Cummings v Fairfax Digital Australia & New Zealand Pty Ltd; Cummings v Fairfax Media Publications Pty Ltd

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the Judgment] The appellants, Mr Anthony Cummings and Anthony Cummings Thoroughbreds Pty Ltd (Cummings Thoroughbreds), train thoroughbred racehorses. They brought defamation proceedings against the respondents, Fairfax Digital Australia & New Zealand Pty Ltd (Fairfax Digital) and The Age Company Ltd (The Age), in respect of three articles published on 25 February 2010 on their respective websites (Digital proceedings). Mr Cummings also brought defamation proceedings against Fairfax Media Publications Pty Ltd (Fairfax Media) and a journalist, Kate Lahey, in respect of a poster advertising a front-page article published in the Sydney Morning Herald (Poster) (SMH) also on 25 February 2010, and also in respect of the article itself (Print proceedings). All the defendants are referred to as "Fairfax" unless the context otherwise requires. The proceedings arose from Fairfax publications which reported on civil proceedings brought by one of Mr Cummings' companies in the District Court of New South Wales to recover a debt said to be owing to it by Nathan Tinkler's company, Patinack Farm Pty Ltd, for unpaid invoices in respect of training that company's horses (debt-recovery proceedings). By consent, those proceedings were subsequently transferred to the Supreme Court of New South Wales. After seeing Mr Cummings' name in the daily court list, the debt-recovery proceedings having been listed for a directions hearing, at which short minutes of order were handed up, Ms Lahey applied to the registry of the Supreme Court pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 36.12(2), for access to the statement of claim and defence. Access was granted. In addition to the two pleadings that Ms Lahey had sought to see, she was also given access to a cross-claim and the defence to the cross-claim. Ms Lahey wrote the impugned articles based on handwritten notes she took of the debt-recovery proceedings pleadings. Following Fairfax's publication of the matters complained of the subject of the Digital proceedings (Digital publications), other media outlets picked up the first two impugned publications and, Mr Cummings alleged, republished them. He contended that Fairfax was responsible for the republications. The Digital publications were substantially the same as the article published in the print edition of the SMH, albeit with different headlines. Mr Cummings contended the articles conveyed numerous imputations concerning himself, among them, that in his capacity as a trainer he worked horses so hard that they were unable to race or broke down. Cummings Thoroughbreds contended the articles conveyed imputations concerning it, including that it engaged an incompetent horse trainer. Mr Cummings argued the Poster, which stated "CUMMINGS FIGHTING CRUELTY CLAIMS", also conveyed imputations to the effect that he was cruel person who was cruel to animals. In both the Digital and Print proceedings, there was no issue that if the imputations pleaded were conveyed, they were defamatory. In their defences, Fairfax pleaded that each of the matters complained of, and, if they were liable for them, each republication, was published on an occasion of qualified privilege at common law, or pursuant to s 30 of the Defamation Act 2005 (NSW) (2005 Act). They also contended that each was a fair summary of public documents pursuant to s 28(1)(b) of the 2005 Act. Both proceedings were heard together by the primary judge on liability only. The primary judge entered judgment for Fairfax Digital and The Age in the Digital proceedings. In the Print proceedings, his Honour gave judgment for Mr Cummings against Fairfax Media and Ms Lahey in relation to the Poster publication, but otherwise, gave judgment for Fairfax Media. He reserved the issue of damages. He also reserved the issue of costs, to be resolved after conclusion of the damages proceedings. On appeal, there was controversy about whether the primary judge held that any of the imputations were conveyed in relation to the Digital matters complained of. Nevertheless in dealing with the s 28 defence, his Honour appeared to proceed on the basis that all the pleaded imputations were conveyed. In relation to the impugned publications (other than the Poster), the primary judge upheld the s 28 defence, holding they were a fair summary of the debt-recovery proceedings pleadings. In relation to the Poster, his Honour held it identified Mr Cummings and carried a defamatory imputation, being that Mr Cummings was, as a racehorse trainer, cruel to horses he trained. He entered judgment against Fairfax Media and Ms Lahey in respect of the Poster. He held there was no defence under s 28 of the 2005 Act in relation to the Poster. Mr Cummings and Cummings Thoroughbreds appealed in relation to the Digital proceedings. By summons seeking leave to appeal, Mr Cummings sought leave to appeal from the part of the primary judge's decision in the Print proceedings giving judgment for Fairfax Media and Ms Lahey. Fairfax filed a cross-summons seeking leave to cross-appeal in the Print appeal against the order giving judgment for Mr Cummings in relation to the Poster. Digital appeal The principal issues on the Digital appeal were whether the primary judge erred: (i) in finding that the plaintiffs' imputations pleaded in relation to the digital and print matters complained of were carried of and concerning Mr Cummings and Cummings Thoroughbreds. (ii) in determining that each of the publications by other media outlets were not republications for which Fairfax was liable. (iii) in upholding the defence of fair summary of public documents pursuant to s 28 of the 2005 Act. Print appeal The principal issues on Print appeal were whether the primary judge erred: (i) in failing to find that the Poster in its natural and ordinary meaning was capable of, and did in fact, refer to Mr Cummings. (ii) in determining that "the defamatory nature" of the Poster was limited to those people who would identify the poster as referring to the plaintiff, Mr Cummings, and not his father, Bart Cummings, and were aware of the extraneous facts that Mr Cummings was a horse trainer and did not read the article published in the newspaper to which the poster referred. (iii) in failing to find that all of the imputations Mr Cummings pleaded in relation to the Poster were conveyed and defamatory of him. (iv) in failing to uphold Fairfax's defence of qualified privilege pursuant to s 30(3) of the 2005 Act to the Poster. Held, dismissing the Digital appeal As to issue (i), per McColl JA (Beazley P and Simpson AJA agreeing): (1) The ordinary reasonable reader is well sensitised to the legal process of making allegations which lead to judicial resolution in civil as well as criminal proceedings. That reader would not read the matters complained of as conveying guilt imputations because it was apparent that Fairfax was not adopting the allegations made in the court case the subject of the matters complained of: at [138] - [143]. Ross McConnel Kitchens v John Fairfax [1980] 2 NSWLR 845 followed. As to issue (ii), per McColl JA (Beazley P and Simpson AJA agreeing): (2) Liability for republication turns on the original publisher having published defamatory matter. Because the imputations of which Mr Cummings and Cummings Thoroughbreds complained were not carried by the matters complained of the issue of republication did not arise: at [188]. (3) Nevertheless, having regard to the evidence objectively, it could not be said that at the time of publication there was a significant risk of republication of the matters complained of by third-party commercial entitles such as to render Fairfax liable for their publications. The fact that to do so would have been in breach of copyright is an added reason for reaching that conclusion: at [195]. Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (Wagon Mound [No 2] [1967] 1 AC 617; [1966] UKPC 10; Baturina v Times Newspaper Ltd [2010] EWHC 696 (QB) considered. As to issue (iii), per McColl JA (Beazley P and Simpson AJA agreeing): (4) Consistent with the principle of open justice, there is a public interest in facilitating a fair and accurate report of proceedings in court. The pleadings were "public documents" for the purposes of s 28(1)(b), 2005 Act, because reference to their terms was necessary to understand what was going on in an open court at the directions hearing. The pleadings should be taken to have been read for the purposes of the registrar making orders: [225], [229] - [231]. (5) The matters complained of were a fair summary of the pleadings in the debt recovery proceedings because each paragraph of the matters complained of had a source in the pleadings: at [234]. (6) The mere fact that a publication has a pecuniary motive does not mean a publication is not "for the information of the public" nor that it was not published "honestly" for that purpose. Mr Cummings did not establish that Fairfax had any motive or purpose to publish the Poster other than to inform members of the public of the information it bore. Accordingly, he did not establish the matter of defeasance required by s 28(3): at [244]. Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 considered; Lower Murray Urban and Rural Water Corporation v Di Masi (2014) 43 VR 348; Nyoni v Pharmacy Board of Australia (No 6) [2018] FCA 526 referred to. Held, granting leave to appeal and to cross-appeal in the Poster appeal and allowing the cross-appeal: As to issue (i), per McColl JA (Beazley P and Simpson AJA agreeing): (7) The Poster identified Mr Cummings in its natural and ordinary meaning. He was named in it. A defamatory statement capable of referring to two people may be the subject of suit by each. It was not the point that persons who saw the Poster may have thought it referred to both Mr Cummings and his father: [152]. David Syme & Co v Canavan (1918) 25 CLR 234; Lee v Wilson and MacKinnon (1934) 51 CLR 276; [1934] HCA 60 referred to. As to issue (ii), per McColl JA (Beazley P and Simpson AJA agreeing): (8) In a case where the defamatory meaning is only carried to those who identified the plaintiff by reference to extrinsic facts, it is only publication to those few that could have in any way damaged the plaintiff's reputation. Accordingly, the extent to which the plaintiff is identified is directly relevant to the amount of damages to be awarded: at [168]. Morgan v Odhams Press Ltd [1971] 1 WLR 1239; Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 applied. As to issue (iii), per Simpson AJA (Beazley P agreeing): (9) It would be apparent to readers of the Poster that allegations of cruelty had been made against Mr Cummings. It would be equally apparent that Mr Cummings contested the allegations. The emphasis on the Poster is on Mr Cummings' denial of the allegations. No ordinary reasonable reader could or would conclude that the allegations were true: at [269] - [271]. As to issue (iii), per McColl JA (dissenting): (10) The primary judge erred in failing to find that the Poster carried imputation (a), (c) and (d) as false innuendos, that is to say, as arising from the natural and ordinary meaning of the Poster, but only to persons who were unaware of the digital and print matters complained of: at [179]. As to issue (iv), per McColl JA (Beazley P and Simpson AJA not deciding): (11) The unidentified "author" of the Poster did not act reasonably insofar as that person failed to make it clear that the allegations Mr Cummings was fighting were made in court proceedings: at [258].

Judgment Judgment Factual background Digital proceedings Print proceedings Primary judgment Republication Identification Were the imputations carried: digital and print publications? Public documents defence The Poster Defeasance Qualified privilege Conclusion Issues on appeal Identification Republication Defamatory meanings Section 28 Qualified privilege Imputations issue The parties' positions Consideration Whether the imputations were conveyed: McConnel principle Whether the imputations were conveyed: factual consideration Conclusion: whether imputations conveyed The Poster Identification: the parties' positions Consideration Natural and ordinary meaning True innuendo Whether the Poster imputations were carried Conclusion Republication The parties' positions Consideration Section 28 The parties' positions Legislative framework Public documents: submissions Public documents: consideration Fair Summary Section 28(3), 2005 Act Qualified privilege The parties' positions Consideration Orders Digital appeal Print appeal Notice of appeal Notice of cross-appeal SCHEDULE 1 SCHEDULE 2

1. BEAZLEY P: I have had the opportunity of reading in draft the reasons of McColl JA and Simpson AJA. My short note assumes a familiarity with the reasons of McColl JA.
2. I agree with McColl JA that the 'Digital appeal' should be dismissed with costs. However, I have concluded that the Poster did not convey the imputations pleaded. In that regard, I agree with the reasons of Simpson AJA. I agree with the orders proposed by Simpson AJA.
3. McCOLL JA: The appellants, Mr Anthony Cummings and Anthony Cummings Thoroughbreds Pty Ltd (Cummings Thoroughbreds), brought defamation proceedings against the respondents, Fairfax Digital Australia & New Zealand Pty Ltd (Fairfax Digital) and The Age Company Ltd (The Age) in respect of three articles published on 25 February 2010 on their respective websites (Digital proceedings). [1] Mr Cummings also brought defamation proceedings against Fairfax Media Publications Pty Ltd (Fairfax Media) and journalist Kate Lahey, in respect of a poster advertising an article which was published in the Sydney Morning Herald also on 25 February 2010 and also in respect of the article itself (Print proceedings). [2] The proceedings were commenced in the Supreme Court of the Australian Capital Territory but were transferred to the Supreme Court of New South Wales by consent. [3]
4. The Digital and Print proceedings were heard together by Rothman J on liability only. His Honour entered judgment for Fairfax in the Digital proceedings. In the Print proceedings, his Honour gave judgment for Mr Cummings against Fairfax in relation to the Poster publication, but otherwise, gave judgment for the defendants. [4] He reserved the issue of damages. He also reserved the issue of costs, to be resolved after conclusion of the damages proceedings. [5]
5. By notice of appeal filed on 25 August 2017, the appellants appeal pursuant to s 101 of the Supreme Court Act 1970 (NSW) against the reasons and judgment of Rothman J of 26 May 2017 in relation to the Digital proceedings (Digital appeal).
6. By summons seeking leave to appeal filed on 20 November 2017, Mr Cummings seeks leave to appeal from that part of the primary judge's decision in the Print proceedings giving judgment for Fairfax (Print appeal). Fairfax has filed a cross-summons seeking leave to cross-appeal in the Print appeal against order 3 giving judgment for Mr Cummings in relation to the Poster.
7. For the reasons that follow, I would dismiss the Digital appeal with costs, grant Mr Cummings leave to appeal in the Print appeal, and allow that appeal in part, but make no order as to costs. I would also grant Fairfax leave to cross-appeal in the Print appeal but, save for setting aside the judgment against Ms Lahey, otherwise dismiss the cross-appeal with costs.

Factual background

1. Mr Cummings and his company Cummings Thoroughbreds train thoroughbred racehorses.
2. On 16 April 2009, one of Mr Cummings' companies, Something Fast Pty Ltd (Something Fast), sued Nathan Tinkler's company Patinack Farm Pty Ltd (Patinack Farm) in the District Court of New South Wales to recover a debt of $167,492.87, plus interest, said to be owing for unpaid invoices (debt-recovery proceedings). [6] In November 2009, the debt-recovery proceedings were transferred to the Supreme Court by consent because the value of Patinack Farm's cross-claim exceeded the jurisdictional limit of the District Court. At the time they were transferred, all the pleadings referred to in the matters complained of had been filed.
3. The procedural history of the debt-recovery proceedings is set out by the primary judge at [9] - [23] and is generally unnecessary to repeat. In short, Patinack Farm defended the proceedings by denying that Something Fast provided services or undertook the work for which the parties had contracted or for which it had been invoiced. It also cross-claimed against Something Fast, Mr Cummings and Cummings Thoroughbreds claiming, among other matters, that the cross-defendants had breached various duties they owed Patinack Farm. [7]
4. The relevance of the debt-recovery proceedings to the present appeal is primarily Fairfax's use of paragraph 17 of the cross-claim which alleged, as summarised by the primary judge: [8] "… that horses, trained by Mr Cummings or Something Fast, became lame or otherwise broke down and claimed damage [sic]. A schedule to the Cross-Claim sets out horses purchased by Patinack Farm with Anthony Cummings acting as agent and horses that are said to have broken down due to negligence."
5. The cross-defendants filed defences to the cross-claim in which they either denied, or did not admit, the critical allegations. [9]
6. Prior to the publication of the matters complained of, Ms Lahey, a journalist assigned to the business section of the Sydney Morning Herald, applied to the Registry of the Supreme Court pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.12(2)(b), for access to the statement of claim and defence in the debt-recovery proceedings. She did so after seeing Mr Cummings' name in the Supreme Court daily court list. [10] Access was granted. In addition to the two pleadings that Ms Lahey had sought to see, the file also contained the cross-claim and the defence to the cross-claim (further pleadings). [11] Ms Lahey wrote the first, second, third and fifth impugned publications based upon notes she took while reading the pleadings. [12] She was not permitted to photocopy the documents. [13] She did not write the headline or captions or choose the photograph of Mr Cummings which was used. Otherwise, Ms Lahey wrote all publications complained of, except the Poster.
7. The matters complained of in the Digital Proceedings as described by the primary judge were: 1. "Cummings in $6.4m Fight Over Broken-Down Racehorses", published by Fairfax Digital on 25 February 2010 on two websites (www.smh.com.au and www.brisbanetimes.com.au) (the first impugned matter complained of) - Schedule A to the statement of claim. 2. "Tinkler, Trainer in Stoush", published by Fairfax Digital on 25 February 2010 on one website (www.theage.com.au) (the second impugned matter complained of) - Schedule B to the statement of claim. 3. "Tinkler, Trainer in Stoush", published in the the Age, also on 25 February 2010 (the third impugned matter complained of) - Schedule C to the statement of claim." [14]
8. In the Print proceedings the matters complained of were described by the primary judge as: 1. A bill poster "headline" advertising The Sydney Morning Herald using the words "CUMMINGS FIGHTING CRUELTY CLAIMS", published by Fairfax Media and Fairfax Printers on 25 February 2010 (the fourth impugned publication) - Schedule A to the amended statement of claim. 2. An article by Ms Lahey which was published in the Sydney Morning Herald on 25 February 2010 in its print version (the fifth impugned publication) - Schedule B to the amended statement of claim. [15]
9. Following Fairfax's publication of the digital matters complained of, other media outlets picked up the first two impugned publications and, Mr Cummings alleged, republished them. In the Digital proceedings, Mr Cummings alleged that the first impugned digital publication was republished on the websites of the Racing Post, Thoroughbred News and Breednet and that the second impugned digital publication was republished in the New Zealand Herald. [16] In the Print proceedings, Mr Cummings also alleged the fifth impugned publication had been republished on Racing Post, Thoroughbred News and Breednet. He alleged Fairfax was responsible for all the republications.

