The primary judge's findings with respect to the defence of comment
181 The primary judge recognised that, relevantly, the defence of comment could only succeed if the following three elements were established. First, that the imputations were truly comment or expressions of opinion and not statements of fact. Second, that the comment was based on proper material for comment. Third, that the comment related to a matter of public interest.
182 His Honour held (at [261]) that all of the imputations qualified as comment. This may well be so with respect to the third imputation conveyed by the first matter complained of, but in my view, the imputations that the appellant was a thug and a bully were statements of fact. In this respect, both the first and second matters complained of contained specific statements by the respondent that the appellant was both a thug and a bully.
183 As I understand his Honour's reasoning, two clear themes emerged from the respondent's statements. First, he spoke on the first occasion of the court action taken by the appellant against Mr Mackay as well as a defamation case in which the respondent himself had been personally involved (but which did not involve the appellant). He then referred to "SLAPP suits" and posed a rhetorical question:
"[I]f you think you are going to hit by defamation, did he manipulate the system? I'll leave it up to you."
184 After referring to the appellant demanding $750,000 (being the amount claimed in his Ordinary Statement of Claim - see [104] above), the respondent said:
"I don't know where he got the $750,000 from but presume it's just another type of intimidation material."
185 The second theme was that on each occasion the respondent referred to the appellant having taken proceedings against himself, alleging, in effect, acts of violence, this being a reference to the AVO which the appellant had sought against the respondent. In dealing with the AVO proceedings, the respondent said:
"So, don't be intimidated by the likes of him. We can go through the court processes and we can win."
186 The foregoing statements of the respondent clearly support a finding that the third imputation in the first matter complained of was comment.
187 After alleging that the appellant was "working illegally", the respondent then said that on that occasion he:
"… went down there, had a few words with him … and so I called him … a thug and a bully, and it came out in court and to be quite honest, he is. And it's only a community that's united that can deal with a thug and a bully …"
188 On the second occasion, the respondent said that
"it was about him taking an apprehended violence order out against me because I went down to his site and told him what I thought of him and basically called him a bully and a thug … seemed reasonable at the time."
189 After a male voice said "Even if he is a bully and a thug" the respondent continued:
"It is proven in a court of law that Jerry Bennette is a bully and a thug so I'm not telling you anything … It's really important that we recognise that … we have these sort of people in our community and that the issue is not going to go away … when we have increasing pressure from very ugly bullies and thugs, white shoe brigade, developer, people like Jerry Bennette …"
190 The foregoing statements clearly conveyed the imputations that the appellant was a thug and was a bully. Were they conveyed as statements of fact or comment?
191 After referring to the distinction between an allegation of fact and an expression of opinion articulated by Giles JA in John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164 at [25], [27], [29] and [32], his Honour made the following finding:
"263 Although it is not necessary for a defendant to have set out, in the course of publishing the matters complained of, material from which a reader or listener could reasonably infer that what has been said is a deduction, inference, conclusion, criticism, or remark or observation, the defendant in the present case has done precisely that. From both the written and spoken versions of each of the matters complained of in the present case, one gets the very distinct impression that the imputations are a round-up or summary of the factual matters to which the defendant has referred. In all cases the imputations appear to me to draw upon no more or less than the defendant's personal experiences with the plaintiff or his knowledge of Mr Mackay's experience with him. …"
192 The primary judge concluded as follows:
"264 In my opinion, the ordinary reasonable listener would have understood these imputations as expressions of opinion. The circumstances of the publications, the language used and the degree of emotion and judgment all point to opinion rather than fact. The defendant appears to me to have given the audience on each occasion the opportunity to judge for themselves how far his opinion is well founded rather than to proffer the imputations in this case as a series of facts."
193 The appellant submitted that the question of whether an imputation is an allegation of fact or an expression of opinion is ultimately a question of the construction of the matter complained of. If a defamatory imputation is to be defended as comment it must be recognisable by the ordinary reasonable reader or listener as comment and the key to this is whether it is supported by facts, stated or indicated, upon which the comment may be based. Accordingly, a statement may be regarded as a comment as distinct from an allegation of fact only if the facts on which it is based are stated or indicated with sufficient clarity to make it clear to the ordinary reasonable reader or listener that it is comment on those facts.
