'Jessy' Jayakumaran, David Lau, Nigel Lau, Alex Lisov, Cameron Manassa, Paul Mitchell, Camillus O'Kane, Karina Okotel, Marijke Rancie, Ivan Stratov, Paul Sukkar, Matthew Verschuur, Cynthia Watson and Elliot Watson. (emphasis in original) 11 The particulars alleged that elements of the scheme included (par 36): a. conducting large membership drives for the Liberal Party in Victoria in a manner consistent with the Recruitment Phase of branch stacking and the Volume Indicium of branch stacking, resulting in the recruitment of large numbers of non-genuine members - as further particularised in Part D of this Schedule; b. the conducting of renewal drives for large numbers of non-genuine members whose memberships were due for renewal, in a manner consistent with the Renewal Phase of branch stacking and the Renewal Indicium of branch stacking - as further particularised in Part D of this Schedule; c. the mobilisation of non-genuine members to vote at FEC and SEC annual general meetings in a manner consistent with the Conference Mobilisation Phase of branch stacking - as further particularised in Part D of this Schedule; d. the mobilisation of non-genuine members to vote at State Council annual general meetings, and the direction of how those members should exercise their votes, in a manner consistent with the State Council Mobilisation Phase of branch stacking and the Voting Indicium of branch stacking - as further particularised in Part D of this Schedule; e. recruiting non-genuine members from the Mormon Church in a manner consistent with the Recruitment Phase of branch stacking and the Volume and Harvesting Indicia of branch stacking - as further particularised in Part D.11 of this Schedule; f. recruiting non-genuine members from the Indian community in Victoria in a manner consistent with the Recruitment Phase of branch stacking and the Volume and Harvesting Indicia of branch stacking - as further particularised in Part D.12 of this Schedule; g. Warehousing non-genuine members within the Deakin FEC and the Ringwood SEC - as further particularised in Parts D.13 and D.14 of this Schedule; h. in some cases, paying membership fees, or membership renewal fees, for non-genuine members introduced to the Liberal Party via the Scheme, in a manner consistent with the Payment Indicium of branch stacking - as further particularised in Part E of this Schedule; and i. installing members of the Secretariat as Electorate Officers in the electorate of Menzies (positions which attracted a salary or wage from the Commonwealth Department of Finance), ostensibly to perform the work of an Electorate Officer but, instead, carrying out the party-political work of the Scheme, in a manner consistent with the Government Staff Indicium of branch stacking - as further particularised in Part G of this Schedule. 12 The particulars then alleged that the secretariat operated at various times in the federal electorate conferences of the Liberal Party for the seats of Deakin and Menzies, being those held by Michael Sukkar and Mr Andrews. They alleged that at various times between 2017 and 2018 at least the following members of the secretariat worked in either Michael Sukkar's electorate office or that of Mr Andrews, namely Stephanie Bastiaan, who was Mr Bastiaan's wife, Josh Bonney, who was a member of the secretariat and an electoral officer in Michael Sukkar's electorate office, Ms Jayakumaran, Nigel Lau, Cameron Manassa, Marijke Rancie, and Michael Sukkar's brother, Paul. 13 Importantly, par 46 of the particulars alleged: The work of the Secretariat, as particularised in paragraphs 41 to 45 of this Schedule, was consistent with: a. the Recruitment and Renewal Phases of branch stacking; b. the Active Recruitment and Volume indicia of branch stacking; and c. in the case of work performed for the Scheme from time to time by at least Paul Sukkar, Jessy Jayakumaran and Marijke Rancie, each of whom were employed at relevant times as Electorate Officers in the Menzies Electorate Office of Kevin Andrews MP, the Government Staff Indicium of branch stacking - as to which the respondents refer to and rely on the matters particularised in Part G of this Schedule. 14 The particulars alleged that, on 7 August 2017, Mr Bastiaan directed members of the secretariat by email to perform work in the lead-up to a forthcoming annual meetings of the federal electorate conferences and then the State electorate conferences, at the latter of which voting would occur for delegates to the Victorian State Council in a scheduled meeting in April 2018, (the April 2018 State Council Meeting) as follows (par 63): a. the applicant directed Jessy Jayakumaran to transfer existing Liberal Party members recruited through the scheme to their 'home electorate'; b. the applicant directed Jessy Jayakumaran, Paul Sukkar, Cameron Manassa, Matthew Verschuur, Alex Lisov and Marijke Rancie to update the Liberal Party database; c. the applicant directed the lead organisers (Alex Lisov, Ivan Stratov, Cynthia Watson, Elliot Watson, Stephanie Bastiaan, Camillus O'Kane, Cameron Manassa, Marijke Rancie, Matthew Verschuur, Paul Sukkar and Paul Mitchell) to contact all primary organisers, support organisers and new organisers in the Scheme's network to enlist their assistance in preparing for forthcoming annual meetings; and d. the applicant directed the lead organisers to update the Google Spreadsheet with the results of their enquiries with all primary organisers, support organisers and new organisers. 