Fawcett v John Fairfax Publications Pty Ltd - [2008] NSWSC 139 - NSWSC 2007 case summary — Zoe

NSWNSWSC

Fawcett v John Fairfax Publications Pty Ltd

[2008] NSWSC 139

Supreme Court of NSW|2007-11-12|Before: Simpson J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2007-11-12

Before

Simpson J

Source

Original judgment source is linked above.

Judgment (89 paragraphs)

[1]

BACKGROUND 9 A good deal of the evidence concerning the background is uncontroversial. In 2005 Mr Fawcett was a freelance photographer or "photojournalist" of the variety that has come to be known as "paparazzi". That meant that he sought to obtain candid photographs of individuals who are famous, or celebrated, sufficiently so that the popular press will pay to purchase the photographs for publication. Mr Fawcett made a particular speciality of seeking to obtain and sell photographs of a well-known female actor, Ms Nicole Kidman. 10 The salient events took place over a very short period on the evening of 23 January 2005. (It will be necessary to canvass evidence of events alleged to have occurred earlier that day, and on other occasions. However, a principal focus of the evidence was on the events of that time.) On the morning of 23 January 2005 Ms Kidman returned to Australia after having been overseas for some time. She travelled to and remained at her home in Darling Point until about 6.30pm that evening. It was her intention to be driven to Greenwich, where her parents lived, to join them for dinner. Mr Fawcett arrived in the vicinity of her home at about 7.30am. He was then retained by a metropolitan newspaper (The Daily Telegraph) to remain there for the whole day, and he did so, in or near the street where she lived. His purpose was to obtain photographs of Ms Kidman. 11 At about 2.10pm, or a little after, Mr Malcolm Carter, who was employed by a security firm engaged to provide security services to Ms Kidman, discovered, under a water meter approximately opposite Ms Kidman's residence, an item that later proved to be a listening device. He immediately reported this to his employer organisation, and then to Rose Bay Police. 12 Mr Fawcett was still in the street at about 6.30pm when Ms Kidman left her home to travel to Greenwich. She was a back seat passenger in a silver Audi, owned and driven by Mr John Manning, an employee of hers. A black Mercedes, owned by Ms Kidman, but driven by Mr Carter, left the premises at the same time. Both cars had been parked in a double garage facing onto the street. The purpose of these arrangements was for the Mercedes to provide a decoy - that is, to attract the attention of Mr Fawcett or any other photographers who might have been in the locality, and distract their attention from the vehicle in which Ms Kidman was in fact travelling. 13 Also in the vicinity at the same time was Mr Ben McDonald, another photojournalist, who often worked closely with Mr Fawcett. 14 So much is uncontroversial. What happened thereafter is anything but uncontroversial, and founds a large part of the defendants' case in support of its defence of truth to certain of the imputations. It will be necessary to consider the evidence in considerable detail.

[2]

The defendants' version 15 Put briefly, it is the defendants' case that Mr Fawcett, who was driving a black Jeep Cherokee, pursued either the silver Audi (driven by Mr Manning and in which Ms Kidman was a passenger) or the black Mercedes (the decoy vehicle driven by Mr Carter), but finally settling on the silver Audi; the vehicles travelled through several streets of inner eastern Sydney, eventually arriving at an intersection at Woolloomooloo, where Wylde Street meets Cowper Wharf Road. This intersection is amply illustrated in photographic evidence. At the intersection Mr Manning stopped the Audi at a red light in a left turning lane; Mr Fawcett drove up parallel in the right hand lane. Markings on the roadway indicate that vehicles in that lane must turn right. The lights turned green in Mr Manning's favour; Mr Manning began to make the turn into Cowper Wharf Road; Mr Fawcett drove his vehicle over what was called in the evidence a median strip (but which may properly be described as a traffic island); Mr Fawcett's vehicle slid, apparently out of control; Mr Fawcett drove towards the silver Audi, forcing the Audi into, or towards, a steel guard on the left side of the road. This caused Ms Kidman in the rear seat to be thrown from one side to the other. She expressed concern and fear. According to Mr Manning, she was screaming and said that she feared somebody would be killed. As this happened Mr Fawcett produced a camera, which he lifted and attempted to use to take photographs. Up to this point, Mr McDonald, driving a silver Nissan roadster, was also behind Mr Manning. 16 Mr Manning proceeded to drive along Cowper Wharf Road. Mr Fawcett followed until Mr Manning's vehicle was stopped by another set of traffic lights, before turning right to travel towards the Harbour Bridge. On the Harbour Bridge Mr Fawcett again approached the silver Audi, swerving from right to left, and eventually overtaking the Audi. 17 Mr Manning drove the silver Audi to the address in Greenwich where Ms Kidman's parents lived. Ms Kidman's father, Dr Antony Kidman, was waiting outside an open garage door. Mr Fawcett and Mr McDonald were already present at the premises, outside the garage. Mr Fawcett took photos of Ms Kidman as Mr Manning drove her into the garage. 18 The preceding account is substantially drawn from the evidence given by Mr Manning. I will refer shortly to other evidence concerning the events of that time. 19 A great deal more detail was given in the evidence, but what I have recounted is sufficient for present purposes. Evidence of these events was given in the defendant's case by Mr Manning, Mr Carter, and Ms Kidman. Corroborative evidence, to which I will shortly refer, was also given by Dr Kidman and Ms Wendy Day. 20 It is the defendants' case - a circumstantial case - that the listening device was placed under the water meter by Mr Fawcett. This is said to establish the substantial truth of imputation (a).

[3]

Mr Fawcett's version 21 Evidence of the events of the alleged pursuit was given in the plaintiff's case by Mr Fawcett and Mr McDonald. 22 Mr Fawcett accepted that he had, throughout the day of 23 January, been present in the street where Ms Kidman lived. He said that he observed the black Mercedes leave the garage and telephoned Mr McDonald (who was also nearby) before following the Mercedes. Mr McDonald was close behind. Mr Fawcett also saw the silver Audi, but, shortly after, he lost both vehicles. 23 Mr Fawcett gave an account of the route he took, which is of little moment. He agreed that he did arrive at the Woolloomooloo intersection, but he said that when he was at that intersection, the silver Audi was not there. He denied clipping, or traversing, the median strip or traffic island. He said that he made the left hand turn into Cowper Wharf Road from the left turning lane at the intersection, and denied having done so from the right turning lane. He acknowledged that he came across the silver Audi further on in Cowper Wharf Road. There, he said, he observed Ms Kidman in the Audi, but could make out only an outline and did not take any photographs. He followed the vehicle over the Cahill Expressway and Circular Quay, and drove directly to her parents' address, which he obviously already knew. He said that when Ms Kidman arrived he was standing on the nature strip with his camera. The only photograph he took was of the silver Audi when it was parked in the garage. 24 Mr McDonald's evidence did not cast a great deal more light on these events. He gave an account of following the silver Audi until he temporarily lost sight of it, before regaining it, just before the critical Woolloomooloo intersection. There was a great deal of detailed cross-examination concerning the routes taken by the vehicles, and the inner city streets in which they had travelled. The most significant aspect of Mr McDonald's evidence was that he claimed not to have seen Mr Fawcett's vehicle from the time the two left Darling Point, until the time they arrived at Greenwich. This evidence contrasts with that given by Mr Manning. 25 Accordingly, the accounts given on behalf of the parties, as to that crucial part of the events, are diametrically opposed. It is this evidence, if the defendants' version is accepted, that is said, either alone or in conjunction with other evidence, to support the substantial truth of imputations (c), (e), (f) and (g). 26 On the question of the placement of the listening device, Mr Fawcett flatly denied having been responsible for it. He gave a quite detailed account of having seen Mr Carter, at about 2pm, engage in some unexplained, even surreptitious, activity near the water meter. He said that he then investigated and found the item, which he picked up and "quickly fathomed" to be a listening device, and which he then replaced in its position. 27 The clear import of his evidence was to suggest that it was Mr Carter, not himself, who had been responsible for placing the listening device.