Digital proceedings

1. As described by the primary judge the three digital publications were substantially the same as the fifth impugned publication, [17] albeit with different headlines, one common to the first and fifth publications and another to the second and third respectively. There were also layout differences between each of the digital publications. In these reasons, I refer to the three digital publications as the matters complained of. I refer to the fourth impugned publication as the "Poster".
2. The plaintiffs contended the matters complained of conveyed numerous imputations. The imputations in relation Mr Cummings and all the digital publications, the Poster publications and the fifth impugned publication were, with minor exceptions, the same, albeit that they were sometimes sourced to different paragraphs. Accordingly, it is convenient to set them out once.
3. Curiously, however, the parties were different. Mr Cummings and Cummings Thoroughbreds sued in relation to the three digital publications, but only Mr Cummings sued in relation to the fifth impugned publication. There was no issue that if the imputations complained of in the Digital and Print proceedings were carried, they were defamatory of each plaintiff.
4. Mr Cummings alleged that the first, third and fifth impugned publications conveyed the following defamatory imputations or meanings not differing in substance of and concerning him: "(a) The first plaintiff in his capacity as a trainer worked Patinack Farm's horses so hard that they were unable to race [1], [2], [3], [8], [9], [10]; (b) The first plaintiff trained Patinack Farm's horses so badly that they could not earn winnings because they broke down or became lame [1], [2], [3], [8], [19], [10]; (c) The first plaintiff by his negligence as a trainer caused five of 15 Patinack Farm racehorses to break down so severely that they could never race [1], [2], [3], [8], [9], [10]; (d) The first plaintiff by his negligence as a trainer caused ten of 15 Patinack Farm racehorses to break down so severely as to have only a 50% chance of racing [1], [2], [3], [8], [9], [10]; (e) The first plaintiff failed in his duty as a horse trainer to train Patinack Farm's horses in a way that would not stress or injure them [1], [2], [3], [8], [9], [10]; (f) The first plaintiff took commissions and fees to which he was not entitled for the purchase of racehorses at the Magic Millions sale on behalf of Patinack Farm [2], [5], [6], [12]; (g) The first plaintiff dishonestly profited at the expense of his client Patinack Farm from the purchase of racehorses on its behalf [2], [5], [6], [12]; (h) The first plaintiff negligently failed in his duty to buy sound racehorses for Patinack Farm [1], [2], [3], [8], [9], [10]; (i) The first plaintiff failed to perform his duty to buy racehorses for Patinack Farm which he considered would win Group 1 races [1], [2], [3], [8], [9], [10]; (j) The first plaintiff failed to perform his duty in buying racehorses for Patinack Farm which were not fit for competition [1], [2], [3], [8], [9], [10]; (k) The first plaintiff failed to perform his duty in failing to buy racehorses on behalf of Patinack Farm at the best possible price [1], [2], [3], [8], [9] [10]." The numbered paragraphs in square brackets corresponded to the paragraphs of the first matter complained of set out in Schedule A to the statement of claim in the Digital proceedings. As I have said, there were some variations in the paragraph numbers to which the imputations were sourced.
5. Cummings Thoroughbreds alleged the first to third impugned publications conveyed the following meanings or meanings not differing in substance: "(a) The second plaintiff, a company involved in the business of training horses, engaged an incompetent horse trainer [1], [2], [3], [8], [9], [10]; (b) The second plaintiff, a company involved in the business of training horses, engaged a horse trainer who was so incompetent as a horse trainer that his actions resulted in the horses being unfit to race [1], [2], [3], [8], [9], [10]; (c) The second plaintiff, a company involved in the business of training horses, engaged a negligent horse trainer [1], [2], [3], [8], [9], [10]; (d) The second plaintiff, a company involved in the business of training horses, engaged a horse trainer so negligent that he failed to monitor the training of horses such that the horses broke down and could not race [1], [2], [3], [8], [9], [10]; (e) The second plaintiff in the conduct of its business took commissions and fees to which it was not entitled for the purchase of racehorses at the Magic Millions sale on behalf of Patinack Farm [2], [6], [10]; (f) The second plaintiff engaged in dishonest business practices [2], [5], [6], [12]." The numbered paragraphs in square brackets correspond to the paragraphs of the first matter complained of set out in Schedule A to the statement of claim in the Digital proceedings.
6. In their defences, Fairfax pleaded that each of the matters complained of, and each republication, was published on an occasion of qualified privilege at common law, or pursuant to s 30 of the 2005 Act. They also contended that each was a fair summary of public documents pursuant to s 28(1)(b) of the 2005 Act.
7. In their reply, the plaintiffs relevantly pleaded that the matters complained of were not "published honestly for the information of the public": s 28(3), 2005 Act.

Print proceedings

1. In the Print proceedings, Mr Cummings alleged that the Poster in its natural and ordinary meaning conveyed the following defamatory imputations or meanings not differing in substance of and concerning him: "(a) the plaintiff was a cruel person; (b) the plaintiff was cruel to animals; (c) the plaintiff treated racehorses in his care with cruelty; (d) the plaintiff as a racehorse trainer was cruel to horses he trained."
2. He relied upon the following particulars, both as particulars of identification and as extrinsic facts said to support his imputations as true innuendos, to the extent they were found not to be conveyed by the first impugned publication in its natural and ordinary meaning: "(a) the plaintiff was a registered trainer of racehorses; (b) the plaintiff trained racehorses in stables established at Randwick in Sydney and Flemington in Melbourne; (c) the plaintiff was a successful trainer who had trained many winners in races throughout Australia; (d) the plaintiff was a party to litigation relating to his conduct in training racehorses."
3. The particulars of identification stated: "Particulars 6A.1 The above facts and matters were known to members of the racing public and those engaged in the racing industry who saw the poster including, at least Mr Neville Begg, Mr Graham Begg, Mr Paul Whelan and Mr Brendan Hopkins."
4. As in the Digital proceedings, there was no issue that if the imputations pleaded in the Print proceedings were conveyed, they were defamatory.
5. In its defence to the Poster proceedings, Fairfax pleaded it was published on an occasion of qualified privilege at common law, or pursuant to s 30 of the 2005 Act. It also contended that it was a fair summary of public documents pursuant to s 28(1)(b) of the 2005 Act.
6. Insofar as the fifth impugned publication was concerned, Fairfax again pleaded it was published on an occasion of qualified privilege at common law, or pursuant to s 30 of the 2005 Act. They also contended that it was a fair summary of public documents pursuant to s 28(1)(b) of the 2005 Act.
7. In his reply, Mr Cummings relied on the s 28(3) defeasance as he had in the Digital proceedings.

Primary judgment

1. After setting out the background to the proceedings, the primary judge held that Cummings Thoroughbreds had standing to sue for defamation, as it employed fewer than 10 persons and was not related to another corporation. Accordingly it was an excluded corporation within the meaning of that expression in s 9 of the 2005 Act. [18] There was no challenge to that finding.

Republication

1. The primary judge next held that Fairfax was not liable for the republications. His Honour held that, although republication of the impugned publication was likely, [19] the republications were not the natural and probable consequence of the original publication. [20] The republications were not intended by Fairfax [21] and each republication was subject to an independent decision-making process to publish the material. [22] His Honour held: [23] "Whatever damage may have been caused by the republication in the independent internet and newspaper articles can be the subject of separate defamation proceedings by the plaintiffs. It is, in my view, not the natural and probable consequence of the publication of the original articles for the republication to have occurred and the damage cannot be placed at the feet of the defendants."
2. The appellants challenge this decision.

Identification

1. Identification arose as an issue in relation to the Poster, which merely stated "CUMMINGS FIGHTING CRUELTY CLAIMS". The issue was whether the ordinary reasonable reader would have read the Poster to refer to the plaintiff, rather than, for example, to his famous father, Mr Bart Cummings. [24]
2. The primary judge accepted evidence from the horse trainer, Neville Begg, that he had identified Mr Anthony Cummings as referred to in the Poster because it was fairly widely known that the plaintiff "was having a difference with one of his clients." [25]
3. Mr Bryan Rutter (who saw the Poster while driving along Clovelly Road) also identified the plaintiff. He said, "when the media referred to Mr Bart Cummings, it always called him 'Bart Cummings' and not 'Cummings'." [26] There was evidence of a number of occasions when Fairfax had referred to Mr Cummings, "in recent time, prior to the publications that have been impugned, as 'Cummings'." [27]
4. The primary judge ultimately concluded that, "the terminology 'Cummings' is such as would reasonably lead at least one person acquainted with Mr Anthony Cummings to believe that he was the person to whom the Poster refers. The Poster identifies the individual plaintiff." [28] His Honour's conclusion was presumably founded on Mr Begg's evidence, but he also accepted Mr Rutter's evidence too.
5. In this respect, his Honour held there "does not seem to be any basis upon which the Court could take the view that the evidence of Mr Rutter should be disbelieved or that the differentiation, as he perceived it, is not accurate. In those circumstances, the identification by Mr Rutter is reasonable." [29]
6. Fairfax challenges this decision.

Were the imputations carried: digital and print publications?

1. The primary judge then turned to the "defamatory meaning". Although his Honour had held the plaintiffs had failed on the republication issue, his Honour first considered the articles the plaintiffs relied upon as republications. [30] It is unnecessary to repeat this aspect of his Honour's reasons.
2. The primary judge then turned to the question whether the imputations were carried by the matters complained of other than the Poster. His Honour did not set out the imputations of which Mr Cummings and Cummings Thoroughbreds complained in his reasons. Regrettably, his Honour made inconsistent decisions about whether the imputations relied on in the Digital proceedings were conveyed.
3. His Honour first considered whether the matters complained of conveyed imputations in relation to Cummings Thoroughbreds. In this respect, his Honour held: "[76] Nothing in the first, second, third and fifth impugned publications and no part of the fourth impugned publication alleges that Cummings Thoroughbreds is a company engaged in the business of training horses. Each of the allegations as to overtraining, training until they were broken down or the prevention of racehorses earning prize money, or even the obtaining of commissions or the purchase of horses that were not thought to be able to win a Group 1 race, allege that Cummings Thoroughbreds is a company engaged in the business of training horses and from nowhere in the articles would one discern (even reading between the lines) that Cummings Thoroughbreds was a company engaged in the business of training horses. [77] It is Mr Cummings who, according to the article, is alleged, in the District Court pleadings, to be the person who engaged in the conduct from which the plaintiff seeks to allege the imputations against the company arise. Moreover the article does not allege that Cummings Thoroughbreds (or, indeed, Something Fast) bought thoroughbreds or trained thoroughbreds or performed any of the conduct that, according to the article, Mr Tinkler was alleging against Mr Cummings. [78] As a consequence, the Court concludes that none of the imputations, read in the context of the article or publication as a whole, in each case, arises from the publication in relation to the corporate entity, Cummings Thoroughbreds. The corporate entity Something Fast is not a plaintiff in the proceedings and does not allege defamation."
4. His Honour next appears to have considered the position insofar as Mr Cummings was concerned. He said: "[79] On the other hand, and possibly even more so as a result of the comments in relation to Cummings Thoroughbreds, there are statements in the publications (leaving aside, for present purposes, the Poster being the fourth impugned publication) that give rise to each of the imputations alleged in the first proceedings to have arisen from the first, second and third impugned publications. Further, the imputations pleaded by Mr Cummings in relation to the second proceedings arise from statements relating to the fifth impugned publication, being the same imputations as were pleaded in the first proceedings."
5. His Honour then said: "[81] I have concluded that aspects of the publications (other than the Poster, being the fourth impugned publication) give rise to the imputations, I have not yet, in these reasons, dealt with the publication as a whole, as is required when the Court puts itself in the position of the ordinary reasonable reader. That process will be undertaken after first dealing with the defence under s 28 of the Defamation Act." [Emphasis added.]
6. The primary judge then considered the s 28 issue. [31] In dealing with the s 28 defence, his Honour appeared to hold that each of the imputations about which the plaintiffs complained in the Digital proceedings and in relation to the fifth impugned publication was carried.

Public documents defence

1. The primary judge held that the pleadings in the debt-recovery proceedings were "public documents", being documents open for inspection to the public, and that the impugned publications were fair reports of them. [32]
2. The primary judge identified the test as to whether the s 28 defence was established as being: "[87] … the defendants … must, relevantly, prove that those imputations that arise are imputations that arise from a fair summary of the pleadings in the District Court proceedings and that the pleadings were public documents."
3. Later (and in apparent contrast to his findings about the imputations insofar as the two plaintiffs in the Digital proceedings were concerned), [33] his Honour said: "[96] The publications make clear that the two corporate entities are each companies of Mr Cummings. In fact, each is a company of which Mr Cummings is the sole director and for which Mr Cummings performs work. While there may be others that perform work or services for the companies, the purchasing of stock and the training of horses is, largely, if not wholly, performed by Mr Cummings. [97] In my view, the overall impression of the publications is that no differentiation was taken as between the interests of Mr Cummings and the interests of his private companies and Mr Cummings and the companies are referred to collectively as 'Cummings' or 'Mr Cummings' and, on occasion, the reader is reminded that these things alleged and denied have been done or not done by Mr Cummings or his companies. [98] The ordinary reasonable reader, who has read the whole of the publication, would not conclude that Mr Cummings was denying allegations, but his company was not. The ordinary reasonable reader would conclude that Mr Cummings and his companies were taking the same stand in the proceedings. [99] In other words, if Mr Cummings has been defamed, then, subject to the issues of standing with which the Court has dealt, so too have his two named companies, subject to the role of each company and the imputations alleged against it. On the other hand, if Mr Cummings has not been defamed, then neither has each of his companies." [Emphasis added.]
4. In a section of his reasons dealing with the question whether the matters complained of other than the Poster were a fair summary for the purposes of s 28, his Honour said: "[101] In these publications, the material that is additional to that which is contained in the pleadings does not, itself, give rise to any defamatory imputation and the defendants would not lose the defence created by s 28 of the Defamation Act as a consequence of the additional remarks: Macquarie Radio Network Pty Ltd v Arthur Dent [2007] NSWCA 261; Curistan v Times Newspapers Limited (2008) All ER (D) 417; [2008] EWCA Civ 432; Chakravarti v Advertiser Newspaper Limited (1998) 193 CLR 519; [1998] HCA 37. Nor does any additional material detract from the summary. … [104] It is necessary to look at each of the imputations and to determine whether that imputation has a source in the pleadings. In relation to Mr Cummings, the imputations, some of which are in similar form, are set out, as one would expect, in the Statement of Claim in the proceedings currently before the Court. [105] Nevertheless, it is appropriate to point out that the allegation that Mr Cummings, as a trainer: worked Patinack Farm's horses so hard that they were unable to race; could not earn winnings because they broke down or became lame; by his negligence caused five of the horses to break down so severely they could never race; and caused 10 of the horses to break down so severely that they only have a 50% chance of racing, were described in paragraphs 2, 3, 9 and 10 of the publication (using the fifth impugned publication as the example) and were sourced directly from the allegations in the Cross-Claim in [14], [15], [16], [17] and [18] of the Cross-Claim by Patinack Farm, together with a reading of Annexure F of the Cross-Claim. [106] The allegations or imputations: that Mr Cummings took commissions and fees to which he was not entitled for the purchase of racehorses; or dishonestly profited at the expense of Patinack Farm in the purchase of racehorses; or failed in his duty to buy sound racehorses at the best possible price; are pleaded in the Cross-Claim, filed by Patinack Farm in the District Court, in [3], [4], [5], [6], [7] and [8]. [107] The claim that Mr Cummings was required to perform a duty to buy racehorses that he considered would win the Group 1 races; or failed to perform his duty by buying racehorses that were not fit for competition; or failed to buy sound racehorses are contained in the Cross-Claim in [6] and [7] of the Cross-Claim. [108] Thus, each of the imputations arising from the first proceeding is an imputation that arises from the terms of the Cross-Claim. The second proceeding (arising from impugned publications four and five) pleads the same imputations, bearing in mind that the current discussion is not one which includes the Poster. [109] I have dealt already with the issues associated with the failure to differentiate between Mr Cummings and his private companies. The other issues raised by the plaintiffs relate to the failure to distinguish between Something Fast, which in the pleadings was alleged to have a role in purchasing and selling horses for Patinack Farm, but not training them. In the article no differentiation of task was mentioned." [Emphasis added.]
5. It would appear, and Mr Cummings contends this to be the case, that in paragraphs [104] - [108], the primary judge found all but imputations (e) and (k) pleaded in the Digital proceedings were conveyed. [34]
6. The primary judge then reviewed the pleadings in the debt-recovery proceedings. He identified some discrepancies between the pleadings and the impugned publications, but said the pleadings had to be "read as a whole". [35]
7. His Honour also used a table prepared by the respondents which cross-referenced paragraphs of the fifth impugned publication to the relevant part of the debt-recovery proceedings pleadings.
8. His Honour found: "[136] The foregoing description and the terms of [Ms Lahey's] notes, which, in general terms, accords with the content of the article, gives the Court comfort in the conclusion it has reached that the contents of the article are a fair summary of the pleadings being the Statement of Claim, the Defence, the Cross-Claim and the Defence to the Cross-Claim."
9. His Honour then considered the remaining s 28 issue whether the pleadings were "a public document". There was no controversy that the pleadings were documents kept by an Australian court. The critical issue was whether they were "open to inspection by the public".
10. In the course of considering that issue, the primary judge held that "[t]he interest in open justice will, almost invariably, be a sufficient interest" for the purposes of UCPR r 36.12(2)(b), [36] and that the capacity of the Court to disallow inspection did not "negate the ordinary rule that pleadings remain open for inspection by the public." [37]
11. His Honour held: "[173] Moreover, the foregoing conclusion continues the traditional and historical view that pleadings are documents open to the public and that may be published to the public. Further, such an interpretation facilitates open justice and allows the public to understand the issues that are before courts and with which the courts are dealing. [174] The difficulty with such an approach is that pleadings, necessarily, will contain allegations that have not yet been tested in Court and upon which the Court has not yet decided. But, in these times, the public is not so unsophisticated that it does not understand that that which is claimed to have happened and which has not yet been determined is an untested allegation. [175] In that regard, every day, courts deal with untested allegations, which are reported. Proceedings in the Local Court and in the criminal courts relate to untested matters of the most serious kind. The public is aware of that aspect and understand that it is fundamental to the open administration of justice that witnesses may give evidence that has yet to be tested and parties make allegations in pleadings that are still to be tested: see John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; [1982] HCA 50; Llewellyn v Nine Network Australia Pty Limited (2006) 154 FCR 293; [2006] FCA 836. [176] The historical view remains intact. At least at the time prior to the promulgation of the Defamation Act, the publication of a writ of summons was held to stand on the same footing as the publication of proceedings in open court: Abbott v Coombs (1887) 13 VLR 917; [1887] VLR 160. In the proceedings currently before the Court, the publication was not only of the originating process, but of the answer thereto and, a fortiori, it should be protected. [177] The conclusion to which the Court has come is that the pleadings are documents open for inspection to the public and that the articles are fair reports of the pleadings. The foregoing conclusion accords with the conclusion, albeit in the course of interlocutory proceedings, of Warren CJ in Crisp v Fairfax Media Ltd & Ors (2012) 38 VR 544; [2012] VSC 615, who, at [19] said: 'Any contemplated report of the County Court file, in particular the writ and the statement of claim, involves publication of public documents as provided by s 28(1)(b) of the Act.'"
12. In reasons to which I will come, the primary judge also held that the plaintiffs had failed to establish the matters of defeasance in s 28(3) of the 2005 Act. [38]
13. The effect of these rulings was that Fairfax had established a defence to all the impugned publications other than the Poster.
14. On the assumption that the primary judge held all the imputations were conveyed by the matters complained of, Fairfax challenges this conclusion. Mr Cummings and Cummings Thoroughbreds challenge the conclusion that Fairfax established the s 28 defence insofar as the matters complained of were concerned.

