Duma v Fairfax Media Publications Pty Limited

BACKGROUND 6 All the articles concern the attempts by Horizon Oil (Papua) Ltd (referred to variously as either "Horizon Oil" or "Horizon"), a subsidiary of an ASX-listed Australian company, to obtain an extension of a petroleum retention licence (PRL 5). The licence covered the Elevala and Ketu Gas Fields in the Western Province of PNG. PRL 5 was initially granted on 15 February 2000 for a five-year term to a joint venture led by Santos Niugini Exploration Limited. Horizon was one of the joint venture partners. On 15 February 2005 the licence was extended by the then Minister for Petroleum and Energy, Sir Moi Avei, for a second five-year term. The joint venture partners at this time were Santos (50.353%), Horizon (39.288%) and a related company, Horizon Oil (Kanu) Limited (10.359%). This means that the combined interest of the Horizon companies was 49.65%. 7 Before the end of the second five-year term, Santos applied for a second and final extension of the licence. While the application was pending, Santos entered into an agreement to sell its interest in PRL 5 to Talisman Niugini Pty Limited a subsidiary of a Canadian company, Talisman Energy Inc. (Talisman), for $20 million. 8 As the then Minister for Petroleum and Energy, it was Mr Duma's responsibility to determine whether to grant or refuse Santos's application. On 5 November 2010, on the recommendation of the Petroleum Advisory Board (PAB), Mr Duma declined to grant the extension and called for tenders for a new licence. 9 His reasons for decision were contained in a 21-page document. They included the failure of the licence holders to comply with some of the licence conditions, particularly the statutory requirement to lodge six-monthly reports; their failure to lodge any technical reports indicating the work that had been carried out or was being carried out or to lodge reports of work proposed to be carried out during the period of the licence; and their failure to commercialise the gas fields in the decade since the licence had been granted or to carry out "contingent work", highlighting the fact that they were "yet to drill an appraisal well". Noting that Santos had already signed an agreement with Talisman "to sell out and exit PRL 5", Mr Duma expressed the firm view that Santos was not committed to developing the gas fields and was only applying for the extension to enable it to dispose of its interests in PRL 5 to Talisman. 10 On 12 November 2010 Mr Duma issued a statutory notice inviting applications from a number of petroleum exploration companies to tender for a petroleum retention licence in respect of the area covered by the recently expired PRL 5. On 19 November 2010 the Registrar of the Department of Petroleum and Energy (Department), in his capacity as delegate of the Director, Oil & Gas Act, wrote to a number of companies inviting them to lodge applications. A number of applications were lodged in response to the public invitation. 11 On 24 November 2010 Horizon wrote to Mr Duma arguing that the licence was in good standing and the request by the licensees for its extension should have been granted. Horizon advised that it had instructed its lawyers to commence judicial review proceedings to quash the decision and require him to extend the licence, foreshadowed seeking an injunction to restrain the grant of any licence over the blocks the subject of PRL 5 pending the hearing of those proceedings, and invited Mr Duma to instruct the Director to withdraw the invitations issued by the Registrar. The letter, signed by Brent Emmett, then Chief Executive Officer of Horizon, concluded in the following way: Minister, we very much regret that this issue has led to the current situation, which we do not choose to be in. This letter is an attempt to be open with you about the situation and the action that we will be compelled to take to protect the interests of our shareholders. As always, we remain open to any suggestion from you as to how the current tension might be defused. I can always be contacted by email emmettbd@horizonoil.com.au or mobile phone … Do contact me if you wish to discuss a solution - I would welcome the opportunity. 12 On 26 November 2010 Mr Duma replied by email to Mr Emmett. He wrote: As you will appreciate, the reasons for refusing to extend PRL 5 are contained in my decision of 5 November, which I note were received by your company. Whilst your company as an aggrieved licensee is entitled to seek a judicial review of a Ministerial decision, it must be mindful of the fact that under section 6 of the Oil and Gas Act, until such time oil and or gas are extracted and brought to the surface, they remain the property of the Government and people of PNG. I must also remind you that any injunctive relief application must be supported by an undertaking as to damages lodged by your company so that in the event the Court were to find that my decision was correct and fair, the delay in the reciept [sic] of and the loss of potential income to Government and landowners in terms of 22.5 %equity and taxes in connection with an early commercialization of PRL 5, caused by such legal proceedings, would be provided for by your company. I have been advised by my Department that your company was informed of the availability for tender for the blocks in PRL 5 on Tuesday 23 November and that your company was invited to apply for those blocks. I would like to encourage your company to apply given its knowledge of these blocks. My Department has invited all members of the oil and gas industry in PNG to apply, and I am informed that the response has been good. It would be surprising to see a company which was given the opportunity by the Government of PNG to commercialise PRL 5 for more than 10 years to now seek to prevent the PNG Government from giving other companies the chance to commercialise it. The reasons for my refusal have been set out in detail, and clearly the Petroleum Advisory Board took relevant factors into account before recommending that I should refuse to extend PRL 5. Please do inform me in advance particularly under the Claims by and Against the State Act, if and when your company issues legal proceedings so that we may take steps to protect the interests of the State. 13 A letter in the same terms was also hand delivered to Horizon on 9 December 2010. 14 True to its word, on 3 December 2010 Horizon filed an originating summons in the National Court of Justice of Papua New Guinea seeking judicial review of the Minister's decision to refuse to extend PRL 5 for a third term. The respondents to the summons were Mr Duma, in his capacity as the responsible Minister; Kepsey Puye, Acting Director of the Department; the individual members of the PAB, and The Independent State of Papua New Guinea. Ten days later, Injia CJ summarily dismissed the summons on the ground that he was not satisfied that Horizon had an arguable case. 15 On 16 December 2010 Horizon lodged an appeal to the Supreme Court of Justice of Papua New Guinea (Supreme Court) and applied for an interim injunction to restrain the Minister and his Department from causing to be entered on the Register any application, grant, extension, transfer, dealing or instrument pertaining or in relation to the blocks covered by PRL 5". 16 On 20 December 2010 Kavani J granted an ex parte injunction enjoining the Minister, the Department and the PAB from dealing with any applications for the new licence or granting a new licence. 17 The following day, 21 December 2010, Posman Kua Aisi (in association with Mallesons Stephen Jacques), a firm of lawyers, wrote to Blake Dawson Waldron (BDW) (now Ashurst), Horizon's lawyers. They referred to "recent discussions" and confirmed that they were "yet to be formally engaged by the Attorney General's office to act for the Respondents" but advised that they had been instructed by the Minister that the terms of the injunction should be varied. They indicated that the variation was necessary because the Department and the Minister do not grant applications; "[t]hey only consider applications and grant licences to successful applicants". Posman Kua Aisi also required that BDW "confirm in writing that the PAB is not restrained from considering applications for PRL 5". They explained that "[t]his must be clear so that PAB's mandate to consider applications is not affected whereas the registration of successful applicant can be temporarily restrained pending further discussions between the parties". 18 On 24 February 2011 Mr Rimua wrote to Mr Duma, expressing concern about the impact of the litigation on the exploitation of the resource and the ramifications for the national economy. He recommended that the litigation be settled on terms contained in a deed of settlement and release, subject to "clearance by Posman Kua & Aisi Lawyers". Mr Rimua wrote: As you will recall, in December 2010, the PAB was restrained by the Supreme Court from considering applications for the former PRL 5 as a result of an application by Horizon Oil on 20 December 2010. Both yourself and the PAB have now been effectively stopped from dealing with PRL 5 until the outcome of the appeal by Horizon Oil Ltd to Supreme Court. The Appeal to the Supreme Court is likely to be heard towards the end of the year, due to many outstanding Supreme Court appeals yet to be dealt with by the Court. As a result of the injunction, the gas resources at Elevala and Ketu will not be commercialized this year or even next year. There are likely to be significant delays in commercializing the gas/condensate resources at Elevala and Ketu. Consequently, PNG will not be earning any revenue from these resources. I am of the view that an early settlement of the court action by Horizon Oil Ltd will enable the Elevala and Ketu discoveries to be commercialized earlier, and generate more revenues and employment for PNG. It would be prudent for the State to settle this case, and allow Horizon Oil Ltd (being one of the joint ventures in the original PRL 5 and being very familiar with PRL 5 licence history and geology), Dabajodi Energy International Ltd and Elevala Energy Ltd (for local content) to carry out a more aggressive work program, as outlined in their bid documents. The work programmed proposed by these 3 companies is very aggressive, and incorporates 2D seismic (phase 1 & 2), and drilling and logging of appraisal wells on the Ketu and Elevala structures. I have review[ed] the proposed terns of settlement contained in the Deed of Settlement and Release, and confirm that subject to clearance by Posma[n] Kua & Aisi Lawyers, it is in order for you to execute the document. 19 On 11 March 2011 the Supreme Court made an order by consent in Horizon's appeal requiring the Minister, the Department and the PAB to take all necessary steps to award a licence in respect of the blocks and acreage covered by the former PRL 5 to Horizon (as to 70%), Dabajodi (as to 20%) and Elevala (as to 10%) and providing for the injunction to be dissolved once the licence was issued. 20 The PAB met on the morning of 17 March 2011. The application by Horizon, Dabajodi and Elevala (APRL 21) was the first item on the agenda. The minutes of the meeting reveal the following matters. APRL 21 was one of the applications received in November 2010 in response to the public invitation notice, was "entered in" the PAB meeting of 22 December 2010, and the interests of the companies involved were thereby registered, but the PAB had never considered APRL 21 because of the Supreme Court injunction. The PAB noted that the companies mentioned in the Court order were joint applicants in APRL 21 and the terms of the Supreme Court order of 11 March 2011, which prevented the PAB from considering other applications, and therefore resolved that the application fees lodged by the other applicants be refunded. The PAB also noted that it was open to it to deliberate upon, and recommend, the imposition of conditions on the licence "to be part of licence commitment". The PAB proceeded to deliberate upon, and lay down a "work program" and resolved to recommend to the Minister that he grant APRL 21 in accordance with the Court order "with the … work program" and, at the same time, to refuse the other applications. It also directed the PAB Secretariat to remind the licensees of PRL 21 of the statutory "Petroleum Cost Reporting requirements". 21 The next day, 18 March 2011, in accordance with the PAB recommendation, Mr Duma approved the grant of the licence to the Horizon, Dabajodi, Elevala consortium. Mr Duma testified that at all times he had acted appropriately and on the advice of the PAB. 22 Although the respondents did not raise any defence of justification (truth), they submitted that "in truth and in fact" Mr Duma did not act on the PAB's advice. Rather, they submitted, he acted unilaterally to award PRL 21 to a consortium that included a shell company (Elevala) proposed by Mr Duma, knowing that Elevala would sell its interest to Horizon, and that his conduct was "highly improper". The sole director and shareholder of Elevala was Mr Ketan, said to be "a close associate" of Mr Duma. 23 In May 2017 allegations were made against Mr Duma (the then Minister for Public Enterprises and State Investments), the Minister for Defence, and a number of other public servants in relation to attempts to relocate a naval base to a block of land some distance from Port Moresby. An administrative inquiry was established by the cabinet, led by a Brisbane QC, and later a police investigation, which found that there was no merit in the allegations and exonerated both Mr Duma and the Minister for Defence. 24 Sometime in 2019 a market contact of Ms Whyte (CS-1) offered to introduce Mr Grigg and Ms Whyte to an associate (CS-2), who was then an employee of Horizon. In early December 2019 CS-1 and CS-2 met the two journalists at a hotel bar. They had a conversation about the 2011 transaction involving Horizon and Elevala which sparked the journalists' interest. CS-2 said that he might have some documents. Mr Grigg set up a group chat on the Signal encrypted messaging platform and CS-2 sent a link to the journalists to a Dropbox folder containing a tranche of documents, which Mr Grigg read through, printed and saved on a thumb drive. At a second meeting in a café in Darlinghurst, CS-2 downloaded additional documents from a laptop onto another thumb drive which he then handed to Mr Grigg. Those documents were later uploaded onto a computer at the AFR offices. These documents provided the source material for the matters complained of. Upon reviewing the documents, the respondents concluded that they emanated from an email archive of Mr Emmett. 25 The respondents refused to identify either CS-1 or CS-2 because of promises made to them that their identities would not be disclosed.

PUBLICATION 26 The matters complained of were published on Monday, Tuesday, Wednesday and Thursday of the week commencing 10 February 2020 and also in the weekend edition. 27 The first matter complained of was an article in the print edition of the AFR published on 10 February 2020. 31,847 copies of the newspaper were sold in Australia. The second matter complained of was a version of the same article published on the AFR website the same day. By 26 May 2020 it had been accessed by 14,116 unique visitors across Australia. By 16 September that same year it had been accessed by 2,902 unique visitors in PNG. 28 The third matter complained of was an article published in the print edition of the AFR on 11 February 2020. 31,676 copies of the newspaper were sold in Australia. The fourth matter complained of was the version published on the AFR website the same day. By 26 May 2020 it had been accessed by 3,083 unique visitors nationally. By 16 September 2020 it had been accessed by 134 unique visitors from PNG. 29 The fifth matter complained of was an article published in the print edition of the AFR on 12 February 2020. 32,821 copies of the newspaper were sold in Australia. The sixth matter complained of was the version published that day on the AFR website. By 26 May 2020 it had been accessed by 2,070 unique visitors in Australia and by 16 September 2020 it had been accessed by 619 unique visitors from PNG. 30 The seventh matter complained of was an article published in the print edition of the AFR on 13 February 2020. 32,599 copies of the newspaper were sold in Australia. The eighth matter complained of was the version published that day on the AFR website. By 26 May 2020 it had been accessed by 10,158 unique visitors in Australia and by 16 September 2020 it had been accessed by 4,823 unique visitors from PNG. 31 The ninth and tenth matters complained of were published on 15 February 2020. The ninth was the article in the print edition of the AFR, 38,343 copies of which were sold in Australia. The tenth was the version of the article published on the AFR website. By 26 May 2020 it had been accessed by 4,096 unique visitors in Australia and by 16 September that year it had been accessed by 741 unique visitors from PNG. 32 The average readership of the weekday print editions was estimated to be 316,000. The average of the weekend edition was estimated at 114,000. 33 These figures were either agreed (in the case of the number of copies of the print editions sold) or not in dispute (as in the case of the average readership). The figures were either provided to Mr Duma's lawyers by the respondents' lawyers or based on figures they provided. 34 In addition, unchallenged evidence was given by a number of witnesses about the publication of the articles on social media. Mr Duma's son, Mahoney, first saw the articles on Facebook. Sir Ano Pala, a member of the National Parliament of PNG and a former Minister, was sent at least one of the articles by a friend on WhatsApp. Sam Akoitai, another PNG parliamentarian, testified that the matters complained of were widely published in social media. He added that they were circulated by a number of WhatsApp groups of professionals, politicians, businessmen, university students, and members of the general public.

THE ISSUES 35 The respondents admitted that each of the matters complained of concerned Mr Duma. As I have already indicated, responsibility for publication and scope of publication were admitted. 36 In their closing written submissions, the respondents asserted that they had "never shied away from the propositions that the articles are defamatory of [Mr Duma]". That was an astonishing submission since, in their defence, they denied that any of them was capable of being, or was in fact, defamatory of Mr Duma. The truth is that, notwithstanding their denials which were never formally withdrawn, they accepted that, if any of the imputations were conveyed, the only remaining issue on liability was whether they had made out their defence of qualified privilege and the only issue in relation to qualified privilege was the reasonableness of the respondents' conduct. Moreover, although they did not accept that any of the imputations were conveyed, they accepted that all the matters complained of defamed Mr Duma. 37 The following questions arise for determination: (1) Giving each matter complained of its natural and ordinary meaning were any of the pleaded imputations conveyed to the ordinary reasonable reader and, if so, which? (2) If any of the matters conveyed one or more of the pleaded imputations, have the respondents made out their defence? (3) If the respondents have made out their defence, were they actuated by malice? (4) Has Mr Duma made out his claim for aggravated damages? (5) What matters may be taken into account in mitigation of damages? (6) In what amount should damages be awarded?

DETERMINING DEFAMATORY MEANING 38 It is uncontroversial that a publication is defamatory if it tends to cause ordinary, right-thinking members of the community to think less of a person. 39 The principles for determining whether a publication conveys defamatory meanings are settled. The parties were content to rely on the summary of the principles contained in the judgment of Wigney J in Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 (Rush (No 7)) at [72] and following, which substantially reproduces the summary given by Hunt CJ at CL (with whom Mason P and Handley JA agreed) in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164-165. In short, those principles are: (1) The question of whether a pleaded imputation is conveyed by a publication is a question of fact upon which the applicant carries the burden of proof (at [72]-[73]). (2) The question is determined from the perspective of "an ordinary reasonable reader", who is taken to be a person of "fair to average intelligence, experience and education" and not perverse, morbid, suspicious or "avid for scandal" but "fair-minded" (at [74]-[75]). That person does not live in an ivory tower but can and does read between the lines, drawing on their general knowledge and experience of worldly affairs (at [77]). (3) Since ordinary men and women have different temperaments, outlooks, life experiences and levels of education, some are unusually suspicious, some unusually naïve, some unusually well-educated and sophisticated, others not. Consequently, the exercise of determining meaning involves "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" (Trkulja v Google LLC (2018) 263 CLR 149 at [31]) (at [75]). (4) The determination of meaning is often a matter of impression (at [82]). (5) While the publication must be considered as a whole, each part need not be given equal significance. The contents of an article must be considered in the light of the headline (at [128]). (6) A headline might assume particular importance because it might give the reader "a predisposition about what follows" and contrary statements will not necessarily negate the effect of defamatory statements in the same article (John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; 77 ALJR 1657; 201 ALR 77 at [187] (Callinan J), Gleeson CJ and Heydon J agreeing at [1] and [219] respectively; and at [26] (McHugh J). (7) The natural and ordinary meaning of the words used includes a meaning which the ordinary reasonable reader may draw from general knowledge including matters which any intelligent reader may be expected to know (at [81]). (8) The mode or manner of publication can affect the meaning that is conveyed to the ordinary reasonable reader. The ordinary reasonable reader of a book, for example, is likely to read it with more care than they would a newspaper article, particularly if the article is sensational, where the ordinary reasonable reader is "more prone to engage in loose thinking", especially if the words used are "imprecise, ambiguous, loose, fanciful or unusual" (at [78]). (9) The meaning an ordinary reasonable reader attributes to an article may also be influenced by its overall tone, for example if the article is "tinged with, or even pregnant with, insinuation or suggestion" or implicitly invites the reader to adopt a suspicious approach (at [80]). (10) Even if the words in question may reasonably be capable of bearing more than one meaning, the judge must decide whether the alleged defamatory meaning was the one and only meaning conveyed or the single meaning (at [83]). (11) The meaning intended by the publisher is irrelevant (at [84]) and so is the manner in which the publication was actually understood (at [85]). (12) If in one part of a publication something disreputable is said of the plaintiff/applicant ("the bane"), but it is removed by the conclusion ("the antidote"), both must be taken into account (at [90]). But since the reader is entitled to give some parts of the article more weight than other parts, contrary statements or conclusions in a particular publication will not necessarily remove or undo the effect of the disreputable part(s) (at [91]).

WERE ANY OF THE PLEADED IMPUTATIONS CONVEYED AND, IF SO, WHICH?

The nature of the dispute and the respondents' arguments 40 Mr Duma submitted that the pleaded imputations merely reflect the plain meaning of the respective matters about which he complains. In each case, that is to say with respect to each of the matters complained of, he alleged that the articles carried the meaning that he in fact engaged in the conduct the subject of the pleaded imputations. 41 The respondents, on the other hand, contended that the pleaded imputations are pitched too high. They claimed that the imputations are contrived. At their highest, they maintained, the meaning conveyed by the articles was no more than that there were reasonable grounds to suspect that, or investigate whether, Mr Duma "engaged in the kind of conduct he complains of in his pleaded imputations". Paradoxically, however, they submitted that the articles "advert" to conduct on the part of Mr Duma which they variously described as "improper" or "corrupt". 42 The respondents submitted that all the articles were capable of conveying the meaning that there are reasonable grounds to suspect Mr Duma acted corruptly and/or that he received a bribe from Horizon. But they argued that a publication cannot convey both reasonable suspicion of guilt and guilt. They contended "it must be one or the other". 43 The respondents' approach is far too rigid. It ignores the way the mind reasons and fails to recognise that defamatory meanings are formed by broad impression. 44 In a case like the present, the oft-quoted words of Lord Devlin in Lewis v Daily Telegraph [1964] AC 234 at 285 have special resonance. In that case, his Lordship observed that it is not correct as a matter of law that a statement of suspicion imputes guilt; suspicion of guilt is different from proof of guilt. Yet, his Lordship acknowledged that "as a matter of practice" suspicion very often imputes guilt He explained: [I]t is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded. (Emphasis added.) 45 Similarly, in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 221 ALR 186; 79 ALJR 1716 at [14], the plurality (Gleeson CJ, McHugh, Gummow and Heydon JJ) observed that: [A]n article which is capable of conveying the meaning that there are reasonable grounds for suspicion of arson, and which also states and elaborates those grounds, taking as the introduction to an account of the fire the existence of the controversial development proposal, and developing the story by giving the neighbours' point of view, could reasonably be found by a jury to convey that the suspicion is well-founded and that the suspects are guilty. An article which gives otherwise irrelevant prominence to the existence of smoke may be found to suggest the existence of fire. 46 The ordinary reasonable reader is not a lawyer and has a much greater capacity for implication than a lawyer: Farquhar v Bottom [1980] 2 NSWLR 380 at 386 (Hunt J). 47 The respondents also submitted that the question of whether the imputations were conveyed should be determined through the prism of the reasonable reader of the AFR who, they argued, are "more analytical and prone to sober analysis and less likely to engage in 'loose thinking". 48 It may be accepted that the AFR's readership is narrower than the readership of a tabloid newspaper like The Daily Telegraph or The Daily Mail. After all, the focus of the newspaper is on financial news and matters likely to be of interest to people in business. It may also be accepted that the AFR is a serious newspaper and not a gossip magazine. Nevertheless, the way in which the ordinary reasonable reader interprets an article it publishes will inevitably be influenced by the way in which its subject matter is presented, that is, what counsel for Mr Duma called its "overall tenor and tone". 49 In Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 Gleeson CJ said: Defamation may come in the form of snide insinuation or robust denunciation, or something in between those two extremes. The attribution to a person of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and non-specific abuse. It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong. 50 As Mr Duma submitted, consistent with the case law: [A] sensational front page "exposé", which "reveals" high political involvement in corruption and bribery and "graft", by "bad guys", with attention-grabbing graphics and seemingly damning quotes, is different from a piece of studious economic analysis. A publication which is conspiratorial in tone and indulges in innuendo or speculation will convey a defamatory imputation more readily than one which is more neutral in tone. 51 The respondents contended that where a publication is capable of being understood as conveying different meanings, such as different degrees of culpability associated with a person's conduct, the task of the Court is not just to determine the meaning. They argued: The task is not to jump to the worst possible meaning that might be open, but instead "to find an approximate centre-point in the range of possible meanings", or the single meaning that that is "the (or a) dominant one". In this way, the law shifts "the preferred meaning to the middle ground", and strikes a balance between the different ways in which the relevant words are capable of being understood, thereby protecting the balance between freedom of expression and protection of reputation. 52 I accept, of course, that the Court must determine "the single meaning" of allegedly defamatory material. But I do not accept that in doing so the Court is required to find "an approximate centre point in the range of possible meanings". The proposition for which the respondents contended, apparently drawn from an observation of McHugh J in Rivkin at [26], is simply incorrect. It confuses the characteristics of the reasonable reader, to which his Honour was referring, with the approach to the determination of meaning. In Rivkin at [26] McHugh J said that "a [reasonable] reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning". His Honour cited Lewis at 259-60 for the proposition. In Lewis at 259 Lord Reid explained, in a passage cited with approval in Favell at [17] : Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naïve. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question. 53 It is true that the ordinary reasonable reader has been described as a person "who does not, and should not, select one bad meaning where other non-defamatory meanings are available": see, for example, Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at [14] per Clarke MR. But the characteristics of the hypothetical reasonable reader are one thing. The meaning of the words is another. As Sharp LJ explained in Rufus v Elliott [2015] EWCA Civ 121; [2015] 2 WLUK 646; [2015] EMLR 17; [2015] CL. 690 at [11], referring to what Clarke MR said in Jeynes at [14]: [T]he words "should not select one bad meaning where other non-defamatory meanings are available" are apt to be misleading without fuller explanation. They obviously do not mean in a case such as this one, where it is open to a defendant to contend either on a capability application or indeed at trial that the words complained of are not defamatory of the claimant, that the tribunal adjudicating on the question must then select the non-defamatory meaning for which the defendant contends. Instead, those words are "part of the description of the hypothetical reasonable reader, rather than . . . a prescription of how such a reader should attribute meanings to words complained of as defamatory": see McAlpine v Bercow [2013] EWHC 1342 (QB) at [63]-[66]. 54 These remarks were endorsed by the Supreme Court of the United Kingdom in a unanimous judgment in Stocker v Stocker [2020] AC 593 at [37]. There, after referring to Sharp LJ's remarks (at [36]) and, contrary to the submission put by the respondents in the present case, Lord Kerr of Tonaghmore JSC (with whom Lord Reed, Lady Black, Lord Briggs and Lord Kitchin agreed) said it was clear that: [W]here a range of meanings is available and where it is possible to light on one meaning which is not defamatory among a series of meanings which are, the court is not obliged to select the non-defamatory meaning. The touchstone remains what would the ordinary reasonable reader consider the words to mean. Simply because it is theoretically possible to come up with a meaning which is not defamatory, the court is not impelled to select that meaning. (Emphasis added.) 55 There is no reason to think that the law in Australia is any different in this respect. See, for example, Armstrong v McIntosh (No 4) [2020] WASC 31 at [90]-[91] (Le Miere J); Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68 at [29] (Rares J); at [242] (Wigney J); and at [305] (Lee J); Bazzi v Dutton [2022] FCAFC 84; 402 ALR 219 at [4] (Rares and Rangiah JJ). The remarks of Sharp LJ in Rufus and those of Lord Kerr in Stocker are consistent with the adoption by the High Court in a number of judgments, including Favell at [11] and Trkulja at [32], of the observation by Lord Devlin in Lewis at 277 that the ordinary reasonable person draws implications, especially derogatory ones, much more freely than a lawyer.