[17]

I walked away." 45 He denied having planted the device there himself. He said that he then suffered some concern because he had touched it. He then said that Mr Carter returned and immediately picked up the device. 46 It would appear to be of no small significance that nothing of this kind was put to Mr Carter in cross-examination when he initially gave evidence in the defendants' case. From that I would ordinarily draw the inference that senior counsel did not, at that time, have instructions to that effect. However, senior counsel for the defendants acknowledged that "something of the kind" was in Mr Fawcett's interrogatories. And senior counsel for Mr Fawcett said that it had always been part of his instructions. Accordingly, at the conclusion of Mr Fawcett's case, Mr Carter was recalled for further cross-examination. Mr Carter was then extensively further cross-examined, concerning, in particular, security video recording of the street outside Ms Kidman's home. This did not explicitly encompass the water meter. 47 Despite the fact that the further cross-examination continued over 24 pages of transcript, it was never put to Mr Carter that he had been responsible for secreting the listening device; nor that he had walked to the water meter and conducted himself as described by Mr Fawcett. 48 I am quite satisfied that Mr Carter did not place the listening device in that location. 49 I turn now to the evidence from which the defendants seek to have drawn the inference that it was Mr Fawcett who did so. That makes it necessary to return, firstly, to the evidence given by Mr Carter, when he initially gave evidence; and then to deal with some of the further cross-examination. 50 It was Mr Carter's custom to park his car in the same position, almost adjacent to the water meter, when he was able to do so. When stationed there it was also his custom to use a walkie-talkie to communicate with the occupants of Ms Kidman's house. 51 As will be recalled, it was Mr Carter who first located the device. He said that, although there were toilet facilities in Ms Kidman's home, to which he had access, it was more convenient to use the facilities in a block of apartments on the opposite side of the road. He did this twice on 23 January, the first time in the morning, and the second at about 2pm. In order to access those facilities, it was necessary for him to climb a small retaining wall and walk up a grass verge to the left and around the back of the block of units. 52 Because the weather on 23 January was inclement, he spent some of the time sitting in his car, which was parked almost directly outside the water meter, some time standing in the street, and some sitting on a low wall near the water meter. During the time he was sitting in his vehicle, he had "a brief visage" of the water meter, as he did when he sat on the wall outside. 53 When Mr Carter used the toilet facilities at about 2pm Mr Fawcett was sitting in his vehicle which was parked on the corner of the street. Mr Carter was gone for about 2-3 minutes. When he returned Mr Fawcett was outside a new block of units next door to Ms Kidman's residence, and facing towards the direction from which Mr Carter was coming. As Mr Carter returned, Mr Fawcett began moving back towards his vehicle. 54 As Mr Carter approached the footpath he observed, in his peripheral vision, a red item under the water meter. He was confident that this had not been present when he walked past the water meter to use the toilet. He extracted the red item and identified it as a battery with a radio microphone and a wire acting as an antennae. 55 Shortly after, Mr Carter became aware that Mr Fawcett had left the area. 56 Mr Carter discussed the discovery with Mr Manning and recorded it in a logbook. He and Mr Manning examined some security video footage, taken from video cameras permanently installed outside Ms Kidman's home. The video footage showed Mr Fawcett walking in a northerly direction - that is, from his parking spot towards the water meter. No other person was seen on any of the video footage to traverse that area during that time. 57 It was this that gave rise to the extensive further cross-examination of Mr Carter when he was recalled. There were some discrepancies or uncertainties associated with the video recording, in particular concerning the recording of times. However, the video was played repeatedly during the course of the proceedings. I am satisfied that it does record, as Mr Carter said, Mr Fawcett walking, at the relevant time, towards the water meter. This was during the time that Mr Carter had briefly absented himself. 58 The defendants then called evidence from three witnesses, the essence of which was to establish that, over the years, Mr Fawcett had demonstrated a familiarity with, and an inclination to use, listening devices. An argument took place as to the admissibility of this evidence. Initially objection was taken on behalf of Mr Fawcett on the basis that the evidence was tendency evidence within the meaning of s 97 of the Evidence Act 1995. For that reason the course I initially took was to admit the evidence on a voir dire in order to determine whether it met the relevant tests for admissibility. However, the objection based on s 97 was abandoned, as was the contention that the evidence was indeed tendency evidence. The only objections taken were on the basis of relevance and the asserted incapacity of the evidence to support the truth of the relevant imputations. I ruled against those objections. On 19 November 2007 I ruled that the evidence given on the voir dire ought to be admitted in the trial. 59 In my opinion the objection based on s 97 was wrongly abandoned, and the evidence is properly characterised as tendency evidence. Indeed, senior counsel for the defendants urged the admission of the evidence on the ground that it established that Mr Fawcett "has a familiarity and facility with listening devices". However, it was admitted on the basis I have already mentioned. I would simply observe that, although handicapped by not hearing detailed argument concerning s 97, I am of the view that the evidence does meet those tests and would, even in the face of such an objection, have been admitted. 60 The evidence was this. Mr Robert Coombs, a retired private inquiry agent, and a former police officer, was acquainted with Mr Fawcett. Mr Coombs met Mr Fawcett in the late 1980s or early 1990s, when Mr Fawcett telephoned him, asking for his assistance in intercepting a telephone conversation. Mr Coombs told him that it was "highly illegal" and could not be done (legally) but that he had the equipment, wanted to get rid of it, and he offered to sell it to Mr Fawcett. Mr Fawcett purchased the equipment from Mr Coombs. It was equipment that was capable of intercepting a telephone conversation and recording it. 61 Mr Coombs said that he had other conversations with Mr Fawcett concerning listening devices. Mr Fawcett gave Mr Coombs a book entitled "Electronic Spying". This contained information about various types of transmissions and transmitters. He also gave Mr Coombs what he described as a "Telecom box" saying that it contained something that would record a telephone conversation. 62 In his evidence Mr Fawcett said he had no recollection ever of meeting Mr Coombs, denied that he had ever acquired from Mr Coombs equipment of the kind described by him; and denied ever having had a conversation with anybody (including Mr Coombs) about how to bug a computer or put a listening device in an air conditioner, as outlined by Mr Coombs in his evidence. 63 Mr Alan Cole also gave evidence on this subject matter. Mr Cole operates as an inquiry agent and had, in the past, been acquainted with Mr Fawcett through his involvement in a food business run by Mr Fawcett's parents. He again had contact with Mr Fawcett from about 1990. At this time the two worked together on what Mr Cole described as "asset tracing". Mr Fawcett rented office premises in Macquarie Street in the city, and the two worked from there. This arrangement continued up until about 1994. According to Mr Cole the office was investigating a man called Kovall. He said that he had a conversation with Mr Fawcett about Mr Kovall in which Mr Fawcett told Mr Cole that he believed that he could "plant a device" in Mr Kovall's residential premises. This conversation took place in the boardroom of the office. At the time there was displayed on the table or cabinet a device that Mr Cole took to be a listening device, microphone and a piece of wire. Again according to Mr Cole Mr Fawcett told him that he could install the listening device somewhere near the front of Mr Kovall's house. He said such devices had a range of about 20m. Mr Fawcett also told Mr Cole that he knew of a retailer in Macleay Street, Potts Point where such devices could be obtained. 64 It was put directly to Mr Cole that he had fabricated this evidence. He described this suggestion as "rubbish". He agreed, however, that he had made a statement to police in April 2005 concerning Mr Fawcett and that that statement contained no reference to Mr Kovall. His explanation for this was that: "I failed to recall it at the time." 65 Mr Cole agreed that he did not like Mr Fawcett; he would not accept that he "hated" Mr Fawcett but volunteered that he had not had a very satisfactory business relationship with him. 66 Mr Fawcett acknowledged that he knew and had worked with Mr Cole but denied ever having had a discussion with him about his (Mr Fawcett's) skill with listening devices. He denied that he had any such skills. He vaguely recalled conversations concerning an electronics shop in Macleay Street and said that, when the two were driving past the shop ("Advance Electronics") he had made a comment that he had heard that that was the place where police purchased listening devices. He denied the conversations concerning Mr Kovall of which Mr Cole had given evidence. 67 Mr Duncan McNabb gave evidence to similar effect. He also is a former police officer who had taken up private investigation work in about 1987 and continued to engage in that occupation until about 1997. He had first met Mr Fawcett in about 1990 or 1991 and, over a couple of months in the 1990s, he did some work with Mr Fawcett. He gave evidence of two conversations with Mr Fawcett. The first took place in Mr Fawcett's Macquarie Street office. Mr Fawcett was, at the time, "dickering with some sort of electronic device" and, according to Mr McNabb, Mr Fawcett said that it was "a bug" and that he had some experience with them. Mr McNabb was not interested in pursuing the conversation.

[18]

68 The second conversation took place in a car when Mr Fawcett was driving Mr McNabb home. They stopped at a place in Kings Cross called "Advance Electrics" in Macleay Street. According to Mr McNabb Mr Fawcett took Mr McNabb into the shop to introduce him to the operators. He said that these people "provided bits and pieces including bits and pieces like voice activated tape recorders and stuff like that". Mr Fawcett said that this was where he got "his stuff" from. Mr McNabb's recollection was that he was talking about tape recorders, voice activated, and small things that could be put on telephone lines for interception. 69 Mr McNabb also acknowledged that he did not like Mr Fawcett but, like Mr Cole, fell short of accepting that he "detested" him. He volunteered that he did not want to have anything more to do with Mr Fawcett. 70 Mr Fawcett denied having any conversation with Mr McNabb concerning listening devices, and did not believe that he had ever mentioned Advance Electronics (or Advance Electrics) to him. 71 At this point it is sufficient to say that I am satisfied, on the weight of the evidence of all three of these witnesses, that the defendants have demonstrated that Mr Fawcett had a longstanding interest in, and a certain familiarity with, listening devices, and that he did not, and would not, shrink from using them. It would be remarkable, indeed, if three independent, individual, witnesses came forward, unknown to each other, with evidence incriminating Mr Fawcett, and that each was fabricating evidence of the same kind. The evidence has some notable similarities - for example, the references to the Macleay Street business. 72 The evidence of the video from the security cameras is highly persuasive. It shows Mr Fawcett in the relevant location, at the relevant time. It provides a basis for an inference, supported by other matters I have mentioned, that it was Mr Fawcett who placed the listening device under the water meter. 73 That inference is further supported by this consideration. Mr Fawcett was not only a photographer. He has also worked as a journalist. He well knew (as he conceded in cross-examination) the news value of finding a listening device located in the vicinity of Ms Kidman's home, and close to where her security guard regularly parked his vehicle. Yet, on his account, when he identified the device, he merely picked it up and then replaced it. As a photographer, his instinct would surely have been to photograph it. As a journalist, his instinct would surely have been to report it. Yet, on his account, he did neither of these things. To act as he claims to have done is entirely out of character. His version is implausible and I reject it. 74 I am satisfied that it was Mr Fawcett who placed the listening device under the water meter.