15 Next, the particulars alleged that, on or about 27 February 2018, Mr Bastiaan directed members of the secretariat by email to perform tasks, including directing Ms Jayakumaran to enter new members into the Liberal Party database, support Ivan Stratov in his recruitment of new members and take a leading role in turning out members' proxies for the April 2018 State Council meeting. The particulars made similar allegations in respect of Mr Bastiaan directing the activities of other persons whom he identified as other potential witnesses in respect of whom the interlocutory relief he seeks is directed. 16 The particulars asserted that in about June 2017, Mr Bastiaan, Michael Sukkar and Mr Bonney formed an agreement to install members of the secretariat as electorate officers in Mr Andrews' electorate office "ostensibly to perform the work of Electorate Officers, but who would instead predominately perform party-political work for the Scheme" (par 121). The particulars alleged that this agreement was arrived at orally over numerous conversations between the three men to that effect. 17 The particulars dealt in pars 136 to 148 with Ms Jayakumaran's activities from about January 2018 in the lead-up to the April 2018 State Council meeting allegedly in furtherance of the June 2017 agreement. They alleged that Michael Sukkar and Mr Bonney arranged for her, as a member of the secretariat, to be employed by Mr Andrews on a casual basis as an electorate officer in his electorate office and that she remained employed there at least until March 2018, working up to five days a week. The particulars alleged that she performed very little work as an electorate officer during that period, but from time to time received a salary or wage from the Commonwealth Department of Finance as an electorate officer for working up to five days a week under the Members of Parliament (Staff) Act 1984 (Cth). The particulars alleged that (par 139): In the premises of paragraphs 136 to 138 of this Schedule, it is to be inferred that, throughout the Jayakumaran Period of Employment, Jayakumaran: a. performed party-political work for the Secretariat when employed as an Electorate Officer in the Menzies Electorate Office, which she was not permitted to do so by ss 13 and 20 of the MOPS Act and Determination 2016/15; and b. performed such work at the ultimate direction of the applicant (in his capacity as the co-ordinator of the Scheme as alleged herein) rather than that of her employing Member of Parliament, which she was not permitted to do by ss 13 and 20 of the MOPS Act and Determination 2016/15. 18 The particulars alleged that, on 28 February 2018, Mr Bastiaan sent an email to, among others, Ms Jayakumaran, requiring her to follow up the work previously alleged in par 65 (the February 2018 directions). 19 Paragraph 143 alleged that, on 1 March 2018, Ms Jayakumaran conducted work during business hours in accordance with Mr Bastiaan's February 2018 directions by attempting to access the Liberal Party's member database and entering new members into it. Paragraph 144 alleged that: In the premises of paragraphs 136 to 143 of this Schedule, it is to be inferred that Jayakumaran: a. performed the party-political work particularised in paragraphs 141 and 143 of this Schedule during the Jayakumaran Period of Employment; b. performed such work when she was employed as an Electorate Officer in the Menzies Electorate Office, which she was not permitted to do by ss 13 and 20 of the MOPS Act and Determination 2016/15; and c. performed such work at the direction of the applicant rather than that of her employing Member of Parliament, which she was not permitted to do by ss 13 and 20 of the MOPS Act and Determination 2016/15. 20 Paragraph 145 referred to a further direction that Mr Bastiaan gave in an email to, among others, Ms Jayakumaran, on 6 March 2018, to engage in political work in the lead-up to the April 2018 State Council meeting. And par 148 suggested that the inference should be drawn that she obeyed that directive. 21 The particulars make numerous allegations in respect of conduct of Michael Sukkar, including that he conceived of a plan to create two advertising flyers to support Mrs Bastiaan's bid for preselection for a Liberal Party State seat. The plan proposed that the flyers would have the effect of appearing to denigrate her opponent based on Ms Bastiaan's support for socially conservative views, and painting the opponent as being aligned with socially progressive elements of the Liberal Party. The particulars alleged that Mr Bastiaan and Michael Sukkar directed Mr Bonney to carry out that advertising plan and that he did so. 22 There is no doubt that the issues that the matters complained of raised and that are traversed by the defence can fairly be described as of significant public interest and importance in the political life of both Victoria and country.