The first and second matters complained of 56 The first matter complained of is an article published on pages 1, 36 and 37 of the print edition of the AFR on 10 February 2020. In their submissions the respondents argued that this article is "in the tradition of the AFR newspaper". They described it as "a thorough and careful article presented by an authoritative and responsible news service", not written as a gossip column, but as "important news" for "a specialised audience", the kind of audience who would engage in sober analysis and read the entire article with "a cautious, critical eye". 57 While the article was certainly lengthy, the evidence reveals that it was neither thorough nor careful and, while it was certainly not written as a gossip column, it encouraged its "audience" to read between the lines. 58 The article was billed as an exclusive story. It was the first article on the front page. It also occupied the whole of p 36 and the first column of p 37. It was accompanied by photographs and graphics designed to attract the reader's attention. 59 The headline was both intriguing and seductive. It read: 'The bad guys want 30%!!!!': Horizon slips on PNG oil slick 60 The front page also carried a dinkus featuring a map of PNG beside which the words "PNG pay-off" appeared. 61 Immediately under the headline on the left was a breakout box that contained a photograph of Mr Emmett and the following statement in quotation marks (taken from "internal email 2010"): I hesitate to put this in an email but it smells like someone is setting the scene for a handout for a problem that doesn't exist. 62 The second matter complained of was published the same day on the AFR website. Its headline was different: ASX oil firm mired in $15m PNG bribery scandal 63 Mr Emmett's photograph appeared later in the article and was not accompanied by the break-out text. It also featured a photograph of Michael Sheridan, Horizon's then CEO, which was not included in the print version of the article. "PNG pay-off" appeared as a link at the top and bottom of the article as did "corruption" at the end. Otherwise the article was substantially the same as the first matter complained of. 64 The first matter complained of (the print version) began with the following text: A nine-year-old payment in Papua New Guinea threatens to derail Australian-listed Horizon Oil after the firm repeatedly ignored corruption warnings and paid $US10.3 million ($15.4 million) to an unknown shell company. Lawyers working on the 2011 deal flagged links to PNG's then petroleum minister William Duma and warned an investigation by the US Department of Justice or Securities Exchange Commission was "likely" if details of the transaction were scrutinised. The payment was made just 10 weeks after Sydney-based Horizon was issued a lucrative development licence in the Pacific nation and followed the settlement of a protracted legal dispute with Mr Duma, who is now PNG's Minister for Commerce and Industry. The payment is revealed in a cache of documents obtained by The Australian Financial Review that raises concerns about "illicit payments" and "bribes" and describes the potential transaction as "fruit of the poison tree". "The bad guys want 30%!!!," the documents reveal one lawyer exclaiming, describing how the new licence would be allocated by PNG authorities. … The revelations come at a sensitive time for the Morrison government, which in November agreed to lend $US300 million to PNG in direct budget support. The loan has raised concerns about graft as PNG consistently has been ranked "highly corrupt" by non-government anti-corruption group Transparency International. 65 There were slight differences in the website version but the differences are inconsequential. 66 In the first column on p 36 of the print version, about a third of the way down the page, Mr Duma's denials of impropriety appeared: Mr Duma said any suggestion he had acted improperly "amounts to political witch-hunting with malicious intent to make me look bad". "As far as I can recall, no such concerns were brought to my attention either formally or informally by my department or the industry. This is the first time I have been made aware of such concerns. It is odd and unusual," he said in an email to The Australian Financial Review. Mr Duma said he had always acted on the advice of PNG's Petroleum Advisory Board, as was required by law. 67 These denials were immediately followed by a comment or pull quote attributed to Mr Emmett: "Smells like someone is setting the scene for a handout …". 68 Thereafter the article gave an account of events beginning with the loss of the PRL 5 licence. But it was not an accurate account. 69 According to the story, Horizon "found itself under pressure in PNG in 2010" when Mr Duma "deemed it to have breached the conditions of its licence and threatened to revoke [it]". This was inaccurate because first, Mr Duma's decision related to all the holders of PRL 5, not just Horizon; second, while Mr Duma did consider the licensees to have been in breach of the conditions of the licence, he did not threaten to revoke the licence. Rather, he notified the licensees that he intended to refuse to grant them a second extension of the licence. But I digress. 70 At this point reference was made again to the potential for a bribe and the pull-out quote appeared again: As early as February that year, Horizon's then chief executive, Mr Emmett, flagged the possibility of a payment being required. "I hesitate to put this in an email but it smells like someone is setting the scene for a handout for a problem that doesn't exist," he said in an internal email seen by the Financial Review. 71 It is by no means clear from the documents in evidence that Mr Emmett had Mr Duma in mind but that is the impression given by the article. 72 The article then reported: By November 2010, Horizon and Mr Duma were locked in an acrimonious court battle. At the same time, Mr Duma had opened a tender process for others to develop the gas field. Horizon, concerned it would lose an asset worth more than $100 million at the time, wrote to Mr Duma saying it was "open to any suggestion" on how the "current tension might be defused". That was the trigger for a settlement. Even as the legal action continued in the background, negotiations also were under way to determine what stake in the new licence Horizon would be granted by the minister. 73 This was a false narrative. The chronology, in particular, was false. 74 First, Horizon and Mr Duma were not involved in litigation "by November" of 2010. Horizon did not institute legal proceedings until December and Mr Duma was one of a number of respondents. Horizon was threatening legal proceedings when it wrote to Mr Duma. The comment that it was "open to any suggestion", which was made in its letter of 24 November 2010, was being made in order to avoid legal proceedings. 75 Second, far from being "the trigger for a settlement", Horizon's letter fell on deaf ears. In his reply, Mr Duma respected Horizon's right "as an aggrieved licensee" to seek judicial review of his decision. He reminded Horizon that any application for injunctive relief had to be supported by an undertaking as to damages. He encouraged Horizon to tender for the blocks in PRL 5. He noted the detailed reasons he had provided for refusing to extend the licence and the role of the PAB. And he requested that Horizon inform him in advance if and when it was proposing to commence legal proceedings so that "steps to protect the interests of the State" could be taken. 76 Both the print and the website versions of the article incorporated attention-grabbing graphics. Indeed, the central features of p 36 of the print version were the graphics. The second graphic was anodyne. It merely depicted a map of PNG showing the location of Horizon's oil and gas assets. The first is the most eye-catching and the greater in size. It occupied half the page. It appeared under the heading "Cash for gas". It provided an abbreviated chronology of "the deal", encased in a pipeline, linked to "THE PLAYERS", the first of whom is said to be Mr Duma under the heading "THE MINISTER". Particularly significant was the description of Mr Duma's involvement in a "2017 corruption case involving landlocked naval base" and the reference to Mr Ketan as "THE MIDDLEMAN". From now on I shall refer to this graphic as "the pipeline graphic". 77 The narrative continued by referring to Mr Duma having "signed off on issuing the licence" and asserted that Mr Emmett and other Horizon representatives met with Mr Duma on multiple occasions "to discuss the matter", the matter being Horizon's stake in the new licence which the Minister "would" grant. This part of the article appeared directly under the graphic in the website version of the article. Shortly after this passage the narrative turned to an email from Tim Glenn, a lawyer at BDW. Mr Glenn was said to have noted "the likely dilution of Horizon's stake" and to have "urged the company to push back against the minister", citing the headline quote "[t]he bad guys want 30%!!!". By March 2011, the article reported, "the parties had settled their legal case and Horizon's stake had indeed been reduced [the print version reads "cut"] to 70 per cent in the new licence, PRL 21". 78 The article pointed out that Dabajodi (now Kina Petroleum) received 20% and Elevala, described as "a hastily restructured shell company", the remaining 10%. It then referred to comments by a spokesperson for Ashurst that searches the firm had conducted of Dabajodi and Elevala "[a]s part of the settlement process" had revealed "nothing corrupt, illegal or anything in breach of bribery laws". 79 The article proceeded to undermine those comments. It pointed to Mr Ketan becoming sole director and shareholder of Elevala "just four days before the licence was granted". It stated that "[l]awyers on the deal, fearing Mr Ketan had 'close connections' with government officials flagged a link with Mr Duma". It reported that "[g]overnment sources in Port Moresby" described the pair as "associates" and another unnamed source said that they "knew each other well" and were seen having coffee together in the capital in early February. It noted that Mr Duma confirmed he knew Mr Ketan and said that they worked in the same law firm 15 years ago. 80 The article quoted Mr Duma's remarks to the AFR that "Port Moresby is, compared to Sydney, a very small place with a small legal profession and lawyers would invariably know each other" and that he "did not understand the basis for the assertion that [he and Mr Ketan] are close and that [they] are politically connected". The article then referred to Mr Ketan's comments to the newspaper including his statement that he did not recall being aware that anyone was concerned about the transaction. 81 At this point the article emphasised that Elevala is a shell company with no apparent ability to raise the millions of dollars required to fund a major oil and gas development and no record of "ever housing an operating business, providing grants, dispersing dividends or employing staff". 82 The article reported Horizon's announcement to the ASX on 31 March 2011 but stated that the company was "vague about its stake being reduced to 70 per cent" and did not mention its new partner, Elevala, or its sole director and shareholder, Mr Ketan. It is not clear what was meant by the statement that the company was "vague about its stake being reduced to 70%" as Horizon's stake in PRL 5 was less than 50%. 83 The article went on to say that "the plan was for Talisman's deep pockets to help fund further exploration and development", adding: But with an enterprise value above $US10 billion came additional compliance as the company had operations in the US, where the Securities and Exchange Commission (SEC) and Department of Justice (DOJ) had a long record of aggressively pursuing foreign bribery. So when Talisman's lawyers learned that Elevala wanted to sell its 10 per cent stake in the gas field just 10 weeks after the licence had been granted, they began asking questions. 84 The article reported that Mr Emmett had couched the Elevala deal to the board as "a move to 'pre-empt' other offers and put the figure of $US10 million on the table". It also reported that Mr Emmett had recommended it to the board "as a good opportunity". It asserted that there was "no indication any other parties had made an offer for the Elevala stake". It claimed that Mr Emmett was pressuring Talisman to move more quickly. It noted that Talisman had signed a draft deed to participate in the buy-out but had had second thoughts and "set about unwinding its commitment". It mentioned one Talisman lawyer, Amelia Jallah, who is said to have noted that Mr Ketan had been charged with perjury nearly 20 years earlier but mentions that the charges had been "dropped". It also mentioned that Ms Jallah had "flagged a news clipping indicating a link between Mr Ketan and Mr Duma amid allegations of tribal landholders being defrauded of government compensation". It noted that she questioned whether that was sufficient for the purposes of the Foreign Corrupt Practices Act for Talisman not to go ahead with acquiring an interest from Elevala in PRL 21. 85 The article then referred to Mr Duma's statement (made in an email to the AFR) that he and Mr Ketan were never involved in an alleged scam to defraud landowners and his contention that such a suggestion was "absolutely false and defamatory". At this point the AFR reported that "other records show Mr Ketan and Mr Duma were both from the Western Highlands Province and grew up in nearby villages", at the same time acknowledging Mr Duma's statement that they did not speak the same language. 86 The article went on to refer to the contents of emails from "Talisman's senior legal counsel", Patrick Colwell. In particular, it reported that Mr Colwell "noted there were a series of 'red flags' around the transaction". One of the "red flags" was said to be Mr Ketan being a lawyer with "[apparently] close connections to government officials". Another was said to be that "a 'quick flip … for $US10 million' would not appear to meet the [M]inister's desire for local companies to be involved in the sector". Then came the assertion that Mr Colwell had said "it could be assumed 'there was some corrupt behaviour on the part of Elevala in the acquisition of their interest in PRL 21'" and this made the transaction "fruit of the poison tree", flagging "the possibility" of payments by Elevala to some government officials from the sale price to be paid by Talisman and Horizon. As will be seen, this was a misrepresentation of Mr Colwell's advice. 87 The article noted that Mr Colwell had sought further advice from a Washington lawyer Douglas Greenburg, and provided a summary of the advice. It reported that Mr Greenburg had raised further questions about the acquisition, had concluded that "the legitimate role of Elevala is not clear", and had said that, "if Talisman wished to proceed with the acquisition, it must have a 'good faith belief, after reasonable diligence, that Elevala had not paid, and will not pay bribes'". It also reported him saying: "The question will be, can Talisman get comfortable that this is legitimate?" In the website version, a large subheading - "Talisman pulls out" - appeared and both articles recorded that, although the documents (presumably in the cache given to the AFR) did not answer the question, Talisman did not proceed with the acquisition. It followed up that observation with Mr Duma's comment that "[i]t seems to me that Talisman's in-house lawyer formed his views based not upon facts, but assumptions, more likely out of personal animosity towards me and with malice". 88 The article reported that Talisman's withdrawal left Horizon to buy Elevala's entire 10 per cent stake for $10.3 million, although Mr Greenburg's "concerns around corruption" had been forwarded to Mr Emmett, and that Horizon had not disclosed to the ASX how much it paid for Elevala's interest. It noted Mr Greenburg's advice that an investigation was likely "if the DOJ or SEC get wind of an allegation from any source that Elevala was a vehicle for bribes or paid bribes" and that "[i]f Elevala turns out to be a problem and Horizon buys out their interest there can be questions about what Talisman knew about that". In the middle of these remarks in the website version of the article was a link which read: RELATED PNG gets serious about corruption 89 The article noted that Mr Ketan had resigned as a director of Elevala in August and the company had since changed its name. It concluded with the following observations: Mr Duma has been a key player in PNG politics over the years, despite regular brushes with controversy. In 2017 he was suspended from cabinet over his role in a corruption scandal and efforts to move a PNG naval base 10 kilometres inland. 90 Mr Duma pleaded that the first and second matters complained of conveyed the following defamatory imputations: (a) Mr Duma as the Minister for Petroleum in PNG acted corruptly by granting a 10% interest in a lucrative petroleum licence to Elevala, a company owned and controlled by his close associate, Mr Simon Ketan. (b) Mr Duma as the Minister for Petroleum in PNG accepted a bribe from Horizon. (c) Mr Duma conspired with Mr Ketan to use a shell company known as Elevala as a vehicle for the payment of bribes to Mr Duma. (d) Mr Duma conspired with Mr Ketan to defraud tribal landowners of compensation. (e) Mr Duma as the Minister for Petroleum in PNG acted corruptly in 2017 in relation to his efforts to move a naval base 10 kilometres inland. 91 The respondents submitted that none of these imputations were conveyed. They contended that the only person who would read the articles in this way is a person who is avid for scandal, who leaps to conclusions based on their own prejudices, or who looks for hidden meanings. They pointed to the references in the article to "concerns" raised by the cache of documents obtained by the AFR, "concerns" about political corruption in PNG, and the prospect that the leaked documents will force Horizon to conduct an internal investigation about the payment of the $10.3 million. They placed great store in the reference in [21]-[23] to Mr Duma's denials of wrongdoing. They submitted that this reference was not "ungracious" or "offhand". They claimed that the reader would understand that the rest of the article was devoted to a chronological summary of the way in which "the transaction" occurred by reference to the leaked documents. They submitted that ordinary reasonable readers would know that, if the respondents were seeking to convey that Mr Duma was knowingly involved in corrupt conduct of any kind or had received a bribe, they would have said so directly. They also submitted (at [240] of their closing submissions) that if those readers understood that the payment by Horizon to Elevala was a bribe, then they would have understood that the sole beneficiary of the bribe was Mr Ketan, not Mr Duma. 92 I cannot accept these submissions. Moreover, I have no doubt that the first two imputations were conveyed. 93 Ordinary reasonable readers draw implications from text much more readily than lawyers, especially when they are derogatory: Lewis at 277 (Lord Devlin). 94 Further, as the High Court said in Favell at [12], after referring to Lord Devlin's remarks in Lewis: A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt. If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, and that points towards a likelihood of guilt, then the position may be otherwise. There is an overlap between providing information and entertainment, and the publishing of information coupled with a derogatory implication may fall into both categories. It may be that a bare, factual, report that a house has burned down is less entertaining than a report spiced with an account of a suspicious circumstance. (Original emphasis.) 95 Favell was concerned with a newspaper report of a fire which burned down a multi-million dollar home subject to "a controversial development application" to build a block of units on the land. The report noted that police investigations were continuing and quoted a police source as saying that "[a]ll fires are treated as suspicious until otherwise disproved". The High Court unanimously held that the article was capable of conveying the imputation that the appellant had in fact committed the crime of arson. Gleeson CJ, McHugh, Gummow and Heydon JJ explained at [14]: [A]n article which is capable of conveying the meaning that there are reasonable grounds for suspicion of arson, and which also states and elaborates those grounds, taking as the introduction to an account of the fire the existence of the controversial development proposal, and developing the story by giving the neighbours' point of view, could reasonably be found by a jury to convey that the suspicion is well-founded and that the suspects are guilty. An article which gives otherwise irrelevant prominence to the existence of smoke may be found to suggest the existence of fire. 96 Here, the AFR did not present a bare, factual report about the purchase by one company of another company's interest in their joint venture. It was a report spiced with an account of suspicious circumstances. 97 Similarly, while it has often been said that the mere report of the making of an arrest and the laying of a charge does not convey an imputation of guilt because the ordinary reasonable reader is alive to the presumption of innocence (see, for example, Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 at 300 per Mason J), that principle has a limited operation. As McColl JA opined in John Fairfax Publications Pty Limited v Obeid [2005] NSWCA 60 at [70] (Sheller JA agreeing at [1] and McClellan AJ at [130]) "it is … 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". 98 It is true, as the respondents submitted, that nowhere in the article was it asserted that Mr Duma actually received a bribe or acted corruptly in the transaction. But the absence of such an assertion is scarcely decisive. Indeed, it is of no moment. After all, "[t]he ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning": Jones v Skelton [1963] 1 WLR 1362 at 1370; SR (NSW) 644 at 650 (PC) (Lord Morris of Borth-y-Gest). Consequently, as his Lordship pointed out, the ordinary and natural meaning may include "any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words". The ordinary reasonable reader is prone to loose thinking and reads between the lines. And that is precisely what the respondents encouraged them to do. This article was awash with innuendo. 99 The timeline in the pipeline graphic drew a link between the supposed revocation of PRL 5; the commencement of litigation, the overture to Mr Duma by Horizon that it was "open to any suggestion" as to how the "current situation might be defused"; Mr Ketan becoming the sole director and shareholder of Elevala; Horizon apparently concealing Elevala's interest from the ASX, the "red flags" around corruption raised by lawyers; the reference to the possibility of the Elevala stake being "fruit of the poison tree"; and the sale of Elevala's interest to Horizon. The graphic also invited the reader to conclude that Mr Duma was the recipient of the $US10.3 million payment. 100 As Mr Duma submitted, the matters the respondents chose to emphasise at the beginning of the article set the tone for what followed and would shape the way in which the ordinary reasonable reader would interpret the article. Those matters were the revelation of corruption, pay-offs, handouts, illicit payments, and bribes. The reader was informed that such matters were not only endemic to PNG but were manifested in the "exclusive story" related by the article. The headline used in the website article is emphatic. There could only be "a bribery scandal" if bribery occurred. The reader was led to believe that Mr Duma was the person who was bribed and, what is more, the architect of the whole corrupt transaction. 101 As Mr Duma put it, a "pay-off" or a "bribe" is something paid to a person in a position of power or influence such as a government minister, not to an "unknown shell company". The sole person of power or influence who was mentioned by the AFR in this context is Mr Duma. He was the only person to whom the ordinary reasonable reader would understand these references applied. The insinuation was that he was one of the "bad guys", as Ms Whyte conceded in cross-examination. It is ludicrous to suggest that the ordinary reasonable reader would not understand that the proceeds of the sale were paid through Mr Ketan and/or his company to Mr Duma. It is as plain as the proverbial pikestaff that this was the meaning conveyed by the articles. 102 Mr Ketan was not said to have received any money from the transaction. He was depicted both in words and images as "the middleman" between Mr Duma and "the oil men" from Horizon. Since it was Horizon who paid the money, the only person who the ordinary reasonable reader would understand to have received it is Mr Duma. The proposition advanced by the respondents at [256] of their closing submissions, to which I referred at [89] above (that, if ordinary reasonable readers understood that the payment by Horizon to Elevala was a bribe, then they would have understood that the sole beneficiary of the bribe was Mr Ketan, not Mr Duma) is absurd. And it was disavowed by the respondents themselves at [419] of the very same submissions. There, they asserted that the description of Mr Ketan as "the middleman" was "equally accurate" and went on to say that "plainly, Mr Ketan … was not the ultimate beneficiary of the deal". While they do not say so in so many words, the articles unquestionably insinuated that Mr Duma was the recipient of the money. The words used in, and the tone of, the articles, together with the way in which the report was presented invited the ordinary reasonable reader to conclude that the money was paid as a bribe. No other conclusion is reasonably open. 103 I also accept Mr Duma's submission that the articles insinuated that Mr Duma came up with specious reasons to "cancel" the licence, in order to apply pressure to Horizon with a view to extracting a bribe. That was the clear implication of the remark that "someone is setting the scene for a handout for a problem that doesn't exist". That implication was reinforced by the reference to the letter from Horizon (erroneously said to have been made during "an acrimonious court battle") that the company was "open to any suggestion" as to how "the current tension might be defused." 104 The first meaning of "bribe" in the Macquarie Dictionary (8th ed, Macquarie Dictionary Publishers, 2020) is "anything of value, as money or preferential treatment, privilege, etc., given or promised for corrupt behaviour in the performance of official or public duty". One of the meanings of "corrupt" is "dishonest; without integrity; guilty of dishonesty, especially involving bribery". That is the first meaning given in the Macquarie Dictionary. In Drummoyne Municipal Council at 138, Gleeson CJ observed that "the word 'corrupt' can have significantly different shades of meaning" and that, depending on the context, it can mean that a person takes bribes, abuses his power or improperly obtains private benefits from a public position. Thus, in the present context, the imputation that the applicant has accepted a bribe is also an imputation that he acted corruptly. The obverse is also true. 105 The ordinary reasonable reader would infer from the articles that Mr Duma, the only public official mentioned in them, was the person who had already set the scene for a handout and that in its letter Horizon was making it clear to Mr Duma that it was "open to any suggestion", including the payment of money, to regain the licence. The reader was told that numerous meetings with Mr Duma took place after Horizon made its overture and that within weeks after the licence was granted Horizon made the payment to Elevala and that Elevala was a shell company. The reader was also told that the director and shareholder of this shell company was a "close associate" of Mr Duma and was seen associating with him (having coffee) the month before the licence was granted. The ordinary reasonable reader would recall the statements made in the articles that "PNG has been consistently ranked 'highly corrupt" by Transparency International" and that Mr Duma has been involved in other "corruption scandal[s]", including one with which Mr Ketan was also associated. In other words, the innuendo was that he has "form". As Mr Duma put it in submissions, the ordinary reasonable reader was invited to put two and two together and would inevitably do so. 106 Thus, although they do not say so directly, the articles implied that Mr Duma acted corruptly by granting a 10% interest in PRL 21 to Elevala and that he accepted a bribe from Horizon. These were meanings the ordinary reasonable reader would draw from the articles. 107 The references to Mr Duma's denials of wrongdoing do not assist the respondents. The mere presence of a denial does not make the publication as a whole incapable of conveying the defamatory imputation. The references in the articles to Mr Duma's denials must be read in the context of the publication as a whole. As I have already observed, the ordinary reasonable reader need not give equal weight to every part of the publication. Readers legitimately take into account the emphasis that the publisher supplies by the use of such things as "conspicuous headlines, headings and captions". See, Rivkin at [26] per McHugh J, for example, and the cases referred to there. 108 Moreover, in these articles Mr Duma's denials were undercut by the respondents. 109 In the print version, immediately after the denials were reported the narrative was interrupted by the pull quote attributed to Mr Emmett, which invited the reader to treat the denials with a grain of salt. For good measure, no doubt to ensure that the reader understood the subtext, this comment appeared in boldface type and a font size several points greater than the font size used for the text of the article. Having regard to the context in which the phrase appeared, the hypothetical reasonable reader would infer that the "someone looking for a handout", to whom Mr Emmett was referring in the pull quote, was Mr Duma. 110 Further, immediately after the appearance of the pull quote in the print version and immediately after the report of Mr Duma's denials in the website version, the reader was informed that "[i]n Australia, bribing a foreign official carries a maximum jail term of 10 years for individuals and fines of up to $18 million for a company" but that the offence is "notoriously difficult to prosecute". To illustrate this point, the reader was told that the Australian Federal Police (AFP) has spent the last two years investigating a "payment made by mining giant Rio Tinto to a middleman in Guinea, after damaging emails about the deal leaked online". The suggestion here was that this was not the first case in which a mining company had paid money through a "middleman". 111 I am also persuaded that the third imputation (that Mr Duma conspired with Mr Ketan to use a shell company known as Elevala as a vehicle for the payment of bribes) was conveyed. The graphic is the key to understanding how it is made out. Mr Ketan was depicted as the middleman between Horizon, "who brokered" the purchase of Elevala's stake with him "after meetings with Mr Duma", and Mr Duma, who was said to have been "named in 2017 corruption case". The implication was that Mr Ketan worked closely with Horizon and Mr Duma. He was described as the sole director and shareholder of Elevala and the person who negotiated the payment of the $US10.3 million to Horizon. As I have already observed, the clear implication was that the ultimate beneficiary of the payment was Mr Duma. 112 In the print version, immediately to the left of the description of Mr Duma in the graphic was the pull-out quote from Mr Emmett about "someone setting the scene for a handout" and the reference to the penalties for bribing a foreign official. The inference was that Mr Duma had arranged with Mr Ketan, with whom he was said to be closely associated, including in more than one "corruption case", that the Horizon payment be made through Elevala in order to disguise the true beneficiary. 113 Immediately following the graphic in the website version, reference was made to Mr Duma meeting with Horizon on multiple occasions, implying that Mr Duma was working on a solution with Horizon in circumstances where Horizon had said it was "open to any suggestions" to "defuse" "the current tension" (at [33] and [36]). Later, at [51] and following, the article reported that Ashurst, the lawyers for Horizon, found nothing in their settlement searches but only worked on the legal settlement of the licence, not the buyout of Elevala's 10% holding, implying that the searches did not cover Elevala or Mr Ketan. The reader was also told that Horizon did not mention Elevala in the ASX announcement, implying it was a secret component of the deal (at [65]). 114 The supposedly close relationship between Mr Ketan and Mr Duma was also emphasised in the website version. 115 In all these circumstances, I am satisfied that the ordinary reasonable reader would have understood both the first and the second matters to be insinuating that Mr Duma and Mr Ketan conspired to use Elevala as a vehicle for the payment of bribes or, at least, a bribe. 116 As for the fourth imputation (that Mr Duma conspired with Mr Ketan to defraud tribal landowners of compensation), however, the reader was only told that a lawyer acting for Talisman had "flagged news clippings" indicating a "link" between Mr Duma and Mr Ketan "amid allegations of tribal landowners being defrauded of government compensation" and that Talisman's lawyers had concerns about the "close connections" between the two men. These matters are likely to arouse the suspicions of the ordinary reasonable reader but, without more, and notwithstanding the other material in the articles, I am not persuaded that the ordinary reasonable reader would take these remarks to mean that the two men were engaged in a conspiracy to defraud tribal landowners. 117 I am also satisfied that the first and second matters complained of conveyed the fifth imputation, namely, that Mr Duma acted corruptly in 2017 in relation to a landlocked naval base, not merely because he was said to have been "[n]amed in a 2017 corruption case involving landlocked naval base" but also because he was said to have been suspended from cabinet "over his role in a corruption scandal and efforts to move a naval base 10 kilometres inland". Neither version of the article said that he had been suspended pending an inquiry or investigation. Rather, it inferred that he had been suspended because he had acted corruptly. That is how the ordinary reasonable reader would interpret the statement. As Mason P observed in Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 at [20]-[22] (Wood CJ at CL agreeing at [31]): The pleaded imputation is itself a statement extrapolating something from the matter complained of. The statement will seldom be found in the very words used (sometimes the matter complained of is only a picture). The imputation will often be implicit in the text (see generally Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 195-196). … Words, a fortiori words not found in the text, are necessarily to be read in context … Context may clarify or intensify the sting of a facially benign (pleaded) imputation. 118 What is more, I accept Mr Duma's submission that, having regard to the random placement of his denials of wrongdoing, the ordinary reasonable reader would not have understood those denials to have any relationship to his "role" in the "corruption scandal" involving the "landlocked" naval base. 119 I consider, too, that, read with the reference to PNG's "consistent" ranking as "corrupt", which appears early in the two articles, more likely than not the references to Mr Duma's "role in [the 2017] corruption scandal" would have encouraged the ordinary reasonable reader to believe that Mr Duma had acted corruptly in connection with the grant to Elevala of a 10% interest in PRL 21.

The third and fourth matters complained of 120 The third matter complained of is an article published in the print edition of the AFR on 11 February 2020 beginning on the front page and continuing on p 2. The headline is: AFP probes Horizon graft claims 121 Mr Duma pleaded that this matter conveyed the same defamatory imputations as the first matter complained of, namely that: (a) as the Minister for Petroleum in PNG he acted corruptly by granting a 10% interest in a petroleum licence to Elevala, a company owned and controlled by his associate, Simon Ketan; (b) as the Minister for Petroleum in PNG he accepted a bribe from Horizon; (c) he conspired with Mr Ketan to use a shell company known as Elevala as a vehicle for the payment of a bribe to himself; and (d) he conspired with Mr Ketan to defraud tribal landowners of compensation. 122 The fourth matter complained of is an article published on the AFR website at 12.01 am the same day. It was entitled: Federal police examine Horizon Oil corruption allegations 123 Mr Duma pleaded that this matter conveyed the same defamatory imputations as the print version and, in addition, the imputation that: (e) as Minister for Petroleum in PNG he acted corruptly in 2017 in relation to a landlocked naval base. 124 Despite the different headings, the articles are substantially identical save for the republication in the website version of the pipeline graphic that appeared in the first and second matters complained of. Both articles are shorter than those published the previous day and, although the story in the print version starts on the front page of the paper, it is not in a prominent position. 125 The articles reported that the AFP was examining the cache of documents obtained by the AFR "in which lawyers repeatedly raised corruption concerns" over Horizon's $US10.3 million payment "to an unknown shell company in Papua New Guinea". The documents (Horizon documents) were reportedly sent "anonymously" to the AFP's Canberra headquarters and the Australian Securities and Investments Commission after the AFR began investigating "the PNG gas deal". They noted that Horizon's share price had fallen dramatically since "the revelations" the previous day and reported that the company had announced that it would conduct an independent investigation into the matter due to the seriousness of the allegations in the articles. They reminded readers that these events followed the AFR's report "on how lawyers working on the 2011 deal flagged links to [Mr] Duma". They also reminded readers that "the lawyers had warned about 'illicit payments'" and the likelihood of an investigation by the US Department of Justice or Securities Exchange Commission if the transaction came to the attention of the regulators. 126 The articles reported a statement by the AFP that "the information [in the Horizon documents] is being assessed"; it takes seriously all allegations of foreign bribery offences by Australian entities and citizens; and it was "committed to combatting this insidious crime type". The reporters argued that any investigation would need to examine how Horizon's management "failed to see the same 'red flags' as the lawyers for its joint venture partner …Talisman". They went on to say: Two in-house lawyers at Talisman and an external adviser warned against buying out the shell company, Elevala Energy, raising issues around "corruption", and likened the potential transaction to "fruit of the poison tree". "The legitimate role of Elevala is not clear," said outside counsel Douglas N. Greenburg, a partner with Latham & Watkins in Washington. 127 The articles noted Talisman's concerns about Elevala's sole director and shareholder, Mr Ketan, as "a lawyer with what appears to be close connections to government officials" and the reference by Talisman's lawyers to Mr Ketan and Mr Duma having been "named together amid allegations of tribal landholders being defrauded of government compensation". 128 The articles drew attention to "different conclusion[s]" allegedly reached by Horizon's lawyers, Ashurst, who advised that their searches on Elevala had "revealed nothing corrupt, illegal or anything in breach of bribery laws". 129 The website version included a link which reads: RELATED Horizon falls 32pc after bribery scandal report 130 The articles again reported Mr Duma's denial of wrongdoing, quoting his comment that any suggestion that he acted improperly "amounts to political witch-hunting with malicious intent to make [him] look bad". 131 They also noted that Talisman did not go ahead with the transaction, leaving Horizon to purchase Elevala's entire 10% stake in PRL 21 for $US10.3 million. 132 The articles then stated: This followed Horizon having its licence over the same gas field in the PNG highlands revoked by Mr Duma, during his tenure as Petroleum Minister. After an aborted legal battle Horizon, concerned it would lose an asset valued at more than $100 million at the time, wrote to Mr Duma saying it was "open to any suggestion" on how the "current tension might be defused". That was the trigger for a settlement and resulted in Elevala being issued 10 per cent of the licence. Horizon purchased Elevala's stake just 10 weeks after it was issued the licence. Talisman's lawyers noted that a "quick flip ... for $US10 million" would not appear to meet the minister's desire for local companies to be involved in the sector. 133 Each of the versions was accompanied by the dinkus "PNG pay-off". 134 The respondents submitted that "the clear message of the third and fourth matters complained of is that the leaked documents were credible enough that the AFP was going to … assess 'claims' that Horizon's had engaged in foreign bribery" [sic] and that "Horizon itself considered that the leaked documents warranted an independent investigation". They argued that the focus of the articles was on Horizon's conduct and that the message the ordinary reasonable reader would take from them is that there were grounds to investigate whether Mr Duma received a bribe from Horizon. At worst, they said, "a reasonable reader may suspect or believe, perhaps strongly" that Mr Duma acted corruptly or received a bribe from Horizon, but not that the AFR was implying that he was corrupt or the recipient of a bribe. They submitted that the statement in the description underneath Mr Duma's photograph in the pipeline graphic (that he was "named" in a 2017 corruption case) would not convey "to that discriminating reader" that he had in fact acted corruptly. 135 Taken out of context, a statement that the police are investigating corruption allegations or concerns over a multi-million dollar payment by an oil company to an unknown shelf company would not be enough. But statements to that effect in these articles cannot be taken out of context. The articles must be read as a whole. In these articles, such statements were "accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, [which] points towards a likelihood of guilt" (Favell at [12]). The pointers, in no particular order, are the references to "PNG Payoff" which top and tail the website version and the prominent "PNG Payoff" dinkus in the print version; the observation in the opening paragraph about lawyers "repeatedly" raising corruption concerns about the payment; the reference in the second paragraph to "the revelations"; the reproduction of the pipeline graphic in the website version, which suggested that Mr Duma received a bribe from Horizon through "the middleman", Mr Ketan; the reference in the ninth paragraph which recorded the lawyers warning about "illicit payments"; the reference to the Talisman lawyers warning against Horizon's purchase of Elevala as "fruit of the poison tree"; the contrast drawn between the conclusions of Horizon's lawyers on the one hand and Talisman's lawyers on the other, which insinuated that the searches conducted by Talisman's lawyers revealed evidence of corruption, illegality and/or breach of bribery laws; the reference to Mr Ketan, Elevala's sole director and shareholder, apparently having "close connections to government officials" and shortly thereafter to Mr Ketan and Mr Duma being "named together amid allegations of tribal landholders being defrauded of government compensation"; the reference to Horizon's statement in its letter to Mr Duma that it was "open to any suggestion" on how the "current tension might be defused'"; the assertions that this statement was "the trigger" for both the settlement of the court case and the grant of a 10% interest in the licence to Elevala; that Horizon purchased Elevala's stake "just 10 weeks" after the licence was issued; and the reference to the observations made by the Talisman lawyers about this, which plainly reflected on Mr Duma's integrity. 136 The reader was not being invited to suspend judgment while authorities undertook their investigations. Rather, the reader was invited to form his or her own conclusions. Compare Schiff v Nine Network Australia Pty Ltd [2022] FCA 1120 at [49] (Jagot J). 137 For these reasons I am satisfied that the ordinary reasonable reader would understand that these articles conveyed the first two pleaded imputations, namely, in summary, that Mr Duma acted corruptly by granting Elevala a 10% interest in PRL 21 and that he had accepted a bribe from Horizon. 138 I am not persuaded, however, that the third imputation - that Mr Duma conspired with Mr Ketan to use Elevala as a payment of a bribe to himself - was conveyed by the third matter complained of (the print version). These two articles were not as detailed as the earlier ones and their focus was on the AFP investigation. The pipeline graphic was not featured in the print version and that contains the only reference to meetings with Mr Duma and Horizon and the description of "the oil men". 139 On the other hand, I am satisfied that the third imputation was conveyed in the fourth matter complained of (the website version), which included the pipeline graphic. As with the first and second matters complained of, the graphic is the key to understanding how it is made out. 140 The article reported that Mr Ketan, Elevala's sole director and shareholder appeared to have close connections to government officials and Mr Duma is the only government official named in the article. The article went on to explain that Mr Duma was working on a solution with Horizon in circumstances where Horizon had sent a letter explaining it was "open to any suggestions" to "defuse" "the current tension" after an "aborted legal battle" [33]. The article reported that this letter was the "trigger for settlement" and resulted in "Elevala being issued 10 per cent of the licence" [34]. The article reported that the lawyers working on the deal flagged links with Mr Duma and warned about illicit payments and reported that the AFP takes all allegations of foreign bribery offences by Australian entities seriously. Later, at [25] and following, the article reported that Ashurst, the lawyers for Horizon, found nothing in their settlement searches but only worked on the legal settlement of the licence, not the buyout of Elevala's 10% holding, implying that the searches did not cover Elevala or Mr Ketan. 141 In these circumstances, I am satisfied that the ordinary reasonable reader would have understood the article to be insinuating that Mr Duma and Mr Ketan conspired to use Elevala as a vehicle for the payment of bribes or, at least, a bribe. 142 The fourth imputation is that Mr Duma conspired with Mr Ketan to defraud tribal landowners of compensation. As in the case of the first and second matters complained of, I am not satisfied that this imputation was conveyed in either the print or the website version of the article. 143 That leaves the imputation that Mr Duma, as Minister for Petroleum, acted corruptly in 2017 in relation to a landlocked naval base, which is raised only with respect to the fourth matter complained of (the website version of the article). This allegation is based only on what appears in the pipeline graphic, namely, the statement that Mr Duma was "named in 2017 corruption case involving landlocked naval base". In contrast to the first two articles (the first and second matters complained of), these two articles (the third and fourth matters complained of) did not say that Mr Duma had "a role in a corruption scandal" or in "efforts to move" the naval base "inland", nor did they report that he was suspended from cabinet over "his role" in the scandal or his "efforts". The context in which he was "named" is not apparent. In the circumstances, I am not satisfied that the fifth imputation was conveyed.

The fifth and sixth matters complained of 144 The fifth matter complained of is an article published on 12 February 2020 on pp 1 and 3 of the print edition of the AFR under the heading: Horizon execs evaded queries on shell firm 145 Mr Duma pleaded that this matter conveyed the same defamatory imputations as the third and fourth matters complained of (see above at [(5)]). Imputations (a) and (b) are identical. Imputation (c) is the same in substance. It refers to "a bribe" rather than "bribes". 146 The sixth matter complained of is an article published on the same day on the AFR's website under the heading: Horizon dodged queries on shell company, then paid it $15.4m 147 Mr Duma pleaded that the print version conveyed the following defamatory imputations: (a) as the Minister for Petroleum in PNG he acted corruptly by granting a 10% interest in a petroleum licence to Elevala, a company owned and controlled by his associate, Simon Ketan; (b) as the Minister for Petroleum in PNG he accepted a bribe from Horizon; and (c) he conspired with Mr Ketan to use a shell company known as Elevala as a vehicle for the payment of a bribe to himself. 148 He pleaded that the website version conveyed these imputations and, in addition, the imputation that: (d) as the Minister for Petroleum in PNG he acted corruptly in 2017 in relation to his efforts to move a naval base 10 kilometres inland. 149 In these articles readers were told that a review by the AFR of emails disclosed that Horizon "evaded queries" (the print version) or "avoided questions" (the website version) about Elevala raised by its joint venture partner, Talisman. In particular, they were told that the emails revealed that Horizon could not tell its joint venture partners who was behind Elevala or explain why it was awarded 10% of "a lucrative development licence". The articles also reported that the current PNG Minister for Petroleum and Energy, Kerenga Kua, asked his department to investigate "the corruption allegations" and that he did so because "[i]t is a serious matter". They referred again to the AFP investigation and to a further fall in Horizon's shares after the AFP investigation was announced. They reported that Horizon had initiated an independent investigation into the matter. Page 3 of the print version carried the "PNG pay-off" dinkus. The website version reproduced the pipeline graphic. 150 The articles asserted that "confusion about Elevala was sparked by PNG lawyer Simon Ketan becoming a director only four days before it was issued [with] a 10 per cent interest in the petroleum licence PRL21". At this point Mr Duma's name was mentioned for the first time and again in the following three paragraphs. In those paragraphs the journalists wrote: Elevala was granted its stake as part of a legal settlement between the then petroleum minister William Duma and Horizon, after the same licence was cancelled by the minister. Horizon bought out Elevala's stake for $US10.3 million nine weeks after it was granted in mid-2011. Lawyers working for Talisman raised concerns about Mr Ketan's "political connections" and apparent links to Mr Duma. It has since emerged that Mr Duma and Mr Ketan came from the same province, attended law school together, worked together and were part of the same "wantok network" (a social grouping). Mr Duma confirmed he knew Mr Ketan, but denied this was evidence of any wrongdoing. "That I may know Mr Ketan does not necessarily mean that processes set out in the Oil and Gas Act were breached just to grant favours for Mr Ketan," he said via email. 151 They went on to point out that "Mr Ketan failed to declare his relationship with Mr Duma in a questionnaire he signed reluctantly at the insistence of Talisman". They also pointed out that Mr Ketan initially refused to complete the questionnaire, which posed questions (calling for yes or no answers) ranging from criminal convictions to political donations, but said that he relented on condition that he would not be required to sign any more documents. They reported that an advisor to Talisman, Arthur Jones, had said that Mr Ketan had been difficult to pin down, that he had stood him up on two occasions, which was "not really sinister", but that he needed to find him. 152 The respondents submitted that these two articles were directed at "Horizon's conduct in the transaction" and were not "aimed at" Mr Duma. In fact, they were concerned with the behaviour of both Horizon and Mr Duma. The website version carried a large photograph of Mr Duma. Regardless, whether or not the articles were aimed at Mr Duma is beside the point. The question is whether he was defamed in them as alleged. Even if they are properly to be seen to be directed at Horizon's conduct that "does not involve that no reflection upon [Mr Duma] is conveyed" (Jones v Skelton at 651). 153 In my opinion the first two pleaded imputations were again conveyed in both matters complained of. 154 The reader was "invited to adopt a suspicious approach and so to be guided to the real explanation of what had taken place - an explanation which the writer … did not care or did not dare to express in direct terms" (Jones v Skelton at 651). The ordinary reasonable reader, who "can and does read between the lines in the light of his general knowledge and experience of worldly affairs" (Lewis per Lord Reid at 258), would consider that there was substance in the bribery allegations. They would be led to that conclusion by the presence in a prominent position in the print version of the "PNG pay-off" dinkus and the title of the "PNG pay-off" and "corruption" links in the website version, indicating not a mere suspicion but the fact of bribery and corruption. That would be reinforced by the references to the supposed evasive behaviour of two of the parties to the transaction, indicating that they had something to hide. The clear inference was that Mr Ketan had concealed his relationship with Mr Duma. The comments of Mr Jones in the final paragraph suggested that Mr Ketan has gone to ground, notwithstanding his observation that being "stood up" twice on consecutive days is "not really sinister". 155 The ordinary reasonable reader would infer that the recipient of the bribe was Mr Duma. Why else would there be a discussion about the "links" between Mr Duma and Mr Ketan? Mr Duma's denial of wrongdoing was undercut by the concluding comments about Mr Ketan's evasive behaviour. I agree with the submission made on Mr Duma's behalf that the emphasis in the articles on evasiveness and dishonesty would predispose the ordinary reasonable reader to assume that there had been wrongdoing in relation to the transaction. The ordinary reasonable reader would understand that the wrongdoing involved corrupt behaviour on the part of the only political figure mentioned in the article, Mr Duma, and that the pay-off was made to him using the shell company, Elevala, as the vehicle, noting Mr Ketan's links to Mr Duma, which were not just apparent, according to the article, but real and long-standing. 156 These conclusions apply with greater force in relation to the website version of the article because of its inclusion of the pipeline graphic which included the time line and made the point that Mr Ketan was the middle-man between the Horizon oil men and Mr Duma and that Mr Duma was "named" in the 2017 "corruption case involving [a] landlocked naval base". 157 I am not persuaded, however, that the third imputation - that Mr Duma conspired with Mr Ketan to use Elevala as a payment of a bribe to himself - was conveyed by the fifth matter complained of (the print version). Again, the print version did not include the graphic. Horizon's conduct was the focus of the story and the emphasis was on a want of due diligence on its part. While the relationship between Mr Duma and Mr Ketan was discussed, there is no mention of meetings with Horizon or Mr Ketan negotiating the payment. 158 On the other hand, I am satisfied that the third imputation was conveyed in the sixth matter complained of (the website version), which included the pipeline graphic. The website article also featured a large photograph of Mr Duma under which the following statement appears: "PNG Minister William Duma is under investigation by his former department". Under the pipeline graphic, the article explained that Elevala was granted its stake as part of a legal settlement between Mr Duma and Horizon, and mentioned that lawyers for Talisman had raised concerns about Mr Ketan's political connections to Mr Duma. The article provided some detail about the nature of the association between Mr Ketan and Mr Duma. It also emphasised that Mr Ketan failed to declare his relationship with Mr Duma in a questionnaire and had been difficult to pin down. The inference is that Mr Duma had arranged with Mr Ketan, with whom he was said to be closely associated, that the Horizon payment be made through Elevala in order to disguise the true beneficiary. 159 For the reasons given in relation to the fourth matter complained of, I do not consider that the sixth matter complained of conveyed the fourth imputation that Mr Duma acted corruptly in 2017 in relation to the naval base.

The seventh and eighth matters complained of 160 The focus of these matters is clearly on Mr Duma. 161 The seventh matter complained of is an article published in the print edition of the AFR on 13 February 2020 under the heading: PNG minister's link to $US10m Horizon deal 162 The same story was published on the AFR website that day under the heading: New document reveals PNG minister's link to US$10.3m payment 163 This is the eighth matter complained of. 164 Mr Duma pleaded that the print version conveyed the defamatory imputations that: (a) as the Minister for Petroleum in PNG he acted corruptly by granting a 10% interest in a petroleum licence to Elevala, a company owned and controlled by his close associate, Simon Ketan; (b) as the Minister for Petroleum in PNG he accepted a bribe from Horizon; (c) he conspired with Mr Ketan to use a shell company known as Elevala as a vehicle for the payment of a bribe to himself. 165 Mr Duma pleaded that the version on the website conveyed the same defamatory imputations and, in addition, owing to the inclusion in the website version of the pipeline graphic, a fourth defamatory imputation, namely that: (d) as the Minister for Petroleum in PNG he acted corruptly in 2017 in relation to his efforts to move a naval base 10 kilometres inland. 166 Both articles begin by saying that: Horizon Oil paid $US10.3 million ($15.4 million) to a shell company where the sole director and shareholder had close personal and business links to Papua New Guinea's then petroleum minister,William Duma, new documents reveal. The revelations come as Horizon stood down chief executive Michael Sheridan on Wednesday, pending an independent investigation by lawyers at Herbert Smith Freehills and the accounting firm Deloitte. The company, which has seen its stock price fall 35 per cent this week, said a board committee had been established to oversee the process after an investigation by The Australian Financial Review found the company had repeatedly ignored corruption warnings. "Should any investigation into these matters be conducted by the Australian Federal Police, the company intends to co-operate," Horizon said in a statement. At the centre of the emerging scandal is Mr Duma's relationship with PNG lawyer Simon Ketan, who controlled the shell company, Elevala Energy. (Emphasis added.) 167 The articles proceeded to refer to the grant to Elevala of a 10% "stake" in a petroleum development licence "by Mr Duma's department", despite the fact that it had "no experience in the sector or sufficient capital to develop the asset". They noted that Horizon had been granted a 70% "stake" as part of "a sealed legal settlement between Mr Duma and Horizon" (no mention was made of the other parties to the settlement), which, they asserted, followed "a protracted dispute over the [M]inister's decision to retract the previous licence" (emphasis added). It referred again to the purchase by Horizon of Elevala's stake for $US10.3 million, noting that the purchase was made "despite repeated corruption warnings from lawyers working on the deal". (emphasis added) Those warnings were said to be "increasingly pertinent" as new documents show that the relationship between Mr Duma and Mr Ketan was "closer than previously thought". 168 The articles went on to report that Mr Sheridan was suspended on Wednesday (the day before publication) and that he was Chief Financial Officer of Horizon at the time of the payment in 2011 and also company secretary and board member. 169 The new revelation was that Mr Ketan had acted as Mr Duma's personal lawyer during a Supreme Court dispute in 2007. As Mr Duma put it in submissions, "[f]rom this rather unremarkable fact the respondents segue to saying that '[d]espite this documented link …' Ashurst [as Horizon's lawyers] had reached the conclusion (a conclusion which the ordinary reasonable reader is plainly encouraged to treat with incredulity) that there was 'nothing corrupt, illegal or anything in breach of bribery laws'". But the ordinary reasonable reader was invited to conclude from this passage that there was something corrupt, illegal and/or in breach of bribery laws. In the website version, the reader was told that the new "documented link … would typically raise concerns in a country like PNG". The website version also carried the dinkus "PNG pay-off" at the top and included the pipeline graphic. The ordinary reasonable reader would be in no doubt that Mr Duma's "link" to the $10.3 million payment was his connection to Mr Ketan and that Mr Ketan's company, Elevala, was merely a vehicle for the payment of a bribe to Mr Duma. 170 Both articles referred to Mr Duma's earlier denials of impropriety and his statements about his "links" to Mr Ketan but suggested that he was keeping the subject-matter of the new "revelation" quiet in order to deflect suspicion. 171 I am satisfied that the first and second imputations were conveyed in both versions of the article. 172 For the reasons given above in relation to the earlier articles, I am not satisfied that the third imputation was conveyed by the print version but I am satisfied that it was conveyed by the website version, which includes the pipeline graphic. 173 For the reasons given above in relation to the earlier articles, I am not satisfied that the fourth imputation was conveyed by the website version.