[19]

Other incidents 75 Ms Day also described other incidents concerning Mr Fawcett and his pursuit of photographs of Ms Kidman. On an occasion in early 2002, Ms Kidman returned to Australia from overseas. Ms Day drove to the airport to meet her, and drove her home. It was about 8.30am on a weekday, and traffic was heavy. Ms Day was driving from an enclosed area towards General Holmes Drive, which consists of three lanes in each direction. On Ms Day's account, as she attempted to negotiate the traffic she saw Mr Fawcett jump from the median strip into one of the traffic lanes in front of her moving vehicle, causing her to brake heavily. Mr Fawcett was holding a camera. He moved in front of Ms Day's by then stationary vehicle and took a photograph of Ms Kidman, who was sitting in the front passenger seat. 76 He continued to take photographs until Ms Day was able to restart her vehicle and drive off. 77 Mr Fawcett gave a different version of this event. There was some dispute about some of the detail concerning the location of Ms Day's car before the encounter with Mr Fawcett, but I put this aside as immaterial (except to the extent that it might cast light on Ms Day's recollection of the events described, or her honesty or reliability in recounting the incident. I am satisfied that it has no such bearing). There also appeared to be some dispute about precisely when the incident occurred, but that, also, is immaterial, with the same reservation. Mr Fawcett agreed that he had taken a photograph of Ms Kidman as a passenger in Ms Day's car while on a road in the vicinity of the airport. He agreed that, in order to position himself to do so, he had moved from a median strip to a position on the roadway directly in front of the vehicle. However, he denied that he had jumped in front of the vehicle whilst it was in motion, and claimed that Ms Day's vehicle was halted at a red light and was stationary when he moved from the median strip. He denied ever having jumped in front of a moving car driven by Ms Day, with Ms Kidman as a passenger, at or near the airport. 78 I have found the factual issue concerning this incident difficult to resolve. Ms Kidman had no recollection of it and there were no other witnesses to it. A great deal of time was spent exploring the topography of the area but I found this of little assistance. The essential issue is a purely factual one: did Mr Fawcett jump from a median strip in front of Ms Day's car whilst it was moving, thereby causing Ms Day to brake heavily, and endangering himself, the two occupants of Ms Day's car, and any others who might have been forced to stop suddenly?; or did he take advantage of the traffic light-enforced halting of Ms Day's vehicle in order to position himself in front of the vehicle and secure his photographs? (There is no question that he did obtain photographs - they were in evidence.) 79 The reason I have difficulty in resolving this issue is this. In general, I would accept Ms Day's evidence in preference to that of Mr Fawcett. She had little to lose by fabricating her account of the incident; the incident, as recounted by her, is largely consistent with the otherwise established conduct of Mr Fawcett. However, his conduct as described by Ms Day was foolhardy to an extent that causes me to doubt that Mr Fawcett, even with his determination to obtain photographs of Ms Kidman, would engage in it. 80 In the end, and unusually, in my opinion this issue must be resolved on the onus of proof. The defendants bear the onus of proving that this incident took place as they allege; I am unable to be satisfied, on the balance of probabilities, that they have discharged that onus. 81 However, that does not mean that the evidence is entirely irrelevant; even on Mr Fawcett's version, it goes to establishing that he was prepared to go to great lengths to obtain photographs of Ms Kidman. 82 Ms Day gave evidence of another incident, this time in Macquarie Street in the city of Sydney. On Ms Day's version, she was a front seat passenger and Ms Kidman a back seat passenger in a hire car driving from the lower end of Macquarie Street towards the city. The hire car driver observed that they were being followed. Ms Day then saw three cars, a black Jeep and a yellow car and another car; she said they sped up along side the hire car. Two of the vehicles took up positions, one on the left, and one on the right of the hire car; the third vehicle accelerated and cut in front of the hire car. The hire car was thus, effectively, surrounded. The occupants of each of the three vehicles were equipped with walkie-talkies. Mr Fawcett was driving one of the vehicles. The manner in which the vehicles were driven was such that the hire car driver was forced to brake on a number of occasions, disrupting the traffic. When the convoy turned into College Street, Mr Fawcett and the other vehicles drove alongside the hire car, pulling back, then pulling in front, until eventually they turned off to the left in William Street, while the hire car driver turned to the right to enter Park Street. Shortly after the hire car driver observed the vehicles again, pursuing the hire car. The drivers were still communicating on walkie-talkies. 83 Mr Fawcett's evidence on this issue was brief. He had no recollection of any such incident. I am satisfied that this event did take place substantially as described by Ms Day. 84 There was also evidence, principally through cross-examination of Mr Fawcett, of two other matters. One concerned events after Christmas 2006 when Ms Kidman and her husband were holidaying in the south of the State. Mr Fawcett went to the location specifically for the purpose of taking photographs of the couple. He was successful in doing so, and had some published. The most I can say of the evidence concerning this incident is that it also confirms, if confirmation were needed, Mr Fawcett's determination to obtain photographs of Ms Kidman. Ms Kidman herself gave little evidence of the incident and, while the evidence - including some video footage from a television station - shows some sort of confrontation, there is little from which any inferences other than those I have mentioned could be drawn. 85 Finally, Mr Fawcett was extensively cross-examined about a period in July 2006 in Tahiti. Ms Kidman had recently married Mr Keith Urban and the couple were honeymooning there on a yacht. 86 Reduced to its essentials, this evidence showed that Mr Fawcett travelled to Tahiti, where he knew Ms Kidman and Mr Urban would be honeymooning, with commissions from various news organisations, to obtain photographs of the couple on their honeymoon. He obtained some photographs of them on their arrival at the airport. He also hired a yacht and sailed into a lagoon where he discovered the honeymooning couple were staying, and, using a camera with a very long lens, sought to photograph them whilst they were unaware that he was doing so. 87 The evidence Mr Fawcett gave in this respect was quite unsatisfactory and does nothing to enhance his credibility. It was in the course of this cross-examination that he gave the rather telling answer which I have already extracted.

[20]

88 During this cross-examination Mr Fawcett gave answers, sometimes concerning his philosophical approach to his work, that are simply irreconcilable. For example, he stated categorically that he believed that honeymooning couples were entitled to be "left alone". Nevertheless, he agreed that he had engaged in the conduct to which I have already referred. When challenged about this clear inconsistency he said: "Your Honour, because news photographers are photographers of opportunity. If someone walks in front of you or you put yourself in a position where it's acceptable to take a photograph, you take it. It doesn't mean you are invading their privacy. I didn't go anywhere near Miss Kidman or Mr Urban on holiday. I didn't set foot on the island of Bora Bora." 89 He nevertheless accepted that he had sailed into the lagoon, a kilometre from the resort at which they were staying, with a long lensed camera, which he had for the purpose of taking their photographs. 90 Mr Fawcett claimed that pursuit of photographs of Ms Kidman was not his only purpose in travelling to Tahiti; he said that he was also anxious to obtain photographs of another celebrity, Eva Longoria. He was unable to substantiate this claim in any way. Notwithstanding that he had produced on discovery a large bundle of invoices relating to claims made for payment for photographs of Ms Kidman and others, there was no such invoice in relation to Ms Longoria. He said that this was because he did not sell any photographs of Ms Longoria. 91 He also gave evidence, which I find difficult to accept, that another news organisation, News Ltd, had asked him to arrange for travel for one of its journalists to Tahiti, for which the organisation would reimburse him. This accounted for one of the many invoices he had sent to News Ltd, the publisher of The Daily Telegraph. He claimed: "Fee for reimbursement of airfare, accom and costs - as agreed." 92 For this he charged the amount of $5000, together with GST, making a total of $5500. It is unlikely that the costs of airfare and accommodation and expenses would come, neatly, to the round figure of $5000, which is what one would expect if the claim were merely for reimbursement. Further, Mr Fawcett was unable to explain why he had charged GST if his claim had, indeed, been merely for "reimbursement".