The Poster

1. At this stage, the primary judge turned to the question whether the Poster was defamatory in its natural and ordinary meaning or by reason of extrinsic facts - that is to say whether it carried a true innuendo. [39]
2. His Honour appears to have undertaken that exercise in combination with his consideration of whether the Poster was a fair report of the debt-recovery proceedings pleadings. In the latter respect, his Honour concluded that "an ordinary reasonable reader, and a person otherwise reading the pleadings in the District Court proceedings, would properly categorise the claims made in those proceedings as being claims of cruelty." [40]
3. His Honour next observed that there were "aspects of the Poster which amount to true innuendo … said to arise from the extrinsic facts known to those who associate Mr Cummings with the training of racehorses." [41] While his Honour accepted that the Poster did not mention horses, his Honour held that the extrinsic facts that Mr Cummings' name was so associated with horseracing and the training of horses could be used to infer that the cruelty referred to in the Poster related to racehorses. [42]
4. After considering whether the Poster was a fair report, his Honour returned to the issue of the imputations and held that, insofar as the Poster was concerned, his Honour held: "[196] The absence of identification of the source of the claim, namely, the allegations in court proceedings, together with the wording of the Poster imply some substance in the claims of cruelty and newsworthiness in the circumstance that Mr Cummings was fighting them. In those circumstances, the Poster is defamatory and is not protected by the defences in s 28 of the Defamation Act nor qualified privilege. [197] The defamatory nature of the publication, however, is limited to those people who would identify the Poster as referring to Mr Cummings and not Bart Cummings, and were aware of the extraneous facts that Mr Cummings was a horse trainer and did not read the article published in the newspaper to which the Poster referred."
5. His Honour found that Mr Cummings had failed to establish that the matters complained of were not published honestly for the information of the public or the advancement of education (s 28(3), 2005 Act). [43] The plaintiff sought to establish that proposition by reference to the Poster advertising the articles, the position of the fifth impugned publication on the front page of the Sydney Morning Herald and the allegations themselves, all matters said to support the inference the publication was made for sensationalist and ulterior purposes. [44]
6. The primary judge rejected this submission, holding that Ms Lahey had summarised the proceedings and written the articles "honestly and in good faith to provide that information to the public and for its information." [45] He reached the same conclusion in respect of the Poster. [46]
7. The primary judge held that Fairfax had established that the Poster and the matters complained of were published honestly for the information of the public: s 28(3), 2005 Act. He accepted Ms Lahey's evidence completely finding her to be a witness of truth whose evidence was reliable. [47]
8. Insofar as the Poster was concerned, his Honour held that "nothing in the Poster or its creation or the decision to make that story the subject of the Poster gives rise to an inference of an ulterior motive or a purpose other than the publication, honestly, for the information of the public, of the article in question." [48] However, of course, this conclusion was of no assistance to Fairfax as his Honour had already held that its s 28 defence had failed by reason of the failure to identify the source of the claims. [49]
9. Finally, his Honour held that the Poster carried "a defamatory imputation being that Mr Anthony Cummings was, as a racehorse trainer, cruel to horses he trained". [50] That was the fourth of the imputations Mr Cummings pleaded. He challenges the primary judge's failure to find the first three imputations he pleaded in relation to the Poster were also carried.

Defeasance

1. His Honour then turned to the issue of defeasance raised in the replies in both the Digital and Print proceedings. In dealing with this issue, however, his Honour appears to have been of the view, contrary to his earlier finding, [51] the s 28 defence had also been established in relation to the Poster as he said: "[207] Lastly, it is necessary to deal with the submission of defeasance raised by the plaintiff to defeat the defences raised. In order to establish defeasance, the plaintiffs are required to establish that the publications (in relation to this matter by the Poster and the other publications) were not published honestly for the information of the public: Rogers v Nationwide News (2003) 216 CLR 327; [2003] HCA 52. It is necessary for the publication to be made 'in good faith.'"
2. This stands in contrast to his Honour's ruling at [196] and also his statements in [205] that "the Poster is not giving the reader information on 'reports of court proceedings', but is, rather, a report concerning Mr Cummings. … The subject matter is not 'reports of court proceedings.'" In addition "good faith" was not a requirement to be established on the defeasance issue. Rather, relevantly, for s 28(3) purposes the question of motive or purpose turned on the word "honestly".
3. The appellant challenges his Honour's findings that they had not established the matters of defeasance to the matters complained of and the Poster.

Qualified privilege

1. Because of his findings in relation to the matters complained of, the primary judge only dealt with Fairfax's qualified privilege defence in relation to the Poster. [52] Fairfax confined its defence in that respect to s 30 of the 2005 Act.
2. His Honour held that the statutory and common law defences of qualified privilege was not made out, ostensibly in relation to the Poster for the following reasons: "[199] First, the defendants rely upon statutory qualified privilege pursuant to the terms of s 30 of the Defamation Act. In that reliance, the defendants refer to the public interest in reports of court proceedings. [200] Of course, there is a public interest in reports of court proceedings and in ensuring that open justice is administered. Nevertheless the reciprocity of interest required by the publisher and recipient of the publication should be at a level less 'general' than the public interest in reports of court proceedings. The report is the conveying of information about Mr Cummings. The recipient must have an interest or apparent interest in having information on Mr Cummings: Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 217; [1996] HCA 47: 'It is true that, in discussing the common law doctrine of fair comment, lawyers frequently spoke about the right of fair comment on such abstractions as 'the administration of justice', 'political and state matters', 'the management of public institutions' etc, but these were merely shorthand statements for the proposition that there was a right to comment on the actions or omissions of some person or institution in the course of the administration of justice, the management of public institutions and similar subjects which were subjects of public interest. The judgement of Cockburn CJ in Woodgate v Ridout (1865) for F&F 202; 176 ER 531 clearly brings out the point that, in describing a subject such as the administration of justice as a subject of public interest, it was the conduct of the individual or individuals involved in particular aspects of the administration of justice, and not some concept defined at a level of generality divorced from the conduct of individuals, that constituted the subject of public interest.' [201] Every defamatory publication (or almost every one) can be generalised to an abstract that would identify a 'public interest'. The public interest to which s 30 of the Defamation Act refers is the public interest in having information published about the persons and their conduct. 'The High Court continued, in citing with approval Odgers', A Digest of the Law of Libel and Slander, to the effect that, to warrant the defence, criticism never attacks the individual, but only the work of the individual and may include the policy of the government, the action of a member of Parliament, a public entertainment, a book published or a picture exhibited 'In every case the attack is on the man's acts, or on some thing, and not upon the man himself. A true critic never indulges in personalities.' (Bellino at 219, quoting the first edition of Odgers', supra).' (Milne v Ell [2017] NSWSC 555 at [45]). [202] I do not consider that the public had the kind of interest in the conduct of Mr Cummings that would allow for the establishment of qualified privilege either under the common law or under s 30 of the Defamation Act. [203] Further, the public interest in reports of court proceedings is an interest in the community at large in the final quelling of a controversy between members of the community and the process by which that controversy is resolved: see D'Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1; [2005] HCA 12. [204] The vital interest to which the High Court referred in D'Orta-Ekenaike, supra, concerns the process by which justiciable controversies are resolved and the final resolution of that controversy. The public has a right to know what is before the courts, but their interest, as a community, is in the quelling of the dispute. Further, the public does not have a right to know about the conduct of Mr Cummings, as such: see Bellino [v Australian Broadcasting Corporation (1996) 185 CLR 183; [1996] HCA 47], at [201] supra. [205] While the matter has not been the subject of detailed argument, it is at least arguable that the publication of the material was not published to the recipient 'in the course of giving to the recipient information on that subject' (s 30(1)(b) of the Defamation Act), which is the subject on which the recipient is required to have the interest or apparent interest. In other words the Poster is not giving the reader information on 'reports of court proceedings', but is, rather, a report concerning Mr Cummings. The latter suggestion is an alternative means of addressing the issue of 'public interest'. Public interest is required in the subject matter of the publication. The subject matter of the Poster is not 'reports of court proceedings.' [206] The Court accepts that the conduct of each of the defendants in publishing each of the matters was reasonable in the circumstances and both sides of the record are fairly summarised. In those circumstances, it was unnecessary to contact Mr Cummings and asked [sic] for comment. His response to the claims had been filed and was the subject of the summary."
3. As is apparent, even though the primary judge said he was only going to deal with qualified privilege in relation to the Poster, having regard to its limited nature, paragraphs [203] - [206] clearly relate to the matters complained of.

Conclusion

1. His Honour concluded: "[214] For the foregoing reasons, the Court concludes that: the impugned publications are capable of giving rise to a defamatory meaning; in relation to the impugned publications other than the Poster (the fourth impugned publication), the publication is a fair summary of a public document and the defendants, pursuant to the terms of s 28 of the Defamation Act, are not liable in damages for the publication; in relation to the fourth impugned publication, the Poster, it identifies the plaintiff Mr Cummings, it carries a defamatory imputation being that Mr Anthony Cummings was, as a racehorse trainer, cruel to horses he trained; and no defence under s 28 of the Defamation Act arises in relation to the Poster."
2. He ought also to have added that the qualified privilege defences had failed.

Issues on appeal

1. In the Digital appeal, Mr Cummings has filed a notice of appeal (DNOA) and Fairfax has filed a notice of contention (DNOC). In the Print appeal, Mr Cummings filed a summons seeking leave to appeal and a draft notice of appeal (PNOA). Fairfax has filed a cross-summons seeking leave to cross-appeal and a draft notice of cross-appeal (PX-NOA). Mr Cummings has filed a notice of contention on the cross-appeal (PX-CNOC), as, too, has Fairfax (PX-FNOC).
2. I set out below a summary of the issues raised by these documents. Not all were ultimately pursued as I shall explain.

Identification

1. Mr Cummings submits the primary judge erred in determining that "the defamatory nature" of the Poster was "limited to those people who would identify the Poster as referring to Mr Cummings and not Bart Cummings, and were aware of the extraneous facts that Mr Cummings was a horse trainer and did not read the article published in the newspaper to which the Poster referred". [53]

Republication

1. Mr Cummings submits the primary judge erred in determining that each of the publications on the websites of Thoroughbred News and Racing Post and the New Zealand Herald were not a republication of, respectively, the first and fifth impugned matters complained of, and the second impugned matter complained of, for which Fairfax was liable. [54]

Defamatory meanings

1. Mr Cummings submits the primary judge erred: 1. To the extent his Honour did not find the imputations pleaded in paragraphs 6.1(a) - (k), 7(a) - (f), 9(a) - (k), 10(a) - (f), 12(a) - (k), 13(a) - (f) of the Digital statement of claim, [55] and 6.1(a) - (d), 6A and 8.1(a) - (k) of the Poster amended statement of claim, [56] to be carried and defamatory of him personally. 2. In determining that none of the imputations alleged in paragraphs 7(a) - (e), 10(a) - (e) and 13(a) - (e) of the Digital statement of claim were carried in relation to Cummings Thoroughbreds. [57]
2. Fairfax submits that the matters complained of did not convey any of the imputations alleged to have been carried in respect of Mr Cummings as set out in paragraphs 6, 9 or 12 of the Digital statement of claim [58] or paragraphs 6 or 8 of the Poster amended statement of claim. [59]

Section 28

1. Mr Cummings submits the primary judge erred in finding that the: 1. Debt-recovery proceedings pleadings were "public documents" pursuant to s 28 of the 2005 Act; [60] 2. First, second, third and fifth impugned matters complained of were fair reports of the debt-recovery pleadings; [61] and 3. Matters of defeasance under s 28(3) of the 2005 Act had not been proved. [62]
2. Fairfax submits that the debt-recovery proceedings pleadings were public documents pursuant to s 28(4)(b) of the 2005 Act, and a defence of fair summary of public documents was available on that basis and made out in respect of each matter complained of. [63]

Qualified privilege

1. Mr Cummings submits that the primary judge erred in holding that Fairfax acted reasonably in publishing the matters complained of, in that his Honour failed to: 1. Determine the reasonableness of Fairfax's conduct by assessing the factors set out in s 30(3) of the 2005 Act; [64] and 2. Distinguish between each of the matters complained of. [65]
2. Fairfax submits that defences of statutory qualified privilege pursuant to s 30 of the 2005 Act and common law qualified privilege were available and made out in respect of each matter complained of. [66] In the course of the appeal, Fairfax confined its qualified privilege defence to a s 30 defence in relation to the Poster.
3. At the outset of the hearing, counsel for the appellant handed to the court a convenient précis of the parties' submissions cross-referenced to the appeal pleadings which I will set out when dealing with each matter the subject of the appeal.

Imputations issue

1. This part of my reasons deals with the imputations and identification issue in relation to each of the matters complained of except the Poster.