The ninth and tenth matters complained of 174 These are the articles published in the weekend edition of the AFR on 15 February 2020. 175 The ninth matter complained of is the article published in the print edition under the headline: The inside story of a gas deal gone bad 176 The subheading is: Scandal [in red] ASX-listed Horizon Oil went from challenging a strongman in PNG to ignoring corruption warnings and making a decision that has come back to bite it badly[.] 177 There was also a red tile or "pointer" on the front page of the newspaper, directing readers to the inside story. The pointer bore the inscription: Over the Horizon: Aussie gas junior's slide into scandal 178 Mr Duma pleaded that these articles conveyed the defamatory imputations that: (a) as the Minister for Petroleum in PNG he acted corruptly by granting a 10% interest in a petroleum licence to Elevala, a company owned and controlled by his close business and personal associate, Simon Ketan; (b) as the Minister for Petroleum in PNG he accepted a bribe from Horizon; and (c) he conspired with Mr Ketan to use a shell company known as Elevala as a vehicle for the payment of a bribe to himself. 179 The tenth matter complained of is the version of the article published on the website. Again the dinkus "PNG pay-off" topped and tailed the article. 180 The heading was identical to the heading in the print edition. On the website it was followed by a subheading in these terms: ASX-listed Horizon Oil went from challenging a strongman in PNG to ignoring corruption warnings and paying a shell company $US10.3 million. 181 Immediately under the subheading was a photograph of Mr Duma, who is obviously the so-called "strongman". Underneath his photograph the following words appeared: "William Duma, who is now PNG's Minister for Commerce and Industry, denies any impropriety". 182 The respondents described the account given in these articles as "a comprehensive, and robust, summary of how the Elevala transaction occurred" and "how Horizon operated in PNG based on the leaked documents". 183 The respondents submitted that these articles were of a different character to the earlier ones. They argued that, because they were published in the AFR Weekend, they present "as more of a relaxed story, as opposed to a true report". 184 I do not understand this point. While the articles are certainly written in a literary style, they are not fiction. The respondents asserted that "the same information" provided in the previous articles is presented here. In fact they provided additional information. 185 The respondents accepted that the articles defame Mr Duma. They say that "[r]easonable readers would certainly understand that Horizon (and certainly Talisman) believed [Mr Duma] engaged in the kind of corrupt conduct he complains of in each of the pleaded imputations". Indeed, they go so far as to concede that "the reasonable reader may strongly suspect - to the level that he or she may believe - that [Mr Duma] acted in a corrupt way". Still, they maintained that the meanings contended by Mr Duma are not conveyed. 186 These articles pulled no punches. 187 The salient features of the story presented by the articles are these. 188 Early in each version the reader was told of Horizon's ambition in PNG "to thread together" a series of development licences to support a new pipeline and liquefied natural gas plant in PNG. In the next paragraph the reader was told that this would involve a "pay-off" running to "at least eight digits". The story of the "pay-off" was then recounted. 189 The articles reported that "the politics of PNG intervened" to impede Horizon's ambitions. They explained: After early attempts to resist "the bad guys", as one of its lawyers put it, Horizon chose to engage with the then minister for petroleum and local powerbroker, William Duma - a decision that has come back to bite it nine years later. 190 As Mr Duma submitted, in this passage he was identified as one of "the bad guys". That is obvious, as Ms Whyte conceded in cross-examination. 191 The articles went on to say that Horizon was "now confronting allegations it repeatedly ignored corruption warnings and paid $US10.3 million ($15.4 million) to a politically exposed shell company". That company was identified in the following paragraph as Elevala whose "sole director and shareholder is Simon Ketan, a man with close personal and business links to Duma". Horizon's modus operandi in PNG is then said to be revealed "in granular detail" in the documents obtained by the AFR and to be the subject of a current AFP investigation. The articles noted that the AFP said it takes "allegations of foreign bribery very seriously". 192 The website version then described "[h]ow the deal happened" by reference to a revised chronology and included a photograph of part of the front page of the print version of the 10 February 2020 article. 193 After referring to Horizon's decision to stand down Mr Sheridan while it conducted an independent investigation, the articles went on to say: It has all the makings of a grubby little scandal. But at the same time, it's hard to see how it could have played out any differently from the moment Horizon wrote to then petroleum minister Duma, in November 2010, saying it was "open to any suggestion" on how the "current tension might be defused". At that point there was no turning back. 194 The articles then took a number of paragraphs to describe Horizon's entry into the PNG market, noting that "[t]he files document in tropical colour the narrow line Horizon was already walking in PNG …". 195 The website version stated in a headline that Horizon was "[v]ulnerable to political pressure". Shortly thereafter, it carried a graphic featuring the so-called "players", this time in a pin-board the like of which one might see on a television police procedural. The same pin-board appeared in the print version, followed by the clip from the first article and the revised chronology, under the heading "Oil slick". It occupied a substantial proportion of the printed article. This is the pin-board: 196 Sir Moi Avei was introduced to the story soon afterwards in the context of describing "how [Mr Duma] operated". As Mr Duma submitted, he was represented as a figure of very dubious ethics. But first the articles indicated how desperate Horizon was to secure a deal: The company's big pay day was contingent on firming up its gas resources to build its own pipeline and LNG-processing plant or tap into one of the existing projects. Even then its resources were on the marginal side, which meant any loss of acreage was potentially fatal for its ambitions. That left it exposed to political pressure and everyone knew it. (Emphasis added.) 197 It is at this point that Sir Moi entered the story: Enter PNG's former petroleum minister and deputy prime minister, Sir Moi Avei, who Horizon hired as an adviser to the board, despite one industry contact warning he may be "implicated in some dubious licence deals etc". Those claims were never tested, but the public record shows just a year earlier, Sir Moi was found guilty on three counts of "misconduct in office". He was fined $1500 and forced out of parliament. 198 The story proceeded as follows in both versions, the only difference is that in the website version it was preceded by the pull-out quote "[y]ou scratch my back …" in an enlarged font size. That was apparently no obstacle for Horizon as Sir Moi set about working the corridors and securing the company's licences. In outlining his role to Emmett and Sheridan, he stressed the importance of face-to-face meetings and not stepping on the "turf' of other fixers, managing relationships within the department and at the village level. And when it came to handling Duma, he was clear how the minister operated. (Emphasis added.) 199 The narrative continued: "I've been helping Minister Duma out for the past 6 weeks because the LNG project is in my backyard. You know how the system works 'you scratch my back and I'll scratch yours'," he wrote. But Sir Moi, who one source described as the epitome of PNG's "big man culture", quickly came to see the political winds shifting against Horizon. "With regards to the minister [Duma] I can sense he is up to something. He did call me two weeks ago but somehow we have yet to meet in person. ''I'm still chasing him," he wrote in November 2009. He was right. Duma was indeed "up to something". (Emphasis added.) 200 The articles proceeded to explain what Mr Duma was "up to". They left little to the imagination. In the words of the journalists: The trigger for the minister to make his play was a move by Horizon's joint venture partner, the South Australian energy giant Santos, to sell out of its interest in one licence. That suddenly became a road-block. Sir Moi characterised these as "basic" issues, that could be untangled once Horizon understood the "process". He warned the company's failure to stay with the "process" would see it become a "political pawn". 201 Shortly afterwards (in the website version only) they reported that the petroleum retention licence held by the joint venture was "in jeopardy" and in all likelihood Mr Duma was up to no good: By July, those fears were out in the open, and rumours were swirling. One engineer warned Duma "has done this before". "[He] rescinded a licence and resold to someone else," the company was warned. "Duma has a buyer." 202 The articles went on to paint a picture of increasing desperation on Horizon's part with the growing "reality of losing a licence worth more than $100 million". They then recounted the background to, and the commencement of, the litigation with the website version punctuating the account with the statement that "Horizon would ignore repeated corruption warnings and buy out Elevala for $10.3 million". The litigation was described as "the unprecedented step of suing the [M]inister, the department and the Petroleum Advisory Board for an unfair loss of licence". The AFR's take on it was that Horizon was "taking on a corrupt and broken system". 203 The articles reported Horizon's lawyers saying the company had strong industry support for its stance but then something happened: Then the company abruptly changed tack with a grovelling letter. "Minister, we very much regret that this issue [the revoked licence] has led to the current situation [the litigation]," Emmett wrote to Duma. "As always, we remain open to any suggestion from you as to how the current tension might be defused." The message got through and by March 2011, a sealed settlement had been negotiated and approved by the court. Horizon would keep 70 per cent of PRL5 (now known as PRL21), and the minister would award the other 30 per cent at his discretion. From the minister's discretion a 10 per cent stake in PRL21 would be given to the shell company Elevala Energy Ltd, a company without the experience or capital to develop such a complex asset and whose sole shareholder, Simon Ketan, had close personal and professional links to the minister. In the weeks following this grant, Horizon would ignore repeated corruption warnings and buy out Elevala for $US10.3 million, a price tag which was revealed on Monday by the Financial Review after remaining secret for nine years. (Emphasis added.) 204 I am satisfied that all three of the pleaded imputations were conveyed by both the ninth and tenth matter complained of. 205 This was not a case, as the respondents would have it, of a mere suspicion of guilt or wrongdoing. It was represented as a corruption scandal. The articles told the reader that Mr Duma was up to no good, more particularly that he was corrupt and successfully orchestrated the payment of a bribe. Moreover, they indicated that there was a trove of documents to prove it. 206 To the ordinary reasonable reader these articles clearly insinuated that the system of granting petroleum retention licences in PNG was corrupt; that corruption and bribery were endemic in the country; that the Minister was after his piece of the pie (his handout) and secured it with the help of his friend and associate, Mr Ketan, by means of the latter's shell company, Elevala, after Horizon could no longer withstand the pressure and capitulated to the "corrupt and broken system".

Conclusions 207 In short, I have come to the following conclusions. 208 The first and second matters complained of conveyed the following imputations: first, that Mr Duma acted corruptly by granting a 10% interest in PRL 21 to Elevala, a company owned and controlled by his close associate, Mr Ketan; second, that Mr Duma accepted a bribe from Horizon; third, that Mr Duma conspired with Mr Ketan to use Elevala as a vehicle for the payment of a bribe to himself; and fourth, that Mr Duma acted corruptly in 2017 in relation to his efforts to move a naval base 10km inland. But I am not satisfied that they conveyed the imputation that Mr Duma conspired with Mr Ketan to defraud tribal landowners of compensation. 209 The third, fourth, fifth, sixth, seventh and eighth matters complained of conveyed the following imputations; first, that Mr Duma acted corruptly by granting a 10% interest in PRL 21 to Elevala, a company owned and controlled by his close associate, Mr Ketan; and second, that Mr Duma accepted a bribe from Horizon. I am also satisfied that the fourth, sixth and eighth matters complained of conveyed the imputation that Mr Duma conspired with Mr Ketan to use Elevala as a vehicle for the payment of bribes to himself. I am not satisfied, however, that the third, fifth and seventh matters complained of conveyed this imputation. Nor am I satisfied that the third or fourth matters complained of conveyed the imputation that Mr Duma conspired with Mr Ketan to defraud tribal landowners of compensation. Nor am I satisfied that the fourth, sixth or eighth matters complained of conveyed the imputation that Mr Duma acted corruptly in 2017 in relation to a landlocked naval base. 210 Finally, I am satisfied that the ninth and 10th matters complained of conveyed all of the following pleaded imputations: namely, first, that Mr Duma acted corruptly by granting a 10% interest in PRL 21 to Elevala, a company owned and controlled by his close associate, Mr Ketan; second, that Mr Duma accepted a bribe from Horizon; and third, that Mr Duma conspired with Mr Ketan to use Elevala as a vehicle for the payment of bribes to himself.

The law 211 The elements of the statutory defence of qualified privilege are contained in s 30(1) of the Defamation Act. At the relevant time s 30(1) provided that: 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. 212 "Matter" is relevantly defined in s 4 to include "an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical". In the context of s 30(1)(c), it means the imputations concerning the plaintiff contained in the relevant communication: see, for example, Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 42C (Hunt J). 213 Section 30(2) provides that, for the purposes of subs (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. 214 There is no dispute in the present case about the first two elements of s 30(1). Mr Duma accepts that the readers of the AFR have an interest or apparent interest in having information on the subject of the articles and that the matters were published in the course of providing that information. The contest concerns the reasonableness of the respondents' conduct in the circumstances. 215 In determining whether a defendant's conduct in publishing a matter is reasonable in the circumstances, s 30(3) provides that a court may take into account the following matters: (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 person's 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. 216 Since the respondents do not plead justification, that is to say that the imputations are substantially true, the imputations, if proved, are presumed to be false. The Privy Council warned in Austin v Mirror Newspapers Ltd [1986] 1 AC 299 at 313E that, in the ordinary course of events, it will not be easy for a newspaper with a wide circulation that publishes defamatory comments on untrue facts to establish that it was reasonable to do so. The "harder hitting" the comments, the greater the care required to establish the truth of the facts on which they are based: Austin at 317G. In Austin at 318D the Privy Council observed: There will of course be cases in which despite all reasonable care the journalist gets the facts wrong, but a member of the public is at least entitled to expect that a journalist will take reasonable care to get his facts right before he launches an attack upon him in a daily newspaper. If on inquiry it is found that the facts are not true and that reasonable care has not been taken to establish them courts should be very slow to hold that the newspaper is protected by statutory qualified privilege. The public deserve to be protected against irresponsible journalism. 217 It is common ground that the matters referred to in s 30(3) are not exhaustive, as s 30(3)(j) makes clear, and that it is not to be treated as a prescriptive checklist. The considerations that bear upon the reasonableness of a publisher's conduct will vary from case to case: Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [30] (Gleeson CJ and Gummow J). 218 A significant additional consideration is the information available to the publisher before publication, including information that may be provided by individuals the subject of the publication: Bailey v WIN Television NSW Pty Ltd (2020) 104 NSWLR 541 at [89] (Simpson AJA, with whom Meagher and White JJA agreed). 219 The defence of statutory qualified privilege under the Uniform Defamation Acts was based on s 22 of the Defamation Act 1974 (NSW) (1974 Act) and is largely in the same terms, with the addition of para (f): see Bailey at [84] (Simpson AJA). 220 In Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 387-8 Hunt AJA, with whom Samuels JA agreed, said of s 22(1)(c) of the 1974 Act that the authorities support the following propositions concerning whether the conduct of a defendant in publishing a matter was reasonable in the circumstances: (1) The conduct must have been reasonable in the circumstances to publish each imputation found to have been in fact conveyed by the matter complained of. The more serious the imputation conveyed, the greater the obligation upon the defendant to ensure that their conduct in relation to it was reasonable. (2) If the defendant intended to convey any imputation in fact conveyed, the defendant must generally have believed in the truth of that imputation. (3) If the defendant did not intend to convey an imputation in fact conveyed, the defendant must establish that they believed in the truth of every imputation they intended to convey and that their conduct was nevertheless reasonable. (4) If it was reasonably foreseeable that the matter complained of might convey the imputation which is found to have been conveyed, it is relevant to consider: (a) whether the defendant gave any consideration to the possibility that the matter complained of would be understood as conveying such an imputation; (b) the defendant's belief in the truth of the particular imputation; and (c) what steps the defendant took to prevent the matter complained of being so understood. (5) The defendant must also establish that: (a) before publishing the matter complained of, they exercised reasonable care to ensure that their conclusions were right, where appropriate by making proper inquiries and checking the accuracy of their sources; (b) the defendant's conclusion (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information they had obtained; (c) the manner and extent of the publication did not exceed what was reasonably required in the circumstances; (d) each imputation intended to be conveyed was relevant to the subject about which the information is given. 221 Those considerations remain relevant to the question of the reasonableness of a publisher's conduct for the purposes of the 2005 Act: Bailey at [127]; Chau v Fairfax Media Publications [2019] FCA 185 at [109]-[114] (Wigney J). 222 While a court may take into account all relevant circumstances and whether a defendant's conduct was reasonable must depend on those circumstances, "it may be that the deficiency in the defendant's conduct in a particular respect was so marked that, viewed with the other circumstances, the deficiency in that respect means that the conduct can not [sic] be found to have been reasonable": Evatt v Nationwide News Pty Ltd [1999] NSWCA 99 at [39] (Giles JA, Sheller and Powell JJA agreeing at [1] and [2] respectively. 223 Similarly, the High Court (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) held in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 574 that: [A]s a general rule, a defendant's conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant's conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond. 224 The defence is defeated if the applicant proves that the publication of the defamatory matter was actuated by malice: s 30(4). "Malice" in this context means an improper motive in making the publication, that is to say, "a motive foreign to the privileged occasion" in the sense that it is inconsistent with the duty or interest that protects the occasion of the publication: Roberts v Bass (2002) 212 CLR 1 at [76], [79] (Gaudron, McHugh and Gummow JJ). Their Honours explained at [76]: Improper motive in making the defamatory publication must not be confused with the defendant's ill-will, knowledge of falsity, recklessness lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication … [E]ven if the defendant believes that the defamatory statement is true, malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion. That is because qualified privilege is, and can only be, destroyed by the existence of an improper motive that actuates the publication. 225 Knowledge of a defendant/respondent that the statement was untrue at the time it was made is "almost invariably conclusive evidence of malice", because a person who knowingly publishes false and defamatory material almost certainly has an improper purpose for doing so even if the plaintiff cannot prove it: Roberts v Bass at [77].

The pleaded case 226 The defence of qualified privilege is pleaded at [25] of the defence. 227 There, the respondents pleaded that, if any of the imputations were found to have been conveyed, each of the matters complained of was published on an occasion of qualified privilege pursuant to s 30 of the Defamation Act and, to the extent necessary, the corresponding provisions of the defamation legislation in each other Australian State and Territory. 228 The particulars first referred (at 25) to the subjects to which the matters complained of were said to relate, namely: (i) Horizon Oil Limited (together with its subsidiaries, Horizon), an Australian company listed on the Australian Stock Exchange (ASX). (ii) Court proceedings involving Horizon in relation to the Papua New Guinea (PNG) government's refusal to renew a Petroleum Retention Licence. (iii) The granting to Horizon of an interest in a new Petroleum Retention Licence in PNG following the resolution of Court proceedings. (iv) [Mr Duma] as a minister of the government of PNG. (v) The exercise by [Mr Duma] of his public functions in granting to Horizon an interest in the new Petroleum Retention Licence. (vi) Subsequent negotiations over the acquisition by Horizon and others of a further 10% stake in the licence from local PNG company, Elevala Energy Limited (Elevala). (vii) Concerns raised by joint venture partners Horizon and Talisman Niugini Pty Ltd (Talisman) about corruption in respect of the granting of interests in the new Petroleum Retention Licence and the sale by Elevala of its stake in the licence; (viii) Allegations of corrupt conduct by [Mr Duma] in relation to the proposed relocation of a PNG naval base (first, second, fourth, sixth and eighth matters complained of). (ix) An investigation by the Australian Federal Police into allegations of corruption in relation to the granting of a Petroleum Retention Licence in PNG to an Australian listed company, Horizon (third to tenth matters complained of). (x) An investigation by the current PNG Minister for Petroleum and Energy, Kerenga Kua, into the circumstances of the purchase of Elevala's stake in the new Petroleum Resource Licence, including who the ultimate beneficiaries of the Elevala were (fifth to eighth matters complained of). (xi) An investigation by Horizon into the circumstances of the granting of the new Petroleum Resource Licence. (xii) The standing down of Michael Sheridan as CEO of Horizon pending the investigation (fourth to tenth matters complained of). (Subjects). 229 At 25 the respondents pleaded that the recipients of the matters complained of had an interest in having information on the subjects because the subjects were matters of proper and legitimate public interest. 230 At 25 they pleaded, in the alternative, that the recipients had an apparent interest in having information on the subjects because at the time of publication the respondents believed both that they had such an interest and that the subjects were "matters of proper and legitimate public interest" to readers. 231 At 25 they pleaded that their conduct was reasonable in the circumstances. 232 At 25 they pleaded that they "believed the matters set out in the matters complained of to be true". 233 The respondents pleaded that their conduct was reasonable in the circumstances for the following reasons: (i) the matters complained of related to the Subjects, which were subjects of proper and legitimate public interest; (ii) the matters complained of related to the performance by [Mr Duma] of his public functions as the Petroleum and Energy Minister of PNG; (iii) the respondents took care to distinguish between allegations, suspicions and proven facts; (iv) it was in the public interest in the circumstances for the matters complained of to be published expeditiously; (v) the respondents are engaged in the business of providing information to the public, and published the matters complained of in the ordinary and legitimate course of that business; (vi) the respondents were reasonably satisfied about the integrity of the sources of the information in the matters complained of and the authenticity and accuracy of the information provided by those sources; (vii) the matters complained of were based primarily on information comprising a cache of emails, letters between personnel of and consultants to joint venture partners, Horizon, Talisman and Santos Niugini Exploration Limited (Santos) and legal and other documents (Source Documents); (viii) prior to the publication of the matters complained of, the respondents took steps to verify the information in the matters complained of, namely: A. the second and third respondents read the Source Documents, and accurately reported the contents of relevant Source Documents; B. the respondents sought comment from [Mr Duma], and fairly and accurately reported [Mr Duma]'s response; C. the respondents sought comment from Simon Ketan, and fairly and accurately reported Mr Ketan's response; D. the respondents sought comment from Horizon, and fairly and accurately reported its response; E. the respondents sought comment from Talisman (now Repsol), and fairly and accurately reported its response; F. the respondents sought comment from the former Chief Executive Officer of Horizon, Brent Emmett, and former chairman of the board of Horizon, Fraser Ainsworth, who did not provide a response; G. the respondents sought comment from the former Chief Financial Officer of Horizon, Michael Sheridan, who did not provide a response; H. the respondents sought comment from the relevant lawyers at Ashurst, PNG, who had acted for Horizon in relation to [Mr Duma]'s refusal to extend a Petroleum Retention Licence (PRL 5) in 2010 and the subsequent litigation, and fairly and accurately reported Ashurst's response; I. the respondents sought comment from the relevant lawyer at US firm, Latham & Watkins, Douglas Greenburg, who acted for Talisman at the relevant time. Mr Greenburg did not provide a response; J. the respondents sought comment from the Australian Federal Police (AFP), and fairly and accurately reported the AFP's response; K. the respondents sought comment from the current PNG Minister for Petroleum and Energy, Kerenga Kua, and fairly and accurately reported his response; (ix) the respondents were reasonably satisfied as to the fairness of the language and the manner in which the matters complained of were composed; (x) the respondents made enquiries with a number of confidential sources and fairly and accurately reported information obtained from those confidential sources; (xi) the respondents conducted internet searches and reviewed the search results, including of the PNG company register at the website of the PNG Investment Promotion Authority and fairly and accurately reported the information obtained from those searches/websites[.]

The scope of the dispute 234 There was no dispute that the matters complained of concerned subjects of interest or apparent interest to the recipients of the publications. Neither was there a dispute that the recipients of those matters had an interest or apparent interest in having information on those subjects and that the matters were published to those recipients in the course of giving them information on the subjects. The dispute related to whether the respondents' conduct in publishing the matters was reasonable in the circumstances. The respondents bore the burden of proving that it was.

The respondents' argument 235 In their opening submissions the respondents claimed that their conduct was reasonable because: (1) they carefully scrutinised the leaked documents and then engaged in a fact-checking exercise for about two months before publication, including by putting detailed questions to Mr Duma; (2) they included the substance of Mr Duma's side of the story (including his denials) in each of the matters complained of; (3) the information contained in the matters complained of was derived from a source of integrity who also had direct knowledge of "the Elevala transaction", namely Horizon's CEO (Mr Emmett) (in that it came from his email archive); (4) "the true facts of the Elevala transaction" are revealed in Mr Emmett's documents (those provided to the respondents by an unidentified confidential source); and (5) the respondents reported those facts accurately. 236 In their closing submissions the respondents boldly asserted, in effect, that their conduct was "entirely reasonable" because the source documents upon which they relied "revealed that Horizon and [Mr Duma] were participants in a corrupt deal". Indeed, they went so far as to claim that "[t]he compelling - indeed the only - inference to be drawn from those documents is that Mr Duma was involved in the negotiation and execution of a corrupt deal to award a minority interest in PRL 21 to a shell company that would sell its interest within weeks and make millions of dollars". 237 I am not satisfied that the respondents have proved that their conduct in publishing any of the matters complained of was reasonable. In essence, none of (1), (2), (3) or (5) is established on the balance of probabilities and reason (4) is irrelevant. The evidence indicates that, contrary to the respondents' submissions, the respondents did not carefully scrutinise the leaked documents. While they may have read the documents, they did not accurately report the contents of many upon which they relied. And they did not always check the facts. They did not take care to distinguish between suspicions, allegations and proven facts. They did not report the substance of Mr Duma's "side of the story" in relation to all the matters complained of. Nor could they establish that they were reasonably satisfied about the integrity of their sources because they declined to disclose the identities of their confidential sources. None of this is excusable, particularly since there was no apparent requirement for expeditious publication, as their counsel effectively conceded (at T1313/5-10). The respondents had been in possession of the documents for over two months before publication, the matters complained of concerned events which occurred years earlier, and by 4 February 2020 Mr Grigg was aware that the AFP was "assessing" the information. 238 It is convenient to address first the respondents' contention that the so-called "true facts of the Elevala transaction" are relevant to their s 30 defence.