[21]

Mr Fawcett's character and behaviour 93 It remains to deal with one final segment of the evidence. This concerns Mr Fawcett's general character and behaviour. 94 Mr Pierre Smithdorf is also a photographer. He gave evidence that, on 1 August 2005, he was present at a well-known restaurant in Bondi. He was there to photograph a certain celebrity (not Ms Kidman), who was there present. He saw Mr Fawcett approaching. He said that Mr Fawcett used his mobile phone to make a telephone call and, as he walked past Mr Smithdorf, made "some abusive comment". This was: "Oh Pierre, the kaffir cunt." 95 Mr Smithdorf said that he approached Mr Fawcett and told him to "leave it alone … let it go". He said Mr Fawcett took some photographs and then proceeded towards Mr Smithdorf in an aggressive manner, telling him to put his camera down, and "throwing punches" at Mr Smithdorf. He broke the lens of the camera Mr Smithdorf was holding. Mr Smithdorf did not retaliate by punching back, but sought to defend himself by fending off Mr Fawcett's punches. Mr Fawcett placed Mr Smithdorf in a headlock and threw him to the ground, sat on him with his fist in the air, ready to punch. At this time the police arrived. In cross-examination Mr Smithdorf agreed that Mr Fawcett had, in addition to calling him a "kaffir cunt" also called him a "Bondi wanker". He denied suggestions put to him in cross-examination that he had approached Mr Fawcett and shoved his camera in his face and that the incident began when Mr Fawcett sought to push the camera away from his face. 96 In his evidence in chief Mr Fawcett denied calling Mr Smithdorf a "kaffir cunt" and said that he had, speaking to Mr McDonald who was also present, said that "the Bondi wankers are here". 97 Mr Andrew Theodore is a publicist. In 2001 he was acquainted with Mr Fawcett. In May of that year, he said, he was present in a café in Macleay Street, Potts Point with a female companion. The female companion left the table temporarily. Mr Fawcett, who Mr Theodore had seen sitting at another table, approached Mr Theodore's table. Mr Theodore's evidence was: "He came flying towards me with a glass of water which went in my face and then violently pushed me and the table over, he struck my face, my glasses went flying and I ended up on the pavement …" 98 The incident was brought to an end by two bystanders who dragged Mr Fawcett from Mr Theodore. 99 Mr Fawcett's evidence on this incident was brief. He said that he had lent Mr Theodore money which had not been repaid. He had seen Mr Theodore at various functions, drinking champagne and thought - and told Mr Theodore - that if he could do this he could afford to repay his debt. His version of the incident was: "On the morning in question I ran into him at a café in Potts Point. I approached him. He passed me off. I threw a glass of water over him and a scuffle blew out." 100 There was other evidence, elicited from Mr Fawcett in cross-examination, of poor relations with other members of his profession, who might be regarded as competitors. While the evidence is not sufficient to permit a finding that Mr Fawcett was the aggressor on all occasions, and does suggest a level of hostility within what must be a highly competitive profession, the consistency of the behaviour attributed to Mr Fawcett is of some significance, particularly in relation to imputation (b). This is so even if only his own version of these encounters is accepted.

[26]

Public Interest 103 What constitutes a matter of public interest has been the subject of consideration in a number of decisions, both in this jurisdiction and in the United Kingdom. 104 Topics that excite the appetite of members of the public for gossip or speculation, or lasciviousness, cannot be equated to matters of public interest. The term, as it was used in the Defamation Act 1974, conveys something more than that: see Green v Schneller [2000] NSWSC 548 at [24], cited in John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364 at [55]. In London Artists Ltd v Littler; Grade Organisation Ltd v Littler [1969] 2 QB 375 Lord Denning MR said: "There is no definition in the books as to what is a matter of public interest. All we are given is a list of examples, coupled with the statement that it is for the judge and not for the jury. I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment ". (bold and italics added) 105 In 1966, in Australian Consolidated Press Ltd v Uren [1966] HCA 37; 117 CLR 185 an issue arose concerning the applicability of a defence of qualified privilege under the Defamation Act (NSW) 1958, the predecessor of the 1974 Defamation Act . It is unnecessary to go into the details of the divergences between the 1958 Act and the Defamation Act 1974; Windeyer J said this: "The critical question for his Honour on my view of the matter was thus, in respect of each count, whether the publication was 'in the course of the discussion of a matter of public interest' … The question for his Honour thus required some limitation of the subject of public interest that was under public discussion. When protection is claimed for a defamatory publication on the ground that it was made in the course of discussion of a subject under public discussion and relevant to it, that subject must necessarily be determined with some exactness. As North J, speaking for the Court of Appeal of New Zealand, said, 'There is no principle of law, and certainly no case that we know of which may be invoked in support of the contention that a newspaper can claim privilege if it publishes a defamatory statement of fact about an individual merely because the general topic developed in the article is a matter of public interest': Truth (NZ) Ltd v Holloway [[1960] NZLR 69 at p 83] … A matter is, I think, published in the course of the discussion of some subject of public interest when, as the learned trial judge in the present case said, a discussion of that subject is currently going on. This accords with what Latham CJ said in Loveday v Sun Newspapers Ltd [(1938) 59 CLR 503], 'The press cannot itself make a matter one of public interest by publishing statements about it …' and with the remark of Dixon J in the same case … that, when a matter of public interest is spoken of, what is meant is a matter that has already become of public interest." (some internal references omitted) 106 More recently the High Court considered the construction of the comparable Queensland statute: Bellino v Australian Broadcasting Corporation [1995] HCA 34; 185 CLR 183. Section 377(8) of the Criminal Code provided for a defence of fair comment. Relevantly for present purposes, the sub-section required, for the defence to be made out, that the publication be made for the purposes, or in the course, of the discussion of "some matter of public interest". Brennan CJ said: "In cases in which s 377(8) is raised as a defence, the subject of public interest is a critical factor in determining whether the defendant was free to publish the defamatory matter complained of. For that reason, the 'subject of public interest' must be determined 'with some exactness', as Windeyer J pointed out in [ Uren ]. That subject furnishes the reference point for determining the availability of the excuse for the publication of defamatory matter allowed by s 377(8). (p 190)

[27]

As I read the authorities, the subjects of public interest are as broad as Lord Denning stated them to be [in Littler ] and as Windeyer J accepted them to be in [ Uren ] …" (p 193) 107 In a joint judgment, Dawson, McHugh and Gummow JJ said: "Central to proof of a defence based on s 377(8) is the existence of a 'subject of public interest'. That means that there must be some act or omission by some person or institution concerning a matter that 'invites public attention'. But the particulars of the subjects of public interest which the respondent provided in this case were not subjects of public interest in that sense. They were abstractions which did not purport to identify the conduct of any actor or institution as having invited public criticism or discussion …" (p 214) 108 Their Honours concluded that, in relation to the defence there under consideration: "… a subject of public interest meant the actions or omissions of a person or institution engaged in activities that either inherently, expressly or inferentially invited public criticism or discussion ." (italics added) 109 More recently still, the issue has been considered by the NSW Court of Appeal: John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364. 110 One thing that emerged clearly from Bellino is that it is not necessary that the person of whom the imputation is published be a "public figure", hold public office or perform public duties in order for a defamatory imputation of that person to be held to relate to a matter of public interest. Having noted this, in Hitchcock McColl JA said: "[143] The critical question is to determine when the conduct of a person expressly or inferentially invites public criticism or discussion. This may not always be an easy question to resolve." 111 Defining what constitutes "a matter of public interest" is not, in my opinion, complex or conceptually difficult. Indeed, the proper approach has been set out in succinct terms in a number of the decisions to which I have referred. Its application is not always so simple. In applying the principle, it is, in my opinion, useful to recall the purposes of the law of defamation, and the various defences available. That purpose is to balance private rights to reputation against the interests of public discussion of matters which warrant public discussion, even when those matters might be damaging to private reputation. Thus, under the Defamation Act 1974, it was not sufficient for a defendant to prove that a defamatory publication was true; it was also necessary to prove that it was published either on an occasion of qualified privilege, or that it related to a matter of public interest. Similarly, a defence of comment (to which I will come) was not established unless the comment related to a matter of public interest ( Defamation Act , s 31). 112 For completeness, one other matter ought to be noted. In NSW it is not sufficient to show that the content of the publication generally was a matter of public interest. It is necessary for the defendants to establish that there is a matter of public interest and identify it; and, taking each imputation separately, to show that that imputation relates to that matter of public interest. In this context the word "relates" is a matter of some significance, and ought not to be overlooked. There must be a connection between the defamatory imputation and the identified matter of public interest. It is not sufficient that the defamatory imputation appears in a publication that deals with matters of public interest; the imputation must be shown to "relate" to that matter. However, the concept of "relating" to a subject matter is one of considerable breadth. 113 The defendants particularised their claim that the imputations related to a matter of public interest by itemising the following asserted facts: "(a) The plaintiff, in his capacity as a paparazzo whose profession is to photograph public figures;

[34]