The parties' positions

1. Mr Cummings relies on these grounds only to the extent that there is doubt about whether the primary judge found that the imputations were conveyed. On the cross-appeal, Fairfax contends that his Honour erred in finding that the Poster conveyed the imputation that Mr Cummings was, as a racehorse trainer, cruel to horses he trained.
2. The appeal and the cross-appeal raise the same ultimate issue as to defamatory meaning.
3. Fairfax contends that a statement that someone has been accused of certain conduct, in the context of civil proceedings, is incapable in law of conveying the imputation that he or she is "guilty" of that conduct (i.e. that the allegations have substance).
4. Mr Cummings contends that the familiar principles relating to guilt imputations in the context of reports of criminal charges are inapt in the context of reports of allegations in civil proceedings, and that by their terms, the matters complained of did convey guilt imputations.

Consideration

1. Although it may appear unnecessary to resolve the apparent inconsistencies in the primary judge's reasons as to whether he found the imputations were conveyed, as resolution of the issue may ultimately be relevant to where costs fall, it is necessary to express an opinion.
2. In my view, it is apparent that the primary judge did determine the case on the basis that all the appellants' imputations were conveyed by the matters complained of.
3. His Honour first held that none of the matters complained of conveyed imputations in relation to Cummings Thoroughbreds because "[n]othing in the first, second, third and fifth impugned publications and no part of the fourth impugned publication alleges that Cummings Thoroughbreds is a company engaged in the business of training horses". [67] However, in dealing with the s 28 issue, his Honour in effect treated Cummings Thoroughbreds as Mr Cummings' alter ego. [68] He concluded somewhat enigmatically that, "if Mr Cummings has been defamed, then … so too have his two named companies, subject to the role of each company and the imputations alleged against it." [69]
4. In this court, Cummings Thoroughbreds submitted that its role was clearly identified in the matters complained of relied upon, which referred to Mr Cummings denying "horses became lame or broken down while being trained by him or his company", as demonstrating clear error on the part of the primary judge in concluding the matters complained of did not refer to it as training horses. I do not understand Fairfax to contest that proposition. Accordingly, I understand the issue concerning whether the imputations were carried, that is to say, as imputations of guilt, to be the same for both Mr Cummings and Cummings Thoroughbreds.
5. The primary judge held that there were "statements in the publications (leaving aside, for present purposes, the Poster being the fourth impugned publication) that give rise to each of the imputations alleged in the first proceedings to have arisen from the first, second and third impugned publications … and fifth impugned publication" [70] and that "aspects of the publications (other than the Poster, being the fourth impugned publication) give rise to the imputations". [71] However, he said he had reached this decision without dealing "with the publication as a whole, as is required when the Court puts itself in the position of the ordinary reasonable reader", an exercise he said he would undertake after dealing with the s 28 defence.
6. It appears his Honour returned to this issue when determining whether the matters complained of were "as a whole … fair and accurate." [72] In that context, his Honour considered "each of the complaints as part of the publication as a whole", and looked "at each of the imputations … to determine whether that imputation [had] as a source in the pleadings". [73]
7. The primary judge then repeated in narrative form the terms of the imputations concerning Mr Cummings (with the exception of (e) and (k)). After doing so, his Honour said that "each of the imputations arising from the first proceeding is an imputation that arises from the terms of the Cross-Claim". His Honour's failure to refer to imputations (e) and (k) appears, with respect, to be more of an oversight than deliberate, particularly having regard to his earlier findings at [79] and [81]. Each was an imputation to the effect that Mr Cummings had failed to perform his duty in a respect taken almost verbatim from the matters complained of, as also were imputations (h) - (j) to which his Honour did refer. [74]
8. As his Honour also held that if Mr Cummings has been defamed, so too, relevantly, had Cummings Thoroughbreds (subject to its role) and, as I have said, the matters complained of identified that company as training the horses, I would conclude that his Honour held all the imputations the plaintiffs pleaded were carried by the matters complained of.
9. Accordingly, the question whether the imputations were carried falls to be considered on the DNOC and PX-NOC, and insofar as the Poster is concerned on the PX-NOA.

Whether the imputations were conveyed: McConnel principle

1. Fairfax contended, relying on Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd, [75] that none of the imputations pleaded in the Digital proceedings were conveyed principally because a statement in civil proceedings that a person has been accused of certain conduct, is incapable of conveying an imputation that that person is "guilty" of that conduct.
2. In dealing with the question whether the imputations were conveyed, it should be borne in mind that the primary judge was sitting without a jury. Accordingly, he could determine both the question of the capacity of the matters complained of to convey the imputations and also whether, as a question of fact, the imputations were conveyed. [76] The parties approached the matter on the basis the primary judge was deciding the issue of fact, this notwithstanding that his Honour concluded that "the impugned publications are capable of giving rise to a defamatory meaning", [77] rather than holding that the imputations were conveyed as a matter of fact.
3. His Honour had to determine whether the imputations were carried by considering whether "hypothetical referees - Lord Selborne's reasonable men", [78] or Lord Atkin's "right-thinking members of society generally" [79] or Lord Reid's "ordinary man, not avid for scandal" [80] would have understood the matters complained of, when read as a whole, carried defamatory meanings in the sense pleaded. The exercise is one of attempting to envisage a mean or midpoint of temperaments and abilities and, on that basis, to decide the most damaging meaning that ordinary reasonable people at the midpoint could put on the impugned words or images considering the publication as a whole. [81]
4. The controversy about whether the imputations were conveyed in relation to the matters complained of lies in the fact that they are all pleaded as allegations of fact or, as the appellants describe them, "guilt imputations".
5. The tort of defamation is a tort of strict liability. Accordingly, even though the statements in the matters complained of repeat the statements in the debt-recovery proceedings pleadings, if defamatory, the mere fact of publication suffices to attract liability. [82] As Lord Devlin said in Lewis, [83] "[f]or the purpose of the law of libel a hearsay statement is the same as a direct statement, and that is all there is to it."
6. However, while the republisher of defamatory hearsay is liable for the repetition of the defamatory hearsay, the nature of that liability will turn upon the context in which the republication occurred. The nature of the republisher's liability will be resolved by the decision as to whether, and what, defamatory imputations were conveyed having regard to the publication as a whole. [84]
7. As McHugh J explained in John Fairfax Publications Pty Ltd v Rivkin, "[t]he rule that the publication must be read as a whole is particularly important where the publication reports a defamatory statement by a third party", having regard to the fact that, "although as a general rule a person who repeats a defamation adopts it as his or her own statement, it is not 'a rule of invariable application'. The context of the statement may show that it is refuted or undermined by other parts of the publication". [85] That examination may also, of course, include determining whether the defamatory hearsay was "adopted" by the republisher, and the purpose of the republication. All such contextual matters may be relevant to the nature and quality of the republisher's liability. [86]
8. Generally, "it would be quite wrong to suggest that published material, setting out an imputation made by another person, does not itself make the imputation if it merely publishes an allegation, or if both sides of the picture are published, or if there is no endorsement of the imputation by the publisher, or if no intention of the publisher to make the imputation is manifested." [87]
9. However, in Mirror Newspapers Ltd v Harrison the High Court held that "a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence" (Harrison principle). [88]
10. The appellants contend that the Harrison principle, relating to guilt imputations in the context of reports of criminal charges, is inapt in the context of reports of civil allegations and that, by their terms, the matters complained of did convey guilt imputations. Accordingly, they argue that as Fairfax has repeated defamatory allegations made by third parties it should be taken to have adopted those allegations unless, when the matters complained of are read as a whole, the context shows that they did not adopt the defamatory allegations because they were refuted or undermined by other parts of the matters complained of. [89] Moreover, they contend that the matters complained of go beyond "mere statement" of the pleadings and point towards guilt. [90]
11. Fairfax, on the other hand, contends that a statement that someone has been accused of conduct made in the context of civil proceedings is incapable in law of conveying the imputation that that person is "guilty" of that conduct (i.e. that the allegations have substance).
12. The question whether a statement in the context of civil proceedings that someone has been accused of certain conduct conveys the imputation that that person is "guilty of that conduct" arose in McConnel.
13. In that case, an article in the Australian Financial Review (AFR) reported that the plaintiff company, a floor member of the Sydney Futures Exchange, was taking proceedings in the Commercial List of the Supreme Court of New South Wales to recover the shortfall it suffered in the sale of a number of futures contracts held by a client. The article also reported that the client had filed a cross-claim against the plaintiff and three of its directors in which it was reported he had alleged that in selling his futures contracts the plaintiff was in breach of its fiduciary duty to him as its client to advance his rather than its own interests. In addition, he alleged that directors of the plaintiff company had "unlawfully and fraudulently conspired and agreed together to cheat and defraud the clients" (conspiracy allegation). [91]
14. The plaintiff company brought defamation proceedings against John Fairfax & Sons Ltd to recover damages for the publication in the AFR of a report of a directions hearing in the matter before Rogers J. The lead-in paragraph of the article identified both the plaintiff company and the three directors as subjects of the conspiracy allegation. The body of the article set out the nature of the plaintiff's claim against the client, the facts pleaded in the cross-claim and particulars and correctly reported that the conspiracy allegation was made against the three directors. It also identified the report as being of a directions hearing and that Rogers J had given the case priority and instructed solicitors for the parties to prepare for a further hearing the same year. [92]
15. The plaintiff company pleaded only one imputation, "[t]hat the Plaintiff on 22nd or 23rd January, 1980 conspired to cheat and defraud its clients." The defendant sought to argue that the matter complained of was not capable as a matter of law of conveying that imputation. It argued that the matter complained of could be interpreted as saying no more than that an allegation of conspiracy had been made against the plaintiff company, but that by reason of its implied denial of that allegation there was yet to be a trial to determine its truth. [93]
16. Hunt J held that the ordinary reasonable reader could only interpret the allegation of conspiracy against the plaintiff company as having been made in the cross-claim. However, in his Honour's view, the question remained whether the repetition in the published report of the allegation in the pleading of conspiracy against the plaintiff company could be charged directly against the publisher of that report. [94] His Honour then looked at the context of the publication in the sense I have already discussed to determine whether that context affected the nature of the defamatory meaning which was capable of being conveyed.
17. Hunt J considered several cases in which it had been held that juries should be directed that repetition of defamatory hearsay was to be dealt with as if the republisher had made the allegation reported. [95] In his Honour's view, those cases were distinguishable because none were concerned with statements having been made, not merely by way of repetition or republication, but in the context of a report of an allegation made in pleadings in court proceedings, which was denied and the truth of which was yet to be determined in a trial. [96]
18. Having observed that there was no authority precisely on point in relation to the report of an allegation or charge made in the pleadings of a civil action, [97] Hunt J concluded that, in his opinion, there was "no difference in principle between the report of a charge in criminal proceedings and the report of a charge or allegation in the pleadings of a civil action". [98] Accordingly he held that: "[W]here the context of the report of an allegation in a pleading is that the allegation is denied and that its truth has yet to be determined by a trial, the report as a whole is, in my view, incapable of conveying the imputation that the plaintiff is guilty of the allegation reported. Each case will, of course, depend upon the context in which that allegation is reported." [99]
19. In Dunsec Pty Ltd & Ors v Nationwide News Pty Ltd, [100] Mason P (Heydon JA agreeing) cited McConnel with approval as explaining the application of the Harrison principle to reporting of civil proceedings.
20. Since McConnel was decided, there have been several cases in which either McConnel, or a principle analogous to that identified in McConnel, has been applied in the context of the publication of civil, or quasi-civil, proceedings.
21. In Homestead Award Winning Homes Pty Ltd v South Australia, [101] an officer from Department of Public and Consumer Affairs (Department) lodged a complaint with the Commercial Tribunal, on behalf of five home owners, against Homestead Award Winning Homes Pty Ltd (Homestead), a licensed builder. The complaint alleged grounds for disciplinary action, including alleged breaches of the Builders Licensing Act 1986 (SA) (Builders Act). An ABC journalist saw reference to Homestead in the Tribunal's published cause list. She contacted the Department and the Tribunal's registry and obtained a copy of the complaint, which referred to Homestead's "poor workmanship and unfair practices". The ABC reported the complaint. So too did the Adelaide Advertiser four days later. [102]
22. The headline to the newspaper report was "Homes giant faces building charges". The report stated that Homestead would appear before the Tribunal next month and that it had "indicated it will defend the charges".
23. Homestead sued the State (which was responsible for the Department) for damages for defamatory statements, injurious falsehood, misfeasance in public office and negligence. Homestead's case was that the State was liable for the publications and that the complaint lodged with the Tribunal was one asserting, as a fact, lack of supervision or negligence, carrying out defective work and overcharging. [103]
24. At trial, the State submitted with respect to the claim for damages for defamation, that there was no cause of action disclosed on the pleadings or available at law. [104] McConnel was not referred to. Nevertheless, Prior J applied the Harrison principle holding that "the disclosure of the terms or substance of the Complaint to the ABC and the Advertiser [was] nothing more than the disclosure of the particular allegations made against Homestead which the complainant sought to prove in disciplinary proceedings before a lawfully constituted Tribunal [and] [t]o disclose such a document and nothing more [did] not impute guilt or probable guilt of what [was] alleged in such a document." [105]
25. In Llewellyn v Nine Network Australia Pty Ltd, [106] in the context of a media application for access to the court file in Federal Court proceedings in order to obtain the applicant's statement of claim, Rares J held that it was contrary to the principle of open justice to restrict public access to pleadings in civil proceedings merely on the ground that they contain untested allegations. His Honour held that the Harrison principle is "well known to members of the community in respect of civil litigation". [107] In his Honour's view: [108] "Members of the public, as Mason J made clear in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300-301, understand that it is fundamental to the open administration of justice that, as a routine, courts have allegations made in them which are untested at stages in the course of proceedings. At the end of the day the ordinary reasonable member of the community understands that it is the responsibility of the court, be it a judge or jury, to make findings about those allegations and then to decide cases. Ordinary members of the community understand that those matters are part of the administration of justice. Members of the media generally have a similar understanding."
26. Wigney J applied Llewellyn in Rush v Nationwide News Pty Ltd, [109] in declining orders sought by Mr Geoffrey Rush to extend an interim confidentiality order, the effect of which would have been to ensure that Nationwide News Pty Ltd (Nationwide)'s original and amended defences would be "treated as confidential" and "not to be distributed to any third party outside of the proceedings". [110]
27. Mr Rush submitted that releasing Nationwide's defences would essentially defeat his purpose in commencing the proceedings. [111] Wigney J held that the only substantive reason advanced by Mr Rush for departing from the open justice principle was that he would likely suffer further embarrassment. [112] His Honour said, referring to Llewellyn with approval: "[192] It is fairly common for defendants in defamation cases to plead a defence of justification. The particulars of such a defence are likely to put in issue the truth of the very matters about which the plaintiff complains. Until the matter proceeds to trial and the issue is determined, the particulars of truth in a defence of justification amount to nothing more than allegations. A fair report of those particulars would ordinarily have to make it clear that they amounted to nothing more than untested allegations. There is no reason to think that members of the media would not know and appreciate that to be the case. … [194] Nor is there any reason to suppose that members of the public will not appreciate that the particulars in the Amended Defence are anything other than untested allegations that may turn out to be proved false or incorrect. …" [Emphasis added.]
28. Finally, in Sands v Channel Seven Adelaide Pty Ltd and Another, [113] Channel 7 ran the following promotion for an upcoming broadcast: "On Today Tonight - SA's Federal MP, her boyfriend and the business trip. Disgusted that tax-payer funds have been used. The paper trail and the whistleblower - and he's a suspect in a murder case. On Today Tonight."
29. A judge in the District Court of South Australia, on the application of the Federal MP, granted an injunction against the broadcast. The ABC published a report of Channel 7's application to discharge the injunction. Mr Sands, the "suspect", sued Channel 7 and the ABC for defamation. The ABC defended the defamation proceedings on the basis, inter alia, of having published a fair and accurate report of the proceedings at common law. [114] Bleby J held: "[301] There was certainly no adoption of the allegation. I accept the submission of the ABC that reasonable listeners and readers of the publications must be taken to understand that court proceedings involve the resolution of competing claims by opposing litigants, and that it is not until judgment that one or other of those versions is found to be true. A reasonable listener and reader would not assume that all allegations made in court proceedings have a reasonable basis. Rather, the reasonable listener and reader will approach allegations made in court on a somewhat sceptical basis, aware that the allegations represent only one side of the story. [302] There was no suggestion by the ABC that the plaintiff was necessarily a suspect. The reasonable listener to the broadcasts and reader of the website article would have understood that the ABC was merely reporting that the Judge had referred to something Channel 7 had published, or wanted to publish. The ABC was not in any way affirming or endorsing as true or otherwise vouchsafing the allegation that the plaintiff was a murder suspect. [303] Viewed as a whole, the ABC was in each case reporting the proceedings to dissolve the injunction and the concerns of the judge as to what had been said by Channel 7 and what might be said in the television program in question. It was not asserting that the plaintiff was a murder suspect. Rather, the context of the judge saying what he did in the course of an unresolved dispute tended to cast doubt on the accuracy of the assertion. All these circumstances coupled with the very general nature of the relevant assertion do not support an imputation that there were, objectively, reasonable grounds to suspect the plaintiff of murder. Rather they indicate the opposite."
30. The appellants submitted that police charges are merely one species of allegation, and that there was nothing in Mason J's reasons in Harrison [115] which suggested that the propositions his Honour articulated should apply equally to allegations which do not come from an official source such as the police service. They relied in this respect on Australian Broadcasting Corporation v Comalco Ltd, [116] where, after discussing Harrison, Pincus J observed that "[t]he High Court did not suggest that the same rule would apply to allegations published as having an unofficial source."
31. The appellants also drew attention to Obeid, where I observed [117] that it was "a pious presumption to conclude that the ordinary reasonable reader is mindful of the presumption of innocence whenever accusations or allegations are made particularly when the defamatory statements are made in circumstances unrelated to, or remote from, the operation of the criminal justice system".
32. That observation was made in the context of considering the capacity of the ordinary reasonable reader to bring to bear the presumption of innocence when considering imputations of corruption and bribery. It has little significance in the context of allegations manifestly made in the course of repeating the contents of pleadings filed in civil proceedings.