Are "the true facts of the Elevala transaction" relevant? 239 Despite the way their case was pleaded, including the absence of a plea of justification, the respondents contended that they were entitled to lead evidence of "the true facts of the Elevala transaction". They argued that the Court should assess the reasonableness of their conduct "in the context that they reported true facts". In their opening submissions they purportedly relied upon views expressed by Wigney J in Rush v Nationwide News Pty Ltd [2018] FCA 357; 359 ALR 473 at [137] and [148], noting on the one hand that his Honour did not ultimately make a finding on the question "one way or the other" and, on the other, that in the subsequent appeal, the Full Court "did not interfere with that finding" (emphasis added). This brief account misrepresented the opinion of Wigney J and the position of the appellate court. I will come to those opinions shortly. 240 Mr Duma would have none of this. He submitted that, since the legislation requires that "the conduct of the defendant in publishing matter about a person [be] reasonable in the circumstances", "the circumstances" must be those which existed at the time of publication. There is ample support for that proposition in the case law. I will come to that in due course. But first Mr Duma invited the Court to approach the question as a matter of principle. Why, he asked, would it be relevant to the reasonableness of the respondents' conduct at the time of publication that statements contained in the matters complained of happened to be "objectively true"? And, if it were, why would not "objective falsity" also be relevant on that issue? No paraphrase would do justice to these submissions so I shall quote them in full: 108. Take a publisher who does not know or care, one way or another, whether something it publishes is true. Or one who even believes, wrongly, that it is false. If it turns out to be true, then on the respondents' argument, that would go to establish that such a publisher (actually reckless, or even malevolent) behaved reasonably in publishing. 109. Assume, to take another example, that a journalist publishes a defamatory article about a person on the basis of mere scuttlebutt from a source of dubious credibility. He or she makes no effort to verify the source's claims. Through sheer dumb luck, some (or even most) of what the journalist wrote turns out to be true, albeit not sufficiently so as to support a defence of justification. Why could it be said, in such a case, that the journalist acted reasonably in publishing the article? The "objective truth" of the article would be purely coincidental, and would have no connection with the journalist's reckless conduct in publishing it. 110. In most cases where the published matter (or at least most of it) really is "objectively true", it will be because the publisher has been diligent about using reliable sources, checking and verifying his or her information, and giving all persons concerned the opportunity to comment. In such cases, however, it is these pre-publication steps themselves, taken by the publisher, which make the publisher's conduct reasonable, not the fact that what is published ultimately turns out to be accurate. The "objective truth" of the matter published may be a consequence of the reasonableness of the publisher's conduct, but it is not a factor which of itself renders that conduct reasonable. 111. In addition, the "objective truth" of the matter published does not relate to the reasonableness of the publisher's conduct "in the circumstances" of publication, i.e. at the time of publication. The phrase "objective truth" itself needs to be interrogated. It seems to be used by the respondents in contradistinction to a publisher's subjective belief in the truth of the matter complained of. If that is so, the "objective truth" is not something which would be known, or even ascertainable, at the time of publication. Rather it is something which is determined subsequently by an arbiter such as the Court. 241 The logic of this argument is irresistible. 242 In closing submissions, the respondents submitted that there is no a priori rule that the objective truth of published statements can never be relevant to the reasonableness of a publisher's conduct. Rather, they argued, the relevance of the objective truth of a publication will depend on the facts of the case. It seems to me that this can only be correct if the "objective truth" was known to the publishers at the time of publication and was present in the publishers' minds at the time of publication: Redmond v Uebergang [1984] 1 NSWLR 311 at 315B (Hunt J). It beggars belief that, where a defence of justification has not been pleaded, a publisher can be permitted to prove the truth of defamatory matter by the back door, so to speak. It is common ground that the s 30 defence operates on the premise that the defamatory imputations conveyed by the matter or matters complained of are not substantially true. As the respondents, themselves, put it in closing submissions, "the predicate of the section 30 defence is that the imputations conveyed by the matter complained of are not true" (original emphasis). If they were, a defendant would have a defence of justification. As counsel for Mr Duma asked rhetorically, what can it avail a defendant that some of the background facts, peripheral statements or elements of detail are "objectively true" if the real sting of the matter is not? Why would this make a publisher's conduct reasonable? 243 In a number of judgments, Hunt J, who was a very experienced and respected judge in this area of the law, repeatedly rejected the notion that the objective truth of a particular fact was relevant to a defence of qualified privilege. In Redmond v Uebergang the defendant had argued that, since he believed in the truth of his statement that the plaintiffs were guilty of a conspiracy to misappropriate the funds of a particular corporation, he was entitled to interrogate the plaintiffs generally as to the truth of that statement. His Honour considered that the argument "completely misconceive[d] the issue which arises under the defence of qualified privilege" (at 314C). As he explained, at 314Dff, the issue in qualified privilege is not the objective truth but the honest belief of the defendant in the truth of what was published: A person's belief in the truth of a particular fact is not established by showing that objectively the fact is true. The issue in qualified privilege is the honest belief of the defendant in the truth of what was said. That belief in the truth may be honestly held even though there is in fact objectively no truth at all in what was said. The defendant's belief may be one engendered by carelessness, impulsiveness or irrationality. The defendant may hold that belief after being swayed by strong prejudice, or he may be obstinate and pigheaded, or stupid and obtuse in coming to the conclusion which he did. But if he nevertheless had an honest belief in the truth of what he said, the defendant will have established that particular ingredient of the defence of statutory qualified privilege, however objectively false that statement may be: Horrocks v Lowe [1975] AC 135 at 150-153. What the defendant is entitled to do is to establish the matters upon which his belief was based. This is not done in order to show that his belief was a reasonable one, or that it was a belief that was based upon reasonable grounds, for that is never the test of the existence or non-existence of an honest belief: Clark v Molyneux (1877) 3 QBD 237 at 249. It is done simply to support the existence of his honest belief, by demonstrating what was present to the defendant's mind at the time of the publication and what led to the existence of that belief on his part. What may be proved in order to establish the existence of a state of mind is discussed in Seidler v John Fairfax & Sons Ltd [1983] 2 NSWLR 390 at 393, 394. What the defendant may do is to establish the existence of those matters which led him to believe in the truth of what he said, but he may not establish the objective truth of those matters. (Emphasis added.) 244 For this reason his Honour held that a defendant may not interrogate a plaintiff as to the objective truth of what was published (at 315G). 245 When the same argument was run before his Honour in Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544 at 549, he rejected it again. The argument was revived in Makim v John Fairfax & Sons Ltd (Supreme Court of New South Wales, 15 June 1990, unreported), another decision concerning interrogatories, in which his Honour maintained his position. There, his Honour reiterated: As a matter of principle, the objective truth or falsity of what was said is irrelevant to the defence of qualified privilege. That defence (whether statutory or common law) proceeds upon the basis that the defendant was honestly mistaken in what he said… What the defendant must establish in relation to the statutory defence is that he took all reasonable steps to get his facts right - to ensure that the published statements were true: Austin v Mirror Newspapers Ltd (1983) 3 NSWLR 354 at 361; 363-4; [1986] AC 299; (1985) 63 ALR 149. The defendant does not have to establish that they were objectively true in fact, and proof of such objective truth does not assist the defendant to establish that the steps which he took to ensure that truth were reasonable. … Where a defendant seeks to establish that he believed in the truth of a particular fact, the only thing which is relevant is the defendant's state of mind, and the circumstance that the fact turns out to have been true does not advance the proof of the defendant's belief in the truth of that fact. 246 Hunt J's opinion that the objective truth of the matters published is irrelevant to the statutory defence of qualified privilege was followed by Levine J in Sewell v National Australia Bank Ltd (Supreme Court of New South Wales, 12 June 1997, unreported) and Jones v John Fairfax Publications Pty Ltd [2002] NSWSC 1210 at [59] and by Anderson AJ in Rayney v State of Western Australia (No 2) [2009] WASC 133 at [21]-[24]. In Rayney, a decision under the Defamation Act 2005 (WA), paragraphs of a reply were struck out on the ground that they were only concerned with the objective truth or falsity of the matter complained of. 247 In Rush at [137], Wigney J merely queried whether Hunt J was intending to lay down "a concrete rule" that the objective truth of published statements can never be relevant to the reasonableness of the publisher's conduct or to the defence of qualified privilege more generally. His Honour remarked that "[t]he logic of Hunt J's reasoning cannot be doubted". I respectfully agree. 248 The same position has been taken in the United Kingdom. 249 In GKR Karate (UK) Ltd v Yorkshire Post Newspapers Ltd [2000] 1 WLR 2571, May LJ, with whom Tuckey LJ agreed, observed in a similar context that "the circumstances of the publication" are "the circumstances at the time of the publication" (at 2577H). May LJ said that it was neither necessary nor relevant to determine whether the publication was true or not (at 2578F-G). Later his Lordship explained that, as the defendant's state of mind has to be determined at the time of publication, the subsequently determined truth or falsity of the publication is "not material" (at 2579G-H). For these reasons the Court held that an order made by the trial judge to determine the issues of privilege and malice in advance of the issue of justification was "not amenable to appeal" (at 2580D). Once again May LJ stated that "[t]he truth or falsity of the publication is not relevant to those issues" (at 2580D-E). 250 In Burstein v Times Newspapers Ltd [2001] 1 WLR 579 at [47] May LJ said: Evidence in support of a plea of justification which fails is admissible in reduction of damages. But the very same evidence would not be admissible to a sensible defendant who acknowledges that it will not support a plea of justification. What is not permissible is to plead a defence of partial justification which in truth is no defence at all. 251 In Flood v Times Newspapers Ltd [2012] 2 AC 273 at [122] Lord Mance JSC described the truth of a report as a "neutral circumstance". 252 The principal foundation for the respondents' argument in the present case was an obiter remark by White J in Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33. The issue arose in Hockey after an objection was taken to questions asked of Mr Hockey in cross-examination relating to certain facts which counsel for Mr Hockey maintained were irrelevant to the respondents' defence of qualified privilege because the truth or otherwise of the matters asserted in the articles did not bear upon the reasonableness of the respondents' conduct in publishing them (Hockey at [322]-[323]). 253 As the resolution of the objection "involved the consideration of issues of principle not conducive to ready determination at the time" and could have disrupted the cross-examination, White J received the evidence and indicated that he would hear submissions as to its relevance during final submissions (Hockey at [323]). With the imprimatur, if not encouragement, of the parties I adopted the same approach in the present case. 254 In Hockey his Honour decided that the evidence should be received (at [332]), holding (at [331]) that the decision in Makim was persuasive but "no longer decisive of the question of whether proof of the objective truth of facts comprising, or contributing to, a defamatory imputation is admissible in support of a defence of qualified privilege". His Honour's conclusion was based on the fact that at the time Makim was decided the 1974 Act was in force and it did not include a provision in the same or substantially the same terms as s 30(3) of the current Defamation Act. While subss 22(1) and (2) of the 1974 Act were substantially the same as subss 30(1) and (2) of the Defamation Act, there was no equivalent of s 30(3) in the 1974 Act. The 1974 Act did not make any reference to the circumstances which a court could take into account in determining whether the respondents' conduct in publishing a matter was reasonable in the circumstances. White J considered that subs (3) appears to enlarge the range of matters a court may take into account in determining the reasonableness of a defendant's conduct (at [329]). In particular, his Honour remarked, "it appears to indicate that courts may now have regard to matters going beyond the belief of the defendant in the truth of the defamatory imputation pleaded by a plaintiff, this being the principal consideration underpinning the reasoning of Hunt J in Makim". His Honour then referred specifically to para (j) of the Defamation Act, which, it will be recalled, provides that a court may take into account "any other circumstances that the court considers relevant". 255 In Rush, which relevantly concerned whether particulars of a defence of qualified privilege should be struck out, Wigney J did not endorse what was said on this question in Hockey. For present purposes it is sufficient to note the following parts of his Honour's reasons. 256 First, Wigney J pointed out (at [136]) that the reasoning of Hunt J in Makim principally related to what is ordinarily the primary consideration in determining the reasonableness of the conduct of the publisher, namely whether the publisher honestly believed, and took all reasonable steps to ensure, that what was published was true. His Honour said that this is usually done by the publisher pleading and providing particulars of the information in their possession at the time of publication, the reasonableness of their sources, and other steps taken to verify the truth and accuracy of their statements. It was in this context, his Honour emphasised (at [137]), that Hunt J said the objective truth or falsity of what was said is irrelevant to the defence of qualified privilege. As I have already mentioned, his Honour observed that the logic of Hunt J's reasoning could not be doubted while at the same time offering the tentative view that "[i]t may perhaps be doubted, however, that Hunt J intended to lay down a concrete rule that the objective truth of the published statements can never be relevant to the reasonableness of the publisher's conduct in publishing, and can never be relevant to any issue that may arise in the context of the defence of qualified privilege". 257 Second, and importantly, Wigney J noted that in Hockey the defendant did not seek to justify the admissibility of the questions to which objection was taken on the basis that the evidence was relevant to the question of whether it took reasonable steps to ensure that what was published was true (Rush at [138]). 258 In Hockey White J explained the basis upon which the evidence should be received at [327] of his reasons. First, the evidence was said to go to the extent to which the matter published is of public interest for the purpose of s 30(3)(a). Counsel submitted that it was one thing to have an intuition that the subject matter of a publication is a matter of public interest and concerns the public activities and functions of a person, but another to see the centrality of it by reference to the evidence. Second, the evidence was said to be relevant to the thoroughness of the respondents' investigations and "[p]roof that the investigations had resulted in the ascertainment of objectively true facts helped establish that proposition". While Wigney J mentioned the first, his Honour overlooked the second. The omission is immaterial, however, because neither basis was advanced in the present case. 259 Third, Wigney J doubted whether it was correct to say, as White J did in Hockey at [329], that s 30(3) of the Defamation Act relevantly enlarges the range of considerations to which a court may have regard in determining the reasonableness of the defendant's conduct in publishing matter (Rush at [139]). 260 As his Honour observed: All that s 30(3) does i[s] to provide a non-exhaustive list of considerations that the Court may, not must, take into account in determining the reasonableness of the defendant's conduct. There is nothing to suggest that the Court could have not have had regard to those sorts of considerations when considering the reasonableness of the defendant's conduct for the purposes of s 22(1)(c) of the 1974 Act, even before the amendment in 2002 which inserted s 22(2A), if they were considered to be relevant to the reasonableness of the defendant's conduct. It was, for example, always open to the Court to have regard to the extent to which the matter published was of public interest if that relevantly bore on the reasonableness of the defendant's conduct. 261 Fourth, Wigney J had "some considerable difficulty seeing how the objective truth of what was published can be relevant to the reasonableness of the defendant's conduct for the purposes of a qualified privilege defence, even having regard to the range of matters in s 30(3)" (at [140]). His Honour observed (at [141]) that it was equally difficult to see how the objective truth or otherwise of the statements can have any real bearing on any of the matters mentioned in s 30(3). His Honour reiterated his misgivings at various points from [142]-[148] of his reasons. 262 I respectfully agree with Wigney J. And in the appeal from his Honour's judgment, the Full Court saw no reason to doubt the correctness of his remarks: Nationwide News at [9] (Lee J), [12] (Rares J), and [18] (Allsop CJ). 263 In Rush at [148] Wigney J said that, if he had to decide whether to follow Makim or Hockey, he would have been inclined to follow Makim but it was unnecessary to do so because neither case concerned the striking out of particulars of a defence of qualified privilege. His Honour consigned Hockey to its "particular and possibly unique circumstances". 264 It is true that his Honour agreed with White J in Hockey that Makim and the cases that followed it are "not necessarily determinative of whether the objective truth of the statements published can ever be relevant to a defence of qualified privilege" and Hunt J did not address the various considerations now listed in s 30(3) of the Defamation Act. Yet, Wigney J was at pains to repeat his earlier observations that there was "force and logic" in Hunt J's reasoning and that it was difficult to see how the objective truth of what was published can be relevant to the reasonableness of the publisher's conduct for the purposes of the defence of qualified privilege, even when regard is had to the list of possible considerations in s 30(3). It is apparent that s 30 was based on s 22 of the 1974 Act. Although at the time Makim was decided there was no equivalent of s 30(3) in the 1974 Act, there was at the time the 2005 Bill was presented to the Parliament. Section 22(2A) was in similar terms. Paragraph (j) of s 30(3) was incorporated into the chapeau to s 22(2A). Neither the Explanatory Note to the 2005 Bill nor the Minister's second reading speech suggest that it was the intention of the legislation to depart from the position under the 1974 Act save in two respects, expressly identified in the Bill and the extrinsic materials. In his second reading speech to the NSW Parliament the Attorney General, the Hon Bob Debus MHR, said: Clause 30 is based on the provisions of section 22 of the New South Wales Defamation Act 1974 … Clause 30 lists a number of factors that the court may take into account in determining whether the defendant acted reasonably. The list is the same as that which is currently set out in the Defamation Act 1974, with a few minor modifications. The first is the substitution of the words "public interest" in place of "necessary" in the subclause that refers to expeditious publication. The second is the inclusion in the list of relevant factors one which relates to the business environment in which the defendant operates. 265 Moreover, like Wigney J, I have considerable difficulty in seeing how the objective truth of a publication or the imputations it conveys logically bears on the reasonableness of the publishers' conduct. Like its predecessor, s 30(3) of the 2005 Act is concerned with the steps the publishers took to ensure the report is fair and accurate, not with the truth of the matters reported. 266 In the present case, as I have already observed, Mr Duma did not dispute that the matters complained of related to matters of public interest and the respondents did not submit that the objective truth of the imputations was relevant to the extent to which any of the publications was of public interest. Nor did the respondents submit that the objective truth was relevant to establishing the thoroughness of their pre-publication investigations. In any case, as Mr Duma submitted, the objective truth of published statements is, at best, indirect evidence of the adequacy of the pre-publication investigations. 267 In deciding in Rush that the defence of qualified privilege should be struck out, Wigney J noted (at [149]) that, in contrast to the respondents in Hockey, the respondents did not seek to justify the receipt of the evidence relating to the objective truth of some of the published material by reference to a specific paragraph or paragraphs of s 30(3). Neither did the respondents in the present case. 268 In any event, a more fundamental problem arises here. 269 Nowhere in the defence did the respondents plead that their conduct was reasonable because what they reported in the matters complained of was true. The respondents only pleaded that they believed that the matters they wrote about were true. They never applied to amend their defence although Mr Duma complained that their intention to rely on matters going to the truth of the imputations was beyond the scope of their pleading. In any proceeding it is the pleadings that define the issues. As Mason CJ and Gaudron J observed in Banque Commercial SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-7: The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq.) [1916] HCA 81; (1916) 22 CLR 490, per Isaacs and Rich JJ at p 517. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. See, e.g., Browne v. Dunn, at p 76; Mount Oxide Mines, at pp 517-518. 270 It is true that "pleadings are only a means to an end" and so, if the parties choose to enlarge or disregard them, they cannot "hark back to the pleadings and treat them as governing the area of contest": Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 517 (Isaacs and Rich JJ). In this case, however, Mr Duma consistently sought to confine the respondents to their pleading. This is not a case in which a substantial deviation from the pleading can or should be excused or sanctioned. The respondents should be held to their pleading. 271 What is more, it was never put to Mr Duma that any of the imputations were true. Nor was he challenged on his evidence that the imputations were false. In Browne v Dunn (1893) 6 R 67 at 70-71 Lord Herschell LC said: [I]t seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit … I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. 272 The respondents' failure to plead that their conduct was reasonable because what they reported was true and to challenge Mr Duma's evidence that the imputations were false is fatal to their argument. Even if the objective truth of the published material could be relevant to a defence of qualified privilege, in the present case it is irrelevant. 273 In these circumstances, there is no need to address the respondents' submissions which sought to establish the "objective truth" of the matters complained of. But I will refer to them later in these reasons because they are raised again in mitigation of damages and they are relevant to Mr Duma's claim for aggravated damages. 274 Before concluding on this point, I wish to make two additional observations. 275 The principles concerning the adequacy of particulars in support of a plea of justification were summarised by Wigney J in Rush and approved on appeal in that case and also by the Full Court in Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632 at [132] (ABC v Chau). Importantly, particulars in support of a defence of justification must be shown to be capable of proving the truth of the defamatory meaning sought to be justified (Rush at [46] and the cases referred to there). That means that the particulars of truth must be specified with the same precision as an indictment, that is to say, an applicant is entitled to be put on notice of the precise particulars of the facts or allegations that are said to be true (at [52]-[53]). In Rush at [53] Wigney J said: Like an accused in a criminal proceeding, who is entitled to be put on notice of the particulars of the Crown case in respect of each element of the offence with which he or she is charged, a plaintiff in a defamation action is entitled to be put on notice of the precise particulars of the facts or allegations that are said to be true. Indeed, the need for precision in a defamation case is perhaps even more acute, given that ordinarily the plaintiff gives evidence first. 276 Moreover, in order to prove the substantial truth of an imputation, it is necessary to prove that every material part of the imputation is true (Rush at [199] and the cases referred to there). It follows that the particulars must be of matters capable of proving the substantial truth of each of the pleaded imputations and each material part of them. If the truth of an imputation were relevant to a defence of qualified privilege, it stands to reason that precise particulars of the facts or allegations said to be true must be provided. In the present case, the particulars of the defence are manifestly inadequate to support such a case. For a start, the defence contains no allegation that Mr Duma received a bribe, engaged in corrupt conduct or was party to a corrupt transaction. Nor does it even allege that Mr Duma was the ultimate recipient of the $US10.3 million paid by Horizon to Elevala or any part of it. I will deal with the allegations made in support of the mitigation plea in due course.

Should an order be made limiting the use to which the leaked documents can be put? 277 The respondents tendered many, if not all, of the documents given to them by CS-2. Mr Duma objected to the tender, arguing that they should be excluded under s 138 of the Evidence Act 1995 (Cth) and, in the alternative, that the use to which those documents should be put should be limited in accordance with s 136 of that Act. 278 Over Mr Duma's objection I admitted a number of the documents (which became exhibits 1 to 84) but, with the consent of the parties, I reserved until final judgment the question of whether an order should be made under s 136: Duma v Fairfax Media Publications Pty Limited (No 2) [2021] FCA 1299. 279 Section 136 entitles the Court to limit the use to be made of any evidence if there is a danger that a particular use of the evidence might be either unfairly prejudicial to a party or misleading or confusing. 280 Mr Duma submitted that the Court should limit the use to which the respondents could put the documents they received from their confidential source or sources to evidence of the material to which the journalists had regard for the purpose of determining whether they acted reasonably in publishing the matters complained of for the purposes of their qualified privilege defence. In that event, the documents could not be relied upon as evidence going to the "objective truth or falsity" of the matters asserted in the documents. 281 Mr Duma advanced three reasons in support of this limitation. 282 First, contrary to the respondents' submission, the objective truth of the facts stated in the matters complained of is relevant neither to the statutory defence nor to the question of mitigation of damages. 283 Second, as the documents represent the email archive of one person (Mr Emmett) they are necessarily incomplete and the incompleteness of the documents as a record means that they may be misleading for the purpose of s 136(b). 284 Third, the use of the documents as evidence of the truth of matters asserted in them is unfairly prejudicial to Mr Duma because he has been unable to respond by adducing his own documentary evidence since he is no longer the Minister for Petroleum and no longer has access to the documents held by the Ministry. 285 The first reason was the subject of extensive submissions from both sides. 286 The respondents submitted that they were entitled to establish the truth of the objective facts raised in support of their qualified privilege defence and in mitigation of damages. They contended that to impose any limitation on the evidence would deprive the Court of "highly relevant contextual facts". This submission must be rejected. For the reasons given at [237]-[274] and [439]-[467] below, they are not relevant in this case. 287 The respondents further submitted that, as Mr Duma had positively asserted in the matters complained of the truth of some facts and the falsity of others, any s 136 limitation would result in an "artificial outcome" because the only facts before the Court would be those asserted by Mr Duma. If the respondents' qualified privilege defence failed, they submitted, the Court would be required to assess damages in a vacuum, on the basis of Mr Duma's uncontradicted evidence. These submissions must also be rejected. For the reasons given above, if this is a problem, it is a problem of the respondents' own making. 288 As to the second reason, the respondents submitted that there was no dispute that the documents came from Mr Emmett's inbox and they "may or may not be a complete record of his email inbox" but that the documents constituted "a comprehensive … extract" from the inbox relating to the renewal of PRL 5 and the grant of PRL 21. There are several problems with this submission. 289 First, while most of the documents appear to have come from Mr Emmett's inbox, some of them appear to have come from his sent box. Both Mr Grigg and Ms Whyte testified that the trove of documents was provided on a thumb drive onto which CS-2 had uploaded documents from his laptop. Mr Grigg described them as "an email archive" of Mr Emmett. He said he knew that because the sender of the emails in every case was Mr Emmett. In fact that was wrong. The sender in some cases was not Mr Emmett. In most cases Mr Emmett was a recipient. It was only the respondents' counsel who referred to the documents as having come from Mr Emmett's inbox. But nothing would appear to turn on the error. 290 Second, and more importantly, neither Mr Grigg nor Ms Whyte testified that anyone had told them that the documents they were given were all the documents relating to the relevant events in Mr Emmett's email archive. Ms Whyte conceded in cross-examination that she did not, and could not, have known whether what CS 2 transferred from his laptop to the thumb drive was the whole or only part of Mr Emmett's email archive (at T1029/30). 291 Third, the respondents did not address Mr Duma's submission that the documents are necessarily incomplete because they do not include the email archives of the other persons involved. 292 Fourth, no evidence was adduced from the confidential sources. Further, in the absence of evidence from the person who released the documents (whether CS-2 or someone else), it is impossible to know what proportion of the documents in Mr Emmett's inbox were provided to the respondents and, if not, what documents had been excluded or why they had been excluded. 293 The respondents also submitted that the documents were relevant because Mr Duma had been cross-examined on them. The difficulty with this submission is that all the evidence in cross-examination was adduced on the voir dire and, although it was later received as evidence in the trial, the question of whether it should be received to prove "the true facts of the Elevala transaction" was reserved. 294 The respondents did not directly answer the third reason. In a submission made in April 2021, they contended that there could be no prejudice to Mr Duma by the admission of the documents generally because he said that he had reviewed their tender bundle and tendered some of that evidence himself. But the fact that Mr Duma had reviewed the documents and tendered some of them does not mean that those to which he took objection were not unfairly prejudicial to him. Having regard to the way in which the respondents pleaded their case and in view of the fact that the events in question occurred nearly a decade before the matters complained of were published, it would be unfairly prejudicial to allow them to rely on the documents to which objection was taken to prove the truth of their contents. 295 In my opinion the limiting order Mr Duma seeks should be made largely for the reasons he advanced. I deal below with the problems that beset the respondents' submissions about the relevance of these matters to the question of mitigation of damages. While those problems were manifold, it is sufficient to observe at this point that the case Mr Duma ultimately sought to make on this question was not the case he pleaded.

Was the conduct of the publisher reasonable in the circumstances? 296 Mr Duma accepted that the articles the subject of this proceeding were of public interest, at least insofar as they concerned the activities of an ASX-listed company. That is plainly so. I also accept that the matters complained of related to the performance of the public functions or activities of Mr Duma. 297 As the publisher is a corporation, the focus of the inquiry into whether its conduct was reasonable must be on its employees or agents who were responsible for the publications: see John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 at [12] (Handley JA) (Spigelman CJ and McColl JA agreeing at [1] and [54] respectively). 298 The evidence on this question was given by the two journalists. Mr Grigg's evidence, which in this respect I accept, was to the effect that he was the main author of the articles and that he received "input" from Ms Whyte's research, conversations with sources and some editorial changes to drafts. 299 Mr Grigg had been a journalist for about 20 years by the time he gave his evidence. He is described in the sign-off to the articles as "an investigative reporter based in Sydney" who has worked as a foreign correspondent in China and Indonesia and is the winner of two Walkley Awards. Ms Whyte had reported on business for the AFR for over 13 years. She was said to specialise in companies, capital markets and innovation. 300 Mr Grigg was a surprisingly poor witness. 301 While he is obviously an intelligent man and the articles indicate that he is a talented writer, he had great difficulty giving evidence in direct speech of the conversations he supposedly had with one of his confidential sources (CS-1). Time and time again I had to take him to task. Initially, I assumed that this was entirely the fault of his lawyers in failing to prepare him properly. But this assumption proved to be incorrect. At least one reason he had so much difficulty, it seems, was that he had never been a party to the first conversation with CS-1. 302 Mr Grigg was also evasive. He frequently avoided giving direct answers to simple questions. Some aspects of his evidence were incredible. For example, he was cross-examined on the description of Mr Ketan as "the middleman". He professed to have no idea "who [he was] the middleman between", despite the fact that in the pipeline graphic in which Mr Ketan is described as "the middleman", Mr Ketan was positioned between Mr Duma and the Horizon executives. When asked what the reader would think, he claimed not to know, curiously adding: He was - it was unusual that he would be receiving the share of this licence. Who he was standing between we didn't - we didn't make an assessment of. 303 The cross-examiner persevered: Notwithstanding your repeated variously expressed references to supposed links between Ketan and Duma. That's what your articles are full of, aren't they? Aren't they?---Yes. It's obvious he's the middleman between Duma and someone, isn't it? Who else could it possibly be?---It could be lots of other people. Who?---We didn't name anyone else. You didn't. Who else could it be?---We - I don't know. 304 Under further cross-examination, Mr Grigg denied that his evidence in this respect was "not only untrue but truly fanciful". His denial is untenable. His evidence on this question defies common sense. 305 Ms Whyte was a better witness than Mr Grigg. Still, some of her answers also strained credibility. At times she doggedly refused to make a concession about the blindingly obvious. 306 That said, both witnesses were ultimately compelled to make some important concessions about their conduct. 307 As Mr Duma submitted, Mr Grigg and Ms Whyte were not the only Fairfax employees who had a role in shaping the final form of the articles. Subeditors, for example, played a part by writing the headlines, selecting break-out text, providing links, and in the design and layout. Their contribution was not insignificant or unimportant. These types of editorial features can and do contribute greatly to the defamatory meaning conveyed by the matters complained of. 308 Yet no member of the editorial staff was called to give evidence. Consequently, there was no evidence before the Court that Fairfax had acted reasonably in the editing process for the matters complained of. And no explanation was proffered for the absence of this evidence. In these circumstances and in accordance with the principles in Jones v Dunkel (1959) 101 CLR 298, I infer that the evidence any of these individuals may have given would not have assisted the respondents' case.