The lead up to the late filing of the defence 23 Mr Quill deposed, on information and belief, that on 27 October 2021, Mr McKenzie attempted to speak with Michael Sukkar about the matters that came to be raised in the November 2021 publications by sending him a text. The text revealed that Mr McKenzie was doing another story "about allegations around your handling of EO jobs" (scil: electorate officer jobs). He requested a sit-down interview on camera and said: I have additional evidence that was never put to the finance department inquiry or previously reported on which I would like to put to you on camera. 24 Mr McKenzie asked whether Michael Sukkar could respond by close of business that Friday. I infer that, not having heard a positive response from him, on 4 November 2021, Mr McKenzie texted Michael Sukkar, at 6:41 pm: Michael, Your lawyers just messaged me. I've responded. Nick 25 I infer that the reference to lawyers in this text related to an incident that the 2021 broadcast depicts. There, Michael Sukkar is filmed emerging from a lift and Mr McKenzie, in a voice over, explains why, as he approaches Michael Sukkar getting into his car. The broadcast elaborates extensively on allegations that Michael Sukkar arranged for his brother, Paul, to work for Mr Andrews. It described what it said were several instances of "Michael Sukkar's rotten quest for political power", and accused him of backing "a secret scam that misused public money for grubby political work". 26 The 2021 broadcast also depicted footage of Ms Jayakumaran going out of and into a milk bar. Mr Quill confirmed that Mr McKenzie had attended with a camera crew at Ms Jayakumaran's milk bar on 3 November 2021. Mr McKenzie described her in the 2021 broadcast as follows: One of the key factional operatives given a taxpayer job at Michael Sukkar's command was Jessy Jayakumaran. She now runs a milk bar, but before that she was paid by the taxpayer to help Sukkar faction administer the mass recruitment of Liberal party members. (emphasis added) 27 Mr McKenzie appears secretly to have made an audio recording of a conversation he had with Ms Jayakumaran. She alleges he had not informed he was recording her. The audio recording and an agreed transcript are in evidence and the parties have agreed on almost all of its content. Suffice to say that there are points in the recording, to which I have listened, which is also in evidence, that are unclear. At no point in the interview he had with Ms Jayakumaran did Mr McKenzie refer to this proceeding. 28 During the interview, Mr McKenzie identifies himself. He tells her that he worked at The Age and was investigating issues with Mr Andrews' electorate office and officers "put in there by a faction, by the Marcus Bastiaan faction", who, he says: weren't doing electorate office work. They were doing factional work. That's why I'm here, Jessy, because I've got all your emails. (emphasis added) 29 He tells her he is: trying to figure out a bit more about your role in that operation. Now I've been told that you were, basically a very low, low-level person who was told to do factional stuff? … And you didn't really know what was going on. (emphasis added) 30 Mr McKenzie acknowledged to her that "I've come out of the blue". No doubt, all the while she was conscious there was a television crew standing outside her milk bar. He peppers her with questions and she appears to respond with answers cooperatively, in which she distinguishes, or attempts to distinguish, between her paid work for Mr Andrews dealing with his electorate mail and commitments on the one hand and her voluntary work through her associates with her Mormon church, whose members helped get her the job. Mr McKenzie asserts that Mr Bastiaan and Michael Sukkar "were telling you what to do. I've seen the emails" (emphasis added). She says she cannot remember. She says that when her name was in the paper, she ceased work for Mr Andrews. Her reference to being in the paper was to one of the matters complained of, being The Age article of 23 August 2020, which stated: One factional operative, Thilaga Jayakumaran, who came from the Mormon church, was listed as working five days a week as an electorate officer for Mr Andrews in early 2018. It is a job that the Department of Finance paid her $1000 a week to perform. But Ms Jayakumaran's actual tasks, according to the memo, were to "take a leading role in turning out numbers and facilitating proxies for state council" as well as "databasing of new members, facilitating factional operations". Ms Jayakumaran was directed by Mr Bastiaan. "Marcus told her to provide Ivan more support," the memo says, a reference to former state administrative committee member and Mormon elder Ivan Stratov. While the law requires electorate officers to "work under the sole direction of the employing senator or member", the memo suggests Mr Andrews' electorate officers reported at least partly to Mr Bastiaan. "I feel I have the capacity to manage them," Mr Bastiaan wrote. Despite her job, according to the memo, Ms Jayakumaran lacked the skills to perform electorate officer work. "Marcus told her to learn office skills at Kevin's so she can take up and [sic] EO role if required," the memo said. When called for a response, Ms Jayakumaran hung up the phone. 31 In the recorded interview, Ms Jayakumaran tells Mr McKenzie that when "I got my name out in the newspaper with a lot of things and I was like okay maybe, I just don't know what I'm doing. I'm getting myself into some trouble. So I just thought I'll drop this", suggesting that she ceased to work in that job and transferred to or obtained her milk bar. Shortly after that exchange, Mr McKenzie asks her if someone from "the Bastiaan group" got her the job. And the following exchange then takes place: Ms Jayakumaran: I can't remember any more because, I was going from interviews from one place to another, and then finally I was then told to go into Kevin Andrew's [sic] office [indistinct - 9:24 min] [Applicant maintains indistinct; Respondents: because a job was available]. So I went in there and got a job. Nick McKenzie: How much of the memberships were you putting in during the day? Ms Jayakumaran: Sometimes there was 1, sometimes there was 5. Nick McKenzie: 5 new members? Depending on what? Who's recruiting the new members? Ms Jayakumaran: I don't know actually. That part I don't know because we just like [indistinct - 9:42 min]. But that's mainly on Menzies. Yeah mainly on Menzies like of Kevin Andrews and yeah. 32 At various points during the interview, Mr McKenzie challenges Ms Jayakumaran's account and on at least three occasions he suggests directly that she is not telling the truth. While his tone is polite, he is very firm. He asks her, towards the end: Yeah, yeah, would you do an interview with me? A proper … proper interview, about what happened? (emphasis added) 33 To which she responds: "No, I don't want to get involved, more trouble … anyway." 34 Later on 3 November 2021, Ms Jayakumaran texted Mr McKenzie at about 5 pm asking him not to come to her business or seek to contact her again. She wrote he had written falsely about her in the past and "now accuse me of … not telling the truth". 35 On 4 November 2021, the respondents' solicitors sent Mr Bastiaan's solicitors a draft of the substantially final form of the defence with an open offer to settle the proceedings on a without prejudice, except as to costs, basis. That offer was expressed to be open until 10 November 2021.