Whether the imputations were conveyed: factual consideration

1. Mr Cummings submitted that the following matters in the matters complained of, cross-referenced to factors Callinan J identified in Rivkin, [118] were significant in determining whether the imputations were conveyed. For convenience, I have put Fairfax's responses to each matter in italics: 1. The articles give greater prominence to the allegations of "broken down" or "lame" racehorses than they do the denials. They submitted that matters which have been emphasised in the articles are not to be treated as if they had only the same impact of significance as the matters which are not emphasised. Fairfax asserts that the articles did not give greater prominence to the allegations against the appellants than to the denials. Rather, it argues that the first paragraph indicates that Mr Cummings was "fighting" the allegations before detailing the allegations at all. 2. "Broken down" is introduced in the headline of several of the publications. The appellants submitted that a headline designed to catch the eye and give the reader a predisposition as to what follows may well assume more importance than what follows. Fairfax submits that the headline's reference to a "fight" also indicates the fact that the question whether the horses were broken down was also in dispute. 3. The significance of the order in which matters are dealt with. In this respect, they pointed to the fact that Patinack Farm's allegations are in the first paragraph of each publication. The appellants argued that the "intro" has the capacity to excite the reader's attention, "a matter on which editors place store". Fairfax repeats its response to (1). 4. The publishers' use of vivid language, "broken-down racehorses", "worked horses so hard they were incapable of racing", was relevant because matters conveyed in more dramatic language are likely to create stronger impressions on the reader. Fairfax submits the "vivid language" of the articles reflected the language of the pleadings containing the allegations. 5. Finally, they submitted that "even a moderately attentive and reasonable, but not unduly suspicious, reader would wonder why, for example, Patinack Farm's allegations were given so much prominence that the claims against the appellant [sic, appellants] were privileged with a front-page headline." [119] Fairfax submits it published the contents of both sets of pleadings in the debt-recovery proceedings thereby publishing a balanced account of the allegations. They argue it could not be said that a reasonable reader would pay more attention to the publication of the Patinack Farm allegations than the denials of those allegations. Both were contained in the articles.
2. Fairfax submits that it is plain on the face of the matters complained of that they are reports of the pleadings filed in litigation in the Supreme Court of New South Wales between Mr Cummings, Cummings Thoroughbreds, Something Fast and Patinack Farm. They contend the matters complained of report, without comment, the allegations made in the statement of claim and the cross-claim, and the various responses in the defences filed in answer to those claims. In so doing, they argue, the matters complained of inform the reader of the allegations the parties have made against each other, and how the parties responded to those allegations, at an early point in the proceedings.
3. Secondly, Fairfax contends that the matters complained of make plain that the allegations are disputed and that their truth is yet to be determined by a trial. They argue that a publication of this kind does not convey imputations of guilt and is in fact incapable of conveying such imputations.
4. Thirdly, Fairfax argues the McConnel principle applies to the matters complained of. Fairfax contends that the matters complained of set out the allegations each party made against the other in the debt-recovery proceedings and, consistently and in careful sequence, make clear that each party's allegations are denied by the other. It points to the fact that they record that Patinack Farm denies that it is liable for the unpaid fees and costs Mr Cummings claims on the basis that it says not all of the work charged for was performed. It contends the matters complained of also make clear that the allegations in the cross-claim (which they emphasised were made only after Mr Cummings sued for unpaid training fees and costs), were denied by Mr Cummings. By noting that the claims made by Patinack Farm in the cross-claim were made only once Patinack Farm was sued for unpaid training fees and costs, it submits the matters complained of convey clearly to the reader that, by the fact of such claims being raised in response to a debt-recovery claim, it is appropriate to treat them as just that: namely, claims. That, together with the plain denials by Mr Cummings, which themselves were accompanied by details of his response to the allegations made against him, Fairfax argues conveyed a clear and consistent message throughout that no conclusion could be drawn about which party's allegations were accurate until the court determined the case.

Conclusion: whether imputations conveyed

1. As was recognised in McConnel, Homestead, Llewellyn and Rush, today's ordinary reasonable reader is exposed on almost a daily basis to the latest from the courts, perhaps more often criminal than civil, but also frequently, accounts of civil proceedings. Ironically, reports of defamation cases are frequently featured.
2. But, so too are more run-of-the-mill civil disputes. Frequently the outcome is reported, so the ordinary reasonable reader is well sensitised to the legal process of making allegations which lead to judicial resolution.
3. Such a person, reading the matters complained of, in my view, would be aware from reading the second paragraph that Mr Cummings and two of his companies were involved in a legal case against Mr Tinkler. It would have been readily apparent to that reader that those civil proceedings were the subject of the headlines to the article, whether the headline was either "Cummings in $6.4m Fight Over Broken-Down Racehorses" (the expression "broken-down" appearing in the body of the matters complained of in quotation marks) or "Tinkler, Trainer in Stoush". Thereafter it is apparent in each paragraph of the matters complained of by the use of expressions such as "fighting claims", a fight sourced to "documents filed in the NSW Supreme Court", "claim", "cross-claim", "allegations", "duty of care" and finally a reference to a future directions hearing in the matter that the allegations yet to be resolved.
4. In my view, this is a case in which the McConnel principle applies. The matters complained of did not contain "loose talk about suspicion [which] can very easily convey the impression that it is a suspicion that is well founded". [120] They did not embellish the allegations made in the pleadings. It would be apparent to the ordinary reasonable reader of the matters complained of that Fairfax was not adopting the allegations made in the court case being reported. Rather, the closing sentence makes it clear that the truth of Mr Tinker's allegations and Mr Cummings' denials was yet to be determined by a trial. In my view, the ordinary reasonable reader would not read the matters complained of as conveying guilt imputations.
5. The primary judge erred in holding that the matters complained of carried the imputations of which Mr Cummings and Cummings Thoroughbreds complained.
6. I would reject grounds 3 and 4 in the DNOA. I would uphold ground 1 of the DNOC. I would also reject in part ground 2 of the PNOA insofar as it related to the print matter complained of.

The Poster

1. Mr Cummings pleaded that the imputations of which he complained in relation to the Poster arose in its natural and ordinary meaning. Alternatively he relied on extrinsic facts to support the imputations as true innuendos. In the latter respect, it was necessary that he adduce evidence of extrinsic or special facts known to those to whom the matter was published, such as would lead a reasonable person knowing those facts to conclude that the words had another, defamatory, meaning. [121]

Identification: the parties' positions

1. Two issues, which may broadly be said to relate to identification arise.
2. First, Mr Cummings submits in ground 5 of the PNOA that the primary judge erred in determining that "the defamatory nature" of the Poster was "limited to those people who would identify the Poster as referring to Mr Cummings and not Bart Cummings, and were aware of the extraneous facts that Mr Cummings was a horse trainer and did not read the article published in the newspaper to which the Poster referred."
3. Secondly, Fairfax contends that the primary judge erred in finding that it was reasonable for the witness Mr Rutter to identify Mr Cummings in the poster. This did not arise directly as an independent ground of appeal, cross-appeal or in any notice of contention but, rather, was subsumed in Fairfax's submissions about whether the imputations were conveyed.
4. Mr Cummings submits in response to the second issue that the real issue concerning Mr Rutter's evidence was factual, rather than a question of his "reasonableness".

Consideration

1. The Poster stated "CUMMINGS FIGHTING CRUELTY CLAIMS". At trial, there was a substantial controversy as to whether it identified Mr Cummings.

Natural and ordinary meaning

1. At trial, there was evidence that Mr Cummings had been involved in horse training most of his life. He had worked in stables for many years before he became a registered trainer in 1991. He worked first out of his father's stables before establishing his own stables in Randwick in the early 1990s and later in Caulfield in Victoria. He had had a large measure of success prior to the publication of the matters complained of in February 2010 which attracted publicity in print and on television. He was the subject of media articles and was photographed, and referred to as the subject of those photographs, by the name "Cummings" and in headlines about him. At the time of the publications of the matters complained of he was also the President of the New South Wales Trainers Association and had an active website, accessible to the public, which listed his winners. He clearly had a high public profile.
2. In addition, there was evidence that not only Mr Begg and Mr Rutter identified Mr Cummings as the person referred to in the Poster, but also that other people telephoned him about the Poster and also indicated that they had read the articles. As Mr Cummings submitted at trial, that evidence was direct evidence of identification because it was original evidence of the existence of the reactions of those persons. [122]
3. In my view, as Mr Cummings submitted, at one level, Fairfax's identification issue is an arid debate. A person named "Cummings" was referred to on the Poster. The only controversy at trial was whether the Poster identified Mr Cummings, rather than his father, Mr Bart Cummings. Even without the evidence to which I have referred, the Poster was clearly reasonably capable of "lead[ing] persons acquainted with the plaintiff to believe that he was the person referred to." [123] It would not be to the point even if, for example, Mr Rutter thought it referred to both Messrs Cummings, as a defamatory statement capable of referring to two people may be the subject of suit by each. [124]
4. Accordingly, in my view, the primary judge should have held the Poster was capable of referring to Mr Cummings in its natural and ordinary meaning.

True innuendo

1. Mr Cumming's alternative case on identification depended on the evidence given by Mr Begg and Mr Rutter. As I have said, the primary judge accepted their evidence that each had identified Mr Cummings as the subject of the Poster.
2. Mr Begg identified the poster as referring to Mr Cummings "because it was fairly widely known that he was having a difference with one of his clients". [125] Fairfax now accepts that Mr Begg's identification evidence was objectively reasonable, having regard to his existing knowledge of the dispute between Mr Cummings and Mr Tinkler.
3. However, Fairfax continues to put in issue the reasonableness of Mr Rutter's identification, albeit as it acknowledged in oral submissions, not as a separate ground of appeal.
4. It is clear that, on Fairfax's part, the reasonableness of Mr Rutter's identification is a live issue on appeal, not least presumably, because as I explain below, the scope of Mr Cummings' identification, to the extent it depends on extrinsic facts, goes to damages. The issue should have been identified in Fairfax's cross-appeal. Nevertheless, as the appeal was conducted on the basis it was in contest, it should be addressed.
5. At the outset, it should be made clear that it was sufficient for Mr Cummings to prove that the Poster was published to one other person who identified him in it. [126] Identification by Mr Begg satisfied that criterion. As Mr Cummings submitted, Fairfax's concession about Mr Begg's evidence means that Fairfax's challenge to the finding that Mr Cummings was identified as the subject of the Poster must fail.
6. Mr Rutter identified Mr Cummings as the subject of the Poster because of his "perception" that when the media referred to his father, it described him "Bart Cummings". [127] The primary judge believed Mr Rutter not only because his evidence had clearly not been shaken in cross-examination, but also because of the evidence of a number of occasions when Fairfax Digital had referred to Mr Cummings, "in recent time, prior to the publications that have been impugned, as 'Cummings'". [128]
7. Fairfax argues that Mr Rutter's reasoning process was unreasonable and that his Honour failed to have regard to the requirement that identifying witnesses be "ordinary sensible readers" who could reasonably have come to that conclusion. [129] Fairfax accepts that the standard of reasonableness for the identifying reader is "not high", but argues nevertheless that Mr Rutter's evidence should have been rejected because, as the primary judge said, it was "almost inconceivable that a person knowing Mr Anthony Cummings or of him would not know Mr Bart Cummings". [130]
8. The last submission demonstrates circular reasoning. As I have said, it is beside the point that Mr Rutter may have identified Mr Bart Cummings as well as Mr Cummings (although there is no suggestion that he did). It was sufficient that it was reasonable for him also to identify Mr Cummings. That was the effect of the primary judge's ruling.
9. In my view, Fairfax has not demonstrated any error in a Fox v Percy [131] sense which would warrant setting aside the primary judge's finding that Mr Rutter reasonably identified Mr Cummings as being the subject of the Poster.
10. The effect of upholding this finding is that to the extent Mr Cummings relied upon a true innuendo case, the Poster identified Mr Cummings both in relation to persons who were otherwise aware of the proceedings before the District Court (the Mr Begg "class") and to those who perceived that Mr Anthony Cummings' father would not be referred to as "Cummings", but would be referred to as "Bart Cummings" (the Mr Rutter "class"). [132]
11. The consequence of this finding feeds into ground 5 of the PNOA. As is apparent from the statement of the parties' submission, even though cross-references to submissions said to relate to that ground were given in the précis, in fact none addressed ground 5. Rather, all were addressed to the reasonableness of Mr Rutter's identification.
12. In oral submissions, it appeared ground 5 was directed to paragraph [197] of the primary judgment which Mr Cummings submitted was erroneous. In that paragraph, his Honour held: "The defamatory nature of the publication, however, is limited to those people who would identify the Poster as referring to Mr Cummings and not Bart Cummings, and were aware of the extraneous facts that Mr Cummings was a horse trainer and did not read the article published in the newspaper to which the Poster referred."
13. This it was submitted could have an effect on damages if that issue ultimately arose for determination.
14. As I understand paragraph [197], his Honour was holding that the imputation he held to have been carried by the Poster was only carried to those persons who identified Mr Cummings by way of the extrinsic facts of which Mr Begg and Mr Rutter gave evidence.
15. That was not, in my view, an error. In a case where the defamatory meaning is only carried to those who identified the plaintiff by reference to extrinsic facts, it is only publication to those few that could have in any way damaged the plaintiff's reputation. [133] Accordingly, the extent to which the plaintiff is identified is directly relevant to the amount of damages to be awarded. [134]
16. However, his Honour then added the rider that the class of identifying witnesses excluded those who "read the article published in the newspaper to which the Poster referred". This answer, with respect, perpetuated the confusion about whether the primary judge held the imputations in the Digital proceedings and the print publication in the Print proceedings were carried. As I would hold they were not carried (whereas I hold below some of the Poster imputations were carried), the rider is in my view, nevertheless, an appropriate one. In other words, the reader who read both the Poster and the digital and print publication in the Poster proceedings would appreciate the Poster was advertising the matters complained of which reported the court proceedings. Such readers would not, in my view for the reasons I have already given, conclude that the assertions about Mr Cummings on the Poster carried imputations that he was guilty of cruelty to animals. Rather, they would read the Poster as relating to him fighting those allegations in a curial context.