Did the respondents proceed with reasonable care before publishing the matters complained of? Did the respondents provide fair and accurate reports? Did they believe the matters set out in the matters complained of to be true? 309 It will be recalled that in their defence the respondents pleaded that their conduct was reasonable in the circumstances because, among other things, they took care to distinguish between allegations, suspicions and proven facts; they accurately reported the content of relevant source documents; they sought comment from Mr Duma and fairly and accurately reported his response; and they believed the matters set out in the matters complained of to be true. 310 Mr Grigg and Ms Whyte held themselves out to be experienced and responsible journalists. They were writing for a serious publication engaged in the business of providing information to the public and publishing matters is part of its ordinary and legitimate course of business. The defamatory imputations are extremely serious. In these circumstances the respondents were required to take particular care to ensure that the facts were fairly and accurately reported. Readers are entitled to expect no less. 311 The evidence disclosed that they did no such thing. The articles were replete with errors and misrepresentations. In submissions the respondents' counsel made light of these matters. I accept that an occasional error or omission may be inconsequential. But the number and nature of the errors and omissions in the present case were not. Moreover, in several instances, and contrary to what was pleaded in the defence, the journalists testified that they did not believe that what they had written in the matters complained of was true. In some instances, one or both of them conceded that statements they had made in the articles were not true. 312 The false reports included, in no particular order of importance, the following matters. 313 First, the matters complained of variously asserted that Mr Duma "revoked", "cancelled" or "retract[ed]" PRL 5, implying that the licence was terminated prematurely when it was not. PRL 5 was due to expire and it was simply not renewed at the end of its second term. 314 Had the respondents read the material in their possession with any degree of care they would have known these matters. The PAB's documents tendered in evidence made that clear. So, too, did Ms Jalleh in her email correspondence with Mr Colwell and Mr Greenburg on 17 May 2011. 315 Second, the first article asserted that when PRL 21 was granted in March 2011 Horizon's interest was "cut" whereas the combined share of two Horizon companies had in fact risen from just under 50% to 70%. That, too, should have been obvious to the respondents. 316 Third, while the matters complained of insinuated that Mr Duma came up with specious reasons to "cancel" the licence to put pressure on Horizon to extract a bribe, the respondents repeatedly failed to acknowledge the role of the PAB in the process. Mr Grigg admitted that he did not know that the PAB had recommended against the extension of the licence on 9 June 2010. 317 Fourth, in the weekend review article (the ninth and 10th matters complained of), the respondents wrote (at [49] and [61] respectively): One engineer warned Duma "has done this before". "[He] rescinded a licence and resold to someone else," the company was warned. "Duma has a buyer." 318 Yet Mr Grigg well knew that licences were not sold but granted or allocated to licensees who had obligations to spend money to develop them. Furthermore, the account was based on remote hearsay and the original source was not identified, although no-one reading it would think that. The document from which the account was drawn was an email sent by Jim Slater of a consultancy firm to Alan Fernie of Horizon on 21 July 2010, which Mr Fernie had forwarded to Mr Emmett. In the email Mr Slater stated: Jepson just called - he is still to meet Duma this evening. He spoke to someone else in Duma's office. He was told that Duma has done this before - rescinded a licence and re-sold to someone else. The guy he spoke to told him that Duma has a buyer - and he will get the name of company later this evening and call me. 319 As Mr Duma put it in submissions: So, what in fact happened is that Mr Slater told Mr Fernie that he (Slater) had been called by somebody called Jepson, and that Jepson had said that he had spoken to somebody else (an unknown person in Mr Duma's office), and that that unknown person had told Jepson that Mr Duma had "done this before". No word, of course, on how the unknown source in Mr Duma's office knew any such thing, or why he was motivated to pass the information on to Jepson. The upshot is that Mr Grigg saw fit to "quote" (in the highly artificial way apparent from the foregoing) a very damaging allegation about Mr Duma, on the basis of nothing more than fourth-hand hearsay. When he was challenged on this in cross-examination, and asked whether it was obvious to him that this information was unreliable at best, he claimed "I didn't have a view on that". His only explanation for why he saw fit to rely on something which was so remote was "It was what Horizon was being told about the situation". 320 In the circumstances it was irresponsible of the journalists to include this account in their article. 321 Sixth, the respondents' reported chronology, which appeared in seven of the 10 matters complained of, and which was critical to the story they told, was false in several not insignificant respects. 322 In the first place, the respondents falsely reported that Mr Emmett's letter of 24 November 2010 was sent after Horizon had instituted legal proceedings, characterising the letter as "the trigger for settlement" of those proceedings, and claiming that it was sent "[a]fter an aborted legal battle". At that point in time there was no "legal battle". Ms Whyte admitted the reports about these matters were false (at T1112/15-27). 323 Mr Grigg knew they were false. In contrast to the chronology presented in the articles, the "timeline" he prepared before the articles were published recorded: 24 November - Horizon writes to Duma, says has instructed lawyers to prepare for judicial review. Says has learnt that Duma has opened tender for PRL5. Asks to withdraw tender process. "We remain open to any suggestion to you to how the current tension might be defused (sic)". (Italicised emphasis added.) 324 As that timeline accurately recorded, Mr Emmett's letter was sent before Horizon commenced legal proceedings, not after. The timeline included in the graphic had Horizon launching court action in November 2010, before the entry for 24 November. In fact the proceedings were not commenced until 3 December 2010. The timeline in the graphic omitted the passage italicised above and the two sentences that followed it. 325 The letter was described in the ninth and 10th matters complained of as an "abrupt change of tack" or "a grovelling letter". It was neither. Rather, it was a notice of intention to institute legal proceedings. 326 After setting out the grievances of the PRL 5 licence-holders, the letter stated: Based on the foregoing, our lawyers have been instructed to prepare for the commencement of judicial review proceedings to quash the decision and require an extension of PRL 5 to be issued. We will also seek injunctive relief to restrain the grant of any licence over the blocks the subject of PRL 5 pending the hearing of the judicial review proceedings. In the circumstances we request that you do not take any action to deal with the blocks the subject of PRL 5 pending the hearing of these proceedings. That said, we were informed yesterday that the Registrar, as delegate of the Director, is issuing letters to industry participants inviting them to apply for the blocks previously the subject of PRL 5. These invitations are said to be open from Monday 22 November 2010 until Friday 26 November 2010. We are advised that it is unlikely that the relevant proceedings can be commenced and an injunction obtained within the time period named for tenders to be received. In these circumstances, we request that you direct the Director to withdraw these invitations or, failing that, that you inform any applicant of our claim to these blocks and of the proceedings which we propose to take. Minister, we very much regret that this issue has led to the current situation, which we do not choose to be in. This letter is an attempt to be open with you about the situation and the action that we will be compelled to take to protect the interests of our shareholders. As always, we remain open to any suggestion from you as to how the current tension might be defused. I can always be contacted by email emmettbd@horizonoil.com.au or mobile phone ... Do contact me if you wish to discuss a solution - I would welcome the opportunity. 327 As Mr Duma submitted: The false claim that Mr Emmett's letter came after the commencement of legal proceedings contributes very strongly to the message, conveyed to readers, that Mr Duma schemed to extract, and did extract, a bribe from Horizon as the price for granting it an interest in the new PRL 21. The false sequence of events is central to the articles' characterisation of the transaction as corrupt. It is set out relentlessly in the timeline graphic which features in all five of the February online articles as well as in two of the February print articles. 328 The letter was contained in the leaked documents. If, as the respondents pleaded in their defence, the journalists had read all the relevant documents, they would have known the true facts. Either they did know them and deliberately misrepresented them, as Mr Duma contended, or they did not take sufficient care to get the facts right before publishing the matters complained of. In cross-examination, after some initial equivocation, Mr Grigg admitted that he had read the letter, was aware of its contents, and knew that proceedings had not been instituted when the letter was sent. It follows that he, at least, knew the facts and deliberately misrepresented them. 329 Second, Elevala (under its former name, Viva No 54) was part of the original consortium, with Horizon and Dabajodi, which lodged an application for PRL 21 on 26 November 2010. This circumstance is overlooked in the articles, although Mr Grigg admitted to seeing the document in which the information was recorded when he was preparing the story. The deed of settlement was executed on 4 March 2011. As Mr Grigg accepted in cross-examination, the source documents showed that Mr Ketan became a director and shareholder of Elevala some 10 days later. 330 Third, it is significant, and at odds with the impression created by the matters complained of, that Horizon was keen to purchase Elevala's interest before Mr Ketan had any involvement with Elevala. In an email to BDW on 4 February 2011 Mr Sheridan wrote: We and TLM would still like to have the arrangements to take out the other parties and increase our joint interest to 100% but those arrangements will need to be negotiated separately with [Dabajodi] and Elevala - depending on their receptiveness to such proposals. With appropriate provisions in the JOA and the expenditure levels anticipated early in the PRL term, we may have some leverage. 331 In late April, when he recommended the buy-out of Elevala to Horizon's board, Mr Emmett referred to this strategy: We understand that Elevala Energy has been approached by InterOil, Dabajodi (20% interest owner in PRL 21) and LNG Ltd (small company with PNG interests) with offers to buy it out of its 10% interest in PRL 21. As foreshadowed, I expect Elevala Energy will be susceptible, as it begins to appreciate the funding required to meet its obligations. 332 As Mr Duma submitted: 50. The respondents' story - plainly conveyed to readers, although repeatedly evaded or disavowed by Mr Grigg in his evidence - that Mr Duma engineered the grant of an interest in PRL 21 to Elevala as the mechanism for payment of a bribe from Horizon, depends on the assumption that Mr Duma's supposed "associate", Mr Ketan, was (to Mr Duma's knowledge) the sole director and shareholder (or at least in some way the controller) of Elevala. But there is no evidence, at all, either that Mr Ketan did have any such involvement prior to mid-March 2011, or that Mr Duma had any knowledge as to when Mr Ketan became involved. And Horizon was giving active consideration to a buy-out of Elevala's share from the outset, well before Mr Ketan became involved (whenever exactly that was). 51. Moreover, it appears that even at this early stage, Horizon was well aware that Elevala would struggle to meet the expenditure commitments for the licence, and that it planned to use this as "leverage" in a bid to buy Elevala out. 52. This puts a rather different complexion on the fact, which the matters complained of repeatedly emphasise, that Elevala was a "shell company" with no experience in the energy sector and no assets. As noted above, Horizon had participated in a joint application for PRL 21, with Dabajodi and Elevala. Since Horizon apparently hoped and intended to buy Elevala out from the beginning, one readily available inference is that it deliberately partnered with a company which it knew had no capacity to meet the expenditure obligations, in order to submit an application which satisfied the Minister's requirement of local participation, while preserving the prospect of buying that company out later, when it inevitably failed to meet its expenditure commitments, in order to increase its own share of the licence. 333 In cross-examination Mr Grigg admitted to knowing the true sequence of events before the articles were written. He claimed they mistook the timing. He was repeatedly asked why he did not take the trouble to get the sequence right. His answers were evasive and unhelpful. 334 Seventh, the respondents repeatedly misrepresented what the Talisman lawyers were saying. 335 In the first two matters complained of (published on 10 February 2020), the respondents reported that: Mr Colwell said it could be assumed "there was some corrupt behaviour on the part of Elevala in the acquisition of their interest in PRL 21". That made it "fruit of the poison tree", he said, while flagging "the possibility" of payments from "Elevala back to some government officials from the sale price to be paid by Talisman and Horizon". (Emphasis added.) 336 This report was taken from Mr Colwell's email to Mr Greenburg of 14 May 2011 in which he sought advice about the prospect of an investigation into the transaction in the United States by the Securities & Exchange Commission or the Department of Justice. 337 But Mr Colwell did not say, or even intimate, that it could be assumed there was some corrupt behaviour. Nor did he describe the acquisition of Elevala's interest in the licence as "fruit of the poison tree". Unlike the respondents, he chose his words carefully. As Mr Duma put it, Mr Colwell was seeking advice posited on a hypothetical worst-case scenario. What he actually said was this: If we assume that there was some corrupt behaviour on the part of Elevala in the acquisition of their interest in PRL 21 it would either be the "fruit of the poisoned tree", which we have previously discussed, or the possibility of payments flowing from Elevala back to some government officials from the sale price to be paid by Talisman and Horizon. The red flags that we see are (i) Papua New Guinea generally; (ii) the fact that Elevala is a new company with no track record in the petroleum business; (iii) one of the principals of Elevala is a lawyer with what appears to be close connections to government officials. We do not have any specific information or knowledge that would lead to a conclusion that there has been any corrupt activity. (Emphasis added.) 338 Tellingly, none of the articles which referred to Mr Colwell included the last sentence or words to the same effect. 339 The respondents also reported that Mr Greenburg "warned the Department of Justice and Securities & Exchange Commission would investigate if the deal was ever made public" and informed readers that he "conclud[ed]" that "the legitimate role of Elevala is not clear" (emphasis added). This report was taken from an email from Mr Greenburg to Mr Colwell on 15 May 2011. 340 But the email makes no such statements. Mr Greenburg said that, "if DOJ or SEC get wind of an allegation … that Elevala was a vehicle for bribes or paid bribes, there likely will be an investigation". He counselled that additional facts were required. He posed a number of questions. He stressed the requirement for due diligence. This is the relevant passage in the source document from which the report was drawn (the emphasis is mine): The bottom line is that if DOJ or SEC get wind of an allegation from any source that Elevala was a vehicle for bribes or paid bribes, there likely will be an investigation. If that occurs, you need to be able to show you did due diligence and reasonably believed the transaction was not corrupt. The question will be can Talisman get comfortable that this is leg mate [sic], and we need to do more and get more facts to get there. Otherwise, you will be very exposed if an allegation is made and an investigation initiated. On the sparse record now, the legitimate role of Elevala is not clear. Of course, as I understand it, there is also no allegation of misconduct and no evidence of improper activity. So, it may well be that you can get to a point of comfort. You just need to learn more. 341 In cross-examination Mr Grigg admitted that Mr Greenburg had not reached any conclusions. A fair report would have included the qualification in Mr Greenburg's advice. It was unreasonable to omit it. 342 Ms Whyte admitted that the proposition put to Mr Duma that the lawyers for Talisman said "it could be assumed there was some corrupt behaviour on the part of Elevala" was false (at T1092/40-T1093/5) and not "truthful" (T1093/13). She was unable to explain why (at T1093/8). She admitted that they should have been truthful (at T1093/20-11). She accepted that their conduct in this respect was not reasonable (at T1093/15). Ms Whyte also agreed that it was false for Mr Grigg to tell Mr Duma that the Talisman lawyers had said "it was safe to assume some corrupt behaviour on the part of Elevala" (at T1095/5) and false to publish that Mr Colwell said "it could be assumed there was corrupt behaviour on the part of Elevala" (at T1110/35-1111/3). She also agreed that it was false to tell Mr Duma that the Talisman lawyers "concluded that if the SEC or the Department of Justice in the US were to find out about the transaction, then they would have no choice but to investigate" (T1095/30-37) and unreasonable to publish that (at T1111/10-25). 343 It is difficult to believe that these were innocent mistakes, particularly when the follow-up email, which includes the responses to Mr Greenburg's questions, is taken into account. Those answers may well have allayed Mr Greenburg's concerns. No further correspondence from him was presented in evidence. In cross-examination, Mr Grigg was asked whether there was anything in the material he saw where Mr Greenburg or Mr Colwell provided an opinion in the light of those answers. He said without equivocation that there was not. 344 Mr Grigg suggested that his purpose in paraphrasing Mr Colwell was "just for space" and to keep the article "tight and make it readable". This was at best a half-truth. The effect of the paraphrase was to change the meaning of Mr Colwell's words. I cannot accept that this was an accident. Nor can it have been accidental that Mr Grigg omitted Mr Greenburg's important qualification that he understood there was "no allegation of misconduct and no evidence of improper activity". Mr Grigg admitted that omitting the qualification had nothing to do with space or readability. When asked why he did not include this part of Mr Greenburg's email in the articles, Mr Grigg made it quite clear that he did so because it did not suit his narrative or case theory: My question was, why didn't you include in the article that you wrote, where you quoted from one sentence as though it were a conclusion, the actual next sentence where he said that there was: …no allegation of misconduct and no evidence of improper activity. ?---Because, ultimately, they didn't go ahead with the deal. And you assumed that the reason was to do with something that was being raised in this emails?---Yes. 345 Senior counsel for Mr Duma proceeded to interrogate Mr Grigg about this assumption: Mr Greenburg said he wanted - he would need some answers to some questions. Answers were provided; correct?---Yes. And you know nothing more about what happened thereafter inside Talisman, do you?---Correct. So just if I can encapsulate what you did in relation to these two emails of Colwell and Greenburg, in the case of Colwell, to repeat myself, he couches his paragraph in terms of if we assume corrupt behaviour, so it's a hypothetical, you agree with that?---Yes. So you report in your newspaper about Colwell's hypothetical, but you turn it into something that is not hypothetical by saying that Colwell said it could be assumed, correct?---Yes. Yes. You leave out - you report that - sorry, I withdraw that. You report that Greenburg said - although you call it a conclusion - but you report that Greenburg said the legitimate role of Elevala is not clear, correct?---Yes. But in both cases, both Colwell email and Greenburg email, you omit the next succeeding sentence of both Colwell and Greenburg, don't you?---Yes. Where each of them says, in slightly different language, there's no allegation of misconduct and no evidence of any improper or corrupt activity?---Correct. Now, in doing that, as I've just summarised it to you, do you say that you fairly and accurately reported information obtained from the Greenburg email chain?---Yes. 346 I reject Mr Grigg's assertion that the account given by the respondents of the information obtained from the Greenburg email chain was a fair and accurate report of that information. It was nothing of the kind. 347 Mr Grigg also testified that he and Ms Whyte read these emails "with some care" and acknowledged that the defence claimed that the respondents took care to report the available information accurately. He agreed that it was very important that they reported the contents of the emails accurately. He agreed, too, that if the report was inaccurate, that would tell against the reasonableness of their conduct. 348 Mr Duma submitted that it is difficult to see how Mr Grigg's misrepresentations were anything other than "outright dishonesty". He argued that it strains credibility to believe that an experienced professional journalist with two Walkley awards to his name could not tell the difference between what was said in the emails and what he wrote in the article. He invited the Court to find, contrary to Mr Grigg's evidence, that he deliberately twisted the words used by Mr Colwell and Mr Greenburg to suit the narrative he wished to construct. 349 It is presently unnecessary to decide whether the misrepresentations of the contents of the Greenburg email chain were dishonest and a deliberate twisting of their author's words to suit the narrative Mr Grigg wished to construct. It is enough for present purposes to observe that he was at least careless about, if not indifferent to, the truth. 350 Eighth, there was no proper basis to assert, as the respondents did, that the conclusion reached by Horizon's lawyers was very different from that reached by Talisman. 351 In the third and fourth matters complained of the respondents reported that the conclusion reached by Horizon was "very different" from the conclusion reached by Talisman and any future investigation conducted by Horizon "will need to examine how Horizon's management failed to see the same 'red flags' as lawyers for its joint venture partner…Talisman". They went on to report that Talisman's lawyers advised against buying out Elevala due to corruption concerns and these concerns were shared with Horizon. The article was followed by the heading "Differing conclusions" in large font, and went on to report that Horizon came to "a very different conclusion to that reached by Talisman" with Horizon ultimately purchasing Elevala's stake. 352 It will be also recalled that, in the first, second, third, fourth, seventh and eighth matters complained of, the respondents reported that the searches Ashurst conducted on Elevala on Horizon's behalf "revealed nothing corrupt, illegal or anything in breach of bribery laws", yet lawyers working for Talisman "raised concerns about Elevala's sole director and shareholder, Simon Ketan, being 'a lawyer with what appears to be close connections to government officials'" or words to that effect. 353 In addition, the first and second matters complained of reported that, "when Talisman's lawyers learned that Elevala wanted to sell its 10 per cent stake in the gas fields just 10 weeks after the licence had been granted, they began asking questions" and, although they had been lined up to buy half the Elevala stake, Talisman had "second thoughts" after a "flurry of emails from its lawyers" and ultimately "set about unwinding its commitment". Later they reported that the lawyers warned that, if Talisman wanted to proceed with the acquisition, it must have a "good faith belief…that Elevala had not paid, and will not pay bribes". And in the website article, there is a dinkus in large font stating, "Talisman pulls out", followed by a conclusion that the "documents don't answer that question but Talisman did not proceed with the acquisition". 354 The information in the email chain, which was all the respondents had, was too tenuous a foundation for the assertions that Talisman had come to different conclusions from those reached by the lawyers for Horizon. It was apparent that the respondents assumed that Talisman had withdrawn because they lacked the "good faith belief" that Mr Greenburg considered necessary. Given the gravity of the implication, a responsible journalist would not have asserted that Talisman had come to a different conclusion than that reached by Ashurst based only on an assumption. A reasonable publisher would have been more circumspect. 355 Ninth, the statements made in the seventh to 10th matters complained of that Horizon had received repeated corruption warnings from lawyers working on the deal were admittedly false. 356 Tenth, a number of the articles reported that Mr Duma and Mr Ketan were involved in a scheme to defraud tribal landholders. In the first article, for example, Ms Jalleh was said to have "flagged a news clipping indicating a link between Mr Ketan and Mr Duma amid allegations of tribal landholders being defrauded of government compensation". 357 In fact, there was no such news clipping. 358 The source document is an email from Ms Jalleh of Talisman to Brent Anderson and Pat Colwell, both also of Talisman, dated 6 May 2011. The email was in the following terms: Interesting: "At Mr Maladina's instruction, lawyers Jack Patterson and Simon Ketan both concealed and fabricated documents on Mr Maladina's instruction in order to protect Mr Maladina. They have been referred to the Commissioner for Police to consider prosecution for fabricating documents contrary to Section 122 of the Crimina[l]-Code." Mr Duma… also said that claims and misunderstandings that the funds were being mismanaged by certain named individuals (councilors John Watt and Nelson Kerua) and a legal firm (Simon Ketan Lawyers) in past reports and speculations was not true." "PNG Police Commissioner, Sam Inguba says lawyer, Simon Ketan has been arrested and charged for allegedly perjuring himself before the inquiry." Is this sufficient, for FCPA purposes, for us not to proceed with acquiring an interest in PRL 21 from Elevala Energy, or would more definitive information be required? 359 In cross-examination, Mr Grigg acknowledged that the quotes appearing in this email came, not from "a" news clipping, but from three separate articles. He also maintained that the extracts from the three separate articles indicated "a link" between Mr Duma and Mr Ketan. Yet his explanation for saying that Ms Jalleh "flagged a news clipping indicating a link between Mr Ketan and Mr Duma amid allegations of tribal landholders being defrauded of government compensation" was that the two men were "named in connection with something that has happened". That evidence is incredible. 360 As Mr Duma submitted, together with the Colwell and Greenburg emails in the Greenburg email chain, this is yet another example of the respondents misstating and distorting the contents of a document. It is unlikely to have been mere coincidence that the misrepresentations of a key source document had the effect of enhancing the appearance of corruption in the Elevala transaction. 361 The only reference to Mr Duma in any of the articles from which the quotes from Ms Jallah's email was taken was in an article evidently published in the PNG Post-Courier on 4 March 2004. The text was contained in an email from Mr Anderson of Talisman to Ms Jalleh and Mr Colwell sent on 7 May 2011. This is what it said: Landowners force school to close … ONE of the biggest high schools in the Highlands has been forced to shut down following due to a running dispute over land ownership payments. Close to 1000 students at the Mt Hagen Secondary School were forced to leave the school premises early yesterday after landowners the Jika Milakambs forced their way into the school, closed the entrances and held a meeting, which demanded explanations about where K1.6 million in payouts to the landowners had gone. One student described the day as chaotic and one of the worst days in my life. Students were forced to take their personal belongings and leave school for an indefinite period. The school was closed for the day as the landowners waited for an explanation on the whereabouts of K1.6 million in claims, supposedly paid out. Port Moresby-based Simon Ketan Lawyers (the law firm looking after the funds in a trust account), landowner group chairman Nelson Kerua, councillors John Watts and David Maip and other leaders were asked by the community to account for the State funds paid towards settling a claim over the land on which the school was built. Mr Kerua, Cr Watt and Cr Maip each gave their side of the story, but Simon Ketan Lawyers was not represented to provide details. It was the second meeting the law firm had not attended in relation to the matter. The first was last week. Leaders have called upon Ketan Lawyers to provide information on the status of the account and warned the re-opening of the school depended on a positive response by Ketan Lawyers on the whereabouts of the funds. The landowners have asked for the most recent financial records of the funds. They have also asked Mt Hagen Open MP and Environment and Conservation Minister William Duma to intervene and bring the lawyers in to explain the situation. School principal Leo Noki said the students were told to go home because their security was at risk, and it was disturbing for them. Unless the issues are sorted out, school will not start but it will be closed for an indefinite period. The reopening of the school depends entirely on Ketan Lawyers, he said. (Emphasis added.) 362 The article did not suggest any link between Mr Ketan and Mr Duma. Nor did it suggest that Mr Duma had anything whatsoever to do with any possible fraud on landowners. 363 In an email to Mr Duma on the evening before the publication of the first and second matters complained of, Mr Grigg asked Mr Duma about this matter. But what he put to Mr Duma was completely false. He wrote (relevantly): Talisman's in-house lawyers and external counsel noted that you and Mr Ketan had been named together in a scam to defraud tribal landholders in the Mr Hagen region … 364 In Mr Duma's reply he told Mr Grigg: Mr Ketan and I were never involved in an alleged scam to defraud landowners. That is absolutely false and defamatory. It would be unbecoming of me to be involved in a scam against the very people I have been elected to represent. 365 Mr Duma's evidence, which was not challenged, was that Ms Jalleh was apparently referring to an article in which it was reported that there was a group of landowners who were in dispute with each other and Mr Ketan was the lawyer for the landowners. This was the article to which I referred above and which Mr Duma discovered in the respondents' tender bundle. He went on to say: When it came to distribution of the monies that were allocated, the landowners had disputes amongst themselves. So they publicly called for myself, who was the Minister for Environment and Conservation at that time, as their member of parliament, to help them resolve the issue. There was a public call to me to intervene, which I did, and I helped them resolve the matter. So I was not involved with Mr Ketan to defraud them. I was publicly called to step in there, which I did. I helped them resolve the matter. 366 Eleventh, the respondents reported that Mr Duma was named in a 2017 corruption "case" involving a landlocked naval base. This is a reference to the so-called "Manu Manu affair". In the first story, reported in the first two matters complained of, the respondents described this "case" as a "corruption scandal" and stated that Mr Duma was suspended from cabinet because of it. 367 In fact, the naval base was not landlocked at all. It was built on an estuary. And both Mr Grigg and Ms Whyte admitted they knew that at the time of publication. Ms Whyte admitted that she knew the proposed site for the new naval base was not landlocked (at T1108/47). She also admitted that it was false, misleading and unreasonable to publish that it was (at T1109/1-5). 368 Mr Grigg's explanation for misleading readers was unpersuasive as the following exchange illustrates: Why did you say "moving a naval base 10 kilometres inland" when you knew it was on water?---I was paraphrasing from the linked article from the ABC. Was that good enough, do you think, to tell your readers that the naval base was 10 kilometres inland when you knew it wasn't?---It was - it was inland. It was on water. HER HONOUR: That went out to the sea?---Yes. MR GRAY: Well, telling the readers that it was inland is telling them something very different from it being on a waterway being an estuary, wasn't it?---Yes. Why didn't you tell them the truth?---As I said, I - I looked at the ABC article, I checked a couple of other sources and I looked at what they had - I used similar words to what they had used. Even though you did enough checking, I take it from your earlier answer, to ascertain that, in fact, it was on an estuary; is that right?---In hindsight, we could have put a few more paragraphs there, yes. 369 Mr Grigg's response was disingenuous. 370 A few more paragraphs were not what was required, just accuracy. As Mr Grigg later admitted, the ABC article upon which he relied stated that "the proposed site of the new base is 10 kilometres inland on the banks of an estuary". The omission of these words created a completely false picture. It served to advance the notion that Mr Duma was corrupt. That was no accident, as the evidence indicated. 371 The exchange continued: So the answer to my question is you noticed that the ABC, or whoever it was that you read, referred to it as being 10 kilometres inland or landlocked; correct?---Yes. You yourself ascertained that, in fact, it wasn't landlocked and was on water; correct?---I think there was some dispute about whether or not it was a - a good place to have a naval base; that was the point we were trying to make. Mr Grigg, back we go again. You told us - you volunteered a few minutes ago that you had ascertained that, in fact, it was on an estuary, on water; correct?---Yes. But instead of telling your readers that, you just used the language of an article on the ABC which you knew to be inaccurate?---It was inland. Is the answer to my question yes?---Yes, it is. 372 This was not the only error in the reporting on the "Manu Manu affair" in the matters complained of. 373 Mr Duma was not suspended from cabinet because of the scandal. He voluntarily stood down. Mr Grigg admitted in cross-examination that the same newspaper article he purportedly relied on to say that the naval base was landlocked, also reported that Mr Duma and the other Minister were going to "stand down". He agreed that "standing down conveys a different impression to being suspended". He claimed to have had conflicting accounts in that the QC's report had said that Mr Duma had been suspended. But he made no attempt to check which was right. 374 In fact, the QC, John Griffin, did not say Mr Duma had been suspended. He said that the Post-Courier, a PNG daily newspaper, reported he had been suspended. He also said that Mr Duma stated that he had voluntarily stepped aside (at [10.134]). 375 In his report Mr Griffin QC recommended that the matter should be investigated by the police and the Ombudsman. Yet the respondents made no inquiries to see whether such investigations had taken place let alone ascertain the outcome of the investigations. Mr Grigg conceded, again with the benefit of "hindsight", that he should have done that. It was unreasonable of the respondents to report the matter in the way they did without doing so. Had they bothered to check the facts before publication, they would have acquired (and perhaps presented) a very different picture. That is because, not only was Mr Duma not suspended from cabinet, he was also cleared of any wrongdoing in relation to the matter well before the matters complained of were published. Had the respondents mentioned to Mr Duma what they were proposing to report about the subject, he would have set them straight. 376 On 24 August 2018 the Commissioner of Police wrote to Mr Duma advising that, after a lengthy investigation, the complaint that generated the investigation was found to be without merit and the transaction to be completely above board. It is appropriate to record the contents of that letter in full: POLICE INVESTIGATION REPORT - MANUMANU LAND DEAL The letter serves to inform you that a complaint was lodged by Paul Nerau the Chairman of Kumul Consolidated Holdings Ltd with the office of the Commissioner of Police on 7 February 2017 that Kumul Consolidated Holdings Ltd (KCH) was misled into endorsing approval of a fraudulent payment of K46.6 million to a company called Kurkuramb Estates Ltd. The complaint was registered with the Royal PNG Constabulary National Fraud and Anti-Corruption Directorate (NFACD) and assessed to establish whether or not the complaint has any merit and whether there was any evidence to substantiate the allegations. It took the NFACD more than 12 months to conduct a thorough investigation into the allegations. After carrying out the investigation and interviewing many persons of interest, NFACD has advised me as follows:- 1. The complaint by the Chairman of KCH, Paul Nerau has no merit; 2. There is no evidence to the substantiate the allegations of fraud; 3. The payment of K46.6 million by KCH to Kurkuramb Estates Ltd was in compliance with due process/procedures and therefore in order; 4. The payment of K46.6 million was not exorbitant, excessive or fraudulent: 5. There was no grand conspiracy between Ministers and employees of the State within the respective Government agencies involved in the process of compulsory acquisition to defraud KCH and the State of the K46.6 million; and 6. The complaint has no merit for further NFACD investigation and action. Accordingly, I wish to inform you that:- 1. The NFACD investigations have not made any adverse findings against you in your conduct as Minister for Public Enterprises & State Investment at that time; 2. The NFACD investigations into this matter are now closed and the investigation file is written off; and 3. The complaint by the Chairman of KCH Paul Nerau has no merit for further criminal fraud investigation and any actions to be taken against you for that matter. This letter is to finally advise you that the file is now closed. 377 Four days later, in its lead front page article, the Post-Courier reported that Mr Duma had been cleared by the police and that there was "no fraud" in the "land deal". 378 Within a couple of hours of the publication on the internet of the first article, Mr Duma pointed both matters out to Mr Grigg in an email: I would like to point out that the allegations in relation to the relocation of the naval base were politically motivated and were made during early 2017 as we were on the verge of having our general elections. I realized that so I voluntarily stepped aside as Minister to allow the authorities to conduct their investigations. I even voluntarily provided information and documents regarding the allegations to the PNG Ombudsman Commission without being asked to do so. About 14 months later in August 2018, 1 was cleared of the allegations by the Royal Papua New Guinea Constabulary. This was reported in the front page of the Post Courier on 28 August 2018. 379 Even then, the respondents did not publish the facts. In cross-examination Mr Grigg admitted that he ignored them. He also admitted that he should have included them. This omission could not have been the result of an oversight. It must have been deliberate. On any view of the matter it was unreasonable, as Mr Grigg conceded. 380 Ms Whyte considered that a correction should have been made about the errors concerning the "Manu Manu affair" and claimed not to know why a correction was not made. She testified that she had discussed Mr Duma's response with Mr Grigg and told him that they should change what had been published but claimed to be unable to recall his reply. She conceded that it was not reasonable not to correct it and to repeat the errors in subsequent publications. 381 In cross-examination Mr Grigg agreed that moving a naval base 10 km inland is an obviously ridiculous proposition. Connecting Mr Duma to such a proposal without a scintilla of evidence to support it was calculated to expose him to ridicule. 382 Mr Grigg admitted that, having read the report of the administrative inquiry, he knew that the police were carrying out an investigation, yet none of the respondents bothered to find out the outcome of the police investigation. When it was put to him that that was not reasonable, Mr Grigg did not give a direct answer. Rather, he said: "We should have included another paragraph". Only after I pressed him for a direct answer did he acknowledge that their conduct in this respect was unreasonable. That was by no means the only time in cross-examination that he had to be directed to answer the question put to him. 383 Mr Grigg's evasiveness in cross-examination is also illustrated by the following exchange: HER HONOUR: Can I ask you this question, Mr Grigg. Uninformed by your knowledge that the proposal was to put it on an estuary, do you say that an ordinary reasonable reader would surmise that "inland" means anything other than inland and on land and - well, obviously, on land, I suppose, but nowhere near water, like 10 kilometres away from water? Isn't that the logical inference to draw from that?---In hindsight, we should have put a couple of clarifying paragraphs there. No, no. I accept that you've said that. But the ordinary reasonable reader reading that would conclude, wouldn't he or she, that … efforts were being made to move a naval base 10 kilometres away from water?---I guess so, yes. 384 As I have said, the articles were replete with errors, misrepresentations and omissions. In many cases, the journalists admitted that that what they reported was false, misleading and/or unreasonable. I find that the respondents did not take care to distinguish between allegations, suspicions and proven facts. There is no excuse for this. Contrary to the contention raised in their defence, there was no apparent need for the articles to be published expeditiously as the articles were concerned with events that had taken place a decade or so earlier and the AFP had only just begun their investigation.

Was a reasonable attempt made to obtain and publish Mr Duma's response? Did the respondents include the substance of Mr Duma's side of his story? 385 The first contact the respondents made with Mr Duma was on Friday 7 February 2020 by email "care of" Mr Ketan purportedly on the basis that he acted for Mr Duma. The email was sent by Mr Grigg at 9.56 am AEDT. Mr Grigg asked Mr Ketan to ensure that Mr Duma received "the following": Dear Mr Duma, We work for The Australian Financial Review, a national daily newspaper based in Sydney. We are writing a series of articles on how the Australian-listed Horizon Oil was granted PRL 21 (previously PRL5) in Papua New Guinea and subsequently increased its holding in the licence through the buy-out of Elevala Energy Limited in May 2011. You were the relevant minister at the time. We are planning to begin publication on Monday February 10th. Please confirm you received this email and see our questions below. To include your fullest response we would need to receive it by 10am Sunday. 1. How did granting Elevala Energy Limited a 10 per cent holding in PRL21 fulfil your stated aim of promoting local involvement in the petroleum sector? 2. When Elevala sold its 10 per cent holding, just four weeks after the licence was issued did you seek to block the sale given it breached your stated aim of local involvement? 3. Lawyers working on the deal raised concerns about Mr Ketan's "political connections" and links to yourself. Were these concerns ever brought to your attention? 4. These same lawyers said it could be assumed there was "some corrupt behavior on the part of Elevala in the acquisition of their interest in PRL21". Were you ever made aware of such claims and did you ever seek to investigate them at the time or report them to authorities? 386 Mr Grigg testified that he did not have a personal address for Mr Duma and was concerned that he would not receive it if he sent it to the general ministerial email. He said that he chose to send it via Mr Ketan because sources had told him that Mr Ketan and Mr Duma were associates, had worked together and came from the same province and therefore considered this would give him the best chance to respond. 387 Mr Grigg offered no explanation for the lateness of his inquiries, given the proposed date for publication, a circumstance which did not give Mr Duma a reasonable opportunity to locate and check the records and refresh his memory. More importantly, the email did not give Mr Duma any notice of the imputations conveyed in the first article. The subject of the naval base was not even mentioned. Critically, he was not alerted to the possibility that the article would suggest that he had acted corruptly or was a beneficiary of the sale of Elevala's interest to Horizon. 388 Mr Duma gave unchallenged evidence that he did not receive the email until the afternoon it was sent when it was delivered to him in an envelope by a parliamentary staffer. In his reply, sent by email to Mr Grigg on Sunday 9 February 2020 at 12.56 am Port Moresby time, he wrote: I have just received [scil] a print out of an email dated 7 February you sent to me via Mr Simon Ketan which was delivered to my office. Firstly, Mr Ketan is currently not my lawyer. Moreover, Mr Ketan did not act for me in any matters relating to oil and gas during my time as Petroleum Minister during the period 2007 to 2013. Secondly, I have never had any political connections with Mr Ketan during my time as Minister for Petroleum. I do not have any current political connections with Mr Ketan. As you will appreciate, the questions you have asked relate to events which occurred nearly 10 years ago. In the circumstances, to enable me to fully respond your queries, please enlighten me on the following: l.was my alleged stated aim of promoting local involvement in the petroleum industry in writing in the form of a Ministerial statement, or Press Release, Ministerial policy paper, or Ministerial direction to the Department of Petroleum? Was the alleged stated aim in relation to local involvement in the upstream or downstream sectors of the industry? 2.given the lengthy lapse of time, I cannot confirm that a sale of an interest in a PRL took place in the time period you have stated. However could you specify on what basis the sale breached my "stated aim of local involvement"? As far as I can recall, there was and is currently, no law or Government policy which empowers a Minister to block a sale or purchase of an interest in the oil industry. 3.I am surprised that nearly 10 years after what was obviously a settled straight forward commercial transaction, lawyers have apparently claimed that concerns were raised at that time. Could you please specify whether it was the lawyer for Horizon Oil or the lawyer for Mr Ketan's company? Logically, it would have been the lawyers for those 2 entities because the deal would have involved Horizon Oil and Mr Ketan's company. There could not have been any other lawyers "working on the deal" as the deal would have been involved Horizon Oil and Mr Ketan's company. This is the first time I am hearing about concerns being raised about Mr Ketan's alleged political connections and links to myself. As I said earlier, Mr Ketan has never had any political connections with me. I do not understand what is meant by the assertion that Mr Ketan is "linked" to me. Is it to do with family links, business links, social links? As far as I can recall, no such concerns were brought to my attention either formally or informally by my Department or the industry. This the first time I have been made aware of such concerns. It is odd and unusual. 4.The lawyers working on the deal would have been the lawyers for Horizon and Mr Ketan's company as the deal would have involved these two companies. I do not recall the lawyers for Horizon Oil ever making such statements. No one to the best of my recollection, made me become aware of such concerns. To the best of my recollection, Mr Ketan's company did not acquire any interest in PRL 21 from any other company. The award of various interests in PRL 21, would have been recommended by the Petroleum Advisory Board established under the Oil and Gas Act. Both Horizon Oil and Mr Ketan's company would have been allocated interests in PRL 21 by the Petroleum Advisory Board. The granting of interests in PRLs are always based upon the recommendations of the Petroleum Advisory Board. Ministers do not have unilateral powers to act on their own volition and grant interests in PRLs. In the case of PRL 21, I would have granted various interests in that acearage to those companies, based on upon the recommendations of the Petroleum Advisory Board. I would have had no discretion to decide otherwise. I recall being briefed about a court case involving Horizon and other companies over PRL 21 which was later settled before various percentages in PRL 21 were allocated by the Petroleum Advisory Board. I suggest you ask your contacts about this Court case. Please enlighten me on the questions I have posed in paragraphs 1,2 and 3 above. I will upon receipt of your response, respond fully to the issues you have raised. It seems odd for anyone to raise issues over perfectly legal and normal commercial transactions which took place nearly 10 years. Finally, given that you have not given me ample time to double check the records in the Department before publication on Monday, I have tried my best to respond to your queries. If further relevant information becomes available, I will respond fully to those questions I have not been able to answer. (Emphasis added.) 389 In their submissions the respondents contended that Mr Duma's response was "evasive and dissembling". I reject the contention. It assumes what the respondents set out to prove, namely that Mr Duma was intimately involved in a corrupt transaction. If no such assumption is made, Mr Duma's response is entirely reasonable. He was obviously shocked to receive such an email out of the blue and puzzled by the method chosen to deliver it. It is unsurprising that a decade after the event his memory would be patchy. Naturally he would have lots of questions. In any event, the contention is a diversion. The question here is whether the respondents' conduct was reasonable. 390 Mr Grigg replied at 7.48 am AEDT asking him to clarify his association with Mr Ketan and his rationale for awarding a 10% stake in Elevala. Mr Grigg wrote: Dear Mr Duma - thank you for your reply. Could you please be clearer about your association with Mr Ketan. Three sources have told The Australian Financial Review that the two of you are "close". Indeed, you were seen having coffee together in Port Moresby earlier this month. The lawyers I refer to are those from Horizon's joint venture partner Talisman (now Repsol SA) who in a series of legal opinions raised numerous "red flags" over the proposed buy-out of Elevala Energy's 10 per cent stake in PRL21 by Horizon and Talisman. Based on these concerns Talisman did not proceed with the transaction. Horizon went ahead regardless. Talisman's in-house lawyers and external counsel noted that you and Mr Ketan had been named together in a scam to defraud tribal landholders in the Mr Hagen region, said Mr Ketan was "politically connected" and said it was safe to assume "there was some corrupt behaviour" on the part of Elevala in it gaining a 10 per cent stake in PRL 21. They concluded that if the SEC or Department of Justice in the US were to find out about the transaction then they would have no choice but to investigate. Therefore it would be helpful if you could explain further your rationale in awarding a 10 per cent stake in PRL21 to Elevala, given it was a shell company with no ability to pay for the money required to undertake such a capital intensive project and why you thought it appropriate that Elevala should sell this stake just four weeks later for $US10.3 million. The documents we have seen indicate that you led negotiations in relation to the cancelling of PRL5 and subsequent awarding of PRL21. Indeed, lawyers working for Horizon, Tim Glenn from Blake Dawson, noted in relation to your efforts to dilute Horizon's stake that; "the bad guys want 30%". (Emphasis added.) 391 While the email insinuated that Mr Duma had done something wrong, no specific allegation of wrongdoing was put to him. As his counsel asked rhetorically, how was he supposed to know what to make of the statement "the bad guys want 30%"? How was he supposed to give a fair response to such a generalised and gnomic insinuation? 392 In closing argument, Mr Sibtain, lead counsel for the respondents, accepted that, if the pleaded imputations were conveyed, it was unfair not to put the substance of them to Mr Duma before publication: Now, the next point I'm wanting to deal with in terms of qualified privilege is the extent to which the respondents gave the applicant an opportunity to put his side of the story. Your Honour, that aspect of section 30 is very much like - and I say this as an analogy - it's very much like the rule in Browne v Dunn. In one sense it's a question of fairness giving - a journalist giving an applicant an opportunity to say, "What do you say about this?" It's not about necessarily distilling the imputations in the way in which the applicants have put it in their pleading even though - - - HER HONOUR: I appreciate that. MR SIBTAIN: - - - the substance of it - yes. So even though the substance of it certainly needs to be put in some way, the question is a question of adequacy. How adequate was what the journalists did in terms of the respondent and putting him on notice of what was to be written. HER HONOUR: But bearing in mind that the assumption upon which this defence is considered is that he is corrupt for various reasons and that he accepted a bribe, then surely he needs to be apprised of matters that make this apparent. Whether it's - - - MR SIBTAIN: Yes. HER HONOUR: Whether it's by putting it in express terms or not, but it seems to me, rightly or wrongly, that it's not good enough to say, "Well, we told him X and Y but not Z and he should have put two and two together and made three." MR SIBTAIN: I hear what your Honour says. And your Honour is right … 393 Mr Duma replied at 9.05 am Port Moresby time, thanking him for providing additional details, advising him that he was travelling but would respond as soon as possible. 394 Mr Duma sent a lengthy reply shortly before noon in which he wrote (without alteration): I appreciate your taking the time to put those matters to me for my comments. I still do not understand the basis for the assertion that Mr Ketan and I are close and that we are politically connected. I know Mr Ketan as we worked together in the same law firm more than 15 years ago. Port Moresby is compared to Sydney, a very small place with a small legal profession and lawyers would invariably know each other. Mr Ketan also happens to come from the same province (although we do not speak the same language) and as a political leader I meet all kinds of people and can have drinks in public places like restaurants. I am not sure whether Mr Ketan is a coffee drinker. Mr Ketan and I were never involved in an alleged scam to defraud landowners. That is absolutely false and defamatory. It would be unbecoming of me to be involved in a scam against the very people I have been elected to represent. As Minister for Petroleum at that time, I welcomed investment in the oil and gas industry by smaller and medium sized companies in exploring and drilling. When I heard that Talisman of Canada was keen in investing in PNG, I welcomed it. In fact I remember opening its office in Port Moresby and giving a welcome speech. I later formed the impression that Talisman's administration costs (it had a big Brisbane office in addition to the Port Moresby office) were higher than others although it had no income producing asset in PNG. I also formed the impression that it lacked the right personel to operate in a cost effective way, particularly as its exploration and drilling costs were slightly higher than others in the industry. I was not surprised when I heard later that Talisman sold its assets to Repsol. The sale price was commented upon by many in the industry at that time. Repsol's assets, I have just heard, may have been sold to another company at a much lower price than the price paid by Repsol to Talisman. I cannot comment on the alleged behavior by Elevala. But I can point out that recommendations as to who is allocated interests in an oil or gas acearage is made by the Petroleum Advisory Board, and not by the Minister of the day. It seems to me that Talisman's in house lawyer formed his views based not upon facts, but assumptions, more likely out of personal animosity towards me and with malice. I was friendly towards all exploration companies, especially Talisman as at time, Exxon and Oil Search were dominant, and in my view, having a big Canadian company like Talisman in PNG would be good for the industry and PNG. In the case of Talisman, I opened its PNG office and was supportive of its activities. I am surprised Talisman didn't raise the issue with me or "wave the red flag" at that time. It is also more surprising for someone to raise such an issue more than 10 years after the transaction took place and even many years after Talisman sold out its interests to Repsol and exited PNG. As I indicated in my earlier email to you, under the PNG Oil and Gas Act, Ministers only act on the recommendations of the Petroleum Advisory Board. The case of PRL 21 would have been no different. I would, as Minister, in accordance with our law (Oil and Gas Act) and in accordance with established procedure and processes of our Government, have acted in accordance with the recommendations of the Petroleum Advisory Board. There is no basis for you to ask me to explain the rationale for awarding an acreage to a particular company as it is the Petroleum Advisory Board which makes the assessments and recommendations, and not me. In the case of PRL 21, I can confidently say that I acted in accordance with the Oil and Gas Act and upon the recommendation of the Petroleum Advisory Board. I find it odd and unusual for you to make the assertion "why you thought it appropriate that Elevala should just sell its stake just four weeks later …" On what basis would I make such a statement or form such a view? Could you please shed some light on this unbelievable allegation? I note the comments made by Tim Glenn who apparently cannot make it back in Sydney and is still loitering around in PNG. I had no direct dealings with Tim Glenn in the PRL 21 issue and he wasn't involved on behalf of Horizon when it applied to the PAB, so I do not understand the basis for his ridiculous comment. For anyone to suggest otherwise in a transaction which happened nearly 10 years ago, and when Talisman, and other relevant companies never raised any concerns to myself, my predecessors, the law authorities or the Courts for so many years, but raise it now, would be doing that out of malicious intent and more importantly, have political connotations. These are defamatory in nature. Talisman and others had at least 10 years to voice their concerns and should have taken their concerns to the Court and the Police (or even the Ombudsman Commission in my case as I am subjected to the PNG Leadership Code). They also had the opportunity to raise their concerns with the many Ministers which succeeded me. For one to raise such serious defamatory allegations nearly 10 years later and after both Talisman and Repsol have exited PNG, amounts to political witchhunting with malicious intent to make me look bad. I strongly suggest that you ask yourself why individuals are approaching you to write about events which took place many years ago. I have formed the view (but I stand to be corrected by you) that you are most likely communicating with PNG politicians or people with links to PNG politicians, over issues which are not current in PNG and over commercial issues which are currently of no concern to Talisman or any other current industry player, but of benefit to PNG politicians. You have written excellent articles recently about current issues in PNG and I commend you. [I am] grateful to you for extending the courtesy of giving me an opportunity to comment on allegations being made against me. I urge you however to be fair and reasonable in your article which I understand will be published tomorrow. Please note that I will seek the views of a prominent and senior Australian defamation barrister for possible legal proceedings against you and the AFR if any aspect of your article is defamatory and unfair. 395 Mr Grigg did not respond to Mr Duma's questions. That night he finalised the draft of the first article which was published the next day. 396 As I observed earlier, after the publication of the first article, Mr Duma emailed Mr Grigg pointing out that he had been publicly cleared of any wrongdoing in connection with the naval base allegation. Yet none of the later publications included Mr Duma's response or corrected the allegation. As I also observed earlier, that was manifestly unreasonable. The later publications did not repeat everything said about the matter in the first article, but they did keep the reference to Mr Duma being "named in [a] 2017 corruption case involving landlocked naval base" even after they had been informed that he had been cleared of any wrongdoing. That, too, was manifestly unreasonable. 397 When he was asked in cross-examination why he did not seek Mr Duma's comment on this matter before the article was published, Mr Grigg replied: "[I] [g]uess that was an oversight". When, with good reason, the cross-examiner appeared incredulous, he added "It was - we should have sought his comment on that. He came back to us with the comment on that". Mr Grigg agreed with the cross-examiner that Mr Duma told him he had been publicly cleared and that he never reported that in any subsequent article. When asked whether that was reasonable, Mr Grigg initially prevaricated. When pressed to answer the question, he said he thought it was reasonable. When asked why he thought it reasonable, he referred to the report from Mr Griffin QC, saying: And that report left open a number of possibilities about what had happened with the Manumanu land scandal. And it said, for example, that the minister was suspended. It said that it didn't have any powers to compel witnesses, get documents, and therefore made the point that it was difficult to include one way or the other what had happened. 398 This was supposed to be an explanation to support the reasonableness of the respondents' failure to report what Mr Duma had told him about the result of the police investigation. Yet, as he well knew when he read the report, Mr Griffin QC said that these matters needed to be investigated by the police and, when he was told the outcome of the very investigation Mr Griffin said should take place, he neglected to mention it. That could not have been accidental. Mr Grigg was asked again, "[h]ow was it reasonable for you not to mention that in any subsequent article?" His response was typically evasive. It was: "[w]e said he was named". After he was pressed to give a responsive answer, he replied: "[w]e should have included a response from him". Only after I intervened, did he offer a direct answer, making the concession that should have been made at the outset. HER HONOUR: Does that mean you accept it was unreasonable not to do so?---I accept it's - was reasonable to say that he was named. No, you're not answering my question now. I'm - I - I thought - - -?---Yes, I understand. - - - you understood that we were focused on your position after Mr Duma told you he had been cleared by the police. Do you think that was reasonable or unreasonable, not to report his response?---It was unreasonable not to put his response in. 399 When asked whether, after reading Mr Griffin's report and the recommendation for an investigation by the police and the Ombudsman, he made any inquiries to see whether the matter was being investigated, Mr Grigg said he could not recall doing so. When asked why he had not made any inquiries, he replied: "[b]ecause we were saying he was named in a corruption scandal". That was scarcely an answer to the question. Ultimately, Mr Grigg said that "[i]n hindsight" he should have checked to see whether he was cleared rather than saying that he was named in a corruption scandal. But reasonable care requires foresight. 400 Despite this evidence, the respondents argued: The articles did not impute that the Applicant had, in fact, committed any wrongdoing in connection with the naval base. Had the articles suggested that the Applicant was guilty of corrupt conduct in connection with the naval base, an obligation may have arisen to make enquiries as to the outcome of any investigations. 401 Yet the premise upon which the defence must be considered is that the imputation that he acted corruptly in relation to the naval base was conveyed. On any view of the matter, the respondents' failure to inquire into the outcome of the criminal investigation was unreasonable. Their failure to report what Mr Duma told them is unfathomable, unless they were driven by a malicious intent. It was unquestionably unreasonable. 402 In several of the articles the respondents asserted that Mr Duma met Mr Emmett and others representing Horizon on multiple occasions to discuss the matter of the licence. Those assertions were said to be based on internal Horizon and/or Talisman emails referring to such meetings. Yet, before the articles were published, the respondents never asked Mr Duma whether he had had such meetings. Mr Grigg admitted that he should have done so. When it was put to him that it was unreasonable not to, he again provided an evasive answer: We had a lot of back and forth with Mr Duma. I think we were reasonable in giving him fair comment. He volunteered and ventured things. As we continued to publish, he never objected to that fact. 403 The respondents contended that an email from Mr Sheridan to Mr Shepherd from BDW on 21 December 2010 indicated that Mr Duma had met with Mr Emmett, although Mr Sheridan did not purport to have attended such a meeting. In the email Mr Sheridan wrote: Are you available for a call this morning with Brent and me? Earlier is preferable for us. It appears we are close to a resolution with Duma that is satisfactory for Talisman and Horizon Oil and involves a grant of interests under the recent auction process to a consortium which includes Talisman and Horizon Oil as majority parties. Duma has suggested that as an interim measure we drop the injunction so that the PAB can reach a final position and recommend the award of the new PRL. Duma accepts that that we would wish to continue to pursue the judicial review until such time as we have been awarded the PRL under satisfactory arrangements. While we are encouraged by the expressed willingness to compromise, we would like to discuss the potential issues around withdrawing the injunction and retaining the appeal process with you. 404 The respondents also relied on an email from Mr Sheridan entitled "Status report - PRL 5" circulated the same day in which he stated, relevantly: BE met with Minister and reiterated that we were pursuing the legal action but that we advised him that that we remained hopeful a resolution could be achieved. 405 Mr Duma's sworn evidence was that he did not meet with the Horizon representatives as the respondents had asserted. He denied that he had had any such discussions. He testified that all discussions were conducted through Phillip Wright of Posman Kua Aisi. He said that he had only met Mr Sheridan once and that was during a conference in Sydney and that he did not meet with Mr Emmett after the commencement of litigation. The respondents submitted that Mr Duma should not be believed. I reject the submission. 406 As Mr Duma pointed out in his submissions, once Horizon had commenced proceedings there is no reference to any such meeting in the thousands of pages of documents on which the respondents relied. Nor were any of the alleged participants called to give evidence of such a meeting. 407 Mr Duma's testimony was supported by documents in the respondents' possession. An email from Mr Glenn of BDW on 8 February 2011, attaching a draft deed of release was forwarded by Mr Sheridan to Mr Emmett, with the comment: "Ian Shepherd should be able to accompany you to sell/explain to the Minister". As Mr Duma submitted, the very notion that the proposal needed to be sold or explained to Mr Duma suggests that he was not familiar with them and certainly not "driving them" as the matters complained of claim. 408 On 14 February 2011 Mr Emmett wrote to Mr Duma thanking him for his comments in relation to the draft deed of release, attaching a marked-up copy of an amended deed and providing some comments of his own. 409 In cross-examination Mr Duma admitted to receiving letters from Mr Emmett but testified that he refused to read them. He said that he asked his lawyers to respond. He also said that he remembered instructing staff or lawyers to tell Mr Emmett not to communicate with him directly and that he received an apology letter from Mr Emmett. The cross-examiner called for the letter to be produced and it was produced. The letter was dated 16 February 2011. It reads: I refer to my letter dated 14 February 2011 addressed to you. The letter was sent inadvertently and I hereby withdraw the letter and the attachment thereto. I would ask that you destroy the letter and attachments, as I have, and I apologise for the misunderstanding. 410 Moreover, there was nothing implausible in Mr Duma's account. Far from it. As he put it in submissions, he was a Minister of the Crown. In a parliamentary system, a Minister's department acts in the Minister's name. A communication sent by the department might therefore be described as a communication "from the Minister" but that does not mean that the Minister was personally involved in making it. 411 In any event all this is largely a distraction. The question here is whether a reasonable attempt was made to obtain and publish Mr Duma's response. The answer is that it was not. 412 The respondents apparently sought no comment from Mr Duma before publishing the weekend feature article. Mr Grigg's explanation was that they had "put most of the things in that article to him before". The problem with this explanation is that the respondents could not have known or assumed that everyone who read the weekend feature would have read any of the earlier articles. The only reference to Mr Duma's response in the website version was his denial of impropriety that appeared under his photograph. Nothing was published in the print version about what Mr Duma said about the matters put to him. Both Mr Grigg and Ms Whyte conceded that was unreasonable. 413 I find that the respondents failed to give Mr Duma fair notice of the most serious allegations they published about him and therefore denied him the opportunity to respond to them. What is more, they also failed to fairly report the responses he did give to the questions they asked.