Events after 4 November 2021 36 As I noted above, the 2021 broadcast occurred on Sunday, 7 November 2021, followed by the other 2021 publicity. 37 On 9 November 2021, Mr McKenzie and Mr Tozer published an article in The Age and The Sydney Morning Herald headlined "'I'll do whatever': 'Naive' electorate staffer admits to Liberal factional work". The first three paragraphs were as follows: A former public servant who worked for Liberal MP Kevin Andrews has admitted she helped recruit up to five new Liberal Party members a day in an apparent breach of a ban on factional activity being conducted on taxpayer time. The admission by Jessy Jayakumaran is corroborated by leaked emails and text messages which reveal how conservative Liberal Party factional operatives directed her to administer the mass recruiting and renewal of members, as well as other party political work, while she was employed as an electorate officer for Mr Andrews in the first half of 2018. The new evidence raises further questions about denials of wrongdoing by Assistant Treasurer Michael Sukkar and Mr Andrews. (emphasis added) 38 The article quoted extensively from the interview Mr McKenzie had conducted with Ms Jayakumaran on 3 November 2021, including a passage that was somewhat indistinct on the recording and about which the parties endeavoured, unsuccessfully, to settle on an agreed version, to resolve exactly what it was she said. 39 At about 9 am on 9 November 2021, Ms Jayakumaran texted Mr McKenzie complaining that he had been dishonest and had published things that she had not told him. He responded that: I lawfully tape recorded our conversation. You said everything you said. I have a record of it. 40 She replied that she had never "said I signed up 5 people a day? That's not right". He said "Yes, you did. It's on tape". He invited her to go to his office and listen to the tape and then wrote: Jessy It is very important you do NOT delete any emails from your jessy jay gmail account or any text messages from your phones. We will be issuing you a court order to hand over all emails and text messages. If you delete anything, it will be a contempt of court - a serious criminal offence. Please remember I have some of your emails and texts already so we will know if you have deleted anything. I suggest you speak to a lawyer if you are confused. Nick (emphasis added) 41 Ms Jayakumaran responded: Court order? I never did anything illegal. This is insane Nick. U r framing me Don't want to discuss this any further. I thought I was open with u n u r [scil: you and you are] publishing false information about me from the start and tarnishing my image for no cause. Please don't text me anymore and thank you for your brilliant work. 42 Mr McKenzie then replied: You are confused- I suggest you talk to a lawyer who can explain. Marcus Bastiaan is suing us. We will subpoena your records using a court order. Please talk to a lawyer and show him these messages so he can explain to you that you are not allowed to destroy any evidence. (emphasis added)

The 16 November case management hearing 43 The solicitor for Mr Bastiaan, Stuart Gibson, made an affidavit in the proceedings in anticipation of a case management hearing before the docket judge, Besanko J, on 16 November 2021. The affidavit referred to some of the history above, including the sending of the offer on 4 November 2021, the late filing of the defence, and the interactions Mr McKenzie had on 3 and 4 November 2021 with Michael Sukkar and Ms Jayakumaran, together with the 9 November 2021 article about her. He identified concerns that Mr Bastiaan had about whether the conduct of the respondents might affect adversely persons whom he anticipated might be witnesses. Mr Gibson also expressed concerns, that Mr Bastiaan had communicated to him, that the nature and timing of the relevant events was intended to dissuade him (Mr Bastiaan) from pursuing his case and that he was "being given a 'warning'" of the media treatment he could expect from the respondents, should he continue with this litigation. 44 During the hearing before Besanko J, Simon Wilson QC, senior counsel for Mr Bastiaan raised these concerns. He said that he appreciated that his Honour would not be dealing with them on that occasion, but that they arose in connection with the respondents' delay in filing their defence and gave rise to a question as to whether the delay was deliberate to coincide with giving Mr McKenzie enough time to make further investigations, for the content to be included in the defence and to quote from one of the witnesses in the case and harass her in a way that is apparent from the articles and programs that had been published. 45 His Honour noted that he was not determining the merits of those matters that morning, with which Mr Wilson agreed. His Honour told Mr Wilson QC that if he wanted to bring an application, he could do that using an interlocutory process and affidavit. 46 This prompted a strange tweet from Mr McKenzie at about 9:53 am that morning: Breaking: just now, Ex-Liberal operative Marcus Bastiaan tried but failed to use defamation case to stop ongoing reporting about federal minister Michael Sukkar/allegations of abuse of public resources. Our lawyers have resisted this. Defamation shouldn't muzzle press freedom. (emphasis added) 47 Later that afternoon, articles appeared online in The Age and The Sydney Morning Herald saying: A Federal Court judge has shut down efforts from former Liberal powerbroker Marcus Bastiaan to prevent The Age and Sydney Morning Herald from continuing to report on allegations that senior figures in the party abused public resources. (emphasis added) 48 Those were substantive misreportings of the case management hearing on 16 November 2021 and could not, on any view, be characterised as fair reports. 49 On 6 December 2021, Mr Gibson made a further affidavit in support of Mr Bastiaan's application for interlocutory relief to which he annexed a copy of what he said was a complaint by Ms Jayakumaran to the Australian Press Council in relation to Mr McKenzie's conduct.

