1 LE MIERE J: In 2009 the plaintiff, Mr Kenyon, was a councillor and the mayor of the City of Bayswater (the City). The defendants, Mr Sabatino and Mr Anderton, were councillors of the City. On 17 December 2009 the defendants delivered, or caused to be delivered, a letter dated 17 December 2009 to the Corruption and Crime Commissioner together with a document entitled 'Submission to the Crime and Corruption Commission relating to inducements by councillors to supporting candidates and supporters during the 2009 City of Bayswater council elections' (the CCC Submission). The CCC Submission alleged that the plaintiff was involved in supplying inducements to candidates and to people who were directly involved in their election campaigns whom they supported at the 2009 City of Bayswater elections.

2 On 19 December 2009 The Perth Voice newspaper published an article entitled 'CCC "a political football"'. The article said that the plaintiff was referred to the Corruption and Crime Commission after his political opponents claimed they caught him on council CCTV offering inducements to his election team. On 21 December 2009 an article entitled 'Bayswater boilover feeds corruption watchdog complaint' was published on the WA Today online news service. The article says that supporters of deposed Bayswater Mayor Lou Magro have lodged a complaint with the state corruption watchdog against new mayor Terry Kenyon and three councillors for alleged breaches relating to providing food and drink to voters during the council election period, and that last week Bayswater councillors Mike Anderton and Michael Sabatino lodged the 35 page submission with a Corruption and Crime Commission investigator. On 17 January 2010 The Sunday Times newspaper published an article entitled 'Booze bribery claim mayor denies breach as corruption watchdog gets CCTV film'. The article was written by a Sunday Times journalist, Glenn Cordingley. The article says that a dossier containing CCTV images has been sent to a corruption watchdog claiming that new Bayswater Mayor, Terry Kenyon, illegally bribed election candidates and their supporters with alcohol and food.

3 The plaintiff alleges that the defendants published or caused to be published a copy of the CCC Submission to the WA Today online media service, The Perth Voice newspaper and The Sunday Times newspaper. The plaintiff further alleges that the defendants also published or caused to be published to The Sunday Times a document which summarised the contents of the CCC Submission (the Executive Summary). The plaintiff alleges that the CCC Submission and the Executive Summary are defamatory of him. The defendants each deny that they published or caused to be published a copy of the CCC Submission, or the Executive Summary, to The Perth Voice, WA Today, The Sunday Times or any media outlet.

4 I ordered that the following preliminary questions be tried separately from the other issues in the action:

1. On or a short time after 17 December 2009, did the defendants publish, or cause to be published, the CCC Submission to the WA Today online media service, The Perth Voice newspaper and The Sunday Times newspaper?
2. Did the defendants publish, or cause to be published, the Executive Summary to The Sunday Times newspaper?

5 A number of documents were tendered by counsel for the plaintiff without having been identified by any witness, although many of them were subsequently identified by a witness. Only two witnesses, Francesca Lefante and Glenn Cordingley, gave evidence. Neither the plaintiff nor the defendants gave evidence.

6 Francesca Lefante was the chief executive officer of the City. On 9 September 2009 Ms Lefante provided the then mayor of the City, Mr Magro, with a copy of CCTV surveillance tapes taken by the City's security camera system which operates at its offices. At a council meeting on 24 November 2009 Mr Sabatino tabled a letter written by Mr Magro which disclosed that Mr Magro had provided Mr Sabatino with a copy of the surveillance tapes.

7 The CCC Submission states the following things. The information supplied in the submission has been gathered from the surveillance tapes and plans from the City of Bayswater. The surveillance tapes were originally supplied by the City's chief executive officer to the previous mayor, Mr Magro, based on a breach of his office security. The problem was highlighted to the previous deputy mayor, councillor Sabatino, who then requested that he be supplied with a copy of the surveillance tapes for his own information in understanding the mayor's complaint. The CCC Submission contains many photographs taken from the surveillance tapes which allegedly show, or support allegations, that Mr Kenyon distributed food and alcohol to supporters after a council meeting.

8 Mr Cordingley gave unchallenged evidence as follows. Mr Magro was trying to get in touch with him for a number of weeks over a number of matters that he wanted to discuss with Mr Cordingley as a local government reporter. They met at a coffee shop in December 2009. Mr Magro raised a number of matters. One of the matters Mr Magro raised was the CCC Submission. Mr Magro had a copy of it. Mr Cordingley leafed through it and took the document with him. Mr Cordingley subsequently contacted the chief executive officer of the City, Ms Lefante. He told her he had a copy of the CCC Submission. Ms Lefante asked him for a copy. Mr Cordingley left it at the reception at The Sunday Times and somebody collected it.