What other steps were taken to verify the information in the publications? 414 Either before the articles were published, or soon after, the journalists contacted the AFP, Mr Sheridan, Mr Emmett, the former chair of Horizon (Fraser Ainsworth), Repsol (formerly Talisman), Mr Kua, Mr Ketan and the relevant lawyers. Nothing particularly useful or enlightening emerged from those responses. Most of those who were approached declined to comment. 415 While in their defence the respondents pleaded that they conducted internet searches, reviewed the results, and fairly and accurately reported the information obtained from them, no submissions were advanced in support of the plea. Mr Grigg gave some evidence about carrying out internet searches, but no evidence was elicited from him about his methodology, the extent of his searches or the thoroughness of his research. 416 Consequently, this aspect of the defence was not made out. Nor did the respondents establish that they fairly and accurately reported the information acquired by their confidential source.

Was the information derived from a source of integrity with direct knowledge of the transaction? 417 The "cache" of documents referred to in the articles, which was the respondents' source material, was leaked to the respondents by a confidential source. As the respondents declined to disclose his identity, it is impossible to know whether the source was one of integrity, what knowledge of the transaction the source possessed or how that knowledge was acquired. The respondents glossed over this problem. They effectively argued that the source was Mr Emmett. He was the one said to have direct knowledge of the transaction. Even if he could be said to be the source, the respondents do not put him forward as a source of integrity. Far from it. The opening line of their closing submissions, in which they assert that the documents "evidence improper conduct" on the part of Horizon, makes their position clear. 418 Contrary to the submission advanced by the respondents, there is no way that the Court can be comfortably satisfied that the respondents were provided with the entire repository of email communications to which Mr Emmett was a party between 2008 and May 2011. That is pure speculation. I simply do not know. 419 It is clear that Mr Emmett's emails do not provide a complete picture of what was going on at the time. Moreover, some of the information drawn from them and used in the articles is likely to be unreliable because it was based on hearsay or rumour. 420 Even if the confidential source represented to Mr Grigg and/or Ms Whyte that it was the entire repository of those communications, there is no way of knowing whether the source was telling them the truth or was in a position to know what the truth was.

The respondents' intentions 421 Mr Grigg testified that he did not intend to convey any of the imputations and did not believe that any of those meanings was true. Ms Whyte gave evidence to the same effect. 422 If that evidence was truthful, it tends against the reasonableness of their conduct in publishing them. 423 It is unlikely that the respondents did not intend to convey that Mr Duma was corrupt, having regard to the way the story was told in each of the matters complained of. The following matters in particular tell against the conclusion that the respondents did not intend to convey the imputations: the misrepresentations of the Colwell and Greenburg correspondence (including the significant omissions); the erroneous chronology; the failure to publish the substance of Mr Duma's remarks concerning the proposal to relocate the naval base; the misrepresentations about the proposed site being "landlocked"; the prominence given to Mr Emmett's remark about "someone … setting the scene for a handout"; taking out of context Mr Glenn's comment that "the bad guys want 30%"; failing to mention the role of the PAB; and the multiple references to Mr Duma's involvement in corruption scandals. 424 Having regard to the way in which the respondents chose to defend the case, it is also difficult to accept that they did not believe the truth of the proven imputations. 425 I have referred above to some of the problems I have with Mr Grigg's evidence. He claimed not to know the identity of the supposed beneficiary of the corruption said to have been involved in the granting of PRL 21 and the transaction in which Horizon acquired Elevala's share. He disavowed the notion that Mr Ketan was the middleman between the Horizon executives and Mr Duma despite the way in which they were represented in several of the matters complained of and despite the focus on the relationship between Mr Duma and Mr Ketan in the context of the reports about the grant of PRL 21 and the sale of Elevala's interest to Horizon. Yet, on 23 January 2020, shortly before the matters complained of were published Mr Grigg had a telephone conversation with Cameron Watts, National Team Leader (Anti-Corruption and Organised Crime), in the AFP. Mr Watts made a contemporaneous file note of the conversation. It records that Mr Grigg told him (errors in original): • $10m USD - William Dooma - bribe to oil minister in PNG … • Minister writes to them - there's another way we can do this. Name change of PRL - Elevaley Energy and another PNG company take 30% … • 2011/12 - Letters on if they have bribed the wrong guy. 426 When it was put to Mr Grigg in cross-examination that he told Mr Watts that a USD10 million bribe had been paid to Mr Duma, he claimed not to recall saying that. He also claimed to have no recollection of conveying what was recorded in the second dot point above about the Minister writing that "there's another way we can do this". He did not, however, deny saying either of these things. He claimed that it was never his view that Mr Duma had accepted a bribe. I do not believe him. Apart from the way in which the story is presented in the matters complained of, the claim that he never believed Mr Duma had accepted a bribe is not only inconsistent with Mr Watts' contemporaneous note of his conversation with Mr Grigg, but it is also inconsistent with Ms Whyte's evidence about Mr Grigg's state of mind at the time, which she could only have known from her conversations with him. 427 Ms Whyte conceded it was possible that Mr Grigg told Mr Watts a $10 million bribe had been paid to Mr Duma. She also conceded that if Mr Grigg told him that, it was both consistent with what Mr Grigg believed at the time and consistent with the draft article. 428 In any event, it was certainly reasonably foreseeable that the matters complained of might convey the imputations I found to have been conveyed. Yet, the respondents appear to have taken no steps to prevent the matter complained of being understood in that way.

Conclusion 429 The defence has not been made out. I am not persuaded that the publisher's conduct was reasonable in the circumstances. Indeed, I am satisfied that it was unreasonable. I do not accept that the respondents believed the imputations to be untrue and they have not established that they had reasonable grounds for believing that they were true. Nor did they take proper steps, so far as they were reasonably open, to verify the accuracy of the material upon which they relied. While they sought comment from Mr Duma about some things they were intending to publish, they initially misled him and did not fairly publish the substance of his responses.

Were the respondents actuated by malice? 430 Given my conclusions on the reasonableness of the respondents' conduct, it is unnecessary to consider this question.

DAMAGES 431 Mr Duma seeks a substantial award of damages, including aggravated damages. The claim is limited to non-economic loss. 432 The Defamation Act imposes a cap on damages for non-economic loss (s 35(1)), which is indexed annually (s 35(3)). The cap operates as a ceiling on the amount of damages that may be awarded. It applies to an award in a particular proceeding, regardless of the number of causes of action it may involve: Davis v Nationwide News Pty Ltd (2008) 71 NSWLR 606. The maximum is currently capped at $443,000. But a court may order a defendant to pay damages for non-economic loss that exceed the cap provided that the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceeding relates are such as to warrant an award of aggravated damages (s 35(2A)).

General principles 433 Once a publication is found to be defamatory, damage to reputation is presumed and the presumption is effectively irrebuttable: Bristow v Adams [2012] NSWCA 166 at [20]-[31] (Basten JA). 434 An award of damages for non-economic loss in defamation serves three overlapping purposes: consolation for the personal distress and hurt caused to the applicant by the publication; reparation for the harm done to the applicant's personal and professional reputation; and vindication. The first two purposes are concerned with the wrong done to the applicant. The third is concerned with the attitude of others to the applicant. At the very least the sum awarded must be the minimum necessary to signal to the public the vindication of the applicant's reputation. The gravity of the libel and the social standing of the parties are relevant to the amount required. See Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60-61 (Mason CJ, Deane, Dawson and Gaudron JJ). So, too, are the mode and extent of the publication and the failure to apologise or retract the defamatory statements: Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 263 (Knox CJ, Gavan Duffy and Starke JJ); 265 (Isaacs J). 435 In Carson at 70 Brennan J observed that the amount must be sufficient to vindicate the applicant's reputation in the relevant respect in the future. His Honour went on to cite with approval the following remarks of Lord Hailsham in Broome v Cassell & Co [1972] AC 1027 at 1071: Not merely can [the plaintiff] recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge. 436 The level of damages should reflect the high value the law places upon reputation, especially the reputation of those (like Mr Duma) whose work and life depends on their honesty, integrity and judgment: Crampton v Nugawela (1996) 41 NSWLR 176 at 195 (Mahoney ACJ), applied in John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291 at [3] (Giles JA), Ipp JA agreeing at ([14]). 437 In determining the damage to an applicant's reputation, the Court should also take into account "the grapevine effect" of publication of defamatory material. As Dixon J explained in Wilson v Bauer Media Pty Ltd [2017] VSC 521 at [59]: This phenomenon is no more than the realistic recognition by the law that, by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published. It is precisely because the "real" damage cannot be ascertained and established that damages are at large. It is often impossible to track the scandal and to know what quarters the poison may reach. The award of damages must be sufficient to ensure that, the damage having spread along the "grapevine", and being apt to emerge "from its lurking place at some future date", a bystander will be convinced "of the baselessness of the charge". (Emphasis added.) 438 Damages for injured feelings include the hurt, anxiety, loss of self-esteem, sense of indignity and outrage the applicant felt about the publication(s): Carson at 71 (Brennan J). 439 Damages may be aggravated or mitigated by the manner in which the defamatory matter is published and the conduct of the publishers after publication: Triggell v Pheeney (1951) 82 CLR 497 (Dixon, Williams, Webb and Kitto JJ) at 514.

What matters may be taken into account in mitigation of damages?

The respondents' pleaded case 440 In [26] of their defence the respondents foreshadowed that, if Mr Duma were found to be entitled to damages as a result of the publication of any of the matters complained of, they would rely in mitigation of damages upon the following "facts and matters": (a) that [Mr Duma] had, at the time of publication of the matters complained of, and continues to have, a reputation as to his conduct in PNG politics and in Australian political, civil society and business communities, as: (i) a person who had been involved in the following corruption scandals in PNG: A. allegations concerning the forfeiture in 2009 of five leases held by a PNG company, Noko 96 Limited, over land subsequently acquired in 2010 for a property development at Paga Hill, Port Moresby, the exemption of that land from advertisement and granting of the leases to [Mr Duma]'s company, Kopana Investments Limited (Paga Hill affair); B. allegations concerning certain land transactions in 2014 and 2015 in relation to the proposed relocation of a naval base in PNG (Manu Manu affair); (ii) a person whose conduct had resulted in him being investigated in relation to corruption and fraud in PNG in relation to the Manu Manu affair and the Paga Hill affair; (b) the circumstances in which it is proved that the matters complained of were published, including: (i) the fact that allegations had been made, and that the Supreme Court of Justice of Papua New Guinea had made findings, in relation to the Paga Hill affair, including the matters set out in the reasons for judgment of the PNG Supreme Court (per Davani J, Cannings J and Kariko J) in Noko No 96 Limited v Temu & Ors [2012] PGSC 27. The PNG Supreme Court's findings include, with respect to the issue of fraud in relation to the issues referred to above: "When it is considered that this sequence of events occurred in less than eight months and that Kopana's application for new leases was made well before the leases were forfeited from Noko, we agree with the primary judge that there would appear to be reasonable grounds for suspicion and innuendo. We also agree with his Honour that suspicion and innuendo is not by itself evidence of actual fraud. But, with respect, it may amount to constructive fraud, ie where the circumstances of forfeiture or transfer of title are so unsatisfactory, irregular or unlawful as to be tantamount to fraud, warranting the setting aside of registration of title… It is sufficient to say that having regard to the grounds of appeal and the affidavits filed in the National Court there are serious issues as to fraud, which have a real possibility of ultimate success". (refer paragraph [19]). (ii) the fact that findings had been made with respect to the Manu Manu affair, including the findings set out in the report of the PNG government's Administrative Inquiry into the Land Transactions and Deals Involving the Five Portions of Land by the Ministry of Defence and The Ministry of Public Enterprises and State Investments dated 7 October 2017. Those findings include: A. Following the forfeiture on 14 April 2014 (gazetted on 24 April 2014) of a lease over a parcel of land (referred to in the report as Portion 406) comprising 847.25 hectares, a State Lease was granted on 30 July 2015 to one of three applicants, a company called Kurkuramb Estates Limited (KEL); B. On 27 February 2015, the PNG Defence Council, by decision number DCO 05/2015, approved parcels of land referred to as Portions 2722 and 2723 for the site of new PNG Defence Force facilities, including the relocation of the Lancron Naval Base. Portions 2722 and 2723 (later renamed Portions 422 and 423) are adjacent to Portion 406; C. The unimproved value of Portion 406 as at 30 July 2015 was K84,420, which equates to K99 per hectare; D. On 3 November 2015, the Valuer General issued a Certificate of Valuation over Portion 406 for the purposes of the compulsory acquisition of the land, valuing the land at K46.6 million, reflecting a per hectare rate of around K55,000; E. The valuation of Portion 406 referred to at (D) above could not possibly be sustained, and that a more appropriate rate would have been around K488 per hectare; F. The evidence with respect to the valuation of the relevant parcels of land, including Portion 406, required further examination by an authority with full investigative powers (which the Manu Manu Inquiry did not have); G. Portion 406 was well away from the sea, and there was no information to suggest that its acquisition was ever supported by a feasibility study as to its suitability for a naval base; H. The PNG Lands Department file relating to the advertising of Portion 406, its chain of title and its grant to KEL in 2015 had disappeared and remained missing; I. KEL's registered address was listed on the PNG companies register, as at 24 October 2016, as Section 30, Allotment 6, Port Moresby, National Capital; J. A company extract of a separate company, Kopana Investments Limited, disclosed [Mr Duma]'s residential address, as at 31 January 2017, as Section 30, Allotment 6, Port Moresby, National Capital; K. Within three months of KEL's acquisition of the lease in respect of Portion 406, a process was initiated which resulted in KEL being awarded K46.6 million by way of compensation for the compulsory acquisition of that land at the instance of the PNG Department of Defence; L. At the time of the compulsory acquisition of the land held by KEL, its sole director was Christopher Polos, whom [Mr Duma] initially admitted to the inquiry was his brother in law, being the biological brother of his wife. [Mr Duma] later recanted his earlier testimony and asserted to the Manu Manu Inquiry that Christopher Polos was not his brother in law; M. Although unable to reach a conclusion with respect to whether [Mr Duma] and others had engaged in corrupt conduct, as a result of the Manu Manu Inquiry's extremely limited powers for investigation, there would plainly be a case of corruption against [Mr Duma] if, contrary to his denials, he had control over the affairs of KEL. That would demonstrate a link between [Mr Duma] and the compulsory acquisition of Portion 406; N. [Mr Duma]'s true relationship with KEL is a crucial area of investigation because it was the entity which, on the face of the documentation, was entitled to the sum of K46.6 million compensation by reason of the compulsory acquisition of Portion 406; O. Any such investigation must include whether, contrary to [Mr Duma]'s claims, he controlled the affairs of KEL. (iii) the fact that [Mr Duma] stood down from his duties as a government minister while the Manu Manu affair was being investigated; (iv) the fact that the AFP is, as at the date of filing of this Defence, investigating allegations arising from [Mr Duma]'s refusal to extend PRL 5 and the granting of PRL 21; (v) the fact that the PNG government is reported to be investigating the circumstances in which PRL 21 was granted by [Mr Duma] and has requested the assistance of the Australian government in conducting that investigation; (c) the widespread publication, in the AFR newspaper (article published on 20 February 2020 entitled PNG leader makes personal plea to Morrison over Horizon scandal) and AFR Website, at the URL https://www.afr.com/companies/energy/png-makes-personal-plea-to-morrisonover-horizon-scandal-20200219-p542bg, of the substance of [Mr Duma]'s response to the matters complained of in the parliament of PNG on 19 February 2020; (d) the facts, matters and circumstances proven in evidence in support of the defences pleaded in this defence, which the respondents anticipate will include the following: (i) On 15 February 2000, Petroleum Retention Licence No. 5 (PRL 5) was granted for a period of 5 years to Santos and its joint venture partners in relation to the Elevala and Ketu gas fields in the Western Province of PNG. (ii) On 15 February 2005, PRL 5 was extended for a further 5-year period. (iii) On 5 August 2009, the then-current licensees of PRL 5, Santos, Horizon and Talisman (JV Parties), lodged an application for a further extension of PRL 5 for 5 years. (iv) On 7 February 2010, Horizon's CEO, Brent Emmett, sent an email to Alan Fernie, Horizon's Manager Exploration & Development, and Sheridan, stating, "I hesitate to put this in an email but it smells like someone is setting the scene for a handout to solve a problem that doesn't exist". (v) On 28 June 2010, [Mr Duma], in his capacity as Minister for Petroleum and Energy, issued a Notice of Intention to Refuse to extend PRL 5 for the JV Parties. (vi) On 5 November 2010, [Mr Duma] refused to grant an extension of PRL 5 for the JV Parties. (vii) On 19 November 2010, [Mr Duma] notified stakeholders, including Horizon and Talisman, of the availability for tender, from 22 November 2010 until 26 November 2010, of the blocks formerly covered by PRL 5. (viii) On 23 November 2010, Horizon's CEO, Brent Emmett wrote to [Mr Duma] in relation to its application for an extension of PRL 5, stating, inter alia, that Horizon remained "open to any suggestion from [the applicant] as to how the current tension might be diffused". (ix) On 3 December 2010, Horizon sought leave of the National Court of PNG to commence proceedings for judicial review in respect of [Mr Duma]'s refusal to extend the term of PRL 5. (x) On 13 December 2010, the National Court refused leave for Horizon to commence judicial review proceedings. (xi) on 16 December 2010, Horizon filed an appeal in the PNG Supreme Court of Justice in relation to the National Court's refusal to grant leave to commence proceedings (Appeal Proceedings) and was granted temporary orders on 20 December 2010, restraining any dealings in respect of the blocks covered by PRL 5. (xii) On 21 December 2010, Horizon CFO, Michael Sheridan, sent an email to lawyer Ian Shephard of Blake Dawson (now Ashurst) in PNG, which stated, inter alia, "Duma accepts that that we would wish to continue to pursue the judicial review until such time as we have been awarded the PRL under satisfactory arrangements." (xiii) On 3 February 2011, lawyer Tim Glenn of Blake Dawson (now Ashurst) in PNG sent a confidential email to Michael Sheridan, stating, inter alia, 'The bad guys want 30%!!! "Tell em they're dreamin"'. (xiv) On 4 February 2011, [Mr Duma] provided Horizon with short minutes of proposed consent orders effecting settlement of the Appeal Proceedings, and providing, inter alia, that a licence in respect of the blocks covered by PRL 5 be granted to Horizon (70%), Dabajodi International Energy Ltd (20%) and Elevala (10%). (xv) On 7 March 2011, Horizon and [Mr Duma] entered into a settlement deed pursuant to which Horizon agreed to discontinue the Appeal Proceedings in return for the granting of a licence in respect of the blocks covered by PRL 5 to Horizon, Dabajodi International Energy Ltd and Elevala in the shares set out above. (xvi) On 11 March 2011, the PNG Supreme Court of Justice made orders by consent, dissolving the temporary restraining order of 20 December 2010, and providing for the grant by [Mr Duma], in his absolute discretion, of a licence in respect of the blocks covered by PRL 5 to Horizon, Dabajodi International Energy Ltd and Elevala in the shares set out above. (xvii) On 14 March 2011, Simon Ketan was appointed as the sole director of Elevala. (xviii) On 18 March 2011, Petroleum Retention Licence 21 (PRL 21) was granted to Horizon, Dabajodi International Energy Ltd and Elevala in the shares set out above. (xix) On 24 March 2011, Simon Ketan acquired two shares in Elevala, comprising the total share capital in Elevala. (xx) Elevala was a shell company with no relevant experience in relation to petroleum or oil mining. (xxi) Simon Ketan, the sole director and shareholder of Elevala at the time of the grant of PRL 21, acted for [Mr Duma] in relation to Papua New Guinea Supreme Court proceedings William Duma v Eric Meier & Neil Matheson as executors of the estate of Peter Goodenough (case no. SCA No. 36 of 2006). (xxii) [Mr Duma], by his own admission, worked at the same law firm as Simon Ketan approximately 15 years ago. (xxiii) [Mr Duma], by his own admission, came from the same province in PNG as Simon Ketan. (xxiv) On 31 March 2011, Horizon announced to the ASX that the Appeal Proceedings had been settled and that PRL 21 had been granted but did not refer to Elevala in the announcement. (xxv) On 28 April 2011, Horizon CEO, Brent Emmett, sent an email to the board of Horizon, recommending that Horizon pre-empt any other offers for Elevala's 10% share of PRL 21 by offering Elevala "ca US$10 million, split between the companies", and stating, "I recommend this as a good opportunity". (xxvi) On 6 May 2011, Amelia Jalleh, Talisman's Legal Manager - Australia/PNG, sent an email to Brent Anderson and Pat Colwell of Talisman, which included an excerpt from a news story reporting on charges of perjury brought against Simon Ketan on 2003 and comments in support of Mr Ketan by [Mr Duma], stating, inter alia, "[i]s this sufficient, for FCPA [Foreign Corrupt Practices Act] purposes, for us not to proceed with acquiring an interest in PRL 21 from Elevala Energy, or would more definitive information be required?". (xxvii) On 7 May 2011, Brent Anderson of Talisman sent an email to Amelia Jalleh in relation to the results of due diligence searches conducted in relation to Simon Ketan, including charges brought against Mr Ketan in 2003 by the PNG Law Society in relation to allegations of misuse of the PNG National Provident Fund and charges of perjury. (xxviii) On 10 May 2011, Brent Emmett sent an email to Ian Angell, Head of Business Development at Talisman, stating "[w]e've had plenty of time to do our due diligence on what is a straight asset acquisition in which we already have an interest. I don't want to risk spooking the horses." (xxix) On 11 May 2011, Amelia Jalleh sent an email to Michael Sheridan, identifying Talisman's concerns with respect to the payment of US$10.3m to Elevala for its share of PRL21, relating to the identity of Elevala, including that Simon Ketan was not listed on the corporations register as being a director of Elevala despite purporting to act in that capacity, and that Talisman knew next to nothing about the listed shareholders of Elevala. (xxx) On 14 May 2011, Pat Colwell, Senior Legal Counsel Talisman Energy Inc, sent an email to Douglas Greenburg, lawyer at US firm Latham & Watkins, identifying "red flags" in respect of the proposed acquisition of Elevala's 10% share of PRL21, stating, inter alia, "If we assume that there was some corrupt behavior [sic] on the part of Elevala in the acquisition of their interest in PRL 21 it would either be the "fruit of the poisoned tree", which we have previously discussed, or the possibility of payments flowing from Elevala back to some government officials from the sale price to be paid by Talisman and Horizon". The email also stated, "one of the principals of Elevala is a lawyer with what appears to be close connections to government officials". (xxxi) On 15 May 2011, Douglas Greenburg of Latham & Watkins sent an email to Pat Colwell, stating, inter alia, "[t]he bottom line is that if DOJ or SEC get wind of an allegation from any source that Elevala was a vehicle for bribes or paid bribes, there likely will be an investigation. If that occurs, you need to be able to show you did due diligence and reasonably believed the transaction was not corrupt". The email continued, "keep in mind that if Elevala turns out to be a problem and Horizon buys out their interest, there can be questions about what Talisman knew about that. So, understanding the role of Elevala in all this is probably important, even if you decided to pass on buying them out". (xxxii) On 20 May 2011, Amelia Jalleh forwarded the results of news and other searches to Douglas Greenburg, including the excerpts from the news stories referred to at (xxvi) and (xxvii) above. (xxxiii) On 20 May 2011, consultant Arthur Jones sent an email to Amelia Jalleh, stating, "I am held up in a Board Meeting and have not had the pleasure of Simon Ketan's company yet. He has stood me up on two occasions - yesterday and today. Not really sinister but I will need to find him. There is no way around this as we need him". (xxxiv) On 23 May 2011, Michael Sheridan sent an email to Ian Angell of Talisman, stating, "[w]e understand that Simon Ketan is not inclined to complete the Talisman questionnaire". (xxxv) On 26 May 2011, Simon Ketan agreed to sign the Tracecheck due diligence questionnaire, subject to conditions that included that he would not be required to sign any additional documents relating to the purchase of Elevala's 10% share of PRL 21. (xxxvi) The questionnaire signed by Simon Ketan did not disclose any relationship between [Mr Duma] and Simon Ketan. (xxxvii) On 12 February 2020, Horizon announced to the Australian Stock Exchange that it had appointed Herbert Smith Freehills to conduct an investigation into the circumstances of the granting by [Mr Duma]of PRL 21, and that Michael Sheridan had been suspended as Horizon's CEO effective as at 12 February 2020. (e) the fact that Macquarie Bank, Commonwealth Bank of Australia and Westpac have lodged suspicious matter reports with Austrac relating to the transfer of funds from the bank account of Elevala; (f) any damages or compensation payable to [Mr Duma] as a result of proceedings brought by [Mr Duma] for damages in relation to the publication of matter having the same meaning or effect as any of the matters complained of, including proceedings brought by [Mr Duma] against the respondents (Federal Court of Australia Proceedings NSD 514 of 2020). 441 Subparagraphs (e) and (f) were not pressed. The plea in mitigation ultimately rested on the notion that the respondents were entitled to argue and prove that Mr Duma was corrupt, that the sale by Horizon of Elevala's interest in PRL 21 was a corrupt transaction, and that Mr Duma was both a party to, and the architect of, the transaction aided by his "close associate" Mr Ketan. 442 The respondents contended that they were entitled to proceed in this way, relying on that part of Burstein emphasised in the quote below from [47] of the judgment of May LJ (with whom Sir Christopher Slade and Aldous LJ agreed): [The] authorities show that it is not permissible to advance an unsustainable defence of justification and thereby, under the guise of particulars of justification, seek to rely on particulars which Scott v Sampson 8 QBD 491 and Speidel v Plato Films Ltd [1961] AC 1090 [sic] would not permit. That, however, does not prevent a defendant from frankly accepting that there is no proper plea of justification, but seeking to rely in reduction of damages on particulars which Scott v Sampson and Speidel v Plato Films Ltd do not exclude. If this were not so, there is a danger that the jury would be required to assess damages in blinkers, in ignorance of background context directly relevant to the damage which the claimant claims has been caused by the defamatory publication. This is consistent with the sense of what Lord Denning said in Speidel v Plato Films Ltd, where his conclusion was that it was permissible to adduce the evidence in question. Thus, in my view, a defendant is not prevented from taking the sensible course of accepting that the publication means what it says and that it is not on the facts justified, and yet putting in evidence directly relevant facts which in other circumstances might have been ingredients of a defence of justification. It would, I think, be illogical and unfair if this were not so. Evidence in support of a plea of justification which fails is admissible in reduction of damages. But the very same evidence would not be admissible to a sensible defendant who acknowledges that it will not support a plea of justification. What is not permissible is to plead a defence of partial justification which in truth is no defence at all. (Emphasis added.) 443 In Scott v Sampson (1882) 8 QBD 491, in which justification was pleaded, Cave J said that "general evidence of reputation" or bad character (the estimation in which the plaintiff is held by others) was admissible but not "evidence of rumours and suspicions to the same effect as the defamatory matter complained of" or "evidence of particular facts tending to [show] the disposition of the plaintiff". In Plato Films Ltd v Speidel [1961] AC 1090 (Plato Films v Speidel) at 1123 Viscount Simonds explained that "evidence of particular acts of misconduct on the part of the plaintiff could not be given in mitigation of damages where the defendant had failed to justify the libel of which the plaintiff complained". Lord Morris was not persuaded that Scott v Sampson was wrongly decided (at 1146). Lord Guest said at 1148 that "[i]f allegations of specific instances of misconduct were allowed to be proved in evidence in mitigation of damages, it would open the door to issues which were truly collateral and which had but an indirect bearing on the main question in the case". 444 Burstein arose out of the publication of an article which stated that the claimant had organised hecklers to wreck performances of modern atonal music. In their defence, the publishers pleaded fair comment and alleged, amongst other things, that three years before the publication the claimant had associated with a group called "The Hecklers" to oppose modernist atonal music, that the group had encouraged the public to boo at the end of the performance of an opera, and that the claimant had been present at the performance and had booed. At first instance the judge struck out the defence and ruled that the facts pleaded in support of it concerning the claimant's alleged bad conduct were inadmissible in mitigation of his damages. 445 In Burstein at [41], May LJ held that the publishers should have been able to rely on certain parts of particulars which provided the "background context to the defamatory publication" and to keep that material away from the jury would be "to put them in blinkers".

Mr Duma's response 446 Mr Duma's position was that the great majority of the matters particularised are bad in law. While he did not apply for the particulars to be struck out, he objected to the tender of documents relevant only to those particulars, and argued that the matters so particularised should not be taken into account in the assessment of damages. He noted that the scope of evidence in mitigation of damages is limited by the need to prevent defamation trials from becoming "roving inquiries into the plaintiff's reputation, character or disposition" (Burstein at [35]). 447 Mr Duma argued that there is a particular need to prevent such a roving inquiry in the present case because the substantive issues in dispute are confined and the respondents should not be permitted to attempt to open up wide-ranging inquiries into his actions as a cabinet minister up to 12 years ago when they recoil from any attempt to justify their defamatory publications about him. He submitted that, while general evidence of an applicant's reputation is admissible with limited exceptions, evidence of specific incidents affecting his reputation (or of rumours or suspicions about him) is inadmissible. Those exceptions are: (1) evidence of previous criminal convictions or judicial findings against him in a previous civil case (Goody v Odhams Press Ltd [1967] 1 QB 333 at 340-341 per Lord Denning MR; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [254] per McColl JA), none of which are put forward in this case; (2) evidence before the court on a substantive defence of justification, contextual truth or honest opinion (Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 120 per Neill LJ), none of which is raised here; and (3) evidence of specific facts which provide "directly relevant background context" to the publication of the matters complained of (Burstein at [42] per May LJ). 448 Mr Duma sought to confine the operation of the Burstein principle to "facts which might have been particularised in support of a defence of justification, contextual truth or honest opinion", relying on the opinion of Wigney J in Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550 (Rush (No 2)) at [32]-[46] and Burstein at [47].

The case the respondents propounded in final submissions 449 In their closing submissions the respondents contended, in effect, that Burstein entitled them to adduce evidence which proved that the first two pleaded imputations were true. They submitted that the "relevant background" to each of the matters complained of, by which they meant the directly relevant background facts upon which they were entitled to rely in mitigation of damages, were the "facts" set out in [192] of their submissions. Those so-called facts were these: (a) [Mr Duma] did not act on the recommendations or advice of the PAB when he negotiated a settlement of court proceedings by the award of a licence to the Horizon/Kina/Elevala consortium. He acted privately and unilaterally. (b) To add legitimacy to the deal that [Mr Duma] struck with Horizon, and to provide procedural protection for [Mr Duma], [Mr Duma] subsequently sought and obtained an "advice" from his Department Secretary, under the auspices of the latter's Chairmanship of the PAB, prior to the resolution of the dispute and the grant of the licence to the Horizon/Kina/Elevala consortium. It was little more than a departmental advice. It was a contrivance. (c) Following the grant of the injunction, the PAB did not consider any of the applications, as the minutes of 17 March 2011 make clear. The PAB considered itself bound, at its meeting on 17 March 2011, to award the licence to Horizon/Kina/Elevala. It was bound by the deal that [Mr Duma] had made with Horizon. (d) It was the [Mr Duma] who proposed the inclusion of Elevala in the winning consortium. (e) [Mr Duma] knew that Elevala was a 2 kina shell company with no history, experience or expertise in the petroleum industry. Alternatively, he had no knowledge of its history, had certainly been told nothing about Elevala by the PAB, and did not care. He wanted it included in the winning consortium regardless. (f) [Mr Duma] knew that Elevala intended to sell its interest shortly after the grant of the licence. He knew of the deal between Horizon and Elevala, made in mid-February 2011, pursuant to which Horizon would acquire Elevala's 10% interest in PRL 21 for US10.3 million. He approved the transfer of Elevala's interest to Horizon within one day of lodgement because he was aware of the deal that had been struck between Horizon and Elevala. (g) In granting an interest in PRL 21 to Elevala, [Mr Duma] knew that he was not enhancing local involvement in the petroleum industry. [Mr Duma] knew that he was sanctioning a corrupt transaction. 450 In short, as they put it in their submissions at [193], the facts were that Mr Duma knew it was corrupt to grant an interest to a shell company so that the company, and those who stood behind it, could make a quick profit from the sale of the interest and he was a party to that scheme and participated in its execution. 451 Whatever the scope of the Burstein principle, having regard to the pleading and the cross-examination of Mr Duma, these were astonishing submissions, breathtaking in their audacity. They should never have been made.