The respondents' submissions 50 The 2021 publicity, including the 2021 broadcast, contained matter that is both new and not repeated in the defence. The respondents argued that the 2021 publicity did not rehash the defence, but contained significant matters not canvassed in it. Those included the fact that there had been Department of Finance investigations into the allegations against Michael Sukkar and Mr Andrews, which had found that there was not a sufficient basis to form a view that there had been a serious misuse of Commonwealth resources under the Members of Parliament (Staff) Act. The 2021 broadcast had revealed that each member had made representations that the outcome of the inquiry should not be made public, and that Mr McKenzie had made applications unsuccessfully under the Freedom of Information Act 1982 (Cth) to obtain access to the inquiry reports. None of those matters were the subject of the defence. The 2021 publicity had also contained Ms Jayakumaran's admissions, to which I have referred, about her allegedly processing up to five members a day, which did not form part of the particulars. 51 The respondents argued that the factual overlap between the allegations in the 2021 publicity and the defence was limited to Michael Sukkar's involvement in placing factional operatives into Mr Andrews' electoral office, the facts that Paul Sukkar and Ms Jayakumaran were two of those operatives who also were involved in the recruitment of new Liberal Party members, and the engagement of Matthew Pham to prepare the preselection flyers in the campaign on behalf of Mrs Bastiaan. The respondents contended that in no way could these allegations in the 2021 publicity be viewed as having any real capacity to cause any prejudicial impact on Mr Bastiaan or the potential witnesses. As I noted during argument, and as the respondents submitted, there cannot be any serious doubt that the 2020 and 2021 publications raised serious matters of public interest in a reasonably contemporaneous manner with current inquiries that the Independent Commission Against Corruption (in New South Wales) (ICAC) and the Independent Broad-based Anti-corruption Commission (in Victoria) (IBAC), were then conducting into activities of, respectively, the former New South Wales Premier, the Hon Gladys Berejiklian, and a former minister in the current Victorian State government, the Hon Adam Somyurek. He was accused of being involved in using electorate offices and public resources for branch stacking in the Labor Party, being a matter of comparable public importance to that which the respondents sought to canvass in the reports that have given rise to this proceeding. 52 The respondents argued that the November 2021 publicity did not pose or give rise to a substantial risk of serious interference with the administration of justice in this proceeding. In particular, they emphasised that the issues in this litigation were different from those in their publications and that there will be a significant period between the publications and any trial. They contended that because the proceeding will be heard before a judge of the Court sitting alone, there is little risk that the judge will be prejudiced simply by pre-trial publicity and that it is likely that the hearing will be, they asserted, over 12 months away. It is not possible to know when this matter will be ready to be heard by the docket judge. The respondents contended that the prejudicial effect of any publicity was likely to dissipate in the intervening period. 53 The respondents also disputed Mr Bastiaan's allegation that the timing of the filing of their defence and the offer was connected to the 2021 publicity or had triggered them. They noted that Mr McKenzie had been investigating the matters in the 2021 publicity since 2020, had lodged a Freedom of Information Act request with the Department of Finance two months after the August 2020 publication of the matters complained of, and pursued those inquiries throughout the balance of 2020 and 2021, resulting in the substantive rejection of his request on 13 August 2021. 54 They argued that the purposes for which, in early November 2021, Mr McKenzie approached both Michael Sukkar in the car park and Ms Jayakumaran at her milk bar were, as he informed Mr Quill, not to place pressure on either of them, or otherwise to deter, impede or influence them in any evidence he or she might give in the proceeding. Rather, Mr McKenzie asserted his purpose was to inquire into and report in good faith on an ongoing story of high public importance by, in Michael Sukkar's case, giving him an opportunity to respond, or in Ms Jayakumaran's case, by pursuing his inquiries. 55 The respondents contended there was nothing improper about their service of the without prejudice settlement offer on 4 November 2021 and that, on the evidence, the timing of the filing of their defence and the associated offer could not be found to be coordinated with the November 2021 publicity. Rather, they argued that the timing of the 2021 publicity was a function of a combination of the progress with Mr McKenzie's investigations and the serendipitous holding of the ICAC and IBAC public examinations of Ms Berejiklian and Mr Somyurek. 56 They argued, correctly, that, during the hearing on 16 November 2021, Mr Wilson QC had suggested that the respondents give an undertaking not to engage in conduct now sought to be enjoined and that had been rejected, leading to the current application. In that context, they contended that Mr McKenzie's tweet was not materially misleading and that the further report had been entirely accurate. As I noted above, I do not accept that characterisation. 57 The respondents correctly argued that there is no principle of general application that a party to a proceeding cannot communicate with a potential witness prior to trial other than via the party's lawyers and that the framing of an injunction in the broad terms that Mr Bastiaan sought would not be appropriate. The respondents contended that there was no evidence that they had ever communicated with 18 out of the 23 potential witnesses the subject of the present application. They submitted there was no evidence that they had ever communicated with three other persons, Paul Sukkar, Alex Lisov and Cynthia Watson, for the purposes of obtaining comment with respect to the evidence they might give in this proceeding or acted to apply any pressure on them. They argued that there was no evidence that relates to any effect at all on any of the potential witnesses, including Michael Sukkar. They noted that, on a number of occasions during his interview, Mr McKenzie had offered to show Ms Jayakumaran the emails which he said involved her, but she had not taken up the offer. He then gave her the opportunity of listening to the tape which she had not taken up, which the respondents suggested negated any adverse conclusion on this application. In those circumstances, they submitted, there was no occasion to grant any injunctive relief.