Whether the Poster imputations were carried

1. The primary judge's discussion of whether the Poster imputations were carried in isolation from the digital and print publication, tended to indicate his Honour was of the view that all were carried.
2. Thus, his Honour held: "[196] The absence of identification of the source of the claim, namely, the allegations in court proceedings, together with the wording of the Poster imply some substance in the claims of cruelty and newsworthiness in the circumstance that Mr Cummings was fighting them. In those circumstances, the Poster is defamatory and is not protected by the defences in s 28 of the Defamation Act nor qualified privilege. [197] The defamatory nature of the publication, however, is limited to those people who would identify the Poster as referring to Mr Cummings and not Bart Cummings, and were aware of the extraneous facts that Mr Cummings was a horse trainer and did not read the article published in the newspaper to which the Poster referred."
3. However, in his Honour's summary of his conclusions, he held that "the Poster … identifies the plaintiff Mr Cummings, it carries a defamatory imputation being that Mr Anthony Cummings was, as a racehorse trainer, cruel to horses he trained". [135] This was the fourth imputation Mr Cummings pleaded. His Honour, accordingly, implicitly held that Mr Cummings had not established that imputations (a) - (c) were carried.
4. Mr Cummings challenges the conclusion that only one of the imputations he pleaded in relation to the Poster was carried.
5. Mr Cummings submits that the Poster carried all the imputations he pleaded because it repeated Mr Tinkler's allegation that he was guilty of animal cruelty in a manner indicating it had adopted the allegation, that the prominence of the Poster was in itself capable of conveying the imputation that it had substance, [136] and that the Poster was remote from the operation of the civil justice system. [137]
6. Mr Cummings also argues that it was irrelevant that the two identification witnesses had either read the matters complained of or that they were aware that Mr Cummings was in a legal dispute with Mr Tinkler, because defamatory meaning is an objective question and is not determined by any individual reaction to the matter, and knowledge that what was said of the plaintiff was false does not mean that defamatory imputations were not conveyed. [138]
7. On the other hand, Fairfax criticises his Honour's reasons in this respect as not following as a matter of logic. Fairfax argues that the imputations issue still fell to be determined by reference to the principles to which I have referred concerning guilt imputations, that is to say that the public are sophisticated enough to appreciate the nature of an untested allegation. [139]
8. Fairfax submits that the Poster conveyed the existence of untested allegations, rather than any imputation of guilt. It contends that the words "fighting" and "claims" preclude such a meaning. Instead, they argue that the only reasonable way to read the Poster is that Mr Cummings was the subject of allegations of cruelty and that he was "fighting" those claims.
9. Fairfax submits that this submission has added weight when it is borne in mind that one of the identifying classes was those in the Mr Begg class, who were aware of the existence of a legal dispute involving Mr Cummings. It also argues that because Mr Rutter read both the Poster and the matters complained of, and his Honour held the Poster was not defamatory in respect of readers of the Poster who also read the matters complained of, it could not be held that even if people in that class identified Mr Cummings, any defamatory meaning was conveyed to them.

Conclusion

1. In my view, the primary judge erred in failing to conclude that the Poster carried imputation (a), (c) and (d) as false innuendos, that is to say, as arising from the natural and ordinary meaning of the Poster, albeit only to persons who were unaware of the digital and print matters complained of. His Honour could also have held those imputations were conveyed as true innuendos to the class of persons who have Mr Rutter's knowledge, but subject to the same limitation as to ignorance of the digital and print matters complained of.
2. Viewed in isolation from the court proceedings, the fact that Mr Cummings was said to be fighting "cruelty" allegations, in the context of persons knowing the extrinsic facts that he was a registered horse trainer, trained horses extensively (that is to say, both in Sydney and Melbourne) and trained many winners would lend substance to the allegations.
3. The ordinary reasonable reader, in my view, would be of the view that such allegations would not be lightly made about such a person, and that where there was smoke, there was also fire. [140] Such a person could, without being avid for scandal, conclude that Mr Cummings may be a cruel person generally (imputation (a)). Further, persons aware of the extrinsic facts Mr Cummings pleaded, all of which related to racehorses, could reasonably conclude that he was cruel to the racehorses in his care (imputation (c)) and, further may engage in whatever means it took to secure victory for the racehorses he trained, including resorting to cruelty (imputation (d)).
4. However, I would not be of the view that the ordinary reasonable reader aware of the extrinsic facts would read the Poster as carrying an imputation that Mr Cummings was cruel to animals generally in terms of imputation (b). Rather, the sting of the Poster lies in the reader's knowledge of Mr Cummings' role in racehorse training. The reader would understand that, in that role, racehorses were committed to his care.
5. The consequence of these conclusions is that the Digital appeal should be dismissed and the Print appeal should be allowed in part, but limited, as I have said, to those who did not read both the Poster and the digital and print publication. Quite how that class should or could be identified was not the subject of argument in this court, and will have to be determined on the remitter.
6. However, against the possibility that others may disagree, I should consider what, on my findings, are grounds it is not necessary to decide. [141]

The parties' positions

1. Mr Cummings contends that the primary judge erred in finding that the republication of the matters complained of was not a natural and probable consequence of the original publications by relying on the fact that the republications were not authorised by Fairfax.
2. Fairfax contends that the primary judge was right to conclude that the republication of the matters complained of was not a natural and probable consequence of the original publication, because there was evidence that the unauthorised use of Fairfax content did not occur frequently in around 2010.

Consideration

1. The principles concerning liability for republication were explained in Habib v Radio 2UE Sydney Pty Ltd as follows: [142] "121 Liability as a principal for publication of defamatory material depends upon participation: see Gatley (at [6.16]). All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggests illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected: Webb v Bloch (at 364) per Isaacs J. Such persons are regarded as joint tortfeasors: Webb v Bloch (at 359) per Knox CJ. … 122 However, prima facie, an original publisher is not liable for the voluntary republication of its defamatory statement by a third party over which it has no control, or for the damage caused: Ward v Weeks (1830) 7 Bing 211. The voluntary act of the third party publisher breaks the chain of causation: McManus v Beckham [2002] 4 All ER 497; [2002] 1 WLR 2982 (at [15] - [26]) per Waller LJ. 123 Nevertheless, an original publisher of defamatory matter may be liable for its republication where the republication was the natural and probable result of the original publication: Speight v Gosnay (at 232) per Lopes LJ; Ainsworth v Burden [2003] NSWCA 90; (2003) 56 NSWLR 620 (at [5]) per Handley JA (Hodgson JA and Grove J agreeing). In those circumstances, a plaintiff is entitled to complain [not] only of the original publication, but to seek also to recover as a consequence of that original publication, the damage the plaintiff says was suffered by reason of its repetition or republication where the defendant is responsible for that repetition or republication: Cutler v McPhail [1962] 2 QB 292 (at 298 - 299) per Salmon J; Sims v Wran [1984] 1 NSWLR 317 (at 320) per Hunt J; Ainsworth v Burden (at [5]). 124 The question whether the original publisher is liable for the voluntary republication of its defamatory statement or for the damage its republication caused is the same causation question which arises in 'any other tort case where it is sought to make the defendant liable for harm which is directly attributable to the voluntary act of a third person': Gatley (at [6.36]); A M Dugdale, M Jones and M Simpson, Clerk & Lindsell on Torts, 19th ed (2006) Sweet & Maxwell (London) (at [23-217] - [23-219]). 125 Thus, because a plaintiff seeking to recover damages from an original publisher of defamatory matter is seeking to establish that the republication of that matter by a third party was the foreseeable consequence of its original publication and did not break the chain of causation so as to constitute a novus actus interveniens, it is appropriate when pleading such a case to plead that the original publication 'caused' the republication …".
2. Republication was relied upon in relation to all matters complained of other than the Poster. As I have held the imputations of which Mr Cummings and Cummings Thoroughbreds complained were not carried by the matters complained of, prima facie, these issues do not arise. This is because liability for republication turns on the original publisher having published defamatory matter. Neither party made any contrary submission. However, as I have said, this part of my reasons is written in case others disagree with my findings in relation to the imputations issue.
3. The essence of the complaint on the republication issue is that the primary judge erred by failing to recognise that the controlling test in determining whether an act of republication is the natural and probable consequence of an original publication is essentially one of foreseeability. [143]
4. In Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (Wagon Mound [No 2]), [144] the Privy Council created what Glass JA described as an "undemanding'' test of reasonable foreseeability. [145] By that test, it is sufficient that a reasonable person in the defendant's position would have foreseen that its conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. [146] In Baturina, [147] Eady J framed the foreseeability test in media terms as turning on "whether a reasonable person in the position of the defendant should have appreciated that there was a significant risk of repetition, either in whole or in part, in the media and/or (presumably) on the Internet, and that this would increase the damage to reputation caused by the original publication". If that issue was determined against the defendant, in his Honour's view, "it would seem that there is no reason of public policy why there should not be liability for that additional damage [and] [i]t will be a question of fact to be determined in the light of the particular circumstances of the case." [148]
5. It was uncontroversial that Fairfax had not authorised any of the republishers to republish any of the matters complained of. [149] They were strangers, in the legal sense, over which Fairfax had no control. In all probability, all were competitors. Certainly, the New Zealand Herald was.
6. Fairfax called evidence from Mr Callan, Fairfax's group syndication manager, on the republication issue. He gave evidence that in 2010 when the matters complained of were published, instances of other websites not authorised to republish Fairfax content using its content and rewriting the articles were "few and far between" and that it "wasn't something [Fairfax] perceived as something that happened quite a lot".
7. Mr Cummings contends that a phenomenon does not need to occur frequently or be likely to occur in order for it to be reasonably foreseeable, and that it was sufficient that Fairfax was aware, at the time of publication, that unauthorised use of its content did occur.
8. The primary judge's finding that it was objectively likely that publications such as Thoroughbred News, Racing Post, and Breednet would republish material such as that comprised in the matters complained of did not reflect Mr Callan's evidence. [150] Nor, with respect, was it localised to the relevant time period, 2010, over six years before the trial. As was apparent from that evidence, incidents of republication at the time of trial were greater than they had been historically.
9. In my view, framing the issue as Eady J did in Baturina, and having regard to the evidence objectively, it could not be said that at the time of publication there was a significant risk of republication of the matters complained of by third-party commercial entities. The fact that to do so would have been in breach of copyright is an added reason for reaching that conclusion.
10. Accordingly, I would dismiss grounds 1 and 2 of the DNOA and ground 1 of the PX-NOA.

The parties' positions

1. Mr Cummings contends that the primary judge erred in holding that Fairfax had a defence under s 28 of the 2005 Act. He contends that pleadings in ongoing civil proceedings are not "public documents" within the meaning of s 28(4)(e) because: 1. Pleadings are not open to inspection by the public as a matter of general law until they have been substantively used in open court, which never occurred in this case; 2. Members of the public have no relevant statutory right to inspect current pleadings, and the court only has a discretion to permit access in "exceptional circumstances".
2. Mr Cummings also contends that the matters complained of were not a fair summary because they conveyed imputations of guilt, whereas the pleadings were only untested allegations.
3. Fairfax contends that pleadings in ongoing civil proceedings are "public documents" because: 1. UCPR r 36.12(2)(b) gives members of the public with a "sufficient interest" a right to inspect the pleadings in an ongoing matter; 2. Fairfax had a sufficient interest because the pleadings had been deployed in court at a directions hearing on 16 February 2010.
4. Fairfax submits the matters complained of were a fair summary because each paragraph had a source in the pleadings.

Legislative framework

1. Section 28 of the 2005 Act relevantly provides: 28 Defence for publication of public documents (1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in: … (b) a fair summary of, or a fair extract from, a public document. … (3) A defence established under subsection (1) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education. (4) In this section, public document means … (e) any record or other document open to inspection by the public that is kept: (iii) by an Australian court … [Emphasis added.]
2. UCPR Pt 36 (Judgments and orders), Div 3 (Copies and service) relevantly provides: 36.12 Registrar to furnish copies of judgments and other documents (cf SCR Part 41, rule 15; DCR Part 31, rule 16; LCR Part 26, rule 7) … (2) Unless the court orders otherwise, on payment of the fee prescribed by the regulations under the Civil Procedure Act 2005, the registrar: (a) must furnish to any party to any proceedings, and (b) may furnish to any other person appearing to have a sufficient interest in the proceedings, a copy of any pleading or other document that has been filed in the proceedings. [Emphasis added.]
3. Practice Note No SC Gen 2 (Supreme Court - Access to Court Files) (Practice Note) issued by Spigelman CJ on 1 March 2006 relevantly provides: 6. Access to material in any proceedings is restricted to parties, except with the leave of the Court. 7. Access will normally be granted to non-parties in respect of: • pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential; • documents that record what was said or done in open court; • material that was admitted into evidence; and • information that would have been heard or seen by any person present in open court, unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist. … 14. It should not be assumed that material held by the Court comes within paragraph 7. Affidavits and witness statements that are filed in proceedings are often never read in open court. This can occur because they contain matter that is objected to and rejected on any one of a number of grounds or because the proceedings have settled before coming on for hearing. Affidavits, statements, exhibits and pleadings may contain matter that is scandalous, frivolous, vexatious, irrelevant or otherwise oppressive. UCPR 4.15 allows the Court to order this type of matter to be struck out of a document. 15. If access to material were to be given prior to the conclusion of the proceedings to which it relates, material that is ultimately not read in open court or admitted into evidence would be seen. Thus, access will not normally be allowed prior to the conclusion of the proceedings. 16. Even where material has been read in open court or is included in pleadings, there may be good reason for refusing access. Material that has been rejected or not used or struck out as being scandalous, frivolous, vexatious, irrelevant or otherwise oppressive, may still be legible. Where access to material would be otherwise unobjectionable, it may concern matters that are required to be kept confidential by statute (eg the Criminal Records Act 1991) or by public interest immunity considerations (eg applications to authorise listening devices, affidavits in support of suppression orders). 17. Application by a person, who is not a party to proceedings, for access to material held by the Court in the proceedings shall be made in the attached form to the registrar of the appropriate Division, who will refer doubtful cases to the Chief Justice or to a Judge nominated by the Chief Justice. The registrar or Judge may notify interested parties before dealing with the application. The applicant must demonstrate that access should be granted in respect of the particular documents the subject of the application and state why the applicant desires access. Enquiries may be made to the Court's registry on (02) 9230 8111. 18. The person to whom access to material is granted normally may copy or take extracts from the material and the registry may assist with copying. [Emphasis added.]
4. The Practice Note was enacted pursuant to s 15 of the Civil Procedure Act 2005 (CPA). The power in s 15(1) to issue practice notes is "[s]ubject to rules of court". UCPR r 36.12 is such a rule. Practice notes do not have a higher status than the CPA or the UCPR. [151]

Public documents: submissions

1. The first issue at trial on the s 28 defence was whether the debt-recovery proceedings pleadings Ms Lahey summarised were documents which were "open to inspection by the public" (s 28(4)(e)). [152] The primary judge found that they were. [153]
2. Mr Cummings argues that pleadings in ongoing civil proceedings are not "public documents" within the meaning of s 28(4)(e) because they are not open to inspection by the public as a matter of general law until they have been substantively used in open court, which he submits did not occur in this case and members of the public have no relevant statutory right to inspect current pleadings. Rather, the court only has a discretion to permit access in "exceptional circumstances".
3. Fairfax submits pleadings in ongoing civil proceedings are "public documents" because UCPR r 36.12(2)(b) gives members of the public with a sufficient interest a right to inspect the pleadings in an ongoing matter. Fairfax argues it had a "sufficient interest" within the meaning of the rule because the pleadings had been deployed in court at a directions hearing on 16 February 2010. [154] Fairfax argues that that interest was recognised when a registrar, on Ms Lahey's application, exercised his or her discretion in accordance with the general principles concerning granting access and allowed Ms Lahey access to the pleadings she sought.
4. Although the primary judge did not refer to this submission, it was common ground that, at trial, Fairfax submitted the pleadings were public documents which had been "deployed" in open court once the debt-recovery proceedings had been in court, even for a mere directions hearing.
5. Mr Cummings argued that the 16 February 2010 hearing was essentially an administrative one such that it could not be said the pleadings were deployed in court in such a way as to engage the principles of open justice so as to render them public documents.