(h) The plaintiff's seeking of publicity by referring to himself as the 'Prince of Paparazzi'." 114 Senior counsel for Mr Fawcett argued strenuously that none of the imputations related to any matter of public interest. One argument that he put can quickly be disposed of. It was that the manner in which the imputations were conveyed is relevant to determining whether the imputations did or did not relate to a matter of public interest. By way of example, he suggested that a discussion of issues concerning photojournalists and their conduct contained in a serious section of a newspaper devoted to media issues would be more likely to be considered to relate to a matter of public interest than one contained, as was the present publication, in a gossip column. In my opinion that is clearly wrong and is shown to be wrong simply by reference to s 15. The flaw in the argument is that it converts "the imputation … relates to a matter of public interest …" to "the imputation is published in the public interest". This can be seen from the transcript of the submissions made - for example, the rhetorical question "what is in the public interest in calling someone … a cowboy?". 115 As I mentioned earlier, there was, in this case, a good deal of uncontroverted evidence. Mr Fawcett acknowledged that, as a photojournalist, he made it his business to obtain, even by subterfuge, or more aggressive tactics, photographs of celebrities, in particular of Ms Kidman. That in itself is sufficient, I have concluded, to establish that his conduct expressly or inferentially invited public criticism or discussion. The "matter of public interest" was the conduct of Mr Fawcett in carrying on his profession; or, leaving specific reference to Mr Fawcett aside, the practice of the profession of photojournalism generally. I am satisfied that imputations (c) and (e) have a sufficient connection to that matter of public interest, whether the matter of public interest is the conduct of Mr Fawcett in the practice of his profession, or the practice of the profession generally. I am more cautious about the evidence concerning Ms Kidman's response to his attempts (particulars (d) and (e)). But, having, found that Mr Fawcett behaved as described by the defendants' witnesses, and that Ms Kidman was put in fear, I am satisfied that that also warrants a conclusion that imputations (f) and (g) relate to the matter of public interest. Ms Kidman's emotional response to Mr Fawcett's behaviour is directly related to the same matter of public interest - the manner in which Mr Fawcett carries out his profession. Even the uncontroversial evidence concerning Mr Fawcett's conduct is sufficient to persuade me that, in general terms, the publication related to a matter of public interest; so much more so is it in the light of my findings concerning the issues that are controversial. It is hardly necessary to add that imputation (a), concerning the planting of an illegal listening device, relates to a matter of public interest. 116 In my opinion, with one exception, there is not the slightest doubt that each imputation does relate to that matter of public interest. The only imputation that has caused me any pause is imputation (b). However, on balance, I am also satisfied that that imputation relates to the matter of public interest, being Mr Fawcett's general conduct in the pursuit of his profession. It is also directly related to that matter. 117 Accordingly, I am satisfied that each imputation relates to a matter of public interest.

[36]

Substantial truth of imputations (a), (c), (e), (f) and (g) 120 In considering whether the substantial truth of these imputations has been established it is important to note that there is no element of moral or value judgment. Photojournalism - at least, as practised by that branch of the profession who have come to be known as "paparazzi" - can be (reputedly) an unattractive profession. Some of its more unsavoury aspects were illustrated in the evidence in this case. 121 But it is also to be remembered that paparazzi exist, and survive, sometimes with considerable financial rewards, because media outlets are prepared to pay handsomely for the results of their endeavours. And media outlets are prepared to do so only because the public are prepared to consume the product. 122 While there may be occasions when the pursuit of the profession involves conduct in breach of the law, that is not, generally speaking, the evidence in this case. (In saying that I am conscious that the evidence concerning what happened on 23 January between Darling Point and the Woolloomooloo intersection was certainly indicative of breaches - quite serious breaches - of traffic laws. And there was no dispute that the listening device was not authorised by law, and its use constituted a breach of the Listening Devices Act 1984.) Generally, it is not unlawful for photographers who call themselves, or are called, paparazzi, to take and sell photographs of celebrities. 123 It is important to put aside any distaste one might feel for the invasions of privacy that the evidence shows are sometimes perpetrated by those who are, after all, merely feeding a public appetite. 124 In the consideration, particularly, of the substantial truth of imputations (c), (e) and (f), I have focused upon the facts and circumstances objectively proved, and have left out of consideration the evidence concerning Mr Fawcett's attitude to his profession, and his preparedness, on occasions, to engage in conduct which might to some appear to be morally reprehensible.

[47]

33 Comment of servant or agent of defendant (1) Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of a servant or agent of the defendant. (2) A defence under subsection (1) as to any comment is defeated if, but only if, it is shown that, at the time when the comment was made, any person whose comment it is, being a servant or agent of the defendant, did not have the opinion represented by the comment." 138 The defence was most recently explained by Giles JA in John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164. I will make further reference to the principles there stated in the course of this consideration. 139 The defence of comment balances the important competing interests of freedom of expression and protection of the individual's reputation, giving "controlled priority" to the former ( O'Shane [15]). In that context, it specifically permits the publication of opinion material, even where that material is damaging to the reputation of an individual. But it allows that publication within circumscribed parameters. That means that, in considering a defence of comment to a defamatory imputation, a number of issues have to be determined. Fundamentally, the defence distinguishes between statements of fact and expressions of opinion, although the latter concept embraces rather more than mere opinion - it extends to deductions, inferences, conclusions, criticisms, remarks and observations … ( O'Shane [25], extracting from Gatley on Libel and Slander , 10th ed, 2004, para 12.6). 140 The onus is cast upon the defendant publisher to establish that the imputation (not the substance of the publication: Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 467-8) does fall into that category, that is, of comment so construed. It casts a further onus upon the defendant publisher to show that the opinion, conclusion, deduction, inference, criticism, remark or observation is based upon a proper foundation - facts stated, or indicated or identified sufficiently to be ascertainable by the recipient. And the facts must be accurately stated: O'Shane at [50]. The purpose of this requirement is to enable a recipient to bring an independent mind to bear in the evaluation of the validity of the conclusion, deduction, inference, criticism, remark or observation, or the reasonableness of the opinion expressed. 141 All of this is explained more fully by Giles JA in O'Shane ; it would serve no purpose for me to explicate further. I have set out what I have in order to make clear the principles of law that I propose to apply in the consideration of the defence in this case. 142 Given the issues that have been raised by the pleadings, the evidence and the argument, a series of questions arise, which must be answered individually, in relation to each of the three imputations in respect of which the defence is pleaded, for determination. The questions are:

[56]

(i) Comment or statement of fact? 143 In O'Shane , at [27], Giles JA observed that there is no clear line between a statement of fact and comment. He proceeded, in [28], to illustrate how an imputation which may on its face appear to be a clear statement of fact may be, when read in context, properly construed as the expression of an opinion or a conclusion, inference, or deduction. 144 Although, under the 1974 Defamation Act , the focus in this State is, generally, primarily upon the imputation as distinct from the actual words (or images) published, it is clear that, in order to determine whether the imputation is comment or statement of fact, it is permissible, and in some cases necessary, that a court go back to the words published: O'Shane at [28], [40]; Parker at 469 F-G. This makes perfect sense. The recipient of the defamatory material reads or receives that material, not the imputation as subsequently formulated for the purpose of pleading under the Defamation Act ; and receives it in the context of the whole of the publication. 145 The question is whether, having regard, not only to the imputation, but also to the matter published, the imputation would be regarded by the ordinary reasonable reader as comment or statement of fact: O'Shane at [29]. As I have noted above, it is the imputation that must be shown to be comment, not the published matter. 146 In my opinion it is essential that a commonsense approach be taken to this question. Those who publish defamatory material seldom, if ever, do so with an eye to the future defence of a defamation action, and do not tailor their words to accommodate the intricacies of the law of defamation. The law of defamation must be applied to the defamatory material as it is published, and this sometimes involves taking a practical, justice-based approach to the question posed. 147 The essence of the issue is this: would a recipient of the defamatory material discern that the publisher has formed and expressed a view of the plaintiff's conduct or character, and identified, either in terms or by reference to what might be called source material, the basis for that view? If the answer to that question is in the affirmative, then, consistently with the balancing exercise that underlies the law of defamation, the imputation must be regarded as comment. That the imputation is comment as distinct from a statement of fact, must appear with "reasonable clearness": O'Shane at [35], quoting Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 at 319-20. 148 Applying those principles to the three imputations in question, I am satisfied that each qualifies as comment. The first (imputation (b)), that Mr Fawcett is Sydney's most disliked freelance photographer, while having some characteristics of a statement of fact, is properly to be seen as a conclusion drawn from other material stated in the publication. The fact that it is prefaced by the word "undoubtedly" also suggests that it is the author's own view of Mr Fawcett. In general, a statement of fact would be one which is objectively verifiable; a purported statement of fact that an individual is the "most disliked" is not, in any practical sense, so verifiable. Taking the commonsense approach that I have resolved upon, I am satisfied that this imputation is comment. No reader would interpret it as a statement that is objectively verifiable; it has all the hallmarks of a view taken by the author. Similarly, imputation (e), that Mr Fawcett is a "cowboy" is, in my view, plainly comment. If it were not plain from the imputation itself, it would be plain from the context in which it appears. It is notable that the explanation that appears in the second half of the imputation - "that is a recklessly irresponsible photojournalist" - is Mr Fawcett's gloss upon what is contained in the item. There the author confined herself to describing Mr Fawcett as a "cowboy type". That is, in my opinion, clearly an expression of an opinion.