194 The appellant submitted that it was clear from the language he used in both matters complained of and which I have extracted at [185]-[187], that the statements that the appellant was a thug and a bully were being advanced as statements of fact. It was further submitted that contrary to the findings of the primary judge at [263] of his judgment, the respondent did not state any facts from which an ordinary reasonable reader or listener could conclude that the appellant was a thug and a bully apart from the respondent's assertions that he was. This was especially so with respect to the second matter complained of, where no factual basis was stated or indicated from which it could be concluded that the appellant was a thug or a bully. Accordingly, the appellant submitted, his Honour had erred in finding to the contrary.
195 The respondent submitted that a statement is one of fact if the ordinary reasonable reader or listener is not told why the defendant writes or says the imputation. The submission continued in these terms:
"If the defendant says so and so is a murderer full stop, that would be a statement of fact. If he says so and so is a murderer because he issued a writ for $750,000, issued it against a man personally, that would be comment on giving the reasons. Now I can't do better than that."
196 A little further on in the argument, the following additional submission was made:
"If I said X is a murderer because he was seen walking out of the room with a smoking gun with blood on his hands and a corpse was in the room, then it's a comment based on those facts. If I said the appellant is a thug and a bully full stop, it's a statement of fact. If I said he's a thug and a bully because he issued a statement of claim against Mr Mackay claiming a large amount of money personally, was trying to prevent free speech and had taken out AVO proceedings against him, then they're the reasons why he's calling the appellant a thug and a bully, they become matters of comment."
197 The difficulty with the last submission is that it misrepresents what the respondent said. As was noted in argument, deciding whether something is comment or fact depends upon a close analysis of the particular text. An analysis of the text of both matters complained of to my mind leads inevitably to the conclusion that the assertions by the respondent in the first matter complained of that he called the appellant a "bully" or "a thug and a bully" and that "to be quite honest, he is" and in the second matter complained of that he told him what he thought of him and "called him a bully and a thug" would convey to the ordinary reasonable reader or listener that the respondent was asserting as a statement of fact that the appellant was, indeed, a thug and a bully. In my respectful opinion, his Honour's finding to the contrary cannot be sustained.
198 It follows from the foregoing that the defence of comment fails the threshold first element.
199 But even if I am wrong and the imputations were comment, in my view the respondent fails the second test, namely, that the comment was based on proper material for comment. To be proper, such material must be accurate and complete.
200 The primary judge held (at [266]-[267]) that this second element was satisfied. He noted that the appellant had emphasised the failure of the respondent to draw to the attention of the audience the fact that Mr Mackay had himself sued the appellant claiming $750,000, so that the respondent's pejorative references to the appellant having sued Mr Mackay for the same amount were inaccurate or incomplete by reason of that omission. This submission was rejected by his Honour on the basis that there was no evidence that the respondent was aware that Mr Mackay had sued the appellant at all.
201 But the appellant's submissions to his Honour, and certainly to this Court, were not confined to the omission referred to by the primary judge. If the references to the appellant being a bully and a thug were comments, then they could only be based on the statement in the first matter complained of that "it came out in court" that the appellant was a thug and a bully - an assertion conceded by counsel for the respondent to be inaccurate. The assertion in the second matter complained of that "it is proven in a court of law that Jerry Bennette is a bully and a thug" was also false.
202 At its highest, the respondent's submission was that which I have recorded at [194] above. However, no reasonable listener could have concluded that by reason of the matters referred to the speaker was doing any more than opining that the appellant was a thug and a bully.
203 In my view a close analysis of the text of the matters complained of reveals no material of sufficient accuracy or completeness which would justify a finding that if the imputations that the appellant was a thug and a bully were comment, that this comment was based on proper material. Accordingly, in my view the defence of comment fails the second element necessary for its success.