The test for interlocutory relief 58 Ordinarily, an interlocutory injunction is a remedy intended to facilitate the proper administration of justice. The Court assesses whether or not to grant that relief on the basis of the organising principles that Gummow and Hayne JJ formulated in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at 81-84 [65]-[72], which Gleeson CJ and Crennan J endorsed at 68 [19]. As Gleeson CJ and Crennan J said (at 73 [32] and see also to like effect at 88-89 [85]-[88]), the decision whether to grant an interlocutory injunction to interfere, before trial, with the right of free speech is attended by "exceptional caution" (as decided in Bonnard v Perryman [1891] 2 Ch 269 at 284 per Lord Coleridge CJ). That is because the Court must weigh and balance the competing interests involved, including an individual's interest in his or her reputation and the right to freedom of expression. 59 The test for determining whether conduct amounts to a contempt of court requires the moving party to prove any charge (whether of civil or criminal contempt) beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525 at 534 per Brennan, Deane, Toohey and Gaudron JJ. Where, as here, the nature of the alleged contempt is criminal, the proceeding is still within the civil jurisdiction of the Court. In Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375 at 388 [41], French CJ, Kiefel, Bell, Gageler and Keane JJ said: In Re Colina; Ex parte Torney [(1999) 200 CLR 386 at 429 [112] (emphasis in original)], Hayne J described "the cardinal feature of the power to punish for contempt" as being that it "is an exercise of judicial power by the courts, to protect the due administration of justice". 60 The Court's power to deal with an alleged, actual or apprehended contempt arises whenever conduct has the characteristic that it is capable of being found at trial, beyond reasonable doubt, to involve an interference with the due administration of justice either in the particular case or more generally as a continuing process: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106 per Gibbs CJ, Mason, Wilson and Deane JJ, relying on Lord Diplock's speech in Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 449. Where a person engages in conduct calculated to create a substantial risk that the conduct will bring improper pressure to bear on a litigant, including by affecting the willingness of third parties to give evidence, or has a real and definite tendency to prejudice or embarrass a proceeding, it will amount to a contempt by way of improper pressure on a party, and so interfere with the proper administration of justice: Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90 at 124 [81]-[82] per Besanko, Wigney and Bromwich JJ. 61 Nor will the Court tolerate trial by media: John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 370-371 per Dixon CJ, Fullagar, Kitto and Taylor JJ. However, the Court will exercise the contempt jurisdiction in this class of case "with great caution", as their Honours said (at 370), "only if it is made quite clear to the Court that the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case". 62 Where the circumstances also involve the discussion of a matter of public interest, the Court must balance the intersecting considerations of the right to free speech with the right to a fair trial by an independent court, as Jordan CJ explained in his classic reasons in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 at 249-250. He said: It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant. It is well settled that a person cannot be prevented by process of contempt from continuing to discuss publicly a matter which may fairly be regarded as one of public interest, by reason merely of the fact that the matter in question has become the subject of litigation, or that a person whose conduct is being publicly criticised has become a party to litigation either as plaintiff or as defendant, and whether in relation to the matter which is under discussion or with respect to some other matter: In re Labouchere; Kensit v. Evening News Ltd. [18 TLR 208]; Phillips v. Hess [18 TLR 400]; R v. Daily Mail; Ex parte Factor [44 TLR 303]; Gaskell & Chambers Ltd. v. Hudson, Dodsworth & Co [[1936] 2 KB 595 at 602]. If, however, under colour of discussing, or continuing to discuss, a matter of public interest statements are published the real purpose of which is to prejudice a party to litigation, the contempt is none the less serious that an attempt has been made to cloak it: cf. In re Cornish; Staff v. Gill [9 TLR 196]; Higgins v Richards [28 TLR 202]. (emphasis added) 63 In Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 27, Mason CJ held that "where the public interest in the administration of justice does not yield to a superior interest, the balancing approach should protect the administration of justice from any substantial risk of serious interference". He considered this test to synthesise the principles in McRae 93 CLR at 370; see too at 22, 41-42 per Wilson J, 68 per Toohey J. Gaudron J (at 86-87) applied a similar test to Mason CJ. Deane J accepted that a balancing exercise was necessary but said that its application could not be bound by prescriptive rules (at 52-53). 64 Mr Bastiaan relied on a dictum of White J in Basetec Services Pty Ltd v Leighton Contractors Pty Ltd (No 2) (2015) 236 FCR 432 at 438 [36], in which he distinguished the principles applicable to the grant of an interlocutory injunction to restrain an alleged defamatory publication, saying that "the authorities show that the Court does not have that same caution about intervening when the issue is a contempt or a threatened contempt". His Honour later applied a test that it was necessary for the Court to arrive at "a strong feeling of persuasion" that the conduct impugned may constitute a contempt (at 438 [34]). 65 In Registered Clubs Association of New South Wales v Stolz (No 2) [2021] FCA 1418 at [158], Yates J also applied a test that an interlocutory injunction would lie to prevent an apprehended contempt when the Court had "a strong feeling of persuasion" that the conduct may constitute contempt. 