[71]

Contextual truth 165 The final defence relied upon in relation to publication in NSW is contextual truth as provided by s 16 of the Defamation Act . That section provided as follows: " 16 Truth: contextual imputations (1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of. (2) It is a defence to any imputation complained of that: (a) the imputation relates to a matter of public interest or is published under qualified privilege, (b) one or more imputations contextual to the imputation complained of: (i) relate to a matter of public interest or are published under qualified privilege, and (ii) are matters of substantial truth, and (c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff." 166 In a sense, when a defence of contextual truth is pleaded and reliance is placed upon imputations pleaded by a plaintiff, the defence is anticipatory; it is an attempt to justify any imputations not found to have been substantially true by reference to any imputations that have been found to be substantially true, and to show that, by reason of the truth of those in the latter category, those in the former category have not caused any additional injury to the plaintiff's reputation. 167 Initially the defence of contextual truth was pleaded in two separate ways. The defendants relied on each (or any) of the imputations pleaded by the plaintiff found to have been substantially true as imputations contextual to each other imputation; and pleaded that the publication conveyed an additional imputation defamatory of Mr Fawcett, which related to a matter of public interest and was a matter of substantial truth, by reason of which the imputations pleaded by the plaintiff did not further injure Mr Fawcett's reputation. That imputation ("the defendants' imputation") was pleaded as: "The plaintiff is a dishonest photojournalist." 168 In support of the plea that that imputation was a matter of substantial truth, the defendants particularised the following facts: "(a) The plaintiff has falsely denied that he would ever use a listening device;

[72]

(b) The plaintiff has falsely denied that he was pursuing Nicole Kidman and her driver at speed on 23 January 2005." 169 Senior counsel for the defendants acknowledged that he had adduced no evidence to establish (b) and that the defendants therefore could not succeed in establishing the truth of the defendants' imputation in that way. He sought to rely on evidence given by Mr Fawcett in cross-examination in support of (a), but was quickly persuaded to concede the illogicality of this approach. It is not possible to establish the truth of an assertion of past conduct, which is what (a) is, by engineering a situation in which a witness subsequently commits that conduct. There was no evidence that, prior to his giving evidence, Mr Fawcett had (falsely or otherwise) denied that he would ever use a listening device. Accordingly, since the truth of the defendants' imputation cannot be established, the defence of contextual truth falls to be determined only by reference to the imputations pleaded by Mr Fawcett and on the basis of those which I have found to be substantially true. 170 In Zunter v John Fairfax Publications Pty Ltd [2005] NSWSC 759 at [45] I set out the questions which arise where a defence of contextual truth is pleaded. No issue was taken with that approach on appeal: John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227. 171 Four of the imputations pleaded by Mr Fawcett have been shown by the defendants to be substantially true. Three have been shown to be defensible as comment. The defence of contextual truth has no relevance to those imputations that have otherwise been successfully defended. The only imputation which the defendants have not successfully defended (in its entirety) is imputation (a). Accordingly, the only question which now arises for determination is whether the substantial truth of the imputations proven to be true has the consequence that the publication of imputation (a) did not further injure Mr Fawcett's reputation. In considering that question it is necessary to focus, not upon the imputations themselves, but the facts and circumstances which establish that substantial truth: John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; 53 NSWLR 541; Zunter [34]-[35]. 172 In Zunter , at first instance, I rejected the notion that, in order to succeed in a contextual truth defence, a defendant must establish that the contextual imputation or imputations swamps or swamp that or those pleaded by the plaintiff ([52]). I took the approach that, in accordance with the words of s 16(2)(c), the seriousness of each imputation pleaded by the plaintiff is to be balanced against the seriousness of the facts, matters and circumstances that establish the truth of the contextual imputation or imputations; and that, where the contextual imputation or imputations proven to be true is or are of a gravity equal to, or greater than, any imputation or imputations pleaded by the plaintiff, one result may be that the imputation/s pleaded by the plaintiff will not further damage his/her/its reputation. That approach does not appear to have been challenged on appeal and was not the subject of any adverse comment in the judgment on appeal. 173 The question for present determination is whether the imputation that Mr Fawcett had placed a bug with the intention of intercepting Ms Kidman's private conversations further injured Mr Fawcett's reputation, in the light of the truth of the imputations that he had behaved in so intrusive and threatening a manner that he had scared Ms Kidman; that he is a cowboy, that is a recklessly irresponsible journalist; that he caused havoc in Ms Kidman's private life; and that he firmly intended to do so. Rather unfairly, the defendants cannot rely upon the partial truth of imputation (a) in this context. 174 I have given careful thought to this question. Imputation (a) is of a different character to the other imputations proven to have been true. I do not underestimate its gravity. However, nor do I overlook that the focus goes beyond what is contained in the text of the imputations found to have been substantially true, and on the facts and circumstances - that is, Mr Fawcett's behaviour - that gave rise to the truth of those imputations. I have, at length, recounted those facts and circumstances, and that behaviour. I have concluded that the truth of those facts and circumstances is sufficient to entitle the defendants to the benefit of the defence of contextual truth. That is, in the light of all of those facts and circumstances, the publication of imputation (a) did not further injure Mr Fawcett's reputation. The defence of contextual truth succeeds in respect of imputation (a). 175 The consequence of my finding is that the defendants have succeeded in defending the publication in NSW of each of the imputations.

[73]

Interstate defences 176 I turn now to consider the interstate publication of the imputations. In order to determine the defences raised to the interstate publication it is necessary to apply the law of the respective states and territories. 177 Although it has become routine, in this jurisdiction, for plaintiffs to plead interstate publication, and defendants have thus been forced to plead whatever defences might be available under the laws of those jurisdictions, I was not referred to any decision in which those defences have gone to judgment. No doubt plaintiffs plead interstate publication in a bid to increase any damages that may be awarded, but the consequence is to introduce into the proceedings a quite unnecessary level of complexity. It is probably for that reason that, sensibly, few parties pursue to final judgment those aspects of the case. That was not so here. The parties did pursue interstate publication, and the pleaded defences. I received, however, little in the way of guidance or submissions as to the manner in which I should deal with these complex issues. What follows, therefore, is written without the benefit of comprehensive argument. 178 The defences to interstate publication were pleaded in two groups: those applicable to the Australian Capital Territory, Queensland and Tasmania; and those applicable to Victoria, South Australia, Western Australia and the Northern Territory. After circulation figures were produced on behalf of the defendants, senior counsel for Mr Fawcett abandoned any claim in relation to alleged publication in Western Australia and the Northern Territory. That does not affect the argument, which applies equally in relation to Queensland and Victoria. 179 To what I have already said I add this. I was not provided by either party with copies of, nor was I directed to, the relevant legislative provisions in relation to any of the states and territories on which, on the plaintiff's pleadings, publication took place, and in relation to which the defendants sought to defend the publications. Nor was I referred to any authorities on the correct construction of or approach to those defences. By letter written to the parties after judgment was reserved, I directed that this deficiency be remedied. To a limited extent only, that occurred. This did not accord with the level of assistance this Court is entitled to expect, particularly in matters of this complexity. 180 In one sense, the task I have to perform is to apply, so nearly as I can, the law that a judge sitting in the relevant jurisdiction would apply.

[75]

It is convenient to refer to this as "the defence of truth and public benefit". 182 The second defence pleaded was that the publication conveyed two additional imputations of the plaintiff, identified as "defendants' alternative imputations (1) and (2)", each of which was not separate or distinct from the plaintiff's imputations, and each of which was true in substance and in fact; and that by reason of the substantial truth of either or both of the defendants' alternative imputations, the plaintiff's reputation was not further injured by the publication of imputations (a), (c), (e), (f) and (g). (This last plea was, at the hearing, not pursued.) 183 It will be necessary to return to an explanation of the defence so pleaded. It involves the approach to the defence of defamatory publications recognised and sanctioned in Polly Peck (Holdings) plc v Trelford [1986] 1 QB 1000 and David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24. Truth and public benefit 184 In response to my direction, the solicitors for the defendants provided copies of the following legislation, said to be applicable at the time of publication. (On behalf of Mr Fawcett it was not suggested that this was not the relevant legislation.) · Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 127: "It is a defence if the defendant establishes - (a) the truth of the published matter in accordance with the common law; and (b) that it was for the public benefit that the matter should be published." · Queensland: Defamation Act 1889 (Qld) s 15: "It is lawful to publish defamatory matter if the matter is true, and if it is for the public benefit that the publication complained of should be made." · Tasmania: Defamation Act 1957 (Tas) s 15: "It is lawful to publish defamatory matter if - (a) the matter is true; and (b) it is for the public benefit that the publication should be made." 185 In the absence of any submissions as to the manner in which these provisions are construed and applied in their own jurisdiction, the best I can do is to take a literal approach. 186 No legislation of Victoria or South Australia was provided. In response to a further (telephone) request for assistance, my associate was told only that there is no legislation, and that the defence was "a matter of common law". I was not directed to any authority on the content or nature of the defences. It was common ground that in those states truth alone constitutes a defence to the publication of defamatory matter. 187 I do not discern any difference of substance between the defences provided by statute in the Australian Capital Territory, Queensland and Tasmania, which explains why the defences to these publications have been pleaded in a composite manner. 188 It is to be noted that the plea, and each statute, focuses, not upon the imputations (as is the case in NSW), but on the "published matter" (ACT); "defamatory matter" (Qld and Tasmania). In Robinson v Laws [2001] QCA 122, however, Williams JA held that, in Queensland, the emphasis is on the imputation/s pleaded, each of which founds a separate and distinct cause of action. 189 It follows from the findings I have made above, the plea of truth in relation to imputations (c), (e), (f) and (g) must be upheld, and the plea of truth in relation to imputation (a) rejected. Even if I were to focus on the content of the publication as a whole, I would be satisfied that it is substantially true.