Public documents: consideration

1. As Fairfax submitted, on a literal reading of s 28(4)(e), the pleadings in the debt-recovery proceedings were "open to inspection by the public" for two reasons. First, because UCPR r 36.12 permitted a registrar to give access to them "to any other person appearing to have a sufficient interest in the proceedings". Secondly, because the Practice Note provided that access to material in any proceedings would normally be granted to non-parties in the circumstances for which cl 7 provided.
2. Ms Lahey, who is clearly a member of the public, was given access to the documents by a registrar after completing the non-party access section of a Supreme Court form for access to a court file. [155] She made clear the reason for her request was to "[a]ssist in my reporting on the proceedings in the Sydney Morning Herald" and the ground upon which access should be granted as according "with the principles of open justice".
3. There was no suggestion the registrar's discretion to grant Ms Lahey access to the pleadings whether under UCPR r 36.12 or the Practice Note miscarried.
4. However, Mr Cummings submitted that despite those facts, the question whether the pleadings were "open to inspection by the public" had to be determined in accordance with common law principles dealing with open justice and when a pleading is used in open court. Fairfax joined issue with those submissions also.
5. Mr Cummings correctly submitted that the primary judge erred in holding that, "[h]istorically, pleadings were documents open to the public." Rather, the general law is that that judgments and orders of the court are public documents which the public have a general right to inspect, but pleadings, affidavits and other documents filed in court are not open to public inspection. [156] The latter proposition is part of the fundamental principle that, generally, court proceedings shall be conducted publicly and in open view. [157]
6. Accordingly, there is no common law right for a non-party to obtain access to a court document filed in proceedings and held as part of the court record. Subject to the provisions of a particular statutory regime, use in court will often be determinative when making a decision to give the media access to documents so deployed. It is the "principle of open justice" which guides the court in determining relevantly, when an application for access to court documents should be granted pursuant to an express or implied power to grant access. [158]
7. The purpose of the principle of open justice is to ensure that "the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts." [159] The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings. [160]
8. In Ryde Local Court, Spigelman CJ held that the principle of open justice is not engaged at the time of the filing of the proceedings, rather it is only when relevant material is used in court that it becomes relevant. [161]
9. However, his Honour added: "[66] The claimants sought to compare the present proceedings with a situation in which material has been taken as read, but not actually set out in open court. In such a case there is a strong argument for concluding that any express or implied power to grant access is relevantly invoked … It is entirely appropriate for the court to ensure that the public is fully informed of the actual proceedings in court even though, perhaps by reason of efficient procedure or the application of particular rules of practice, the matter is not read out in open court, but is either taken as read or otherwise deployed in a manner which influences the actions of the judicial officer." [Emphasis added]
10. In R v Clerk of Petty Sessions Hobart; Ex Parte Davies Brothers Ltd, [162] in a passage approved by Spigelman CJ in Ryde Local Court, [163] Slicer J said: "The making of a complaint, without more, is no more than a statement by a party ... that it wishes to have a particular grievance ... determined by a court ... The making of a complaint does not attract the requirement of 'open justice' unless and until it becomes an issue between the parties."
11. His Honour referred with approval to Homestead, where Prior J held that: "In fact, the Complaint was a public document, available to the public from the time when the proceedings against Homestead were in public, at directions hearings, when reference to the terms of the Complaint was necessary to understand what was going on in a Tribunal open to the public." [164]
12. Although in Ryde Local Court Spigelman CJ did not find it necessary "to determine a single test applicable in all situations to identify when a document has been put before the court in such a manner that it ought be made public", his Honour suggested that a useful test was proposed by Lord Clyde in Cunningham v The Scotsman Publications Ltd [165] as follows: "The test in my view is not what is actually read out - although all that is read out is published - but what is in the presentation of the case intended to be published and so put in the same position as if it had been read out. If it is referred to and founded upon before the court with a view to advancing the submission which is being made, it is taken as published." [Emphasis added.]
13. Einstein J also engaged with this issue in Tuqiri v Australian Rugby Union Ltd, [166] where he held: "To my mind it is clear that once the plaintiff has filed its Commercial List Summons and its Commercial List Statement and the matter moves into the courtroom the reality of what is occurring is to be taken as having occurred in open court. Of course another approach could be simply for the Court to require counsel addressing the court to read aloud the whole of the pleading."
14. His Honour referred with approval to Llewellyn, [167] where Rares J observed that in D'Orta-Ekenaike v Victoria Legal Aid [168] Gleeson CJ, Gummow, Hayne and Heydon JJ observed, inter alia, "[n]o doubt the immediate parties to a controversy are very interested in the way in which it is resolved. But the community at large has a vital interest in the final quelling of that controversy".
15. This was because, "the policy which demands that the judicial process be open to public scrutiny does not demand that the subject matter of that process be available except in so far as this is necessary for the public to scrutinise the process itself." [169]
16. Consistent with the principle of open justice, there is a public interest in facilitating a fair and accurate report of proceedings in court. [170]
17. When considering statutory provisions which concern the publication of any aspect of proceedings, the principle of legality favours a construction which, consistently with the statutory scheme, has the least adverse impact upon the open justice principle and common law freedom of speech and, where constructional choices are open, so as to minimise its intrusion upon that principle. [171]
18. As Fairfax submitted, there is an intersection between this proposition, and statements such as that of Rares J in Llewellyn that it was contrary to the principle of open justice to restrict public access to pleadings in civil proceedings merely on the ground that they contain untested allegations. [172]
19. Finally, it should be noted that in Crisp v Fairfax Media Ltd, [173] Warren CJ considered s 28 of the Defamation Act 2005 (Vic), which is in the same terms as New South Wales provision, in the context of an application for an interlocutory injunction in respect of the publication of allegations contained in a statement of claim obtained from a County Court file. Her Honour held that a prima facie defence of public documents would be available, on the basis that, "[a]ny contemplated report of the County Court file, in particular the writ and the statement of claim, involves publication of public documents as provided by s 28(1)(b) of the Act."
20. In my view, the pleadings were "public documents" for the purposes of s 28(1)(b) at least on the occasion of the directions hearing on 16 February 2010, in the debt-recovery proceedings. As Prior J held in Homestead, reference to the terms of the pleadings was necessary to understand what was going on in an open court.
21. The pleadings should be taken to have been read for the purposes of the registrar presiding at the directions hearing making orders in accordance with the short minutes of order handed up in court.
22. I would reject ground 5 of the DNOA and ground 4 of the PX-NOA.

Fair Summary

1. This issue can be dealt with succinctly.
2. Mr Cummings submits that the matters complained of were not a fair summary within the meaning of s 28(1)(b) because they conveyed imputations of guilt, whereas the pleadings were only untested allegations.
3. I have already rejected that submission. Fairfax submits the matters complained of were a fair summary because each paragraph of the matter complained of had a source in the pleadings. That submission is supported by the primary judge's comparative analysis of the pleadings and the matters complained of.
4. I would reject ground 6 of the DNOA and ground 3 of the PX-NOA.

Section 28(3), 2005 Act

1. Mr Cummings submitted the primary judge erred in finding he had failed to establish that matters complained of were not "published honestly for the information of the public or the advancement of education". The requirement in s 28(3) that the court consider what the publication was "for" raises the question of the publisher's motive or purpose and "looks to the effect … the defendant intended the matter to have on the minds of its recipients". [174]
2. Mr Cummings relied upon Callinan J's judgment in Rogers v Nationwide News Pty Ltd in dealing with whether the publication in that case was made "in good faith for public information or the advancement of education" for the purpose of s 24 of the Defamation Act 1974 (NSW) (1974 Act). [175] His Honour doubted whether that publication had come within s 24 in circumstances where the publisher "chose to go beyond the judgment of Hill J".
3. Mr Cummings submitted that the primary judge's s 28(3) conclusion could not be sustained having regard to the sensational nature of the Poster and the matters complained of, the fact that they were front-page news, taken with the prominence of the articles by reason of the Poster. He argues that Fairfax intended to smear him and his company by making the publications so prominent and sensational. He contends those features of the matters complained of detract from the conclusion that Fairfax had merely intended to publish a mundane court report.
4. As Hunt J held in Waterhouse v Broadcasting Station 2GB Pty Ltd, [176] when considering the defeasance provision in s 26 of the 1974 Act (where the publication complained of was not in good faith for public information or the advancement of education), the purpose of the publication "usually appears from the terms of the matter complained of and from the nature of the vehicle in which it is published." Thus his Honour held, "[w]here the matter complained of purports to be a court report and it appears in a newspaper for general sale in the community, the required purpose is established." [177] I assume his Honour there meant the purpose of publication was for "the information of the public".
5. Section 26 of the 1974 Act did not have an honesty requirement, as does s 28(3). Neither party drew the court's attention to any case in which the concept of honesty for the purpose of s 28(3) has been considered. In the context of the requirement of "good faith" for the purposes of s 26 of the 1974 Act, Hunt J held in Waterhouse that the court looks "to the result which the defendant sought to achieve by his publication". [178] Thus, while a "proprietor of a newspaper may publish a report of court proceedings in order to inform the public of what happened in those proceedings, [if] he does so because he bears ill-will towards the plaintiff and wishes to injure him by that publication" the s 26 defeasance was established. [179] Thus, s 28(3) involves a subjective test. [180]
6. In my view, the challenge to the s 28(3) finding in relation to the matters complained of cannot be sustained. The primary judge completely accepted Ms Lahey's evidence that as a journalist for the Sydney Morning Herald assigned to the daily business section, her tasks were to cover court proceedings and anything business-related, that Mr Tinkler's financial affairs were a matter of public notoriety and that she, in the course of her usual practice, examined the daily court list on 15 February 2010, and noticed the "Cummings" name. His Honour also completely accepted that on 17 February 2010, Ms Lahey sought access to the court file, or more accurately the pleadings, and wrote the article based on the notes she took. [181]
7. Insofar as the Poster is concerned, Mr Cummings submits it was published for the purpose of advertising the matters complained of and selling newspapers and cannot, therefore, have been published for the information of the public or the advancement of education.
8. The mere fact that a publication has a pecuniary motive does not, in my view, mean a publication is not "for the information of the public" nor that it was not published "honestly" for that purpose. Mr Cummings has not established that Fairfax had any motive or purpose to publish the Poster other than to inform members of the public of the information it bore. In my view he did not establish the matter of defeasance required by s 28(3).
9. I would reject ground 7 of the DNOA and ground 6 of the PX-NOA.

Qualified privilege

1. Fairfax submits the primary judge ought to have upheld the defence of statutory qualified privilege pursuant to s 30 of the 2005 Act to the matters complained of and the Poster. In my view, having regard to the conclusions I have reached concerning the imputations not being conveyed by the matters complained of, and, too, the conclusion that the s 28 defence is made out to those publications, it is unnecessary to deal with the qualified privilege issue insofar as they are concerned.
2. The following considers statutory qualified privilege only in relation to the Poster. As I have said, Fairfax abandoned ground 3 in the notice of cross-appeal relying on common law qualified privilege.

The parties' positions

1. Fairfax contends that the primary judge erred in holding that the statutory defence of qualified privilege under s 30 of the 2005 Act was not made out, in relation to the Poster because it was about allegations in court proceedings sufficient to make it a subject of actual or apparent interest for the purposes of s 30(1)(a) of the Act. Fairfax also contended that the Poster provided at least some information on the subject of apparent interest, for the purposes of s 30(1)(b), because it alerted readers to the fact that the claim had been made and that it was disputed.
2. Mr Cummings contends that the primary judge correctly rejected Fairfax's statutory qualified privilege defence in relation to the Poster because the poster was an advertisement and did not provide any information on a matter of public interest for the purposes of s 30(1)(b).
3. Section 30 relevantly provides: 30 Defence of qualified privilege for provision of certain information (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that: (a) the recipient has an interest or apparent interest in having information on some subject, and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances. (2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest. (3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account: (a) the extent to which the matter published is of public interest, and (b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and (c) the seriousness of any defamatory imputation carried by the matter published, and (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and (e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and (f) the nature of the business environment in which the defendant operates, and (g) the sources of the information in the matter published and the integrity of those sources, and (h) whether the matter published contained the substance of the persons side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and (i) any other steps taken to verify the information in the matter published, and (j) any other circumstances that the court considers relevant. (4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice. (5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.

Consideration

1. Section 30(1) reproduces s 22(1) of the 1974 Act. Accordingly it is appropriate to have regard to the jurisprudence developed in that context.
2. The word "interest" in s 30(1)(a) is not used in any technical sense, but in the broadest popular sense, to connote that the interest in knowing a particular fact is not simply a matter of curiosity, but a matter of substance, or genuine interest to the readership of the newspaper, apart from its mere quality as news. [182]
3. Fairfax submitted at trial, and in this court, that there was a public interest in reports of court proceedings, [183] and that the Poster was published to the recipient in the course of giving to the recipient information on that subject. The primary judge rejected that submission finding it was expressed at too high a level of generality because the Poster conveyed information about Mr Cummings. Accordingly, in his Honour's view, the recipient must have an interest or apparent interest in having information about him. [184]
4. In this court, Fairfax submitted that the Poster related to subjects of interest to its readers and to the general public. These included "the fact that Anthony Cummings (the son of legendary trainer, Bart Cummings) and Nathan Tinkler (at that time, a well-known businessman and mining tycoon with racing interests) were parties to a dispute". That alone, it argued, was sufficient to justify the interest of the general public, particularly those with an interest in racing.
5. Fairfax also complained that the primary judge failed to have regard to whether the "recipient" of the Poster had an apparent interest in having information on some subject. It contended his Honour should have held in its favour on this issue having regard to Ms Lahey's evidence to which I have referred above, the fact that the story merited a poster and front-page article demonstrating that Fairfax considered the articles were of interest; and there were reasonable grounds for considering the articles to be of interest, because the allegations were made in Supreme Court pleadings in a case involving prominent businessmen.
6. The difficulty I have with this submission is that, even if it be accepted that the readers of the Poster had an interest or apparent interest in receiving information about the court proceedings between Mr Cummings and Mr Tinkler, the Poster was not published to those recipients in the course of giving them information on that subject. [185] It did not identify the court proceedings or Mr Tinkler. It simply asserted baldly that Mr Cummings was fighting cruelty allegations. Accordingly, s 30(1)(b) was not satisfied.
7. I would also find on Fairfax's notice of contention that the primary judge erred in finding Fairfax acted reasonably in publishing the Poster. His Honour reached that conclusion by reference to the matters complained of, rather than just the Poster. However, even if Fairfax's conduct in publishing the matters complained of may have been reasonable, a matter I do not determine, that did not mean it was also reasonable for it to publish a Poster with a defamatory meaning to promote interest in them. [186]
8. While s 30(3) lists matters which a court may take into account in determining the reasonableness of a defendant's conduct, the court is not confined to those matters. Other relevant matters may include the manner and extent of publication, the degree of care exercised and any knowledge by the defendant that a defamatory meaning may be conveyed. In considering whether the conduct of the publisher is reasonable the court must consider all the circumstances leading up to and surrounding the publication. [187]
9. In my view, the unidentified "author" of the Poster did not act reasonably insofar as that person failed to make it clear that the allegations Mr Cummings was fighting were made in court proceedings. It was that failure which led to the defamatory imputations being carried.
10. I would reject ground 2 in the PX-NOA and PX-FNOC.

Orders

1. The appeal and cross-appeal raised multiple issues. Mr Cummings and Cummings Thoroughbreds have failed entirely in the Digital appeal and should pay the costs in that respect. However each party in the Print appeal has had partial success. In that respect in my view, a fair outcome, having regard to their respective responsibility for the incurring of the costs, is that each bear their costs of the cross-appeal. [188]

Digital appeal

1. I propose that the appeal be dismissed with costs.

Notice of appeal 1. Grant leave to appeal. 2. Direct Mr Cummings to file a notice of appeal in the form of the draft in the Red Book within 7 days. 3. Allow the appeal in part. 4. Each party to pay his and its costs of the appeal and application for leave to appeal, with a view that there be no order as to costs. 5. Remit the proceedings to Rothman J for hearing on the damages issue in accordance with these reasons and costs.

Notice of cross-appeal 1. Grant leave to cross-appeal. 2. Direct Fairfax Media Publications Pty Ltd to file a notice of cross-appeal in the form of the draft in the Red Book within 7 days. 3. Set aside the judgment against Kate Lahey. 4. Otherwise dismiss the cross-appeal with costs.

1. SIMPSON AJA: I have read in draft the judgment of McColl JA. Except in one respect, I agree with the orders she proposes, and generally with the reasons she has given. The following necessarily assumes a familiarity with the background material set out in her Honour's judgment and adopts the terminology used by her Honour.
2. The area of disagreement concerns the imputations Mr Cummings pleaded were conveyed by the Poster. The Poster contained four words only: "CUMMINGS FIGHTING CRUELTY CLAIMS"
3. The imputations pleaded to have been conveyed were: "6(a) The plaintiff was a cruel person; (b) The plaintiff was cruel to animals; (c) The plaintiff treated race horses in his care with cruelty; (d) The plaintiff as a race horse trainer was cruel to horses he trained."
4. The primary judge found (at [197] and [214]) that imputation 6(d) was conveyed and that no defence was made out to that imputation. He made no express finding with respect to imputations 6(a), (b) or (c). Having found one defamatory imputation conveyed, he reserved the question of damages to a date to be fixed.
5. Since the decision in this respect was interlocutory, Mr Cummings sought leave to appeal (see Supreme Court Act 1970 s 101(2)(e)) against, inter alia, the primary judge's failure to find that imputations 6(a)-(c) had been conveyed. Fairfax sought leave to cross-appeal against the finding that imputation 6(d) had been conveyed.
6. The issue raised for determination by each proposed appeal is whether any or all of the imputations pleaded in paragraph 6 of the amended Statement of Claim had been conveyed.
7. McColl JA finds that three of the imputations were conveyed.
8. I am unable to agree; indeed, I doubt that the Poster was capable of conveying the imputations pleaded.
9. It would be apparent to readers of the Poster that allegations of cruelty had been made against Mr Cummings. It would be equally apparent that Mr Cummings contested the allegations. The emphasis in the Poster is on Mr Cummings' denial of the allegations. In my opinion no ordinary reasonable reader could or would conclude that the allegations were true.
10. It is immaterial, in my opinion, that the Poster did not identify the arena in which the claims were to be fought as a court. The clear implication is that the claims are for determination in some adjudicative forum.
11. It follows that, in relation to the Poster (the first matter complained of in the amended statement of claim) I would, if leave were granted to Mr Cummings to appeal, dismiss the appeal. I would uphold ground 1 of the Draft Notice of Cross-appeal, again assuming leave were granted. The defences (the subject of other grounds in Mr Cummings' draft Notice of Appeal) pleaded therefore do not call for determination. Nor do the issues raised in the Notice of Contention.
12. It is, in the circumstances of this case, appropriate to grant Mr Cummings leave to appeal, but the appeal must be dismissed. It is also appropriate to grant Fairfax leave to cross-appeal in relation to imputation 6(d): that appeal must be upheld.
13. The orders I propose are:
14. With respect to appeal 2017/84756 (the Digital proceedings):
15. Appeal dismissed with costs.
16. With respect to Mr Cummings' application seeking leave to appeal 2017/184762 (the Print proceedings):
17. Grant leave to appeal.
18. Direct the applicant to file a notice of appeal in the form of the draft in the Red Book within 7 days.
19. Dismiss the appeal with costs.
20. Order the appellant to pay the respondents' costs of the appeal and of the proceedings below.
21. Grant leave to the respondents (cross-applicants) to cross-appeal.
22. Direct the cross-appellants to file a notice of cross-appeal in the form of the draft in the Red Book within 7 days.
23. Allow the cross-appeal.
24. Set aside orders 3, 5 and 6 of the court below.
25. Order the cross-respondent to pay the Cross-appellants' costs of the cross-appeal.