66 In Y and Z v W (2007) 70 NSWLR 377 at 379 [5]-[6], Spigelman CJ said, without the agreement of Giles JA or Ipp JA: There is a significant line of authority which applies the restrictive approach to interlocutory injunctions in the case of defamatory publications identified in Bonnard v Perryman [1891] 2 Ch 269, to restraints upon publication based on other causes of action. (See e.g. Australian Broadcasting Corporation v O'Neill at [210] per Heydon J.) However, that approach is not appropriate in the case of a contempt of court, at least where the person to be restrained can identify neither a public interest nor a private interest in any publication. (C/f Commercial Bank of Australia Limited v Preston [1981] 2 NSWLR 554 at 558-562; 566; Attorney-General v News Group Newspapers Limited [1987] QB 1 at 7-8, 12-16, 19-20; Attorney-General v Newspaper Publishing Pty Ltd [1988] Ch 333 at 371.) In this context, matters of this character will fall to be considered with reference to the Bread Manufacturers defence. (See Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd (1937) 37 SR (NSW) 242.) While the Court will, of course, always act on the basis that it must respect individual autonomy and will not restrain any person's freedom save to protect a legal right, the Court has jurisdiction to act in that manner and in a proper case will do so. For the reasons advanced by Ipp JA, this is a proper case. 67 Ipp JA formulated the test as being that it must be "seriously arguable that the evidence … established" that the party whose conduct was impugned (there in relation to a threat of filing an affidavit with scurrilous material) was not doing so for a bona fide purpose: at 385 [41]. 68 The importance of the criminal standard of proof in the evaluation of the capacity of any particular conduct to amount to a contempt cannot be eschewed in the consideration of evidence on which an application for an interlocutory injunction is based that seeks to restrain, not an actual contempt, but an apprehended one. If White J in Basetec 236 FCR at 438 [36] or Spigelman CJ in Y and Z 70 NSWLR at 379 [5] meant to suggest that the Court exercises a lesser degree of caution in granting interlocutory relief in a proceeding for an apprehended contempt, I respectfully disagree, because such an approach is contrary to the principles that govern the law of contempt: McRae 93 CLR at 370; Witham 183 CLR at 534. That evaluation is of course governed by s 140(2)(c) of the Evidence Act 1995 (Cth). The gravity of the matters alleged here required Mr Bastiaan, as the moving party, to prove a prima facie case to a high degree of satisfaction that the evidence demonstrated a sufficiently strong likelihood that if unchecked, there is a real and substantial risk that the respondents' improper conduct will continue and so bring improper pressure to bear on him or otherwise interfere in the administration of justice in the ways he alleges: O'Neill 227 CLR at 82 [65].

Consideration 69 It is difficult to perceive that there was no coincidence in the timing of the November 2021 publicity with the filing of the defence and the currency of the offer. I accept that there was also a contemporaneity with matters of public importance that were being raised in the ICAC and IBAC proceedings both in New South Wales and Victoria about the conduct of politicians misusing their powers and that Mr McKenzie was engaged in an ongoing investigation about those issues together with the subjects that he had raised earlier in the matters complained of in August 2020. However, Mr McKenzie stood to be advantaged both in his defence of this proceeding as well as in his pursuit of a legitimate news story of substantial public interest, as did the corporate respondents. He knew soon after his text of 27 October 2021 that Michael Sukkar had refused to grant him an interview. Mr McKenzie would have known that there was a real likelihood that when he tried to interview Michael Sukkar in the car park it would result in footage of the latter staying mum in response to the allegations which Mr McKenzie intended to use in the 60 Minutes broadcast intended for the following Sunday. He would have been cognisant of the likelihood that the footage would be dramatic and embarrassing for Michael Sukkar. 70 I infer from the text message that Mr McKenzie sent to Michael Sukkar on 4 November 2021, that the incident in the car park occurred on the previous day, when he also interviewed Ms Jayakumaran. 71 Likewise, Ms Jayakumaran made Mr McKenzie aware, during his interview with her on 3 November 2021, that she had been in Mr Andrews' office when her name appeared in the papers in August 2020. While she did appear to have said what he attributed to her in The Age on 9 November 2021, the headline describing her as "naive" and the recording of a less than clear account of her employment in which she sought to distinguish between her voluntary work and her paid work in Mr Andrews' office, suggested that she may have been confused in the interview. When she complained later to Mr McKenzie he told her, for the first time, that there was a court case and warned her not to destroy documents. That demonstrated that he was well aware that his activities were connected to both the conduct of his defence in this proceeding, as well as to his pursuit of the story. 72 In my opinion, the article of 9 November 2021 in The Age was calculated to put pressure on Ms Jayakumaran, whom the respondents knew to be vulnerable and naive. Likewise the 2021 broadcast portrayed Michael Sukkar in an unflattering light. Of course, he is an experienced politician, a Member of the Parliament and a serving Minister in Government who must be answerable for conduct in his office, and can be expected to be the subject of close and sometimes intense and unfavourable scrutiny by media inquiries. 73 However, the question is whether, as Jordan CJ put in Bread Manufacturers 37 SR (NSW) at 250, whether "under colour of discussing, or continuing to discuss a matter of public interest, statements are published, the real purpose of which is to prejudice a party in litigation. The contempt is none the less serious that an attempt has been made to cloak it (emphasis added)." Here, the question is whether Mr Bastiaan has established, to a high degree of satisfaction, a prima facie case of a sufficiently strong likelihood that, if the respondents were free to continue and engage unhindered in conduct of the kind above, that there is a real and substantial risk of serious interference in the administration of justice as he alleges. 