G.2.1. Was the Review an expression of opinion or a statement of fact?
122 There are two matters within s 31(1)(a) of the Act which must first be addressed because they bear upon the determination of whether the Review was, in fact, an expression of opinion or a statement of fact.
123 First, s 31(1)(a) of the Act directs attention to whether the matter was an expression of opinion or a statement of fact.
124 Section 4 of the Act relevantly defines matter in the following terms:
matter includes -
(a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical, and
(b) a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication, and
(c) a letter, note or other writing, and
(d) a picture, gesture or oral utterance, and
(e) any other thing by means of which something may be communicated to a person.
125 As White J observed in Dutton v Bazzi [2021] FCA 1474 at [70] (reversed on appeal but not on this aspect), matter as defined in s 4 of the Act, suggests that the defamatory matter in s 31 of the Act is to be construed as a reference to the medium by which the defamatory imputation is conveyed rather than the defamatory imputation itself. In contrast, the common law defence of fair comment on a matter of public interest focusses on the defamatory meaning found to have been conveyed: Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 at [83] and [85] (Gummow, Hayne and Heydon JJ).
126 The relevant question, therefore, is whether the matter would have been understood by the ordinary reasonable reader to be an expression or opinion rather than a statement of fact. This question is necessarily contextual and requires consideration of the meaning found to be conveyed in the matter but it is not constrained or dictated by their terms, so as to transform into a consideration as to how each imputation would be understood: Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15 at [131] (Lee J).
127 Second, the Act distinguishes between an expression of opinion and a statement of fact, however, an opinion is not defined in the Act.
128 An opinion has been understood to refer to "a deduction, inference, conclusion, criticism, judgment, remark, observation": John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164 at [25] (Giles JA) citing Gatley on Libel and Slander, 10th ed, 2004, at [12.6]; State of New South Wales v IG Index plc (2007) 17 VR 87; [2007] VSCA 212 at [48] (Nettle JA); Stead at [128].
129 The distinction between facts and opinions can be elusive. As Giles JA stated in O'Shane at [27]:
There can not be a clear line between comment and statement of fact. Many defamatory words have elements of fact, conclusion from facts and expression of opinion. A characterisation must nonetheless be made, and the context and circumstances of the use of the words will be important.
130 Dr Callan submits that the Review is not an expression of opinion because (a) Mr Chawk is purporting to set out facts so that readers can make "an informed decision" - that is, he is the one informing them, by giving them the "facts" about Dr Callan, (b) Mr Chawk reinforces this in the third sentence in which he states "I regret to inform…", and (c) Mr Chawk describes the alleged disappointing outcome of the rhinoplasty procedure as though it were a fact and asserts that the claims he is making are evidenced by the photographs in the Review by use of the language of "as the attached pictures show".
131 I do not agree.
132 I accept that each of the matters relied upon by Dr Callan do not suggest any expression of opinion and rather purport to be an objective recitation of factual matters.
133 In my view, however, Dr Callan has not given sufficient attention to the context in which the matter was published and most critically, the "one star" rating. The review was published on a website that allowed patients to comment on their experiences with relevantly, plastic surgeons, and to provide a "star" rating from "one star" up to "five stars". Objectively, the matter in that sense was inherently an expression of opinion. The allocation of a rating of one star at the conclusion of the Review would have readily been understood by the ordinary reasonable reader as "a deduction, inference, conclusion, criticism, judgment, remark or observation" that Mr Chawk had made from the facts stated or referred to by him in the body of the Review. The headline, "The Emotional impact of a Failed Rhinoplasty is Severe", is also an expression of opinion. The imputations that I have found to be conveyed also reinforce my view that the ordinary reasonable reader would understand the Review as an opinion based on the facts asserted.
134 Dr Callan concedes that if the Review was conveyed as an expression of Mr Chawk's opinion, it related to a matter of public interest, within the meaning of s 31(1)(b) of the Act.