SCHEDULE 1 Cummings article 20 Feb 2010 (37.2 KB, rtf) | Cummings article 20 Feb 2010 (46.2 KB, pdf)

Endnotes

1. For convenience, I refer to Fairfax Digital Australia & New Zealand Pty Ltd, The Age Company Ltd and Ms Lahey as "Fairfax", unless the context otherwise requires.
2. The article is Schedule 1 to this judgment. The "Poster" is in Schedule 2.
3. Pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW): Cummings v Fairfax Digital Australia & New Zealand Pty Limited; Cummings v Fairfax Media Publications Pty Limited [2017] NSWSC 657 (primary judgment) at [7]. The Print proceedings had also been commenced against Fairfax Printers Pty Ltd, but those proceedings were discontinued: primary judgment at [8].
4. In fact, Mr Cummings had not alleged Ms Lahey had published the Poster. The parties agreed that the judgment against her in the Print proceedings should be set aside.
5. The appellants appeal from the entire primary judgment except for the findings at [28] - [34] (finding that Cummings Thoroughbreds was excluded from the operation of s 9 of the Defamation Act 2005 (NSW) (2005 Act)), at [52] - [66] (finding that the Poster identified Mr Cummings), at [79] and [81] (findings that the imputations were carried by the digital publications), at [179] - [196] (finding the Poster was defamatory of Mr Cummings and not protected by s 28 of the 2005 Act or qualified privilege) and at [202] - [205] (rejecting Fairfax's defence of qualified privilege in relation to the Poster).
6. Primary judgment at [9] - [10].
7. Ibid at [12].
8. Ibid [16].
9. See primary judgment at [17] - [23].
10. Ibid at [25].
11. Ibid.
12. Ibid at [84] - [85].
13. Ibid at [135].
14. Ibid at [3].
15. Ibid at [5].
16. Ibid at [35].
17. Primary judgment at [130] - [132].
18. At [28] - [34].
19. At [48].
20. At [50] - [51].
21. At [49]
22. Ibid.
23. At [51].
24. See primary judgment at [53].
25. Primary judgment at [55].
26. Ibid at [56].
27. Ibid at [57].
28. Ibid at [66].
29. At [65].
30. At [68] - [71].
31. At [82] - [178].
32. Ibid at [177].
33. Cf primary judgment at [76].
34. In fact, his Honour ought to have determined what meanings the matters complained of had before he determined whether they were a fair summary of the debt-recovery proceedings pleadings: Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 at [2] per Brennan CJ and McHugh J; see also Kirby J at [121].
35. Primary judgment at [110] - [114].
36. At [158].
37. At [159]; see also [173].
38. At [210] - [212].
39. At [180] - [181].
40. At [183].
41. At [184].
42. At [185] - [186].
43. Primary judgment at [212] - [214].
44. Ibid at [208].
45. At [212].
46. At [213].
47. At [211].
48. At [213].
49. At [196].
50. At [214].
51. At [196].
52. See [198].
53. PNOA (ground 5).
54. DNOA (grounds 1 and 2); PNOA (ground 1).
55. DNOA (ground 3).
56. PNOA (ground 2).
57. DNOA (ground 4).
58. DNOC (ground 1).
59. PX-NOA (ground 1); PX-FNOC (ground 1).
60. DNOA (ground 5); PNOA (ground 4); PX-FNOC (ground 4).
61. DNOA (ground 6); PNOA (ground 3).
62. DNOA (ground 7); PNOA (ground 6).
63. DNOC (ground 4).
64. PNOC (ground 1.1).
65. PNOC (ground 1.2).
66. DNOC (grounds 2 - 3); PX-FNOC (grounds 2 - 3).
67. At [76]; see also [77] - [78].
68. At [96].
69. At [99]. In fact, although the matters complained of referred both to Cummings Thoroughbreds and Something Fast, only Cummings Thoroughbreds was one of the two plaintiffs in the Digital proceedings. It was not a plaintiff in the Print proceedings, despite the fifth impugned publication being substantially the same as the digital publications.
70. At [79].
71. At [81].
72. At [103].
73. At [104].
74. See [105] - [108].
75. [1980] 2 NSWLR 845 (McConnel).
76. Before the proceedings were transferred from the Supreme Court of the Australian Capital Territory to the Supreme Court of New South Wales, Cowdroy J rejected an application by the defendants to strike out the imputations on a capacity argument: Cummings v Fairfax Digital Australia & New Zealand Pty Ltd; Cummings v Fairfax Media Publications Pty Ltd [2011] ACTSC 188; (2011) 177 ACTR 38 (leave to appeal refused: Fairfax Media Publications Pty Ltd v Cummings; Fairfax Digital Australia & New Zealand Pty Ltd v Cummings (2012) 269 FLR 182; [2012] ACTCA 36 particularly at [58]ff).
77. At [214].
78. Capital and Counties Bank Ltd v Henty (1882) LR 7 App Cas 741 at 745; Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 505 - 506; [1982] HCA 4 per Brennan J with whom Gibbs CJ, Stephen and Wilson JJ agreed and Murphy J generally agreed.
79. Sim v Stretch (1936) 52 TLR 669 at 671.
80. Lewis v Daily Telegraph Ltd [1964] AC 234 at 260 (Lewis).
81. Trkulja v Google LLC [2018] HCA 25; (2018) 92 ALJR 619 at [31] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ; Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 (Favell) at [9], [17] per Gleeson CJ, McHugh, Gummow and Heydon JJ; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164 - 167 per Hunt CJ at CL (with whom Mason P and Handley JA agreed); Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165; [2002] NSWCA 41 at [26] - [27] per Mason P (Wood CJ at CL agreeing).
82. John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485; [2005] NSWCA 60 (Obeid) at [91], [98] per McColl JA (Sheller JA and McClellan AJA agreeing).
83. At 284.
84. Obeid at [96].
85. (2003) 77 ALJR 1657; [2003] HCA 50 (Rivkin) at [27].
86. Obeid at [98], [101].
87. Nationwide News Pty Ltd v Heggie [2001] NSWCA 257 at [21] per Hodgson JA.
88. (1982) 149 CLR 293 at 300; [1982] HCA 50 per Mason J (Wilson and Brennan JJ agreeing).
89. Rivkin at [27] per McHugh J; Corby v Allen & Unwin Pty Lid [2014] NSWCA 227 at [139] - [141] per McColl JA (Bathurst CJ and Gleeson JA agreeing).
90. See Favell at [12]; Rayney v State of Western Australia (No 9) [2017] WASC 367 at [86] - [131] per Chaney J.
91. McConnel at [3].
92. Ibid at [4].
93. Ibid at [9].
94. Ibid at [10] - [11].
95. "Truth" (NZ) Ltd v Holloway [1960] 1 WLR 997; Parker v John Fairfax & Sons Ltd (Court of Appeal (NSW), 30 May 1980, unrep) and Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43. In contrast, his Honour noted (at [15]) that in Lewis, where the newspaper published a statement that the fraud squad was inquiring into the plaintiff's affairs and those of his company, the House of Lords held to be wrong a direction to the jury that that statement was capable of imputing that the plaintiff was guilty of fraud.
96. McConnel at [17].
97. Ibid at [20].
98. Ibid at [24].
99. Ibid at [25]. While that conclusion ought to have disposed of the whole of the plaintiff's claim, leading to a direction that judgment be entered for the defendant, as in his Honour's view, the matter complained of was clearly capable of some meaning defamatory of the plaintiff, he granted leave to the plaintiff to amend its statement of claim by adding such further imputations as it may be advised.
100. [2000] NSWCA 155 at [15].
101. (1997) 72 SASR 299; [1997] (Homestead).
102. The ABC and the Advertiser were not defendants. The State was sued in reliance upon the rule in Speight v Gosnay [1891] 60 LJQB 231: see Homestead at 305.
103. Homestead at 303.
104. Ibid at 302.
105. Ibid at 306.
106. (2006) 154 FCR 293; [2006] FCA 836 (Llewellyn); referred to with approval in Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [120] per Marshall, Rares and Flick JJ.
107. At [28].
108. At [37].
109. [2018] FCA 357 (Rush) at [194].
110. At [178] - [179].
111. At [180].
112. At [187].
113. (2009) 104 SASR 452; [2009] SASC 215 (Sands).
114. At [6].
115. At 300 - 301.
116. (1986) 12 FCR 510 at 589.
117. At [70].
118. At [187] - [188].
119. Cf Rivkin at [188] per Callinan J.
120. Lewis at 285; see also Favell at [12].
121. Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16 at [51] per French CJ, Gummow, Kiefel and Bell JJ.
122. Hughes v Mirror Newspapers (1985) 3 NSWLR 504 at 510 - 511 per Hunt
123. David Syme & Co v Canavan (1918) 25 CLR 234 at 238; [1918] HCA 50 per Isaacs J; see also Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283 at [166] per Gleeson JA (Ward and Payne JJA agreeing)
124. Lee v Wilson and MacKinnon (1934) 51 CLR 276; [1934] HCA 60.
125. Primary judgment at [55].
126. Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 365 per Hutley JA.
127. See primary judgment at [56].
128. Primary judgment at [57].
129. Younan v Nationwide News Pty Ltd [2013] NSWCA 335 at [17] - [18] per Macfarlan JA (Bathurst CJ and Beazley P agreeing).
130. At [64].
131. (2003) 214 CLR 118; [2003] HCA 22.
132. See primary judgment at [181].
133. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1247 per Lord Reid, at 1262 per Lord Guest, at 1271 per Lord Pearson.
134. Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 392 per Hunt A-JA (Samuels JA agreeing).
135. At [214].
136. See Rivkin at [188] per Callinan J.
137. Cf Obeid at [70].
138. See Nevill v Fine Art & General Insurance Co Ltd [1897] AC 68 at 73 per Lord Halsbury LC; Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 (Barbaro) at 37 per Hunt J.
139. See primary judgment at [174].
140. Lewis at 285; see also Favell at [11] - [12].
141. Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12]; Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers and Managers Appointed) (2011) 244 CLR 1; [2011] HCA 18 at [56]
142. [2009] NSWCA 231 (Habib) per McColl JA (Giles and Campbell JJA agreeing); special leave refused: Radio 2UE Sydney Pty Ltd v Habib [2010] HCATrans 98.
143. See Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 at 183 per Hunt J; Habib at [125], [172], [175]; McManus v Beckham [2002] EWCA Civ 939; [2002] 1 WLR 2982 at [43] per Laws LJ; Baturina v Times Newspaper Ltd [2010] EWHC 696 (QB) (Baturina) at [45] per Eady J.
144. [1967] 1 AC 617; [1966] UKPC 10.
145. Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 641 - 642.
146. Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 per Mason J (as his Honour then was) Stephen and Aickin JJ agreeing; at 53 per Wilson J; [1980] HCA 12.
147. Baturina at [45].
148. Ibid.
149. Primary judgment at [49].
150. Ibid at [48].
151. Ada Evans Chambers P/L v Santisi [2014] NSWSC 538 at [19] per Adamson J; see also Halpin & Ors v Lumley Insurance Ltd (2009) 78 NSWLR 265; [2009] NSWCA 372 at [14] per Basten JA.
152. Primary judgment at [144].
153. At [177].
154. The court refused to give Fairfax leave to rely for the purposes of the s 28 defence on a JusticeLink record of whatever "hearing" took place when the consent order was made in the District Court in 2009 transferring the debt-recovery proceedings to the Supreme Court on the basis that it involved adducing further evidence on appeal: Supreme Court Act 1970 (NSW), s 75A(8).
155. This was presumably the form referred to in cl 17 of the Practice Note.
156. Re Smith; Ex Parte Director of Public Prosecutions (WA) (No 1) (2004) 146 [2004] WASC 145; A Crim R 40 at [109] per Roberts-Smith J.
157. Titelius v Public Service Appeal Board (1999) 21 WAR 201; [1999] WASCA 19 at [96], [100] per Ipp JA (Wallwork J agreeing).
158. John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101 at [29], [31] - [32], [60] (Ryde Local Court) per Spigelman CJ (Mason P and Beazley JA agreeing).
159. Russell v Russell (1976) 134 CLR 495 at 520; [1976] HCA 23 per Gibbs J; cited with approval in Ryde Local Court at [63].
160. John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors (2004) 61 NSWLR 344; [2004] NSWCA 324 at [20] per Spigelman CJ (Handley JA and Campbell AJA agreeing)
161. Ryde Local Court at [65].
162. (1998) Tas R 283 at 293.
163. At [65].
164. At 307.
165. [1987] SLT 698 at 706 (Cunningham).
166. [2009] NSWSC 781 (Tuqiri) at [14].
167. At [23]; Tuqiri at [29].
168. (2005) 223 CLR 1; [2005] HCA 12 (D'Orta-Ekenaike) at [32].
169. Smith v Harris [1996] 2 VR 335 at 350; quoted with approval in Ryde Local Court at [69].
170. Ryde Local Court at [47].
171. Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [26] per Bathurst CJ and McColl JA; referring to Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at at [5], [27] per French CJ.
172. Llewellyn at [28].
173. (2012) 38 VR 544; [2012] VSC 615 at [19].
174. Report of the Law Reform Commission on Defamation, New South Wales Law Reform Commission, Report 11, (1971) at [146] - [147].
175. (2003) 216 CLR 327; [2003] HCA 52 (Rogers) at [132].
176. (1985) 1 NSWLR 58 (Waterhouse) at 63, in Nyoni v Pharmacy Board of Australia (No 6) [2018] FCA 526 at [242], Siopis J applied Hunt J's statements in Waterhouse to the construction of the "honestly" requirement in s 28(3).
177. Ibid.
178. Ibid at 64.
179. Ibid.
180. Lower Murray Urban and Rural Water Corporation v Di Masi (2014) 43 VR 348; [2014] VSCA 104 at [65].
181. Primary judgment at [25], [211].
182. Barbaro at 40 per Hunt J; see also Austin v Mirror Newspapers Ltd [1986] AC 299 (Austin) at 311 - 312 per Lord Griffiths, giving the advice of the Privy Council; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at [148] per Gummow J
183. D'Orta-Ekenaike at [32].
184. At [200].
185. Cf Rogers at [58] per Hayne J.
186. Hockey v Fairfax Media Publications Pty Limited (2015) 237 FCR 33; [2015] FCA 652 (Hockey) at [237] - [238] per White J.
187. Hockey at [225]; Austin at 313.
188. Turkmani v Visvalingam (No 2) [2009] NSWCA 279 at [13] per Hodgson JA (Beazley and McColl JJA agreeing)

Amendments 28 February 2019 - corrected paragraph numbering from [246] - [277] 26 August 2019 - 26 August 2019: Citation for Dye v Commonwealth Securities Limited corrected - coversheet, endnote 106 "FIGHTS" replaced by "FIGHTING" - [34] "probably" replaced by "properly" - [61] "set" delete - [82] "decisions" replaced by "decision" - [97] "[78]" replaced by "[79]" - [97], endnote 70 "that" deleted - [116], second sentence "licenced" replaced by "licensed" - [122] "Licencing" replaced by "Licensing" - [122] "in" deleted - [150], third sentence "than" replaced by "that" - [191] "entitles" replaced by "entities" - [195] "of the imputations" deleted - [269] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 August 2019