9 Ms Lefante identified the documents provided to her by Mr Cordingley to be the following documents:

• unsigned letter dated 17 December 2009 from Mr Sabatino and Mr Anderton to the Commissioner, Corruption and Crime Commission with 'Case File Number 02279/2009' handwritten at the top, and some handwriting which is difficult to read at the bottom;
• CCC Submission; and
• Executive Summary.

Mr Cordingley identified the handwriting at the bottom of the letter to be his handwriting and to be partly in shorthand. Mr Cordingley identified the writing to say: 'Mike Sabatino. He was deputy mayor. Contact him. May ask for copy which he gave him'. Mr Cordingley said he had no recollection of what that means or the circumstances in which he wrote those words on the letter.

10 The unchallenged documentary evidence is that on 6 January 2010 Mr Sabatino and Mr Anderton sent another letter to the Commissioner, Corruption and Crime Commission which attached a further report. The letter said that the report was to add information to the report already submitted on 17 December 2009 and has more detailed information and an executive summary to give the Commission a brief outline of the issues concerned. The attached report is a revised version of the CCC Submission. It contains an executive summary which is substantially the same as the Executive Summary given by Mr Magro to Mr Cordingley but does not contain the words 'the following is the basic outline of the report to the CCC and allegations within that report' which are the opening words of the Executive Summary given by Mr Magro to Mr Cordingley.

11 There is further unchallenged documentary evidence that Mr Sabatino and Mr Anderton sent, or caused to be sent, a copy of their letter of 6 January 2010 to the Corruption and Crime Commissioner, and the CCC Submission to the Minister for Local Government, the Electoral Commissioner, the Speaker of the Legislative Assembly, and the Returning Officer and Deputy Returning Officer for the City of Bayswater. On 6 January 2010 Mr Sabatino and Mr Anderton also sent, or caused to be sent, in addition to copies of their letter of 6 January 2010 to the Corruption and Crime Commissioner, letters in substantially the same terms attaching a copy of the CCC Submission to the Electoral Commissioner, the Speaker of the Legislative Assembly and the Minister for Local Government.

12 The plaintiff does not press the case that the defendants published or caused to be published the CCC Submission to The Perth Voice. There are effectively two issues. First, did the defendants publish the CCC Submission and Executive Summary to The Sunday Times by Mr Magro giving a copy of the documents to Mr Cordingley, a Sunday Times journalist? The defendants do not dispute that delivery of the documents to Mr Cordingley was publication to The Sunday Times. The issue is whether the defendants are responsible in law for the publication to Mr Cordingley. Second, did the defendants publish, or cause to be published, the CCC Submission to WA Today, or its staff or publisher?

13 Those issues raise questions of law and fact. The questions of law concern who is a publisher and who is responsible at law for particular publications. The questions of fact concern whether inferences and conclusions should be drawn from the primary facts established by the documentary evidence and oral testimony. I will first consider legal principles relating to responsibility for publication.

14 Defamation textbooks have various descriptions of who is a publisher. Australian Defamation Law and Practice edited by Tobin and Sexton says that liability for publication extends to all those who take part in the commission of the tort. Gatley on Libel and Slander (11th ed) says that liability extends to any person who participated in, secured or authorised the publication. Duncan and Neill on Defamation (3rd ed) states that every person who knowingly takes part in the publication of defamatory matter is prima facie liable in respect of that publication.

15 In Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331, 364 Isaacs J said:

The meaning of 'publication' is well described in Folkard on Slander and Libel, 5th ed (1891), at p 439, in these words: 'The term published is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him.'

...

In Parkes v Prescott Giffard QC quotes from the second edition of Starkie: 'All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected.' (363 - 364)

...

16 In Bataille v Newland [2002] All ER (D) 480 (Jul) Eady J said:

To participate in a publication in such a way as to be liable in accordance with the law of defamation is not, I should emphasise, to be equated with being a source of the information contained within the relevant document. There are various acts that can give rise to legal responsibility, for example, encouraging the primary author, supplying him with information intending or knowing that it will be republished, or if one is in the position to do so, instructing or authorising him to publish it [25].