74 In my opinion, the timing of the 4 November 2021 offer with the late delivery of the defence and the intense 2021 publicity during the period in which the offer was left open shows a sufficiently strong prima facie case that, as a matter of practical reality, that conduct if continued, would have a tendency to interfere with the due course of justice in this proceeding by bringing improper pressure to bear on Mr Bastiaan and or one or more potential witnesses, if Mr McKenzie is allowed freely to be able to approach them in relation to matters that bear on the issues in this proceeding. 75 While the respondents argued that his questions to Ms Jayakumaran, that included eliciting her alleged admission that she processed up to five membership forms per day, is not a matter that directly arises in the defence, that statement would plainly be substantive evidence on which the respondents could rely to support the allegations in their defence. Mr McKenzie obtained that evidence on 3 November 2021 while Mr Quill was awaiting the respondents' instructions in order to finalise the defence. 76 The context of this defamation proceeding includes the allegation that Mr Bastiaan is a close supporter of Michael Sukkar and the aims of his political faction. While the evidence is that Mr Bastiaan resigned his membership of the Liberal Party shortly after the publications complained of, it is a matter of ordinary common sense that he is unlikely to have severed his personal relationships with people, or abandoned ideologies that he appears to have supported. There is a likelihood that there will be further publications in relation to the subjects of the matters complained of and the 2021 publicity in the context of a federal election that must be held by May 2022. Thus, there is a real risk that, for example, Michael Sukkar will be exposed to further public scrutiny directly in relation to the issues in this proceeding. 77 That is not to say he should not be exposed to appropriate scrutiny or be asked to answer questions. But there is a real and significant likelihood that potential witnesses will be discouraged from involving themselves in this litigation if, when they speak to, or are approached by Mr McKenzie unannounced, and in circumstances where they may feel they should talk to him rather than, as Michael Sukkar did, with his experience as a politician, walk or drive away, that they may be exposed to significant adverse publicity as Ms Jayakumaran was with the publication in The Age of 9 November 2021. 78 The respondents, as they are entitled, have stated that they will not undertake to cease pursuing their inquiries so long as they are free to do so both for the purposes of preparing their defence case for trial and to discuss matters of public interest. Their conduct in November 2021 suggests that one significant purpose they had was to bring pressure on Mr Bastiaan and witnesses. I am not in a position to make final findings about those matters because witnesses have not been able to give oral evidence that could be challenged in cross-examination or assessed. 79 The test for an interlocutory injunction is to assess whether or not the applicant has established a sufficiently strong prima facie case, bearing in mind that the allegation is that if the conduct were to continue, it would need to be proved beyond reasonable doubt that there would be likely to be an interference with the course of justice in manner I have described. The balance of convenience must be to protect the administration of justice: cf Hinch 164 CLR at 27; Bread Manufacturers 37 SR (NSW) at 249-250.

Conclusion 80 I am satisfied, on the basis in [68] above, to a high degree that having regard to the matters in s 140(2) of the Evidence Act, including the nature of the proceeding and the gravity of the allegations involved, that it is appropriate to grant some limited interlocutory relief so as to protect the integrity of the Court's ability to ensure a fair trial of the proceeding and to protect potential witnesses from being dissuaded from participating freely in giving honest evidence to the Court. 81 Based on the evidence, Mr McKenzie should be restrained, for the duration of the proceeding, from seeking to interview potential witnesses without informing them of his intention in writing in advance and obtaining their consent. Any such request should inform the potential witness of this proceeding, that Mr McKenzie is a respondent in it and that the respondents' defence involves allegations of corruption and criminality against Mr Bastiaan which may implicate the potential witness. The request should also state if Mr McKenzie intends to make an audio or visual recording of the interview. 82 All the respondents should be restrained for the duration of the proceeding from publishing or causing publication of statements, without lawful excuse, about any potential witness concerning the matters for determination in this proceeding or otherwise engaging in any intentional conduct calculated to, first, bring improper pressure to bear on any such witness so that he or she would be deterred from, or influenced in, giving evidence in the proceeding or, secondly, intimidate or otherwise bring improper pressure to bear on Mr Bastiaan in respect of the conduct of this proceeding. 83 However, the restraints in those interlocutory injunctions must be qualified so as not to prevent, first, Mr McKenzie and the corporate respondents from communicating directly with present, proposing or former members of parliament, including Michael Sukkar and Mr Andrews, in relation to matters unrelated or incidental to the conduct of this proceeding, secondly, the respondents' lawyers from contacting potential witnesses in respect of the conduct of the proceeding or, thirdly, the respondents from publishing fair reports of this proceeding or any hearing in it. 84 I will hear the parties on 16 February 2022 as to the form of those orders and costs. I will also deal with the outstanding issues in relation to Mr Bastiaan's challenges to subpoenas that the respondents caused to be issued. I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares.

SCHEDULE OF PARTIES VID 471 of 2021 Respondents Fourth Respondent: TCN CHANNEL NINE PTY LTD (ACN 001 549 560) Fifth Respondent: NBN PTY LTD (ACN 000 232 486) Sixth Respondent: QUEENSLAND TELEVISION LTD (009 674 373) Seventh Respondent: CHANNEL 9 SOUTH AUSTRALIA PTY LTD (ACN 007 577 880) Eighth Respondent: SWAN TELEVISION & RADIO BROADCASTERS PTY LTD (ACN 008 689 745) Ninth Respondent: NINE DIGITAL PTY LIMITED (ACN 077 753 461) Tenth Respondent: THE AGE COMPANY PTY LIMITED (ACN 004 262 702) Eleventh Respondent: FAIRFAX MEDIA PUBLICATIONS PTY LIMITED (ACN 003 357 720) Twelfth Respondent: NICK MCKENZIE