Consideration 452 For a number of reasons the respondents' claim must fail. 453 First, there is no substitute for examining in each case whether the material relied upon qualifies as directly relevant background facts or "background context directly relevant to the assessment of the damage sustained by the claimant as a result of the publication, in particular the damage to his reputation in the sector of his life to which it relates and the injury to his feelings": Warren v The Random House Group Ltd [2009] QB 600 at 647 [79] (CA) (Sir Anthony Clarke MR). 454 In the present case, whatever is meant by "directly relevant background facts", the matters the respondents pleaded cannot answer that description. 455 As Mr Duma submitted, 26 of the defence is essentially incoherent because none of the matters particularised there is actually a fact, matter or circumstance pleaded in support of the respondents' defence. Moreover, 26 contains few allegations about Mr Duma and those allegations are innocuous. Even if proved they could not conceivably mitigate damages since they are incapable of adversely affecting his reputation. 456 In Burstein at [28] the Court accepted that evidence of rumours and suspicion are inadmissible and so, too, evidence of facts and circumstances tending to show the character and disposition of the plaintiff. 457 Second, none of the so-called facts upon which the respondents relied were pleaded or particularised in the defence and nothing said in Burstein (or any of the authorities which have followed it) provides any support for the course the respondents have pursued in this case. Nowhere in the defence did the respondents allege that Mr Duma was corrupt or dishonest. The closest they came was to assert in para 26(a) that he had a reputation as a person who had been involved in two "corruption scandals", namely the so-called Paga Hill and Manu Manu affairs, and as a person whose conduct resulted in an investigation in relation to those "scandals". 458 It is a basic rule of pleading, reflected in r 16.02(1)(d) of the Federal Court Rules 2011 (Cth) (FCR), that "a pleading must state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial". Moreover, a party must plead any fact if the failure to plead that fact may take another party by surprise: FCR 16.03(1)(b). In a defence, a fact of this nature must be expressly pleaded: FCR r 16.08(b). 459 As the respondents denied that the pleaded imputations of corruption and bribery were conveyed and did not raise a defence of justification or make allegations of fact of the kind upon which they now seek to rely in mitigation of damages, it stands to reason that the failure to plead those 'facts" could have taken Mr Duma by surprise. I have no doubt it did. 460 The respondents attributed to Mr Duma knowledge of the following matters: that Elevala was a shell company with no history, experience or expertise (RCS 192); that Elevala intended to sell its interest shortly after the licence was granted (RCS 192); that Horizon had made a deal with Elevala to purchase its interest in PRL 21 (RCS 192); that he was not enhancing local involvement in the petroleum industry by granting a share in PRL 21 to Elevala (RCS 192); that he knew he was sanctioning a corrupt transaction (RCS 192); that he was party to, and participated in the execution of, a corrupt scheme (RCS [193]). 461 A party must state in a pleading, or in a document filed and served with the pleading, the necessary particulars of each claim, defence or other matter pleaded by the party: FCR r 16.41(1). Further, if a party pleads that another party ought to have known something, the party must give particulars of the facts and circumstances from which the other party ought to have acquired the knowledge: FCR r 16.43(2). Yet no such particulars were provided of any of the matters in the preceding paragraph. 462 It is a fundamental requirement of a fair trial that a party making assertions of the kind the respondents advanced in their closing submissions identify the case it seeks to make in its pleadings and do so "clearly and distinctly": Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486 at [25] (French CJ, Gummow, Hayne and Kiefel JJ); Three Rivers District Council v Bank of England (No. 3) [2003] 2 AC 1 at [184]-[186] (Lord Millett) If the respondents were proposing to invite the Court to make findings of corruption or dishonesty, it was incumbent on them both to plead those matters clearly and distinctly and to identify the underlying facts, matters and circumstances, which, if proved, would entitle the Court to find that Mr Duma engaged in corrupt conduct or was a knowing participant in a corrupt scheme. As Mr Duma submitted, the respondents' defence does not take even the first steps toward complying with this basic obligation. In the circumstances it was simply not open to the respondents to make that case in closing submissions and it would be manifestly unfair to Mr Duma to allow them to do so. 463 Third, to add insult to injury, none of the propositions set out in [192] of the respondents' submissions and reproduced above at [448] - which amounted to allegations of corruption and dishonesty in the execution of public office - and many others of a similar nature made elsewhere in the written submissions, were squarely put to Mr Duma in cross-examination. And Mr Duma was asked no questions at all on the subject of (e), (f) or (g). The only questioning of Mr Duma on his knowledge of Elevala was at T316 and it was this: You would agree that a $2 company like Elevala would have no capacity to carry out what was described as an aggressive work program, unless it was funded entirely by its joint venture partners? 464 Ms Whyte disavowed the notion that Mr Duma was corrupt or dishonest or a party to corruption in which others engaged (at T1099/46-1100/1-5). 465 Since none of the propositions advanced as directly relevant background facts were squarely put to Mr Duma, the rule in Browne v Dunn precludes the respondents from relying on them. 466 In any event, the respondents bore the legal burden of proof on the issue of mitigation of damages: Watts v Rake (1960) 108 CLR 158 at 159 (Dixon CJ); Wenkart v Pitman (1998) 46 NSWLR 502 at 523 (Powell JA). The evidence upon which the respondents relied to prove the truth of the matters it asserted at [192] of its closing submissions was insufficient to enable them to discharge that burden. That is because the findings the Court was asked to make concern conduct "involving grave moral delinquency" with potentially devastating consequences not only for Mr Duma but also for members of the PAB, particularly Mr Rimua, who have not had an opportunity to be heard on them, and on the basis of what can fairly be described as "inexact proofs, indefinite testimony, or indirect inferences": Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J); Evidence Act, s 140. 467 Nor have the respondents discharged their burden in relation to the other matters upon which they relied on this issue. 468 While politicians will always have detractors, the evidence did not demonstrate that Mr Duma's reputation was significantly damaged by either the "Manu Manu affair" or the "Paga Hill affair". It must be remembered that no adverse findings were made against him in relation to either matter. And following the investigation into the "Manu Manu affair" he was exonerated and his exoneration was publicised in the media.

Extent of publication 469 The agreed facts concerning publication are set out above at [26]-[32]. 470 In their closing submissions, the respondents argued that "the Court should proceed with the utmost caution in how it treats those online articles". They contended that, although the Court could have regard to the hurt occasioned to Mr Duma's feelings by the publication of the online articles in PNG, it "should not determine any causes of action arising out of publication of online matter in PNG" and "should not compensate [Mr Duma] for any damage to his reputation in PNG". 471 This was an extraordinary submission for a number of reasons. 472 It was not pleaded. It was not even flagged before closing submissions, despite the parties filing an agreed statement of facts and issues. Indeed, up until their closing submissions, the respondents conducted the proceeding on the basis that Mr Duma's reputation in PNG was a fact in issue. In para 26(a) of their defence, for example, they pleaded in mitigation of damages that Mr Duma had a bad reputation "as to his conduct in PNG politics …", providing particulars of his alleged "involve[ment] in … corruption scandals in PNG" which are unlikely to have been known outside PNG. Furthermore, they cross-examined witnesses on matters which could only have been relevant to Mr Duma's reputation in PNG, based on articles appearing in the PNG press. 473 On this basis alone the submission should be rejected. 474 In any event, the submission is misconceived. 475 The submission was purportedly based on s 11 of the Defamation Act which provides as follows: Choice of law for defamation proceedings (1) If a matter is published wholly within a particular Australian jurisdictional area, the substantive law that is applicable in that area must be applied in this jurisdiction to determine any cause of action for defamation based on the publication. (2) If there is a multiple publication of matter in more than one Australian jurisdictional area, the substantive law applicable in the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection must be applied in this jurisdiction to determine each cause of action for defamation based on the publication. (3) In determining the Australian jurisdictional area with which the harm occasioned by a publication of matter has its closest connection, a court may take into account - (a) the place at the time of publication where the plaintiff was ordinarily resident or, in the case of a corporation that may assert a cause of action for defamation, the place where the corporation had its principal place of business at that time, and (b) the extent of publication in each relevant Australian jurisdictional area, and (c) the extent of harm sustained by the plaintiff in each relevant Australian jurisdictional area, and (d) any other matter that the court considers relevant. (4) For the purposes of this section, the substantive law applicable in an Australian jurisdictional area does not include any law prescribing rules for choice of law that differ from the rules prescribed by this section. (5) In this section - Australian jurisdictional area means - (a) the geographical area of Australia that lies within the territorial limits of a particular State (including its coastal waters), but not including any territory, place or other area referred to in paragraph (c), or (b) the geographical area of Australia that lies within the territorial limits of a particular Territory (including its coastal waters), but not including any territory, place or other area referred to in paragraph (c), or (c) any territory, place or other geographical area of Australia over which the Commonwealth has legislative competence but over which no State or Territory has legislative competence. geographical area of Australia includes - (a) the territorial sea of Australia, and (b) the external Territories of the Commonwealth. multiple publication means publication by a particular person of the same, or substantially the same, matter in substantially the same form to 2 or more persons. 476 The respondents submitted that, pursuant to s 11, "the cause of action is confined to the 'Australian jurisdictional area', and the Court is only concerned with protecting the Applicant's reputation due to any publication in Australia". "Properly construed", they argued, "s 11(5) does not extend to any cause of action where PNG is the lex loci delicti". They claimed that, "as a matter of statutory construction, that conclusion is consistent with the presumption that the legislation does not apply outside of the territory to which it extends". They argued that Mr Duma was seeking to prosecute an action against the respondents for the commission of a foreign tort and it was not open to him to do so. 477 The respondents' submission was based on a misreading of the section, as is apparent from its text. The section is irrelevant in the present case. 478 The substance of the respondents' arguments was that a plaintiff cannot sue for defamation in Australia in respect of a publication outside Australia and damage to the reputation of a plaintiff outside Australia is not compensable in Australian proceedings. As Mr Duma pithily submitted, both these proposition are "simply wrong" for the following reasons. 479 First, a cause of action for defamation accrues in every jurisdiction where the matter complained of is published. 480 Second, subject to forum non conveniens considerations, a plaintiff may sue in the forum for damages in respect of a publication of matter anywhere in the world. 481 Third, where a plaintiff sues in the forum for damages in respect of a publication outside the forum, it is open to the defendant to raise any defence available in that jurisdiction. 482 Fourth, if no such defence is pleaded, there is a presumption that the law of that jurisdiction is the same as the law of the forum. 483 These propositions are long-standing and are supported by a wealth of authority. The respondents had no answer to them. 484 Section 11 is irrelevant. It is concerned with the question of choice of law where publication occurs in more than one Australian jurisdiction. It has nothing to do with whether damage to reputation outside Australia is compensable in a defamation proceeding litigated in an Australian court. 485 In oral argument the respondents contended that it was incumbent on a person who is defamed on the internet and who wishes to recover damages to restore or vindicate their reputation to sue in each country in which the defamatory matter is downloaded (and therefore published) or to sue only in the country where the majority of the damage is done. That is not the law. Since, on the respondents' own admission, the matters complained of were published to (and in all likelihood read by) tens of thousands of people in PNG and hundreds of thousands in Australia, Mr Duma had causes of action in both those countries. Contrary to the respondents' contention, he was entitled to sue and, if successful, recover damages in an Australian court for injury to his reputation in both Australia and PNG. As Asprey JA observed in McLean v David Syme & Co Ltd (1970) 72 SR (NSW) 513 at 521 (case citations omitted): [I] need hardly point out that there can be no question but that by a declaration properly framed a plaintiff can sue in this Court in the one action in respect of the unlawful publication of defamatory matter not only in this State but also in the other States of the Commonwealth and elsewhere, provided in the latter cases the publication complained of was not justifiable by the law of the State or country in which it occurred ... By a declaration properly framed I mean a declaration which contains a separate count in respect of each act of publication relied upon as a separate cause of action and to which the defendant, if he wishes to displace the presumption which, in the absence of proof to the contrary, would lead to the result that the laws of the other States or countries will be assumed to be the same as the law of New South Wales … may address appropriate pleas … (Emphasis added.) 486 Indeed, had Mr Duma commenced proceedings concurrently in this Court for the publications in Australia and in a PNG court for the publications there, he might well have been met with the argument that one of those proceedings was an abuse of process. In Meckiff v Simpson [1968] VR 62, in which the plaintiff sued for defamation in Victoria over the publication of a book in that State, other Australian States, and the United Kingdom, Menhennitt J said (at 65): Fundamentally it appears to me that, unless there are compelling reasons to the contrary, it is highly desirable that there should be in relation to the publication of the book everywhere in the world one action only and one trial only. That this is what the plaintiff fundamentally wants is demonstrated both by his step of instituting one action only and by what was said on his behalf before me. To force him to institute proceedings in separate States and in the United Kingdom would result in either a multiplicity of proceedings, if he were ready and willing to undertake the expense and trouble involved, or otherwise the abandonment of his claim for damages in respect of some or all of the publications outside Victoria. If he took proceedings in a number of States and the United Kingdom one possibility is that he might be confronted in other jurisdictions with the contention that it was an abuse of the process of the court for him not to have combined all his claims in one action. This indeed was the view taken by the Supreme Court of Canada in Thomson v. Lambert, [1938] 2 D.L.R. 545. In the appeal, which was dismissed, the Full Court (Winneke CJ, Adam and Gowans JJ) saw no reason to disagree: Meckiff v Simpson [1968] VR 69 at [71]. The judgment of Menhennitt J in Meckiff v Simpson has frequently been cited as authority for the proposition that a party can sue in one jurisdiction and recover damages in respect of injury caused both in and outside the jurisdiction, including in defamation in relation to publications in more than one jurisdiction. 487 In Ainsworth Nominees Pty Ltd v Hanrahan [1982] 2 NSWLR 823 at 825 Hunt J emphatically rejected the publisher's argument that, as the publication in question allegedly occurred in the United States, the NSW Supreme Court had no jurisdiction to entertain the proceedings despite the fact that the defendant was ordinarily resident in NSW. His Honour described the argument as "somewhat surprising" and unsupported by authority. He pointed out that "it has been settled law for over two hundred years that the English courts have jurisdiction to entertain actions based on torts committed abroad if the wrongdoer can be found within the jurisdiction". 488 In Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519 at 537 Samuels JA, with whom Priestley and Meagher JJA agreed, observed: [C]ourts in Australia have treated it as an abuse of process to bring separate actions in each jurisdiction in which a publication occurred when an action in one of those jurisdictions would enable a party to obtain all the remedies available to that party in any of the various jurisdictions … [A] party who has commenced an action in any one jurisdiction is entitled to recover damages in respect of injury sustained by reason of all the publications of the defamatory matter both within and outside the jurisdiction … 489 Similarly, in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at [36] Gleeson CJ, McHugh, Gummow and Hayne JJ said (footnotes omitted): Clearly, the common law favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings. The principles of res judicata, issue estoppel, and what has come to be known as Anshun estoppel, all find their roots in that policy. The application of that policy to cases in which the plaintiff complains about the publication of defamatory material to many people in many places may well lead to the conclusion that a plaintiff may not bring more than one action in respect of any of those publications that have occurred before the proceeding is instituted or even, perhaps, before trial of the proceeding is complete. Effect can be given to that policy by the application of well-established principles preventing vexation by separate suits or, after judgment, by application of the equally well-established principles about preclusion, including principles of Anshun estoppel. Conversely, where a plaintiff brings one action, account can properly be taken of the fact that there have been publications outside the jurisdiction and it would be open to the defendant to raise, and rely on, any benefit it may seek to say flows from applicable foreign law. If some of the publications of which complaint is or could be made are publications that have occurred outside Australia, or if action has been instituted outside Australia in respect of publications made in this country, or overseas, there is no evident reason why the questions thus presented are not to be answered according to the established principles just mentioned. The application of these principles, however, says nothing about questions of jurisdiction or choice of law. In particular, the application of these principles does not require that a single place of publication be identified in every defamation case no matter how widely the defamatory material is disseminated. 490 Elsewhere in their submissions the respondents relied on passages in the judgments of Berezovsky v Michaels [2000] UKHL 25; [2000] 2 All ER 986; [2000] 1 WLR 1004 and Dow Jones & Co Inc v Jameel [2005] QB 946, [2005] 2 WLR 1614, EWCA Civ 75, upon which McCallum J relied in Bleyer v Google [2014] 88 NSWLR 670 at [33]. The respondents contended that, because Mr Duma led no evidence to establish his reputation in Australia, he was only entitled to "the most insubstantial sum of damages". They submitted that it was no answer to that contention for him to say that he will rely on the judgment of this Court to vindicate him in relation to any defamatory matter published by the respondents in PNG or any other part of the world for this would only encourage forum shopping. 491 Reliance on these authorities was equally misguided. The circumstances of those cases were far removed from those of the present case. Unlike the present case, in both Jameel and Bleyer the extent of publication in the jurisdiction was minimal. Here, publication in the jurisdiction was exponentially higher. The AFR sold over 30,000 copies of the newspaper in which the first matter complained of appeared and more than 38,000 copies of the weekend edition which included the ninth matter complained of. The website version of the first article, which was the second matter complained of, was downloaded by over 14,000 unique visitors nationally. The website version of the weekend feature (the 10th matter complained of) was downloaded by more than 4,000 unique visitors from Australia. 492 In Jameel, which was an appeal from a refusal to give summary judgment, it was accepted that the claimant's cause of action related only to publications in England and Wales. Dow Jones contended that the claimant could not demonstrate that a real and substantial tort had been committed in the jurisdiction and that the action was an abuse of process (at [6]). Dow Jones' evidence was that the article complained of was only published to five individuals in the jurisdiction and the harm done to the claimant's reputation by publication to those five individuals was minimal (at [38]). It was in this context that the Court of Appeal observed that it was "not legitimate for the claimant to seek to justify the pursuit of [the] proceedings by praying in aid the effect that they may have in vindicating him in relation to the wider publication". The issue the Court was addressing in the passages upon which the respondents relied was this: "where there has been a worldwide publication on the Internet, can a claimant justify proceeding in a country where publication has been minimal on the ground that this is a good forum in which to seek global vindication?" (at [61]). 493 In Bleyer, which was a motion for a permanent stay and in the alternative summary dismissal, the best particulars of publication the plaintiff was able to provide was that the seven matters complained of were published to two people living in Victoria and a third who lived in NSW (at [29]). McCallum J said that "[t]he court should not encourage a practice of commencing proceedings for defamation on the strength of a small number of downloads of material from the internet in the speculative hope of proving wider circulation after discovery and interrogatories". 494 Berezovsky was concerned with an application to set aside service of writs for libel issued by two Russian businessmen who frequently visited England for business purposes. The judge at first instance stayed the proceedings on the defendants' application, finding that the plaintiffs' connections with the jurisdiction were tenuous and that they had failed to establish that England and Wales was the most appropriate jurisdiction for the trial of their actions. On appeal to the Court of Appeal, that judgment was overturned. That court held that the primary judge had failed to take into account authority to the effect that, prima facie, England was the appropriate forum for the trial of a substantial complaint arising out of the English circulation of a foreign publication. It admitted fresh evidence which established that the plaintiffs' had significant connections with England and held that England was the appropriate jurisdiction for the trial. An appeal to the House of Lords was dismissed. In the present case, the respondents relied on observations of Lord Hoffman at 1023-4, which were cited in Jameel at [64]-[66]: [T]he notion that Mr Berezovsky, a man of enormous wealth, wants to sue in England in order to secure the most precise determination of the damages appropriate to compensate him for being lowered in the esteem of persons in this country who have heard of him is something which would be taken seriously only by a lawyer. An English award of damages would probably not even be enforceable against the defendants in the United States: see Kyu Ho Youm, "The Interaction Between American and Foreign Libel Law: U.S. Courts Refuse to Enforce English Libel Judgments" (2000) 49 ICLQ 131. The common sense of the matter is that he wants the verdict of an English court that he has been acquitted of the allegations in the article, for use wherever in the world his business may take him. He does not want to sue in the United States because he considers that New York Times v Sullivan (1964) 376 US. 254 makes it too likely that he will lose. He does not want to sue in Russia for the unusual reason that other people might think it was too likely that he would win. He says that success in the Russian courts would not be adequate to vindicate his reputation because it might be attributed to his corrupt influence over the Russian judiciary. … The plaintiffs are forum shoppers in the most literal sense. They have weighed up the advantages to them of the various jurisdictions that might be available and decided that England is the best place in which to vindicate their international reputations. They want English law, English judicial integrity and the international publicity which would attend success in an English libel action. … My Lords, I would not deny that in some respects an English court would be admirably suitable for this purpose. But that does not mean that we should always put ourselves forward as the most appropriate forum in which any foreign publisher who has distributed copies in this country, or whose publications have been downloaded here from the Internet, can be required to answer the complaint of any public figure with an international reputation, however little the dispute has to do with England. In Airbus Industrie GIE v Patel [1991] 1 AC 119 your Lordships' House declined the role of "international policeman" in adjudicating upon jurisdictional disputes between foreign countries. Likewise in this case, the judge was in my view entitled to decide that the English court should not be an international libel tribunal for a dispute between foreigners which had no connection with this country. 495 The emphasis in the last paragraph is the respondents'. These remarks plainly have no bearing on this case first, because the respondents made no attempt to restrain Mr Duma from suing in the forum, whether by applying to have the proceedings or part of them struck out, summarily dismissed or stayed; and second, because the dispute in the present case has plenty to do with Australia. This is not a dispute between foreigners which has no connection with Australia. It is a dispute between a foreigner, who is a cabinet minister in a country formed from two former Australian territories, and an Australian company that published to thousands of people in Australia as well as PNG. The publications themselves concerned allegations relating to the applicant's dealings with an ASX-listed company. Before entering Parliament Mr Duma had been a lawyer in the Port Moresby office of an Australian law firm. He also has personal connections to Australia. He studied here and has two sons both of whose secondary and tertiary education have been and, in the case of Mahoney, continue to be, in Australia. 496 In oral argument the respondents accepted that Mr Duma could be compensated for damage to his feelings as a result of the fact that persons outside Australia read the publications but insisted that damage to reputation caused by publication in PNG was "not justiciable". There is no reason in principle why that should be the case and, as I have explained above, the submission is unsupported by authority. The Court may award damages for injury to reputation, wherever it occurs, provided that it is caused by the defamatory publication. Rush is a case in point. Mr Rush was awarded damages for injury to his reputation, not merely in Australia, but throughout the world: see Rush (No 7) at [785]-[792]. That was unremarkable. Damage to his reputation outside Australia occurred because of the publication of the matters complained of in Australia. 497 The respondents also submitted that, "even if federal jurisdiction is properly invoked (which has not been explained by [Mr Duma] at all), there is some considerable doubt as to whether a cause of action which bears upon the legitimacy of his ministerial conduct can even be determined by a Court in Australia, having regard to the exclusionary principle under private international law". This was another extraordinary submission. 498 First, it is well established that the Court has jurisdiction to hear a defamation suit. That is the effect of s 9(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). See Crosby v Kelly (2012) 203 FCR 451 (Bennett, Perram and Robertson JJ); Rana v Google Inc. (2017) 254 FCR 1 at [24] (Allsop CJ, Besanko and White JJ). See, too, Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 at [6]-[18] (Lee J), which the respondents cited in their submissions. 499 Second, the point about the exclusionary principle was not pleaded and raised for the first time in closing submissions. It was not an issue in the proceeding. On this basis alone it should not be entertained. 500 Third, and in any case, "the exclusionary principle under private international law" has nothing to do with this case. 501 The respondents did not expand upon the argument orally. Nor did they explain it in writing. They merely cited the following references: Lord Collins et al, Dicey, Morris & Collins on the Conflict of Laws (15th ed, Sweet & Maxwell, 2012) vol 1, 99 [5R-001] and Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 43, both of which are irrelevant. 502 In Dicey, Morris & Collins at [5R-001], the following passage appears: English courts will not enforce or recognise a right, power, capacity, disability or legal relationship arising under the law of a foreign country, if the enforcement or recognition of such right, power, capacity, disability or legal relationship would be inconsistent with the fundamental public policy of English law. 503 It is frankly preposterous to suggest that the enforcement or recognition of a right of a cabinet minister to sue a newspaper proprietor in defamation is inconsistent with the fundamental public policy of English law. Dicey, Morris & Collins go on to say at [5-003] that: In English domestic law it is well settled that the doctrine of public policy "should only be invoked in clear cases in which the harm to the public is substantially incontestable, and does not depend upon the idiosyncratic inferences of a few judicial minds." In the conflict of laws it is even more necessary that the doctrine should be kept within proper limits, otherwise the whole basis of the system is liable to be frustrated. "The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness. They do not close their doors unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal." As a result the courts will be slower to invoke public policy in cases involving a foreign element than when a purely municipal legal issue is involved. (Footnotes omitted.) 504 The examples given later in the text of cases in which the courts may decide not to enforce or recognise a foreign law are Nazi nationality decrees depriving absent German Jews of their nationality and confiscating their property (at [5-005]) and laws permitting polygamy or the marriage of step-father and step-daughter (at 5-006]). The rule has mainly been invoked in cases involving foreign contracts and foreign status (at [5-008]-[5-012]). 505 Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd is the Spycatcher case. That was concerned with another exclusionary principle, also discussed in Dicey, Morris & Collins (at [5-020]) and at [8-001]-[8-023] of the current edition: Lord Collins et al, Dicey, Morris & Collins on the Conflict of Laws (16th ed, Sweet & Maxwell, 2022). That principle appears in 5R-019 and 8R-001 of the respective editions as: English courts have no jurisdiction to entertain an action: (1) for the enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign State; or (2) founded upon an act of state. 506 Spycatcher concerned an action by the Government of the United Kingdom to restrain the publication of a book by a former member of the British security services. The claim was not directly based on public law. Rather, the UK Government alleged that the book had drawn on confidential knowledge acquired by the author while he served in the security services and that, for this reason, the proposed publication of the book was a breach of fiduciary duty or a breach of confidence. The High Court accepted, however, that the principle prevented the Court from enforcing foreign public laws or laws or rights which enforced "governmental interests of a foreign sovereign which arise from the exercise of certain powers peculiar to government". Consequently, it refused to grant the injunction on the ground that the court would not enforce a claim arising out of acts of a foreign State in the exercise of such powers in the pursuit of that State's national security. 507 It is obvious that this principle is irrelevant here. Mr Duma's application is a private action in defamation. He is not bringing an action to enforce the rights or governmental interests of a foreign State.

Mr Duma 508 The evidence about Mr Duma was uncontentious. I make the following findings based on that evidence. 509 Mr Duma was born in Mount Hagen in the Western Highlands Province of PNG in October 1967. That means he was 53 when the matters complained of were published and he is 55 now. He is a married man with two adult sons, both of whom undertook their secondary education in Queensland. The elder (William) has also undertaken tertiary education in this country. At the time of the trial, he was studying law at Griffith University. 510 Mr Duma completed his secondary education in Mount Hagen before studying law at the University of PNG. He graduated in February 1988 and was admitted as a lawyer in the National Court and the Supreme Court of PNG later that year. He was awarded the Supreme Court prize for being dux of the year at the PNG Legal Training Institute. In 1992 he enrolled in a Master of Laws degree at the University of Sydney, graduating the following year. 511 Mr Duma began his career in law in about 1989. He was employed as a solicitor at BDW in Port Moresby and in 1997 he became a partner, specialising in commercial litigation. From 1995 until 2000 he was a director of the PNG Harbours Board, now known as the PNG Ports Corporation, and was appointed chairman in 2000, serving in that position until his election to Parliament. 512 Mr Duma was elected to Parliament in about July 2002 representing the seat of Hagen, and was appointed to the Ministry about 13 months later. Mr Duma was a member of the United Resources Party and became the party's deputy parliamentary leader. He was appointed parliamentary leader in 2007 and has remained leader since 2007. 513 From about August 2003 until about 2007 Mr Duma served as Minister for Environment and Conservation in the government led by Sir Michael Somare. In November 2006 he was also appointed Acting Minister for Petroleum and Energy. After the election in July 2007, he was appointed Minister for Petroleum and Energy in the new Somare government and served in that portfolio throughout that term of government, save for a period of about three months in 2011. Mr Duma was re-elected in July 2012 and in August 2012 he was reappointed Minister for Petroleum and Energy in the new government, this time led by Peter O'Neill. He served in that portfolio until February 2014. 514 During his time as Minister for Petroleum and Energy, Mr Duma led negotiations for the ExxonMobil-led $US19 billion PNG LNG project, which culminated in the signing of an agreement in 2009. 515 In 2013 Mr Duma was made a Companion of the Most Excellent Order of St Michael and St George (CMG) for services to the oil and gas industry. 516 In 2014 Mr Duma was appointed Minister for Transport and Infrastructure, a portfolio he held for four months, when he was appointed Minister for Public Enterprises and State Investments. He held that portfolio until May 2019, save for the three month period during which he voluntarily stepped down. In May 2019 Mr Duma resigned from the Ministry, left the Government, and was involved in the formation of a new government under the current Prime Minister, James Marape. Mr Marape appointed Mr Duma Minister for Commerce and Industry a few months later and, after a reshuffle late in 2020, Minister for Public Enterprises and State Investments. 517 Mr Duma read each of the articles published on the AFR website on the morning each article was first published.

Mr Duma's reputation 518 Four witnesses were called to give evidence about Mr Duma's reputation and the effect of the publications on him. I will come to the evidence about the effect of the publications on Mr Duma in due course. 519 The first was Sir Leo Woo, a PNG business consultant. He met Mr Duma about 20 years ago when he was Minister for the Environment and Conservation. Since then, they have had frequent contact, both socially and professionally. Sir Leo knows businesspeople, accountants, lawyers and politicians who also know Mr Duma. He testified that, before the publication of the matters complained of, Mr Duma was held in high regard by the people with whom he mixed and that he, personally, held him in high regard. He said "[h]e was always known as a person who always followed rules and insisted on following rules, and he was well liked, straightforward, [and] honest". 520 Sir Leo said that Mr Duma called him to tell him that the matters published in the AFR about him were "absolutely not true" and that he was very disappointed in the newspaper. 521 In cross-examination Sir Leo agreed that he had followed Mr Duma's political career with keen interest. He said that he was aware of the "Manu Manu affair" and understood that allegations of corruption had been made which "involved" Mr Duma. In re-examination he made it clear that he also understood that Mr Duma had been cleared of any involvement, referring to an article in the PNG Post-Courier. 522 The second of the four witnesses was Ano Pala. Mr Pala is a lawyer and parliamentarian, who worked first for the PNG State Solicitors Office, then as a parliamentary legal counsel and later a parliamentary clerk. He was elected to the PNG Parliament in 2007. 523 Mr Pala testified that Mr Duma had a reputation for being "very hard working, very reliable, and very professional, and very honourable". 524 In February 2020 Mr Pala read some articles about Mr Duma which had been published by the AFR after they were sent to him on WhatsApp by a friend. He discussed the articles with the friend and other people as well. They were people in his "circle", which he said was also Mr Duma's circle. He testified that those people were surprised by what they read and he, too, was surprised. In cross-examination Mr Pala admitted to having some awareness of "the Paga Hill issues", but nothing specific. He also admitted that the "Manu Manu affair" was well known in PNG in 2017 and said it had been raised on the floor of Parliament. He acknowledged that Mr Duma was alleged to have been involved in it and that it was known in the circles in which he moved in PNG that allegations of corruption had been levelled against him. In re-examination he said that he had read the article in the PNG Post-Courier which reported that Mr Duma had been cleared of any wrongdoing and that was his understanding at the time. 525 The next witness was Sam Akoitai. Mr Akoitai entered Parliament in PNG in 1997. He represented Central Bougainville for 10 years, lost his seat in 2007, and regained it in 2017. From 2002 until 2007 he was Minister for Mining. He was also the leader of the United Resources Party when Mr Duma was the deputy leader. 526 Mr Akoitai met Mr Duma when Mr Duma was first elected to Parliament. 527 Mr Akoitai said that, apart from politicians and party members, Mr Duma knew landowners and members of the business community. He testified that Mr Duma was an honest man who was respected by the landowners, the business community and throughout political circles in PNG. He said Mr Duma had a reputation as an honest man and a prominent leader of the Parliament. 528 In February 2020 Mr Akoitai read articles about Mr Duma in the AFR. He said they were widely published in social media and circulated through WhatsApp groups. 529 In cross-examination he said he was unfamiliar with the so-called "Paga Hill affair" in 2009 but accepted that Mr Duma was "alleged to be involved in ..." allegations of corruption with respect to the so-called "Manu Manu affair" in 2017. The effect of his evidence in re-examination was that he did not understand that Mr Duma was in fact involved in "the Manu Manu issue" "at all". 530 The final witness was Mr Duma's son, Mahoney. Mahoney was 21 at the time he gave his evidence. He testified that he became aware of the matters complained of when he saw them "online, on Facebook, on social media". He said he was a member of a Facebook group which focuses on development in Mount Hagen and he saw a post and a link to "the article". He then said that he spoke to one or two friends about "the articles" in the AFR when he returned to Brisbane, where he was then studying, in March 2020. He said they asked him whether "it was true" and his father told him that the "articles and allegations going around about him" were not true. 531 Mahoney also testified that, after he read the articles and spoke to his father about them, he searched online to find out more about what was alleged against his father. When he did, he saw "many posts" which referred to the AFR articles. He said in some of them people would refer to his father as an "evil little man", an "evil dwarf", and called him "corrupt", described him as "a criminal", and used "a lot of insulting words". 532 None of the evidence given by these witnesses was challenged. In these circumstances there is no reason why I should not accept it and I do. Accordingly, I find that before the publication of the matters complained of Mr Duma had a reputation as an upstanding citizen and an honest, honourable and hardworking politician, who respected the rules. I also find that his reputation has been adversely affected by the publication of the articles. On the evidence before the Court Mr Duma enjoyed a high reputation before the publication of the matters complained of. Notably, each of his witnesses commented favourably on his reputation for honesty and integrity. The cross-examination of those witnesses went nowhere. All the respondents established was that he had been named in connection with the Paga Hill and Manu Manu matters. Counsel did not directly put to any of the witnesses that the allegations had damaged Mr Duma's reputation or that, if they had, the findings of the court in the Paga Hill case and the outcome of the police investigation into the Manu Manu allegations had had no restorative effect. It was never suggested to the witnesses that the fact that Mr Duma had been named in connection with the two matters had any enduring effect on his reputation. Nor was it ever put to Mr Duma that his reputation had been tarnished by his alleged involvement in either matter. 533 No foundation was laid in the evidence to suggest that Mr Duma's reputation in Australia was any different. In any case, as Mr Duma submitted, he is a senior minister in the government of a geographically close and friendly nation with which Australia has close historical, diplomatic and economic links and a prominent public figure in PNG. Regardless of how well-known he might be in the general Australian community, there would obviously be people in Australia, particularly in political, legal, diplomatic, business and mining circles where the damage caused by these articles would inevitably be greatest, among whom Mr Duma would have had an established reputation. The evidence adduced by the respondents suggested that he was well-known in Australian mining circles. 534 In any case, it is no impediment to a substantial award of damages that a plaintiff is little known: Plato Films v Speidel at 1138 (Lord Denning). Moreover, as Mr Duma observed in submissions: Where a plaintiff is not widely known beforehand, the publication of defamatory matter through a prominent medium such as the AFR simply has the effect of bringing him or her to the attention of a vastly wider range of people, and immediately ruining his or her reputation amongst the entirety of that wider (and necessarily unknowable) range. 535 In Jameel, the Court of Appeal affirmed the long-standing principle of English law that the publication of a defamatory article carries a presumption that the person defamed by it has suffered damage, without the need to prove that anyone knowing the person had read the article (at [27]). The point in Jameel was that the presumption was not irrebuttable (at [27]). The Court went on to say (at [28]): What if an article defames a person who can plainly be identified by his name or description in the article but the defendant succeeds in proving that no reader of the article knew or knew of that person? In Multigroup Bulgaria Holding AD v Oxford Analytica Ltd [2001] EMLR 737 Eady J expressed the view that an article defaming an identifiable individual would give rise to a cause of action even where no one reading the article had prior knowledge of the victim. While we are unaware of any authority that supports this proposition, it seems to us that it makes sound sense. There seems no reason in principle why a newspaper should not simultaneously create and besmirch an individual's reputation. To take an extreme example, imagine that an unknown American who was about to visit an English town was erroneously described in the town's local paper as a paedophile. Manifestly the law ought to afford him a cause of action in libel. 536 If Mr Duma's reputation was sullied by the so-called Paga Hill and Manu Manu affairs, the evidence indicates that it was restored before the publication of the matters complained of. The comments on social media that might suggest otherwise are irrelevant as "[t]he law can take no notice of a reputation which has no foundation except the gossip and rumour of busybodies who do not know the man": Plato Films v Speidel at 1138. On 10 May 2013 the National Court of PNG published its judgment on the Paga Hill land case finding that there was no evidence in support of the allegations made against Mr Duma: Noko No. 96 Ltd v Temu [2013] PGNC 365. Evidently an allegation had been made that a company of which Mr Duma was a director had acquired titles in certain properties and one Richard Wong alleged that the company had acquired the titles by fraud. In his reasons at [18], the learned judge, Gavara-Nanu J, observed that there was no evidence of any fraudulent dealings by the company in the acquisition of the properties and said he was satisfied that the acquisition was "free from fraud". I have referred above to the publicity associated with Mr Duma's exoneration by the police of involvement in the "Manu Manu affair". 537 Later that year Mr Duma was awarded his CMG, an award unlikely to be bestowed if he had a reputation for being dishonest or dishonourable, let alone corrupt. 538 I also accept the submission made on Mr Duma's behalf that it says a great deal about his standing in PNG that he has held his seat in Parliament for such a long time, without interruption, and that he was elevated to such senior positions so soon after entering Parliament.