[77]

This is simply a misstatement of the effect of the legislation. No attempt was made to come to grips with the distinction between the NSW requirement that the imputation " relate to a matter of public interest " and the requirement of these jurisdictions that the publication of " the matter " be " for the public benefit "; and no attempt was made to identify or explain how the question of public benefit is to be approached. 191 The two concepts are, in my opinion, significantly different. 192 The submission then merely reiterated what had been said, orally, in closing addresses, concerning public interest in relation to the NSW publication. The consequence is that, on behalf of Mr Fawcett, no effective submissions as to public benefit have been made. 193 In Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254 at 263 Higgins J, in the Supreme Court of the ACT, equated publication "for the public benefit" with publication that "relates to a matter of public interest". I regret that I am unable fully to agree with this approach. As I have mentioned above, the phrase "relates to a matter of public interest" is broad, providing considerable scope for publication of defamatory material which is otherwise shown to be substantially true or to represent the expression of an opinion. In my opinion, that is not the same as being published for the public benefit, and such publication is not necessarily "for the public benefit". The former phrase focuses on the general subject matter and thus protects publication of imputations which are sufficiently related to, or connected with, that matter. The latter focuses upon either or both of the purpose for which the publication was made, and its effect. 194 On behalf of the defendants reference was made to Bellino (see above), and in particular a discussion (at 229) in the joint judgment of Dawson, McHugh and Gummow JJ. Their Honours provided some examples of circumstances in which public discussion of a subject of public interest would not necessarily be for the public benefit, but nevertheless held that, in the great majority of cases, it would be. But that was a case concerning a defence of fair comment provided by the s 377(8) of the Queensland Criminal Code, which was in relevantly different terms. Its terms were: "(8) If the publication is made in good faith in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit …" (italics added) 195 The distinction is significant: under s 377(8) it is public discussion of a subject of public interest which must be shown to be for the public benefit; if that is shown, then, provided it is fair, comment upon that subject matter is protected; under s 15 it is the "publication" in question that has to have been shown to have been for the public benefit. Whether public discussion of a subject of public interest is for the public benefit is a question that, while not co-extensive with, is more closely aligned to, the question under NSW legislation, whether an imputation relates to a matter of public interest. 196 In Calwell v Ipec Australia Ltd [1973] 1 NSWLR 550 the Court of Appeal had under consideration the predecessor of the Defamation Act 1974, the Defamation Act (NSW) 1958. Two defences available under that Act are relevant to the present question: s 17(c) protected publication made "for the public good"; and s 17(h) protected, as fair comment, publication "in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit". 197 It will be observed that s 17(c) refers to the public good; s 17(h) to the public benefit. I must assume that the legislature then discerned a distinction between the two notions but, I confess, the distinction is lost upon me. The judgment in Calwell was given on an appeal against a jury verdict. The trial judge had decided, under s 17(c), that the publication there in question had not been shown to have been made for the public good. That finding was unsuccessfully challenged on appeal. Reynolds JA said: "The words of the statute obviously require something more than, or different from, a publication which relates to a matter of public interest." 198 Unfortunately, although the report discloses that s 17(h) was also in issue, that question is not addressed in the judgment on appeal. 199 While I have rejected the proposition that the circumstances of publication are relevant to the determination of whether an imputation relates to a matter of public interest, and notwithstanding the defendants' submission to the contrary, I am of the view that the same does not apply to the determination where the publication of the matter is for the public benefit. The circumstances of publication, including the audience to whom, and the nature and extent of the publication and the manner of publication (for example, level of sensationalism) must all assist in the determination of where the publication of the matter is for the public benefit. 200 In this respect the fact that the publication was in a gossip column of a Sunday newspaper is not conducive to a conclusion in the defendants' favour. 201 Although the requirement that a publication be for the public benefit poses a more demanding test than the "matter of public interest" test set out in the NSW legislation, nevertheless, I do not consider that the requirement that a publication is "for the public benefit" is particularly demanding. It would be sufficient, for example, if the defendants were to show that, by reason of the publication, the public is better informed about some subject matter as to which it is desirable that the public be informed. In the consideration of this question, it is my opinion that I am entitled to take into account the whole of the circumstances proved in the evidence. These include what I have found to be the conduct of Mr Fawcett in his pursuit of Ms Kidman, and his erratic and dangerous behaviour; that during the course of the pursuit on 23 January 2005, members of the public on the roads were plainly put at risk; the fact that he did place a listening device, even though I have not found that he did so for the purpose specified in imputation (a); his conduct in the practice of his profession as a photojournalist; and the effect of his behaviour generally on, and his intention with respect to, the private life of a particular celebrity.

[81]

Further, and in the alternative to paragraphs 10 and 11 above, the defendants repeat paragraphs 10 and 11 above and add that, by virtue of the substantial truth of the Defendants' Alternative Imputation 1 and/or the Defendants' Alternative Imputation 2, the plaintiff's reputation was not further injured by the Plaintiff's Imputations (a), (c), (e), (f) and (g)." 207 Paragraphs 16 to 18 were pleaded in identical terms in respect of the publication in Victoria and South Australia. Paragraphs 12 and 18 were abandoned at the hearing. 208 Towards the close of the defendants' case senior counsel for the plaintiff moved to strike out paras 10, 11, 16 and 17. As I understand the argument that was advanced - and I have read the transcript of it many times - it was that the pleading purported to invoke the principles of law stated in Polly Peck , and that those principles do not represent the law in any Australian jurisdiction. 209 Senior counsel for the defendants appears to have accepted the latter proposition, that is, that what is commonly known as "a Polly Peck defence" is not available in any Australian jurisdiction, and asserted his intention to rely upon the defence as pleaded only on the basis of the decision of the Court of Appeal of Victoria in Hore-Lacy (per Ormiston and Charles JJA). (The concession concerning the unavailability of a " Polly Peck defence" was correctly made: see Zunter , Court of Appeal, para [42]). Hore-Lacy might itself be seen as a variant, or diluted version, of Polly Peck . Counsel for the defendants characterised it as differing only in degree. I have to confront the question whether there is any material difference between the two, and, if there is, identify what it is. If there is no such distinction, then on the authority of Zunter (Court of Appeal) I must hold that a Hore-Lacy defence, like a Polly Peck defence is unavailable. This poses an interesting conundrum, and one not addressed by either counsel. Hore-Lacy , as a decision of the Court of Appeal of Victoria, must be taken to state the law in that jurisdiction. Zunter , as a decision of the Court of Appeal in NSW, must be taken to state the law in this jurisdiction. 210 So far as I am dealing with the defence of the publication in Victoria, I must apply the law of Victoria. If there is no distinction between Polly Peck and Hore-Lacy , do I determine the issue on the authorities of the NSW Court of Appeal (that such a defence is unavailable)? Or do I determine the issue on the authorities of the Victorian Court of Appeal (that, while a Polly Peck defence is unavailable, a Hore-Lacy defence is not)? 211 Senior counsel for Mr Fawcett persisted in referring to the defences pleaded in paras 10 and 11, 15 and 16 as Polly Peck defences, despite it having been made clear by senior counsel for the defendants that these defences were advanced on what was said to be a different, more limited basis provided for in Hore-Lacy . However, counsel for Mr Fawcett made no attempt to challenge the proposition that Hore-Lacy is something more (or less) than an application of Polly Peck . Senior counsel for the defendants did not attempt to delineate what he propounded as the differences, such as to result in a conclusion, in the face of the exclusion, for Australia, of the applicability of Polly Peck , that, nevertheless, the approach taken in Hore-Lacy is available. 212 Certainly Ormiston and Charles JJA perceived a difference between the two. It appears that McColl JA also perceived such a difference in Hitchcock at [222]-[233]. What was decided in Polly Peck (for the United Kingdom) was as follows: "In cases where the plaintiff selects words from a publication, pleads that in their natural and ordinary meaning the words are defamatory of him, and pleads the meaning which he asserts they bear by way of false innuendo, the defendant is entitled to look at the whole publication in order to aver that in their context the words bear a meaning different from that alleged by the plaintiff. The defendant is entitled to plead that in that meaning the words are true and to give particulars of the facts and matters upon which he relies in support of his plea … It is fortuitous that some or all of those facts and matters are culled from parts of the publication of which the plaintiff has not chosen to complain.

[84]

[63] … The position then remains that at trial neither the plaintiff nor the defendants should be permitted to raise (nor should the defendants be permitted to justify) a meaning substantially different from, or more injurious than, the meanings alleged by the plaintiff ." (italics added) 214 Ormiston JA said: "17 Here, again, I believe that the majority views of the High Court provide an answer in the present case, for in substance I would believe they would accept that the jury may properly be instructed that they can go beyond the meanings alleged, but only so long as the meaning they fix upon is comprehended by or is simply a variant of one of the meanings pleaded or otherwise relied upon …" (italics added) 215 What those members of the majority in Hore-Lacy decided was that a defendant may depart from the precise meanings asserted on behalf of the plaintiff, but is confined, in substance, to alternative meanings that are essentially encompassed in the meanings propounded on behalf of the plaintiff. But it is important to note that, in each case, the issue arises in the context of an attempt by a defendant to justify meanings other than those asserted by the plaintiff. Polly Peck is frequently misunderstood. It is sometimes seen as the United Kingdom common law equivalent of the NSW statutory defence of contextual truth. It is not. It is, in reality, the converse: see Jones v John Fairfax Publications Pty Ltd [2005] NSWSC 1133 at [51]-[54]. That is why paragraphs 12 and 18 of the Defence were recognised to be irrelevant and were abandoned. They are framed in language drawn from s 16 of the (NSW) Defamation Act 1974, the defence of contextual truth. So far as I can ascertain, that defence has no counterpart in any Australian jurisidiction. 216 Both Polly Peck and Hore-Lacy are concerned with the same question: the extent to which a defendant may defend a defamatory publication by justifying imputations other than those pleaded by the plaintiff. Essentially, they are both concerned with the defence of justification. 217 One difficulty with the defendants' pleading is that, notwithstanding counsel's insistence that it is Hore-Lacy and not Polly Peck that is relied upon, it is framed in the language used in Polly Peck , and not the language used in Hore-Lacy . The phrase "not separate or distinct from the plaintiff's imputations" is used; this phrase is drawn directly from Polly Peck . The language of Hore-Lacy is: "… comprehended by or is simply a variant of one of the meanings pleaded [by the plaintiff] …"

[85]

and "substantially different from, or more injurious than, the meanings alleged by the plaintiff." 218 There are two circumstances in which a defendant might seek to establish meanings, or imputations, of published matter alleged to be defamatory different from the meanings or imputation pleaded by the plaintiff. One is simply to persuade the tribunal of fact that the publication did not convey the imputations pleaded by the plaintiff, but, rather, imputations of the kind identified by the defendant. That was recognised (without, as I read it, great enthusiasm) in Chakravarti . At [8] Brennan CJ and McHugh J said: "A defence which alleges a meaning different from that of the plaintiff is in the old pleading terminology an argumentative plea of not guilty. Under the principles of pleading at common law, it could tender no issue and would be struck out as embarrassing. Under the modern system, articulating an alternative meaning could conceivably make explicit the ground for denying a pleaded imputation. But it would be only in such a case that a defendant's plea of a new defamatory meaning might be supportable as a plea which prevents the plaintiff being taken by surprise." 219 But that is tangential. The issue raised by Polly Peck and Hore-Lacy is not whether the publication carries a meaning different from that asserted by the plaintiff - it is whether a defendant can plead an alternative meaning, and succeed in defending the publication by justifying that alternative meaning . Plainly, the question arises where a defendant appreciates that he/she/it will or might fail in an attempt to justify the imputations pleaded by the plaintiff. 220 Both Polly Peck and Hore-Lacy are, essentially, decisions concerning the defence of justification - they deal with the limits or boundaries within which a defendant might justify a defamatory publication by going outside the meanings claimed by the plaintiff to have been conveyed. 221 I deferred ruling on the application to strike out these paragraphs in the Defence and that issue has effectively become subsumed in the substance of the defence. Whether or not a defence in the terms pleaded is available to the defendants remains a live issue. 222 Well into the argument senior counsel for the defendants limited the extent to which he sought to rely upon the matters so pleaded. He did so by specifying that the defendants' alternative imputation 1, pleaded in the Defence in para 10(a), is pleaded only in respect of Mr Fawcett's imputation pleaded as (b); and the defendants' alternative imputation 2, pleaded in the Defence in para 11(a), is pleaded only to Mr Fawcett's imputations pleaded as (c) and (f). The same applies to the alternative imputations pleaded in paras 16 and 17. 223 In other words, the defendants' alternative imputation 1: "The plaintiff is a greatly disliked freelance photographer"

[87]

is pleaded only as a defence to each of the imputations that Mr Fawcett had behaved in so intrusive and threatening a manner that he had scared Ms Kidman, and that he had caused havoc in Ms Kidman's private life. 224 The aim is then to prove the truth of the alternative imputations, and, by that means, defend the publication of the imputations pleaded by Mr Fawcett. 225 The distinction (if a distinction exists at all) between what is authorised (for the UK) by Polly Peck , and what is authorised (for Victoria) by Hore-Lacy is subtle. It seems to me to be (at most) this: Polly Peck envisages that a defamatory publication may contain several defamatory allegations which are linked or related in the sense that they have a "common sting", and permits a defendant to justify the "common sting". The potential for unfairness that underlies this was illustrated in the judgment of Brennan CJ and McHugh J in Chakravarti by reference to a hypothetical publication asserting (falsely) that a plaintiff has convictions for dishonesty, and that he has defrauded shareholders. The "common sting" is of dishonesty - but the manifestations of dishonesty may be quite separate and distinct. By refining the "common sting" - or, in the language of Brennan CJ and McHugh J, by giving it a meaning at a "sufficiently high level of abstraction" - a defendant may purport to justify the imputation of dishonesty by proving shareholder fraud - and, by that side wind, escape the consequences of the false and defamatory accusation of convictions for dishonesty. It was this approach that attracted the stern criticism of Brennan CJ and McHugh J. (It is a defence that is, for NSW, expressly authorised by s 16 of the Defamation Act , but only if the accusation proven to be true is of at least equal seriousness to that not proven to be true.) 226 That is not what is sanctioned in Hore-Lacy . The test imposed by Ormiston and Charles JJA was whether a meaning postulated by a defendant was one on which the plaintiff could have succeeded at trial on the pleadings as they stood - that is, a meaning that was not substantially different from nor more injurious than the meaning pleaded by the plaintiff; or, as it was put by Ormiston JA, a meaning that: "… is comprehended by or is simply a variant of one of the meanings pleaded or otherwise relied upon". 227 In Robinson v Laws Mackenzie J appears to have perceived the difference between what is authorised by the two cases as lying in "the extent of the variation" (between the imputations put forward by the plaintiff and those put forward by the defendant ([103])). 228 Although I have severe reservations about this approach, it seems to me that I ought to treat Hore-Lacy as representing the law of Victoria. That necessarily assumes the existence of a distinction between the two cases: if that were not so then the authorities that exclude the applicability of Polly Peck in all Australian jurisdictions would also exclude the applicability of Hore-Lacy . 229 At least for the purpose of considering publication in Victoria, I must proceed on the basis that the applicable law is as stated in Hore-Lacy . It was not suggested that I should take any different view in relation to Queensland or Tasmania. 230 Applying that to the pleading in the present case requires an inquiry whether the defendants' alternative imputation 1 is one "comprehended by or simply a variant of" Mr Fawcett's imputation (b); that is, whether it is an imputation on which Mr Fawcett could have succeeded at trial on the pleadings as they stand, or a meaning that is not substantially different from nor more injurious than Mr Fawcett's imputation (b); and whether the defendants' alternative imputation 2 is comprehended by or simply a variant of either or both of Mr Fawcett's imputations (c) and (f); that is whether, in respect of Mr Fawcett's imputations (c) and (f), the defendants' alternative imputation 2 is one on which Mr Fawcett could have succeeded at trial on the pleadings as they stand, or a meaning that is not substantially different from nor more injurious than imputations (c) and (f). If either can properly be so regarded, and the defendants prove it to be true, then Hore-Lacy ¸would entitle the defendants to a verdict in respect of that imputation. 231 The exercise is little more than a semantic comparison. The answer to the first question is, in my opinion, quite clear; to say that Mr Fawcett is a greatly disliked freelance photographer is plainly comprehended in or a variant of the imputation that he is Sydney's most disliked freelance photographer and is not more injurious. 232 It is also necessary, for the defence to succeed, that the defendants prove that the imputation so framed is true "in substance and fact". I am satisfied that the defendants have discharged that onus. 233 The answer in respect of the defendants' alternative imputation 2 is not so clear. However, I have reached the same conclusion. Although that imputation is framed in more general terms than Mr Fawcett's imputations (c) and (f), the substance of each of which is of extreme behaviour invading privacy. It is comprehended in, or a variant of, each of imputations (e) and (f), and is not more injurious. For reasons I have given above it, too, has been shown to be true in substance and in fact. The defence based upon Hore-Lacy succeeds in respect of imputations (c) and (f). 234 One complaint made by counsel for Mr Fawcett is that the defendants' pleadings do not assert that the publication was for the public benefit. In their written submissions counsel for the defendants declined to accept that they were obliged to demonstrate that it was for the public benefit that the contextual imputations were published. This signifies a misunderstanding of the nature of the defence upon which they rely. As I have said, a defence along the principles stated in Hore-Lacy is a defence of justification. For the defence to go anywhere it is necessary that the defendants prove all of the elements of justification according to the law of the relevant jurisdiction - in this case, that the imputations were true, and the publication was for the public benefit. 235 In this respect the pleading is deficient but as the deficiency has occasioned no prejudice to Mr Fawcett, that has no consequence. It is obvious from what I have said earlier, that I am satisfied that each of these imputations was true, and that the publication was for the public benefit. 236 In relation to the imputations as to which it is pleaded, and the publication in the states to which it is pleaded, the defence of justification based upon Hore-Lacy succeeds. 237 That leaves imputation (b). No defence to the interstate publication of imputation (b) has been pleaded. There is, for example, no plea of comment or its interstate counterparts. Theoretically, then, Mr Fawcett would be entitled to a verdict in relation to the publication of that imputation in those states. However, even if he is so entitled, the publication cannot conceivably result in an award of damages.