It should be noted that Eady J, in referring to ways in which a person may be responsible for a publication, referred to the connection between the person and the publication, that is communication to a third person, not merely participation in creating a document.

17 A person who requests, authorises or ratifies publication by another will be taken to have participated in it. In Webb v Bloch Isaacs J said:

In The Queen v Cooper Lord Denman CJ said: 'If a man request another generally to write a libel, he must be answerable for any libel written in pursuance of his request: he contributes to a misdemeanour and is therefore responsible as a principal.' In that case the defendant was indicted for 'publishing and causing to be published' the libel in question. The judgments show that all the defendant did was to authorize the publication of the libel, in law that he published it (364).

18 The liability of a person for publication of defamatory material was considered by Eady J in Bunt v Tilley [2006] EWHC 407; [2007] 1 WLR 1243. The claimant alleged that three ISPs were publishers of defamatory material even though they played no role other than affording three defendants with internet access. The ISPs successfully applied to have the claim struck out. Eady J said:

In determining responsibility for publication in the context of the law of defamation, it seems to me to be important to focus on what the person did, or failed to do, in the chain of communication. It is clear that the state of a defendant's knowledge can be an important factor. If a person knowingly permits another to communicate information which is defamatory, when there would be an opportunity to prevent the publication, there would seem to be no reason in principle why liability should not accrue. So too, if the true position were that the applicants had been (in the claimant's words) responsible for 'corporate sponsorship and approval of their illegal activities'.

I have little doubt, however, that to impose legal responsibility upon anyone under the common law for the publication of words it is essential to demonstrate a degree of awareness or at least an assumption of general responsibility, such as has long been recognised in the context of editorial responsibility. As Lord Morris commented in McLeod v St Aubyn [1899] AC 549 at 562:

'A printer and publisher intends to publish, and so intending cannot plead as a justification that he did not know the contents. The appellant in this case never intended to publish.'

In that case the relevant publication consisted in handing over an unread copy of a newspaper for return the following day. It was held that there was no sufficient degree of awareness or intention to impose legal responsibility for that 'publication'.

Of course, to be liable for a defamatory publication it is not always necessary to be aware of the defamatory content, still less of its legal significance. Editors and publishers are often fixed with responsibility notwithstanding such lack of knowledge. On the other hand, for a person to be held responsible there must be knowing involvement in the process of publication of the relevant words. It is not enough that a person merely plays a passive instrumental role in the process. (See also in this context Emmens v Pottle (1885) 16 QBD 354 at 357 per Lord Esher MR) [21] [23].

19 As a general principle everyone who knowingly takes part in communicating defamatory material, in whatever degree, is a publisher and is therefore liable for defamation. Enquiry into the precise degree of involvement is unnecessary. However, practical guidance as to the operation of the principle can be usefully obtained from a consideration of circumstances in which a person has been held to be a publisher.

20 In Webb v Bloch the plaintiff, Webb, was the chairman of the South Australian Wheat Compensation Committee. The object of the committee was to obtain compensation from the government for alleged negligence in keeping and protecting wheat delivered to it for sale on behalf of growers. The defendants were members of a Victorian committee formed for a similar purpose. These committees acted for growers who had delivered wheat to the government for sale and contributors who had purchased scrip issued in respect of the wheat so delivered. Various legal proceedings were instituted to obtain compensation for the government's alleged negligence. The proceedings were controlled and directed by the committees. A solicitor, Norman, acted for both committees. The South Australian committee made arrangements to abandon the litigation of which it had control. The Victorian committee desired to carry on proceedings and for that purpose to appeal to South Australian growers for further funds. A circular was drafted by Norman on the instructions of the defendant, Bloch, who was the secretary of the Victorian committee. The draft was received by Bloch from Norman. None of the other defendants saw it. Bloch instructed Norman to issue circulars the best way he thought advisable, and his action in doing so was confirmed by the Victorian committee. At that time Bloch was still the only defendant aware of the contents of the circular. The defendants Crocker and Pratt subsequently saw copies of the circular. The defendant Murphy never saw the document. The circular was issued by Norman to growers in South Australia. The plaintiff complained the circular was defamatory of him.

21 The trial judge found that all the defendants were responsible for the issue of the circular and that it was defamatory, but that it was published under qualified privilege and none of the defendants were guilty of malice. On appeal, Knox CJ and Isaacs J held that all the defendants were responsible in law for the publication, and that although qualified privilege was established, Norman and Bloch knew the statements concerning the plaintiff were untrue, they were guilty of malice and that was to be attributed to all the defendants.

22 The issue of publication arose in the context of determining whether all the defendants were responsible for Norman's malice. Isaacs J found that Norman

was employed in general terms to compose 'a form of circular he would advise being sent to each grower and contributor', and at the same time to send 'a full list of names and addresses of growers and contributors' He was, therefore, employed to compose the circular 'for the purpose of publication' (36).

Isaacs J held that in law Norman published the defamation on Webb, even if he had not undertaken the actual distribution of the circular; he would still have been one of the principals in relation to Webb.

23 Counsel for the plaintiff, Mr Goldblatt, referred to The Queen v Cooper [1846] EngR 374; (1846) 8 QB 533, 977 where Lord Denman, after the sentence quoted by Isaacs J to which I have already referred, added: 'he takes his chance of what is to be published'. The defendant had told the newspaper editor that he wished to 'show up' the prosecutor and communicated to him the story which afterwards appeared in the newspaper and which was defamatory of the prosecutor. The defendant argued that he was not responsible for the publication in the newspaper because it contained additions to what the defendant had told the editor. The editor said that what the defendant communicated was substantially what was published. Lord Denman found it was sufficient that there was a substantial identity between what the defendant said to the editor and what was published. At [537] Coleridge J said the question was 'whether there be evidence that the defendant approved of this, not a, libel'. Coleridge J found that the defendant had authorised the publication. Wightman J said that the question was whether there was evidence sufficient to warrant the jury finding that the defendant authorised the publication of 'this libel' and found that there was. The point is that the defendant did not merely tell the story to the editor but authorised the particular publication, that is the publication of the story in the newspaper.

24 Mr Goldblatt submitted that the purposes for which the CCC Submission and the Executive Summary were prepared are not relevant to their publication to the media outlets. Mr Goldblatt said that it is for that very reason that a defendant is liable for unintentional publication of defamatory matter to a third person, and it is also for that reason that Isaacs J said in Webb v Bloch that the reservation and exercise of a final right of approval of the matter complained of and its publication would not relieve a defendant from being answerable as a publisher. Mr Goldblatt submitted that, in the words of Lord Denman in The Queen v Cooper, the person, in those circumstances, takes his chances of what is to be published.

25 It is necessary to use care in applying general statements of the kind made by Isaacs J in Webb v Bloch to which Mr Goldblatt referred. Isaacs J was directing his attention to the communication of defamatory material to particular persons, which the defendants had authorised. The circular in that action was drafted by the solicitor, Norman, on instructions of the defendant, Bloch. Bloch instructed Norman to issue the circulars to the wheat growers and his action in doing so was confirmed by the committee of which all the defendants were members. The court regarded this act of confirmation as rendering all the defendants responsible in law for the issue of the circular to the wheat growers to whom it was distributed.

26 Every communication of defamatory material to someone other than the plaintiff is a separate publication. In certain circumstances the publisher of defamatory matter may be liable not only in respect of the original publication but also in respect of the republication of such matter by someone else.

27 Generally, an original publisher is not liable for the voluntary republication of his or her defamatory statement by a third party over which he has no control, or for the damage caused by such a repetition of the defamation. The voluntary act of the third party breaks the chain of causation: McManus v Beckham [2002] EWCA Civ 939; [2002] 1 WLR 2982 [15] [26] (Waller LJ). However, an original publisher of defamatory material may be liable for its republication where the original publisher authorised its repetition, or had intended the repetition, or if the repetition of the words was the natural consequence of the defendant's original publication: Speight v Gosnay (1891) 60 LJQB 231.

28 The plaintiff did not put forward a case of republication. The plaintiff's case is that the defendants participated in, secured or authorised the publication of the documents to The Sunday Times and WA Today. The plaintiff's case is that the defendants took part in the publication to The Sunday Times by acting in concert with Mr Magro or by authorising Mr Magro to publish the documents to The Sunday Times.

29 There is no direct evidence that the defendants took part in, or authorised the publication of the documents to The Sunday Times and WA Today. Such conduct on the part of the defendants may of course be established by inference. Furthermore, the plaintiff says that the inferences which are open should more readily be drawn because the defendants did not give evidence.

30 In Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 the High Court considered when inferences may be drawn from proven facts and what inferences might be drawn from the unexplained failure of a party to give evidence. The plaintiff's husband was killed when the truck in which he was driving collided with a truck proceeding in the opposite direction. The plaintiff alleged that the death of her husband had been caused by the negligence of the driver of the other truck. Evidence was produced as to, amongst other things, the road conditions at the time, the speed of the truck driven by the deceased shortly prior to the accident, the condition of both trucks in the immediate aftermath of the accident, the relevant topography and the type of trucks involved. The driver of the other truck involved in the collision gave a statement in writing several days after the accident but did not give evidence at the trial. The majority of the High Court, Kitto, Menzies and Windeyer JJ, held that the facts furnished material from which the jury might legitimately have concluded that the driver of the other truck was negligent and had caused the death of the plaintiff's husband.

31 Dixon CJ made the following observations about the drawing of inferences:

In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true that 'you need only circumstances raising a more probable inference in favour of what is alleged'. But 'they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture'. These phrases are taken from an unreported judgment of this Court in Bradshaw v McEwans Pty Ltd (Unreported, delivered 27th April 1951) which is referred to in Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470, by Williams, Webb and Taylor JJ. The passage continues: 'All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.' (1956) 94 CLR, at pp 480, 481. But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.

Similar observations were made by Menzies J at (309 310).

32 In Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 Spigelman CJ discussed the difficulty in distinguishing between conjecture and inference. His Honour observed that while the distinction exists

it is often difficult to distinguish between permissible inference and conjecture. Characterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line division [84].

In Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352 Gummow J referred to this passage in Spigelman CJ's reasons with apparent approval and observed:

Whilst 'a more probable inference' may fall short of certainty, it must be more than an inference of equal degree of probability with other inferences, so as to avoid guess or conjecture. In establishing an inference of a greater degree of likelihood, it is only necessary to demonstrate that a competing inference is less likely, not that it is inherently improbable [94].

Consequences of defendants having not given evidence

33 Neither of the defendants gave evidence. The rule in Jones v Dunkel relates to the unexplained failure of a party to give evidence. The scope and operation of the principle in Jones v Dunkel was recently explained by Heydon, Crennan and Bell JJ in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361, in the following terms:

The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn.

34 The principle was more recently referred to by the High Court in Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 86 ALJR 522, French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said:

[165] Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led. Principles governing the onus and standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard.

...

[166] Lord Mansfield's dictum in Blatch v Archer that '[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted' is not to be understood as countenancing any departure from any of these rules. Indeed, in Blatch v Archer itself, Lord Mansfield concluded that the maxim was not engaged for 'it would have been very improper to have called' the person whose account of events was not available to the court.

[167] This court's decision in Jones v Dunkel is a particular and vivid example of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used. The essential facts of the case, though well known, should be restated. The personal representative of a driver who had died in a collision with another vehicle brought an action for damages on her own behalf and on behalf of the deceased driver's dependants. The plaintiff's case depended upon demonstration that the other driver's negligence was a cause of the accident. The plaintiff sought to demonstrate negligence by having the tribunal of fact (in that case a jury) infer from facts concerning the road and the two vehicles involved that the collision had occurred when the defendant's vehicle was on the wrong side of the road. One of the defendants, the surviving driver, did not give evidence at the trial. The court divided about whether the inference which the plaintiff sought to have the jury draw about where the collision occurred was an inference that was open on the evidence. But the court held 'that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence'.

[232] The Court of Appeal accepted that its reasoning went 'beyond Jones v Dunkel'. Indeed, it agreed with the trial judge's conclusion that the rule in Jones v Dunkel did not apply. As the Court of Appeal said, two consequences can flow from the unexplained failure of a party to call a witness whom that party would be expected to call. One is that the trier of fact may infer that the evidence of the absent witness would not assist the case of that party. The other is that the trier of fact may draw an inference unfavourable to that party with greater confidence. But Jones v Dunkel does not enable the trier of fact to infer that the evidence of the absent witness would have been positively adverse to that party ...

...

[250] ... In Blatch Lord Mansfield CJ stated:

'It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.'

'... when a court is deciding whether a party on whom rests the burden of proving an issue on the balance of probabilities has discharged that burden, regard must be had to that party's ability to adduce evidence relevant to the issue and any failure on the part of the other party to adduce available evidence in response.'

35 The principles in Blatch v Archer [1774] EngR 2; (1774) 98 ER 969 and Jones v Dunkel were considered by Murphy JA in Fazio v Fazio [2012] WASCA 72. Murphy JA referred to the following observations of the majority in RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [25] - [26]:

It is necessary to keep at the forefront of consideration that the mode of reasoning which is described proceeds from the premise that the person who has not given evidence not only could shed light on the subject but also would ordinarily be expected to do so. ...

In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party's camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party's case and that:

'where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.' (emphasis in original) (footnotes omitted)

Having referred to a number of authorities Murphy JA said:

The authorities point to the need for the trier of fact to evaluate the whole of the evidence, drawing such inferences of fact as are appropriate from the direct evidence. In the evaluation of the evidence and its sufficiency, the judge should consider whether a party could and would ordinarily be expected to give or call certain evidence on an issue. The failure to call such evidence may (not must) allow the judge to infer that the omitted evidence would not have assisted that party's case on the issue, and to:

• take that matter into account in deciding whether and to what extent to accept other evidence on the issue;
• more confidently or readily draw inferences of fact adverse to that party which might otherwise be open on the issue [138].

36 The onus is on the plaintiff to prove that the defendants published, or caused to be published, the relevant documents to The Sunday Times and WA Today. In the case of The Sunday Times the plaintiff must prove, on the balance of probabilities, that the defendants took part in, or authorised, the publication of the documents to The Sunday Times. The defendants took part in or authorised the publication if they acted in concert with Mr Magro to publish the documents to The Sunday Times, or if Mr Magro gave the documents to Mr Cordingley in pursuance of their common purpose or design or that the defendants had authorised Mr Magro to do so, or that the defendants supplied Mr Magro with the documents, or facilitated or permitted him to obtain them, intending or knowing that he would distribute them to The Sunday Times or media organisations in Perth.

37 In the case of WA Today, the plaintiff must prove, on the balance of probabilities, that the defendants took part in or authorised the publication of the CCC Submission to WA Today. The defendants took part in or authorised that publication if they supplied the CCC Submission to WA Today or instructed or authorised or acted in concert with someone else to do so, or that they or someone else gave the document to WA Today in pursuance of their common purpose or design, or that the defendants supplied someone with the document, or facilitated or permitted them to obtain a copy of it, intending or knowing that they would distribute it to WA Today or media organisations in Perth.

Defendants supplied Magro, or facilitated him obtaining, the documents

38 Mr Magro did not obtain the documents he gave to Mr Cordingley from the Corruption and Crime Commission. The form and contents of the Executive Summary Mr Magro gave to Mr Cordingley leads to that conclusion. The Executive Summary Mr Magro gave to Mr Cordingley was not part of the CCC Submission sent by Mr Sabatino and Mr Anderton to the Commission on 17 December 2009. The Executive Summary document given by Mr Magro to Mr Cordingley is not a copy of the pages of the Executive Summary which was incorporated into, and formed pages 3 to 5 of, the revised CCC Submission Mr Sabatino and Mr Anderton sent, or caused to be sent, to the Commission on 6 January 2010. The copy Mr Magro gave to Mr Cordingley commences with the words: 'The following is the basic outline of the report to the CCC and allegations within that report'. Those words do not appear in the Executive Summary incorporated into the 6 January 2010 version of the CCC Submission. The conclusion that Mr Magro did not obtain the documents from the Corruption and Crime Commission is supported by two further facts. First, the copy letter from Mr Sabatino and Mr Anderton to the Commission dated 17 December 2009 is unsigned. It is unlikely that the letter of 17 December 2009 from Mr Sabatino and Mr Anderton to the Commission which was sent to the Commission would not have been signed by Mr Sabatino and Mr Anderton. Secondly, the copy letter does not have a Corruption and Crime Commission receipt stamp. The copy of the 6 January 2010 letter from Mr Sabatino and Mr Anderton to the Commission which was forwarded by the Commission to Ms Lefante had a Corruption and Crime Commission receipt stamp.

Defendants took part in or authorised publication to The Sunday Times

39 The plaintiff submits that it is open to infer, and in the absence of any evidence by the defendants it should be inferred, that the defendants took part in or authorised the publication of the CCC Submission and the Executive Summary to Mr Cordingley and The Sunday Times. I find that inference is open. That is, the inference is open that the defendants acted in concert with Mr Magro to publish the documents to The Sunday Times, or Mr Magro gave the documents to Mr Cordingley in pursuance of their common purpose or design, or that the defendants authorised Mr Magro to do so, or that the defendants supplied Mr Magro with the documents, or facilitated or permitted him to obtain them, intending or knowing that he would distribute them to The Sunday Times.

40 That inference arises from the following facts. Mr Magro knew and had a working relationship with the defendants. They were fellow councillors at the City. Mr Magro supplied Mr Sabatino with a copy of the CCTV surveillance tapes. Mr Magro asked Mr Sabatino to table his letter of 23 November 2009 to Mr Sabatino along with the surveillance tapes at a council meeting, and requested that copies be given to, and/or provided to, council members or committee members. Mr Magro supplied the surveillance tapes from which the photographs in the CCC Submission were taken. It appears from the opening words of the Executive Summary which Mr Magro gave to Mr Cordingley that it was a document prepared as a summary for other persons of the submission that had been made by the defendants to the Corruption and Crime Commission, or that it was a draft or working document that was to be incorporated into a revised submission to be made to the Commission. There is no evidence that anyone other than the defendants and Mr Magro were in possession of, or had access to, that summary or draft or working document. The copy of the Executive Summary which Mr Magro gave to Mr Cordingley was a draft of the executive summary that was subsequently incorporated into the revised submission sent by the defendants to the Commission on 6 January 2010. The most likely explanation for Mr Magro being in possession of a draft of that sort is that it was supplied to him by the defendants, or that he and the defendants jointly produced it or the printed or electronic document from which it was copied or printed. Mr Magro was in possession of not only a copy of the CCC Submission and the Executive Summary, but an unsigned copy of Mr Anderton and Mr Sabatino's letter of 17 December 2009 to the Commission. The most likely explanation for Mr Magro being in possession of an unsigned copy of the letter is that it was supplied to him by the defendants, or that he and the defendants jointly produced it, or the printed or electronic document from which it was copied or printed.

41 The defendants did not produce the CCC Submission only for the purpose of submission to the Corruption and Crime Commission. They sent, or caused to be sent, a copy of the submission to the Electoral Commissioner, the Minister for Local Government, the Speaker of the Legislative Assembly and the Returning Officer and Deputy Returning Officer for the City of Bayswater. Mr Magro, who participated with the defendants in producing the CCC Submission, was in possession of the Executive Summary, the CCC Submission and the unsigned letter of 17 December 2009 from the defendants to the Corruption and Crime Commission. Mr Magro gave it to a journalist, openly and without placing any restriction on its use or on the disclosure of its source.

42 The inference that the defendants took part in or authorised the publication of the CCC Submission and the Executive Summary to Mr Cordingley in one of the ways I have referred to is more likely than the competing inference that the defendants had nothing to do with and no knowledge of Mr Magro giving the CCC Submission to Mr Cordingley or The Sunday Times. In establishing an inference of greater degree of likelihood, it is only necessary to demonstrate that competing inferences are less likely, not that they are inherently improbable: Gummow J in Lithgow City Council v Jackson.

43 The conditions for the application of the principle in Jones v Dunkel apply in this case. There is no explanation for the failure of Mr Sabatino and Mr Anderton to give evidence. Evidence was led by the plaintiff which requires an explanation. Mr Magro was in possession of an unsigned copy of a letter and submission document apparently produced by the defendants for submission to the Corruption and Crime Commission and others. Mr Magro was also in possession of a summary of the submission for the use of persons other than the Commission, or a draft or working document apparently produced by the defendants for incorporation into a further report to the Commission. The evidence gives rise to the inference that the defendants supplied the documents to Mr Magro, or that Mr Magro had access to an electronic copy of the documents with the knowledge and consent of the defendants. Mr Magro and the defendants were, or had been, councillors of the City at the same time. Mr Magro had given a copy of the surveillance tapes to Mr Sabatino. Mr Magro requested that Mr Sabatino table his letter of 23 November 2009 to Mr Sabatino along with the surveillance tapes at a council meeting and requested that copies be given to or provided to council members or committee members. Photographs taken from the surveillance tapes supplied by Mr Magro to Mr Sabatino formed a central part of the CCC Submission. There is no evidence that Mr Magro had any relationship with or dealings with anyone else who had a copy of the CCC Submission. There is no evidence that anyone other than Mr Magro or the defendants had a copy of or access to the copy of the Executive Summary which Mr Magro gave to Mr Cordingley. The evidence of the defendants would have elucidated how Mr Magro came to be in possession of the documents, or might have proved that he did not obtain them from the defendants. The evidence of the defendants would have elucidated whether they acted in concert with Mr Magro or authorised him to provide a copy of the CCC Submission and Executive Summary to Mr Cordingley, The Sunday Times or other media outlets. The defendants had knowledge of how the CCC Submission, the Executive Summary and letters from Mr Sabatino and Mr Anderton to the Commission were produced, what copies were made or retained and whether they were retained electronically, in hard copy or otherwise and what copies they distributed to persons or organisations other than the Corruption and Crime Commission.

44 The failure of the defendants to give evidence enables the court to more confidently or readily draw inferences of fact adverse to the defendants which are otherwise open on the evidence. The inference is open that the defendants took part in or authorised the publication to The Sunday Times in one of the ways I have outlined. That inference might be more confidently and readily drawn because the defendants did not give evidence. I draw that inference.

Defendants took part in publishing CCC Submission to WA Today

45 It is open to infer that the defendants took part in or authorised the publication of the CCC Submission to WA Today. That is open to be inferred from the following matters. First, the article appeared online at 7.42 am on Monday, 21 December 2009 which is soon after the defendants had submitted the CCC Submission to the Commission on Thursday, 17 December 2009. Second, the article described the complaint to the Commission as 'a submission'. That is the description of the CCC Submission appearing on the face of the document. Third, the article describes the submission as a 35 page submission. The CCC Submission, including the title page, table of contents and attached letter entitled 'an invitation', is 35 pages. Fourth, the article says that the complaint is against new mayor Terry Kenyon and three councillors for alleged breaches relating to providing food and drink to voters during the council election period. The plaintiff says that reflects the allegations at page 31 of the CCC Submission.

46 For those reasons, the inference that WA Today was in possession of a copy of the document is more probable than the competing inference that WA Today, or its staff, was informed of the information in the article without having a copy of the CCC Submission. I draw the inference that WA Today was in possession of a copy of the CCC Submission no later than 21 December 2009.

47 It is open to infer that the defendants took part in or authorised the publication of the CCC Submission to WA Today in that they supplied the CCC Submission to WA Today, or instructed or authorised or acted in concert with someone else to do so, or that they or someone else gave the document to WA Today in pursuance of their common purpose or design, or that the defendants supplied someone with the document, or facilitated or permitted them obtaining a copy of it, intending or knowing that they would distribute it to WA Today or media organisations in Perth.

48 The inference is open by reason of the facts which give rise to the inference that WA Today had a copy of the CCC Submission and the following further facts. The defendants are the authors, or producers, of the document. The defendants sent, or caused to be sent, a copy of the CCC Submission to the Corruption and Crime Commission, Minister for Local Government, Electoral Commissioner, Speaker of the Legislative Assembly, Returning Officer and Deputy Returning Officer of the City of Bayswater. Mr Magro participated with the defendants in producing the CCC Submission and gave a copy of the submission to Mr Cordingley of The Sunday Times. There is no evidence that anyone else was in possession of a copy of the CCC Submission. It is more likely that the defendants, directly or indirectly, distributed the CCC Submission to WA Today than that WA Today obtained a copy from the Corruption and Crime Commission or one of the other bodies to which the letters in evidence show it was sent. The Corruption and Crime Commission is a statutory body which investigates complaints sent to it. The other recipients of the submission are public bodies or officeholders. There is no evidence that any of them had a practice of providing copies of allegations of breaches of the law or codes of conduct to media outlets or that they did so on this occasion. There is no evidence that anyone else had possession of a copy of the document, or had access to it.

49 It is possible to frame other hypotheses as to how the CCC Submission was provided to WA Today. However, it is sufficient that the inference that the defendants, directly or indirectly, provided it to WA Today or were knowingly a party to it being provided to WA Today is more likely than competing inferences. It is open to draw the inference that the defendants, directly or indirectly, provided the CCC Submission to WA Today or were knowingly a party to it being provided to WA Today. The inference being open, it might more confidently and readily be drawn because the defendants did not give evidence. I draw the inference.

50 The preliminary questions should be answered as follows:

1. On or a short time after 17 December 2009, the defendants published, or caused to be published, the CCC Submission to the WA Today online media service and The Sunday Times newspaper.
2. The defendants published, or caused to be published, the Executive Summary to The Sunday Times newspaper.