Hurt to feelings 539 Mr Duma's evidence on this subject was at times laconic, perhaps understated. But I was left in no doubt that he was outraged, indignant and gravely hurt by the publications of the matters complained of. 540 Mr Duma was unable to sleep after replying to Mr Grigg's email the day before the first matter complained of was published. After he read the article on the Monday he said he had a terrible day "knowing how people who knew [him] would react". He said he was "too affected" to even read most of the subsequent articles. He described himself as "really disappointed and upset at that time". He said he spoke to a number of his friends, constituents, fellow party members, and later the Prime Minister. He found it very difficult trying to explain himself to people who vote for him and trust him and he had "a terrible time trying to explain to them and trying to work out how they reacted when they read [the] articles". Although Mr Duma informed the Prime Minister that the articles were defamatory and contained false allegations, he said he felt "terrible" having to explain himself to him. He said the Prime Minister trusted him and appointed him to the Ministry and he "just didn't know" how he would regard him after the publication of the articles, which "seemed to portray the impression that [he] was involved in a scam or some deal to receive a bribe or was engaged in some corrupt transactions". 541 Every day he read the articles he "became angrier and angrier, and disappointed", particularly "when they kept on portraying the image that [he] was involved in an alleged scheme to receive corrupt payment from Horizon Oil" and "[n]otwithstanding that [he] had provided [his] responses to Mr Grigg." In other words, he was increasingly angry about the repeated publication of false allegations that he was involved in a scheme to receive a corrupt payment and disappointed because Mr Grigg did not seem to be taking any notice of his responses. He emphatically denied receiving any corrupt payment from Horizon, either directly or indirectly. He was equally emphatic that he did not intend to, and did not in fact, extract a bribe from anyone in relation to PRL 21. 542 When asked how he felt to be accused of having acted corruptly and having received a bribe, he replied: I felt very bad. In fact, those are the lowest times in my life, having been a member of parliament for many, many years. And for such allegations to be made against me when I knew that I wasn't involved in such a scheme. (Emphasis added). 543 When Mr Duma read the paragraph about a news clipping indicating a link between him and Mr Ketan amid allegations of tribal landowners being defrauded, he said he could not believe it and it was not true. When he saw the reference in the second article to him being named together with Mr Ketan "amid allegations of tribal land holders being defrauded of government compensation", he was indignant ("more annoyed") as he had already explained to Mr Grigg that he was not involved in any such scheme. He was "quite upset" to read the statement that the 24 November letter from Horizon in which it said that it was "open to any suggestion … as to how the current tension might be defused" was the trigger for settlement. He said it was not the trigger for settlement. Rather, he testified, the trigger for settlement would have been the court case, having regard to the advice he received from the PAB and his lawyers that the proceedings would become protracted and there was a risk that the gas field would not be commercialised within the time the government envisaged. Mr Duma said he did not know what Mr Emmett meant by "open to any suggestion" but he was "not very happy" when he read the article because it gave the impression he was involved in a corrupt scheme. 544 I accept his evidence about the impact on him of the publications. It was corroborated by his witnesses, whose evidence, as I observed earlier, was not challenged. 545 Sir Leo Woo testified that Mr Duma was clearly upset about the publication of the articles. 546 Long after the articles were published, Mr Pala told Mr Duma that he was very concerned by what he had read. He said Mr Duma was very upset at the time and that he advised that he was going to make a press statement to clear his name because he was not happy with what had been said and it was very damaging to his reputation. 547 Mr Akoitai discussed the AFR articles with Mr Duma. He wanted to know whether they were true. He testified that Mr Duma was "very depressed, upset about the publication" and not in a state to make any substantive comments about them. 548 When Mahoney spoke to his father about the articles, he noticed he was upset and stressed out about them. Since the articles were published, Mahoney noticed a change in his father's behaviour. As he put it: Like I said, he was a bit more - definitely more stressed. He would come back home and instead of spending time with - with us he would go straight into his study; he would work till the very early hours of the morning. Sometimes he would even miss out on dinner. He didn't joke around as much with us anymore. And he tried - he definitely tried to put on a brave face but - as any father would, but I'm his son so I definitely know when he's down.

Vindication 549 The respondents submitted that if Mr Duma were successful, "publication of the judgment of the court can be expected, in the context of the present prominence, to have the effect of fully vindicating [Mr Duma's] reputation". They asserted that "the judgment of the court can be expected to be widely reported, including by the [r]espondents and other media" and "in that way, likely come to the attention of all those who may have thought less of [Mr Duma] by reason of having read the matters complained of". 550 A similar submission was made in Chau v Australian Broadcasting Corporation (No 3) [2021] FCA 44; 386 ALR 36 (Chau v ABC) and firmly rejected. In Chau v ABC at [130] Rares J said: I reject that argument as unsound in principle for the reasons given in Associated Newspapers Ltd v Dingle [1964] AC 371; [1962] 2 All ER 737 (Dingle) by Lord Morton of Henryton (at AC 403-4) and Lord Denning (AC 408-9) with whom Lord Radcliffe (at AC 400-1), Lord Cohen (at AC 407) and Lord Morris of Borth-y-gest (at AC 418-19) agreed (and see Lewis v Australian Capital Territory (2020) 381 ALR 375; [2020] HCA 26 (Lewis) at [171]-[172] per Edelman J, with whose reasons on the issue of vindication, Kiefel CJ and Keane J agreed at [22]). As Lord Morton said (at AC 404): Such a method of assessing damages would do less than justice to the plaintiff, in my view, and it is based upon suppositions which may be unfounded. A judge cannot tell how widely his judgment will be reported and read, nor can he tell how far the plaintiff's general reputation will be improved by his complimentary remarks. A simple verdict of a jury in favour of the plaintiff will no doubt have a good effect on his reputation, and it is surely impossible to set a monetary value upon the difference, if any, between the effect of a jury's finding and the effect of a judge's finding plus a compliment from him. (Original emphasis.) 551 His Honour noted at [132] that a suggestion had been made in obiter dicta in Cairns v Modi [2012] EWCA Civ 1382; [2013] 1 WLR 1015 at [32] (by Lord Judge CJ, Lord Neuberger of Abbotsbury PSC and Eady J) that there will be occasions when the reasons for judgment will provide a sufficient vindication but that will always be "a fact-specific question". His Honour also noted that no examples were given or authority cited in support of the proposition although their Lordships had also said (at [30]-[32]), following Associated Newspapers Ltd v Dingle [1964] AC 371; [1962] 2 All ER 737, that there is no general principle for making any allowance in reduction of an award of damages based on the court's reasons for finding in favour of a claimant. Moreover, his Honour observed that their Lordships had said at [32] that: It is more likely, as in so many cases, that the general public (or rather, interested "bystanders" who need to be convinced) will be concerned to discover what might be called the "headline" result. What most people want to know, and that includes those who read the judgment closely, as Mr Caldecott submitted, is simply "how much did he get?" (Emphasis added in Chau v ABC.) 552 Rares J agreed with these remarks in Chau v ABC at [133], adding: The ordinary reasonable viewer of the program and those to whom its imputations about Dr Chau were republished are not likely to spend hours reading these reasons and nor is anyone else except the present parties and their lawyers and any appellate court. The public are interested in what amount the Court awards, not the dross of legal reasons or, as Lord Macnaghten once remarked in another context: "Thirsty folk want beer, not explanations": Montgomery v Thompson [1891] AC 217 at 225. 553 For the same reasons the respondents' submission should also be rejected. I would only add this. It is compensation for an injury to reputation which operates as vindication (as well as consolation): Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150, cited with approval by French CJ, Gummow, Kiefel and Bell JJ in Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at [1]. In Carson at 70 Brennan J explained that in order to achieve the purpose of vindicating reputation, damages in defamation are determined by reference, amongst other things, to the amount necessary to achieve that purpose. 554 Even plaintiffs of stoic temperament who are convinced of the invulnerability of their reputations are entitled to be vindicated by the amount of damages: Rayney v The State of Western Australia (No 4) [2022] WASCA 44 (Buss P, Murphy JA, Corboy J) at [154].

Has Mr Duma established an entitlement to aggravated damages?

General principles 555 Damages for the grief or annoyance caused by the defamation to the applicant may be aggravated by the manner in which, or the motives with which, the defamatory statement is made or persisted with: McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 107 (Diplock LJ). An award of aggravated damages may be made where the circumstances of the publication of the matter(s) complained of or the conduct of the respondent(s) then or thereafter "make the injury to the plaintiff worse": Waterhouse v Broadcasting Station 2GB Pty Ltd [1985] 1 NSWLR 58 at 74G (Hunt J). But they can only be awarded if the conduct of the respondent(s) was improper, unjustifiable or lacking in bona fides: Triggell v Pheeney at 514; Waterhouse at 75C-D. See also Nationwide News Pty Limited v Rush [2020] FCAFC 115; 380 ALR 432 at [432] (White, Gleeson and Wheelahan JJ).

The claim 556 The basis for Mr Duma's claim to aggravated damages is set out in his particulars which are in the following terms: (a) The knowledge by [Mr Duma] of the falsity of the imputations; (b) The failure of the [r]espondents to seek and obtain a response from [Mr Duma] prior to publication of the first and second matters complained of to the [false] allegation that he had acted corruptly in relation to efforts to move a PNG naval base 10 kilometres inland and that he had been suspended as Minister in the Papua New Guinea Government Cabinet over such corrupt conduct, such failure evidencing an intention to hurt and harm [Mr Duma]; (c) The continued publication of the allegations in the second matter complained of that [Mr Duma] had acted corruptly in relation to the efforts to move a PNG naval base 10 kilometres inland and that he had been suspended as Minister in the Papua New Guinea Government Cabinet over such corrupt conduct, despite [Mr Grigg] being advised by [Mr Duma] in his emails sent 10 February at 2.05am and 7.18pm that [he] had voluntarily stepped aside as a Minister and that he was cleared of the allegations by the Royal Papua New Guinea Constabulary in August 2018; (d) The use of tags marked "Corruption" at the foot of the second and sixth matters complained of; (e) The failure of the [r]espondents to publish in the fourth and sixth matters complained of [Mr Duma's] response to the [false] allegation that he had acted corruptly in relation to efforts to move a PNG naval base 10 kilometres inland, despite [Mr Grigg] being advised by [Mr Duma] in his emails sent 10 February at 2.05am and 7.18pm that [he] was cleared of the allegations by the Royal Papua New Guinea Constabulary in August 2018, with such failure evidencing an intention to hurt and harm [Mr Duma]; (f) The failure of the [r]espondents to include in the ninth and tenth matters complained of any response whatsoever by [Mr Duma] to a number of the allegations made against him giving rise to the imputations particularised, despite the [r]espondents having such responses as contained in email communications passing between [Mr Duma] and [Mr Grigg], with such failure evidencing an intention to hurt and harm [Mr Duma]; (g) The continued publication of the second matter complained of, despite being informed by [Mr Duma] in his email to [Mr Grigg] sent 10 February 2020 at 7.25pm that the matter was defamatory. (h) The continued publication of the second, fourth, sixth, eighth and tenth matters complained of on the website afr.com despite being informed by [Mr Duma's] solicitors in their letter to the [r]espondents dated 27 February 2020 that the imputations conveyed by the matter were false and defamatory; (i) The failure of the [r]espondents to apologise to [Mr Duma] despite being informed by [him] in his email sent 10 February 2020 at 7.25pm to [Mr Grigg] that the first and second matters complained of were defamatory; (j) The failure of the [r]espondents to apologise to [Mr Duma] despite being informed by [him] in the letter from [his] solicitors to the [r]espondents dated 27 February 2020 that the imputations conveyed by the matter complained of were false and defamatory; (k) The engaging by the respondents of a smear campaign as against [Mr Duma] by reason of the publication of the following further articles of and concerning [Mr Duma] which conveyed imputations to similar effect to those as relied upon by [Mr Duma] and as particularised [in the statement of claim]: (i) Article headed "Horizon falls 32pc after bribery scandal report" published on the Australian Financial Review website on 10 February 2020; (ii) Article headed "PNG energy staff 'sanctioned' on deal" published in The Australian Financial Review newspaper and article headed "PNG department silenced over Horizon licence" published on the Australian Financial Review website on 14 February 2020; (iii) Article headed "Closing horizon on corruption" published in The Australian Financial Review newspaper and article headed "Time to close the horizon on corruption", published on the Australian Financial Review website on 14 February 2020; (l) The conduct of the [r]espondents in presenting the publication of the matters complained of in an over-sensationalised manner including the headlines to the seventh and eighth matters complained of, namely "'PNG minister's link to $US10m Horizon deal" and "New document reveals PNG minister's link to US$10.3m payment" respectively[.] 557 Although it would undoubtedly hurt his feelings, Mr Duma's knowledge of the falsity of the imputations cannot sound in aggravated damages because the mere fact that imputations are false does not mean that the respondents' conduct in making them or in defending the proceeding was improper, unjustifiable or lacking in bona fides. Neither a bona fide defence raised properly or justifiably in the circumstances known to a publisher nor evidence honestly given in support of such a defence can be used for such a purpose: Triggell v Pheeney at 514. 558 In his written submissions Mr Duma effectively narrowed the pleaded categories. While not formally abandoning any of them, he confined his submissions to the following six factors: (1) the respondents' failure to put the substance of what they intended to publish to Mr Duma and offer him the chance to explain; (2) the respondents' failure to publish such responses as Mr Duma was able to provide, to such questions as he was asked, either fairly or at all; (3) the continued publication of the website versions of the matters complained of, not only in the absence of any defence of truth but also in circumstances where Mr Grigg conceded that in numerous respects the respondents' conduct was unreasonable and/or they had no proper basis for what they published; (4) the respondents' failure to apologise to Mr Duma, despite knowing of Mr Duma's concerns as early as 27 February 2020; (5) the publication of more articles of and concerning Mr Duma conveying substantially the same imputations as those conveyed by the matters complained of "as part of a smear campaign against him"; and (6) the respondents' "improper and craven attempt to assert the factual truth of the matters complained of without a plea in justification". 559 Mr Duma also relied on the repeated assertions in the respondents' closing submissions, no doubt made on instructions, to the effect that Mr Duma was corrupt and dishonest, particularly those in [3]-[10] and [42]-[68] of those submissions, which he submitted were both "unfounded and unfair".

Consideration 560 With respect to the first factor - the failure to put the substance of what they intended to publish to Mr Duma and offer him the chance to explain - Mr Duma submitted that Mr Grigg's emails to him were "fundamentally misleading on important issues" and failed to invite him to respond to the allegations the respondents were actually going to publish. He also submitted that they "compounded the unfairness" by failing to report, accurately or at all, the explanations he offered and the corrections he provided. He argued that the respondents' conduct in these respects was "so egregious" that it could only be regarded as improper, unjustifiable and lacking in bona fides. 561 The respondents did not address these submissions in this context, presumably because they had no proper answer to them. 562 As I have already explained, Mr Grigg's emails were misleading in important respects. Furthermore, the respondents never invited him to respond to the allegations they intended to publish. The failure to alert him to their intention to publish the allegations concerning the naval base was unquestionably unjustifiable and lacking in bona fides. So, too, was the entire reporting of the "Manu Manu affair". 563 With respect to the second factor - the respondents' failure to publish such responses as Mr Duma was able to provide to such questions as he was asked, either fairly or at all - the respondents once again chose not to address Mr Duma's submissions. Instead, they proffered the following argument: The position of the Respondents has always been that the imputations pleaded were not conveyed. They were more than entitled to take that course. There was nothing improper, unjustifiable or lacking in bona fides in the position maintained by the Respondents - nor is it suggested. The Applicant did not seek vindication in respect of any lesser meanings - which the Respondents would have sought to prove true. In any event, as addressed above, Mr Grigg gave the Applicant every opportunity to comment. The Applicant was evasive in his responses. 564 It was not to the point that the respondents may have believed that the pleaded imputations were not conveyed. And it is simply wrong, for the reasons given earlier, to assert that Mr Duma was given "every opportunity to comment" or that his responses were evasive. 565 In the their written submissions the respondents contended that Mr Duma had failed to establish that they had not published his response in the fourth and sixth matters complained of to the allegation that he had acted corruptly in relation to efforts to move a PNG naval base 10 kilometres inland. That contention must be rejected. The articles speak for themselves. 566 Mr Duma dealt with the third and fourth factors together. The third factor was the continued publication of the website versions of the matters complained of in the absence of a plea of justification and in circumstances in which the respondents conceded that their conduct was unreasonable and/or without a proper foundation. The fourth was their failure to apologise. 567 On 27 February 2020 Mr Duma's solicitors sent a letter to the editor in chief of the AFR requesting removal of the articles and an apology. The substance of the letter reads as follows: Between 10 February and 18 February 2020, the Australian Financial Review published in both print and online a series of six articles by Angus Grigg and Jemima Whyte concerning the grant in 2010 of a petroleum retention licence in PNG to Horizon Oil, Dabajodi International Energy Limited and Elevala Energy Limited (the Articles). The Articles conveyed the defamatory imputations that our client: 1. as the Minister for Petroleum and Energy in PNG acted corruptly by granting a 10% interest in a lucrative petroleum licence to a close business associate; 2. as the Minister for Petroleum and Energy in PNG received a bribe from a close business associate in return for granting his company a 10% interest in a lucrative petroleum licence; 3. as the Minister for Petroleum and Energy in PNG acted corruptly by failing to declare a close business relationship with the proprietor of a company to whom he granted a 10% interest in a lucrative petroleum licence. The imputations are false. On 20 February 2020 our client issued a Press Release responding in detail to the allegations made against him in the Articles (copy attached). On the same day he presented a similar statement to the PNG Parliament, with leave from the Speaker. It is abundantly clear from the facts, matters and circumstances outlined in the attached Press Release that the AFR allegations against our client are based upon reckless assumptions, unfounded inferences and a not uncommon journalistic belief in guilt by presumed association. For the purpose of discovery and interrogatories, please preserve all drafts, notes, emails and other documents relating to the Articles, including the "thousands of emails, faxes, letters and legal briefs" referred to in the 10 February 2020 article. In order to resolve the indefensible defamation of him, our client requires: 1. Immediate removal of the Articles from the AFR and other related websites. 2. Publication in print and online of an apology, In terms to be agreed. 3. Payment of a satisfactory amount of compensation. 4. Payment of his legal costs. If such request is not agreed within 7 days from this date, we have instructions to commence defamation proceedings in the Federal Court of Australia. We await your response. 568 The response came from the Executive Counsel of Nine Publishing, the owner of the AFR. It was sent by email on 3 March 2020. It read: The Australian Financial Review declines your client's requests. I have instructions to accept service. 569 Mr Duma was shocked by the response. He said he could not believe it and thought that the respondents were being "very arrogant". As his counsel submitted, to respond in this way without engaging with the contents of the letter and Mr Duma's statement to Parliament was high-handed. 570 Mr Duma argued that in circumstances in which the respondents did not allege in their defence that the pleaded imputations were substantially true, their failure to apologise and their persistence in keeping the matters online should be regarded as improper and unjustifiable. 571 I do not accept this argument. 572 First, the mere failure to apologise is not sufficient to warrant an award of aggravated damages. In Carson at 66 Mason CJ, Deane, Dawson and Gaudron JJ said: Whereas publication of an apology may mitigate damage, thereby reducing the harm suffered by a plaintiff in a defamation case, and so reduce the damages awarded, the failure to publish an apology does not increase the plaintiff's hurt or widen the area of publication. No doubt want of apology may be a relevant factor in establishing that a defendant is motivated by a desire to injure the plaintiff but that does not mean that want of apology itself aggravates the plaintiff's injury. 573 It is true that Mr Duma did not merely rely on the lack of an apology. Nevertheless, I am not persuaded that the respondents' failure to raise a justification defence means that their failure to apologise and/or the continued publication of the matters on the AFR website was improper or unjustifiable and lacking in bona fides. While I rejected the respondents' argument that the pleaded imputations were not conveyed, I do not consider the respondents' conduct was of this order: compare Chau v Fairfax Media Publications at [366]. "Mere persistence, or even vigorous persistence, in a bona fide defence, in the absence of improper or unjustifiable conduct, cannot be used to aggravate compensatory damages": Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 237 (Toohey J with whom Dawson and McHugh JJ agreed at 222 and 239 respectively). But the assertions made in the respondents' submissions that the pleaded imputations were true are of an altogether different order. I will come to them shortly. Moreover, the failure to correct the record with respect to the naval base allegations was admittedly unjustifiable and lacking in bona fides. 574 There is also force in the respondents' submissions that the articles concerned matters of legitimate public interest "going beyond the references to [Mr Duma]". I do not consider that it was improper or unjustifiable and lacking in bona fides for Fairfax not to remove the publications from the AFR website. On the other hand, I do consider that it was improper, unjustifiable and lacking in bona fides for Fairfax not to correct the errors when they were pointed out to the respondents. Some amendments were made after the proceeding was commenced in April 2020, sometime between 7 September 2021 and 7 October 2021. Notably, Mr Grigg's evidence was completed in April 2021. No evidence was given about why the amendments were made at this time. Ms Whyte testified that she was not consulted about the changes. Mr Grigg was not recalled. And no other person who might have been involved in the exercise was called to give evidence. To the extent that Fairfax may have been prompted to make the changes as a result of concessions Mr Grigg made in cross-examination, the five to six months delay is wholly unexplained. 575 The amendments made to the article first published on 10 February 2020 were: (1) the substitution of "Papua New Guinea" for the "PNG Payoff" link at [1A]; (2) the replacement of the words "threatened to revoke it" at [28] by the words "refused to extend it"; (3) the substitution of "December" for "November" at [31]; (4) the substitution of "That was the trigger for beginning general negotiations between Horizon and Duma" for "That was the trigger for a settlement" at [33]; (5) the removal of the pipeline graphic at [35]-[40], depicting Mr Ketan as the "middleman" between the Horizon executives and Mr Duma; (6) the insertion of the words "in the emails that" between "indication" and "any other parties" and, "had actually made" between "any other parties" and "an offer" in the statement at [73] that "There is no indication any other parties had made an offer for the Elevala stake and Mr Emmett would later write about getting 'the right result with the board'"; (7) the substitution of "a letter confirming its intention" for "a draft deed" in the sentence at [78] that "Talisman had initially signed a draft deed to participate in the buy-out but began to have second thoughts"; (8) the reformulation of the statements attributed to Mr Colwell at [89]-[90] to conform to what he actually said in his email so that they now read (with the corrections emphasised); Mr Colwell said if it could be assumed "there was some corrupt behaviour on the part of Elevala in the acquisition of their interest in PRL 21" it would be "fruit of the poison tree". He flagged "the possibility" of payments from "Elevala back to some government officials from the sale price to be paid by Talisman and Horizon". (9) The removal from [113], which retains the statement that "[i]n 2017 [Mr Duma] was suspended from cabinet over his role in a corruption scandal and efforts to relocate a PNG naval base", but removes the words "10 kilometres inland" and adds the following sentence: Mr Duma was later cleared by the PNG Police and the Ombudsman inquiry; and (10) the removal from the last page of the "PNG Payoff" and "Horizon Oil" links. 576 The amendments to the second article, published on 11 February 2020, were these: (1) the removal of the word "repeatedly between "lawyers" and "raised corruption concerns" in the opening paragraph of the article ([4]); (2) the removal of "Department," and the substitution of the phrase "if allegations of bribery were ever made to regulators" for the phrase "if the transaction was ever examined by regulators" at [9]; (3) the removal of the pipeline graphic originally appearing at [12]-[17]; (4) the substitution of the words "application to extend the licence" for "its licence" and "refused" for "revoked" at [32]; (5) the omission of the words "[a]fter an aborted legal battle" at the beginning of the sentence at [33]; and (6) the replacement of "beginning negotiations between [H]orizon and Duma" for "a settlement" after the words "trigger for" at [34]. 577 The amendments to the third article, published on 12 February 2020, were: (1) the substitution of "Papua New Guinea" for the "PNG Payoff" links at [1] and [32]; (2) the removal of the pipeline graphic originally appearing at [13]-[18]; (3) the replacement of the phrase "after the same licence was cancelled by the minister" with the phrase "after the minister refused to extend the same licence" at [21]; (4) the insertion of the word "his" between "and" and "apparent links" in the sentence "Lawyers working for Talisman raised concerns about Mr Ketan's 'political connections' and apparent links to Mr Duma" at [22]; and (5) the removal of the "Horizon" link at [32]. 578 The amendments to the fourth article, published on 13 February 2020, were: (1) the substitution of "Mining" for "PNG Payoff" in the link at [1]; (2) the removal of the word "repeatedly" in the phrase "after an investigation by The Australian Financial Review found the company had repeatedly ignored corruption warnings" at [6]; (3) the replacement of the word "retract" by the phrase "refused [sic] to extend" before the words "the previous licence" at [11]; and (4) the removal of the pipeline graphic originally appearing at [16]-[21]. 579 The amendments to the final article, published on 15 February 2020, were: (1) the substitution of "Mining" for "PNG Payoff" in the link at [1] and [72]; (2) the replacement of the words "resist 'the bad guys', as one of its lawyers put it" with "push back" at [11]; (3) the removal of the word "repeatedly" before "ignored corruption warnings" at [13]; (4) the removal of the graphics at [16]-[17], being the chronology about "[h]ow the deal happened" and the clip from the print version of the first story on 10 February 2020, showing the headline "'The bad guys want 30%!!!': Horizon slips on PNG oil slick" and the PNG pay-off dinkus, among other things; (5) the insertion immediately after [23] of the following statement: Mr Duma denies all allegations and says that he always acted on the advice of the Petroleum Advisory Board. (6) the insertion of the words "would not be reviewed" in lieu of "was to be cancelled" in [64] (presumably "reviewed" should have read "renewed"); (7) the deletion of "emailed" after "Sir Moi" at [65] and its replacement with "said on learning that the licence wasn't going to be renewed"; (8) the removal of the word "repeated" between "ignore" and "corruption warnings" at [71]; and 580 The fifth factor - the publication of more articles concerning Mr Duma conveying substantially the same imputations as those conveyed by the matters complained of "as part of a smear campaign against him" - was not the subject of any submission. In these circumstances, I do not propose to address it. I assume it was no pressed. 581 The sixth and final factor was the respondents' "improper and craven attempt to assert the factual truth of the matters complained of without a plea in justification". 582 The maintenance of a defence of justification in circumstances where it is improper, unjustifiable or not bona fide to do so may be a matter which aggravates damages: Coyne at 237-238 per Toohey J (Dawson and McHugh JJ agreeing). McHugh J observed at 241 that the jury in that case was entitled to find that the hurt to the plaintiff and the harm he suffered were increased by the defence, persisted in until the end, that the defamatory imputations made against him were true in substance and in fact. 583 In the present case, while the respondents did not plead justification, in final submissions they sought to establish the "objective truth" of the imputations both in support of their defence of qualified privilege and in mitigation of damages. Conducting their defence in this way vastly increased the length of the proceeding and its cost. 584 Mr Duma testified that he found it "very insulting" to be asked questions in cross-examination, in the absence of a defence of justification, about whether he had engaged in meetings or discussions with Mr Emmett in an unofficial or secretive way, whether he was the person who had introduced the idea of giving Elevala a 10% share of PRL 21, and whether the PAB had merely acted as a rubber-stamp for an agreement which he had personally negotiated. 585 In the light of the way the defence was pleaded and their failure to squarely put such matters to Mr Duma in cross-examination, the repeated assertions the respondents made in closing submissions of corruption, dishonesty and the like on his part were audacious, improper and unjustifiable. Those assertions included that: the "transaction" by which Elevala acquired a 10% interest in PRL 21, a "transaction" to which Mr Duma was a "party", was "corrupt": RCS [2], [6], [109], [179(c)], [193], [314], [328]; it was Mr Duma who "wanted" and proposed the inclusion of Elevala as part of his "plan": RCS [13], [93], [115], [132]. [187], 192, 192; Mr Duma was the "promoter" of the sale by Elevala of its 10% interest to Horizon for $US 10 million: RCS 192 and (f), [365]; Mr Duma "knew that he was sanctioning a corrupt transaction": RCS 192, [193]; Mr Duma's own conduct in relation to those matters was "corrupt": RCS [395]; Mr Duma refused to renew PRL 5 despite the view of his Department that it should be renewed: RCS [27]; [32]; Mr Duma did not act on the advice of the PAB, only that of its chairman, Mr Rimua: RCS [13], [127]; [330], and he procured a "spurious letter" from Mr Rimua merely to give him "cover", for his own "protection", as a "contrivance": RCS [129], [138], 192; [318]. 586 The allegations of bad reputation based on the so-called "Paga Hill affair" and "Manu Manu affair" were also unjustifiable and lacking in bona fides for the reasons already discussed.

In what amount should damages be awarded? 587 Section 34 of the Defamation Act requires the Court to ensure that there is an appropriate and rational relationship between the harm sustained to the plaintiff and the amount of damages awarded. 588 Mr Duma submitted that, the question of aggravated damages apart, the appropriate award of damages would be "one that would be close to the upper end of the capped limit" and suggested that aggravated damages should take the award above that limit. 589 The respondents submitted that the imputations are "not at the most serious end of the spectrum", contrasting this case with awards of general damages in other cases such as Wagner v Harbour Radio Pty Ltd [2018] QSC 201; Aust Torts Reports ¶82-405 (in which each of the four plaintiffs was awarded $850,000, including aggravated damages), Rush (No 7) (where an award of $850,000 was made, which included aggravated damages) and Rayney v State of Western Australia (No 9) [2017] WASC 367 (in which Chaney J awarded $600,000 including aggravated damages). 590 In Wagner, the imputations included that the plaintiffs caused the deaths of 13 people by illegally constructing a dam wall which collapsed causing a catastrophic flood that devastated a township, were knowingly involved in a massive cover-up, and were involved in "disgusting bullying and intimidation of witnesses" at the inquiry into the Queensland floods in order to protect themselves from being held to account for the deaths. The imputations were conveyed in 27 broadcasts which aired over an extended period between October 2014 and August 2015. In Rayney, remarks at a media conference by a detective senior sergeant of police were found to convey the imputation that the plaintiff murdered his wife. The plaintiff was "mortified" and greatly distressed by the remarks and vilified as a murderer in the community. In Rush (No 7), Wigney J found that the publishers had conveyed imputations that Mr Rush had engaged in scandalously inappropriate behaviour in the theatre. 591 These cases were obviously different from the present case and are easily distinguishable. That said, the imputations I have found to have been conveyed in the present case are unquestionably grave, especially for a lawyer, elected official and cabinet minister. For a person in Mr Duma's position, it might well be said that his reputation is "his whole life": Crampton v Nugawela at 193 (Mahoney ACJ). As his counsel so eloquently put it, "[t]he matters complained of effectively allege that Mr Duma abused his high office and treated the resources of his country, of which he was the steward, as a vehicle for his personal profit". The publication of imputations of this kind more likely than not would cause substantial damage to Mr Duma's reputation. And the evidence indicates that more likely than not it was very damaging to him. Mr Pala gave evidence to that effect and he was not challenged. Mahoney Duma referred to the vilification of his father on social media. Mr Duma felt compelled to make a lengthy statement to Parliament. The day before, the deputy opposition leader asked the Prime Minister whether he intended to sack him. Media reporting of his intention to sue for defamation generated mixed responses, some supportive, some not. They included calls for him to resign; comments that he was tainting the image of the government; that he was a criminal; that he was corrupt, that he was "the most corrupt member in parliament"; that "they should try him in Australia"; that he was "the witch, hunting the people of PNG's money"; that he was the "face" of corruption; that he was the "definition of corruption"; and that he was a "crook". 592 In Hockey White J awarded a total of $200,000 to the then Australian Treasurer arising out of the publication of a poster and two tweets after finding that the statements "Treasurer for Sale" and "Treasurer Hockey for Sale" were defamatory of him. A claim for aggravated damages was rejected. 593 In Chau v ABC Rares J awarded $515,000 to an applicant in relation to a televised and internet broadcast and an online article which his Honour found conveyed imputations of bribery and corruption, including the payment of a $200,000 bribe to the President of the United Nations General Assembly and, in effect, bribes disguised as donations to political parties in order to have them make decisions that advanced the interests of the People's Republic of China and its government and ruling party. But for the fact that Dr Chau had received damages from other court cases for similar defamatory publications, his Honour would have awarded him $550,000: see Chau v ABC at [166]. 594 In the present case, Mr Duma is entitled to a substantial sum to compensate him for the injury to his feelings, the damage to his reputation and as vindication. Taking all relevant matters into account, including the extent and duration of publication and, of course, his entitlement to aggravated damages, I assess his damages at $500,000 to which pre-judgment interest should be added. Mr Duma applied for interest in his originating application. Section 51A(1) of the Federal Court of Australia Act 1976 (Cth) requires the Court to include "upon application" interest in the sum for which judgment is given unless good cause is shown to the contrary and none was shown here. 595 In John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 (Fairfax v Kelly) at 142D-143A (McHugh JA, with whom Kirby P agreed) held that the damage (at least for non-economic loss) is ordinarily taken to have occurred before the judgment and therefore, absent special circumstances, interest is payable on the whole of the sum. Later (at 143G), his Honour said that "[s]peaking generally, the best approach is to treat the award as though the damages represent a loss spread over the period from the date of publication to trial". In that case the trial judge was found to have erred by declining to award interest and on the cross-appeal interest was calculated over three years at a commercial rate of 15 per cent (at 144B-D). 596 In Chau v ABC at [167]-[171] Rares J applied the reasoning in Fairfax v Kelly. His Honour calculated that the amount of pre-judgment interest on the whole of the award of $515,000 at the Court's usual rates (as provided in the Interest on Judgments Practice Note (GPN-INT), which is 4% above the cash rates published by the Reserve Bank of Australia) was about $97,400. He then determined that it would be fair and just to award $75,000 in pre-judgment interest apparently because the injury to Dr Chau's feelings and to his reputation was ongoing and perhaps to account for the possibility of continuing damage from the availability of the published material on the internet. 597 In Hanson-Young v Leyonhjelm (No 5) [2020] FCA 34 at [8]-[16], however, White J accepted a submission that interest on economic loss is commonly awarded in defamation cases at the rate of 3-3.5% and awarded a lump sum of $5,000 as interest on damages of $120,000. In that case, neither party submitted that the rate of interest should be determined by reference to GPN-INT. Ms Hanson-Young sought interest at the rate of 3%. Recently, in Kumova v Davison (No 2) [2023] FCA 1 at [347], Lee J settled on a 3% rate, citing Hanson-Young at [8]-[16]. In neither case, however, was reference made to Fairfax v Kelly. 598 In Hanson-Young White J referred to MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 in which the Full Court of the High Court held (at 663-4) that damages for pre-judgment non-economic loss should not be calculated at commercial rates because to do so would over-compensate the plaintiff as damages for pre-trial non-economic loss are assessed in accordance with the value of money at the time of the award. In Gogic a rate of 4% per annum, which had been applied by the court below, was considered "somewhat arbitrary" but nonetheless representative of what the Supreme Court of South Australia considered was "fair and reasonable compensation for a plaintiff in that State for being deprived of the use of his or her money after taking into account that, from time to time, the real rate of interest will rise above or fall below that figure" (at 666). Since then, it is the rate that has been applied by most State Supreme Courts in personal injuries cases (see Luntz H, Assessment of Damages for Personal Injury and Death, 4th ed, LexisNexis Butterworths, 2002, at [11.3.15]), except to the extent to which statutes have provided otherwise, and appears to be the foundation for the 3-3.5% rate in the defamation cases to which White J referred in Hanson-Young. Further, as White J noted in Hanson-Young at [8], "the cases recognise that the harm suffered by an applicant is usually greatest at, and shortly after, the time of publication, so that the harm should not be regarded as having accrued at a constant rate over that period". That accounts for the adoption of the figure of 3% or 3.5%. 599 In Fairfax v Kelly McHugh J provided no reasons for adopting a commercial rate of interest. Gogic was decided after Fairfax v Kelly. In Chau v ABC Rares J did not refer to Gogic. It seems to me that I am obliged to apply Gogic. There is no apparent reason to distinguish it. The fact that the damages were awarded for personal injuries had no bearing on the High Court's reasoning. In these circumstances, I propose to take the same approach as Lee J in Kumova. Damages should be awarded on the whole of the award at the rate of 3% per annum from the date of the publication of the first and second matters complained of to the date of judgment. That works out to $44,876, which I will round up to $45,000, resulting in a total award of $545,000.

Conclusions 600 In summary, I have reached the following conclusions concerning the issues raised for consideration. 601 First, all the matters complained of conveyed the imputations that: Mr Duma as the Minister for Petroleum in PNG acted corruptly by granting a 10% interest in a lucrative petroleum licence to Elevala, a company owned and controlled by his close associate, Mr Simon Ketan; and Mr Duma as the Minister for Petroleum in PNG accepted a bribe from Horizon Oil. 602 The first, second, fourth, sixth, eighth, ninth and 10th matters complained of also conveyed the imputation that Mr Duma conspired with Mr Ketan to use a shell company known as Elevala as a vehicle for the payment of bribes to Mr Duma. 603 In addition, the first and second matters complained of conveyed the imputation that: Mr Duma as the Minister for Petroleum in PNG acted corruptly in 2017 in relation to his efforts to move a naval base 10 kilometres inland. 604 Second, the defence of qualified privilege is not made out. Consequently, the third issue (malice) does not arise. 605 Third, Mr Duma is entitled to aggravated damages. 606 Fourth, the "objective truth" of the imputations may not be taken into account in mitigation of damages. 607 Fifth, damages should be awarded in the sum of $545,000 including pre-judgment interest.

INJUNCTIVE RELIEF 608 Mr Duma applied for an order that the matters complained of (as defined in his pleading) or any matter in substantially the same form, be removed from the AFR's website, any archive and/or other website(s) associated with it and any other website operated or controlled by the AFR. 609 The respondents indicated that they wished to reserve their position on this question until after judgment is published. Mr Duma did not object to this course. It is a reasonable approach. The respondents should have the opportunity to consider whether they will voluntarily remove the articles from their website and undertake not to publish matter in substantially the same form in the future before any order is made. If they do not agree to do so within a reasonable period of time after the delivery of judgment, I will hear and determine Mr Duma's application.

COSTS 610 Costs should follow the event. Mr Duma asked to be heard after the delivery of judgment in relation to an order that his costs should be paid on an indemnity basis. I will make orders to facilitate this course. I certify that the preceding six hundred and ten (610) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann.